The claimant was a bus driver of long service. He went off sick and after several occupational health meetings with a doctor, the last of which concluding that the claimant was not likely to be fit to return to driving buses for at least 8 weeks, he was dismissed. Two internal appeals, one in June and the other in August failed. At the second appeal, it was proposed that the claimant should attend a training school for a driver assessment. The claimant wanted to check with his GP but the respondent was not prepared to wait any longer and the dismissal was upheld. The claimant took a claim of unfair dismissal to the ET and won. The Tribunal ruled that dismissal was unreasonable but had stopped the fairness clock at the effective date of termination; they did not consider, in relation to reasonableness, what if any effect the subsequent appeal process might have had on that question.

The EAT upheld the appeal. In determining the reasonableness of the respondent's decision to dismiss for a potentially fair reason, here ill health capability, the Tribunal should have looked at the whole of the disciplinary process, including post dismissal internal appeals.
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Appeal No. UKEAT/0643/11/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 10 May 2012

Before

HIS HONOUR JUDGE PETER CLARK, MR R LYONS, MR B M WARMAN

FIRST HAMPSHIRE & DORSET LTD (APPELLANT)

MR V S PARHAR (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR F SUTCLIFFE (Solicitor)

Ford & Warren Solicitors
Westgate Point
Westgate
Leeds
LS1 2AX

For the Respondent
MR GARY SELF (of Counsel)

Instructed by:
Hannides & Co
43-45 High Street
Shirley
Southampton
SO15 3UN

UNFAIR DISMISSAL – Reasonableness of dismissal

Ill health capability dismissal. Section 98(4) Employment Rights Act 1996 reasonableness judged by Employment Tribunal only as at EDT; ET ought to have considered the whole disciplinary process, including subsequent appeals; West Midlands Co-operative Society Limited v Tipton [1986] IRLR 112; Taylor v OCS Group Limited [2006] IRLR 613. Appeal allowed; fairness issue remitted to same ET.

1. This appeal raises a short point on the relevance of an internal appeal procedure following dismissal on the fairness of that dismissal applying section 98(4) of the Employment Rights Act 1996.

1. The parties before the Southampton Employment Tribunal were Mr Parhar, Claimant, and First Hampshire & Dorset Limited, Respondent. The Respondent operates a transport service which employed the Claimant as a bus driver from 8 December 1979 until the effective date of termination of his contract on the grounds of illhealth incapacity on 10 June 2010. He was then given 12 weeks pay in lieu of notice.

1. His complaint of unfair dismissal came before a Tribunal chaired by Employment Judge Gardiner. It was defended. By a Judgment with Reasons dated 10 August 2011 the Tribunal held that the Claimant's dismissal was unfair, but that there was a 50% chance that had he not been dismissed on 10 June 2010, then at a subsequent sickness review held about 8 weeks later that he would have made a significant recovery such as to allow him to continue his employment. Remedy was adjourned on that basis.

1. The factual background, as found by the Tribunal, is that the Claimant commenced a period of sick absence on 3 November 2009. He never returned to work before his dismissal by Mr Morgan on 10 June 2010.

1. During the intervening period he was seen by a Dr Bond of Occupational Health. She reported initially on 4 December 2009. On 25 March 2010 a grievance which he had raised was dismissed. A sickness meeting was held on 8 April 2010 and on 26 April 2010 Dr Bond saw the Claimant again. Her opinion at that stage was that it was difficult to see how he would return to work. On 24 May 2010 his appeal against the outcome of his grievance was dismissed and on 2 June 2010 Dr Bond saw him for a third time. In her report dated 7 June 2010 she noted that the Claimant had said that he wanted to continue to work as a bus driver for the Respondent but was not yet well enough to do so. Indeed, he did not have the confidence then to drive his own motorcar. She was of the opinion that the Claimant was not likely to be fit to return to driving buses for at least 8 weeks; it could be longer.

1. On that state of the Respondent's medical advice, Mr Morgan proceeded to dismiss the Claimant at a meeting on 10 June 2010. Against that decision the Claimant appealed, first to Ms Bainbridge, who dismissed his appeal, following a hearing, by a letter dated 25 June 2010 and finally to the Managing Director, Mr Reddy.

1. The Reddy appeal hearing took place on 4 August 2010, some 8 weeks after the Morgan hearing. Mr Reddy took into account the Claimant's very long service with the Company and proposed that he attend training school for a driver assessment in 5 days' time. The Claimant said he would have to check with his General Practitioner, but Mr Reddy was not prepared to wait any longer. He dismissed the appeal.

1. In expressing their conclusions on whether dismissal on capability grounds fell within or outside the band of reasonable responses (paragraph 49), it is clear to us that the Tribunal judged that reasonableness question as at the effective date of termination, 10 June 2010. Their finding (paragraph 50) was that it fell outside the band to dismiss the Claimant on 10 June 2010 with pay in lieu of notice, rather than wait for a further 8 weeks to see whether Dr Bond's potential timescale was realistic. The Tribunal stopped the fairness clock at the effective date of termination; they did not consider, in relation to reasonableness, what if any effect the subsequent appeal process might have had on that question.

1. That, submits Mr Sutcliffe for the Respondent, was an error of law. We agree. It is plain from the House of Lord's decision in West Midlands Co-perative Society Limited v Tipton [1986] IRLR 112, applied by Court of Appeal in Taylor v OCS Group Limited [2006] IRLR 613, that in determining the reasonableness of the Respondent's decision to dismiss for a potentially fair reason, here ill-health capability, the Tribunal must look at the whole of the disciplinary process, including post-dismissal internal appeals. We are unable to accept Mr Self's submission, on a fair reading of the Tribunal's Reasons, that they did properly take into account the appeal process in determining fairness under section 98(4); on the contrary, it is plain from paragraphs 49 and 50 that the Tribunal considered fairness only up to and including the dismissal stage on 10 June 2010.

1. That error is potentially material on the facts because Mr Sutcliffe argues that since the unfairness (see paragraph 50) found by the Tribunal consisted only of the Respondent failing to wait 8 weeks to see whether Dr Bond's prediction for a return to work, given on 7 June 2010, was accurate or not, that defect was cured by the second appeal before the Managing Director on 4 August 2010. Taylor v OCS Group makes clear that there is no material distinction to be drawn between an appeal by way of review or by way of rehearing.

1. We are not persuaded that the answer to the fairness question is so simple. A judgment is still required as to whether the decision to dismiss the Claimant's second appeal on 4 August 2010 contributed to a fair or unfair dismissal. That is a question which, in our judgment, should be made by the factfinding Employment Tribunal and the same Tribunal which originally heard the case and which has adjourned the remedy hearing. We shall, therefore, allow this appeal and remit the question of fairness under section 98(4) to the Gardiner Employment Tribunal for reconsideration, taking into account the internal appeal process. It would be sensible to list the remedy issue to follow the remitted liability hearing, should that question arise. Finally, it will be for the Employment Tribunal to decide, in the exercise of its case management powers, whether or not the parties may adduce any further evidence on the remitted liability hearing.