powered by Zehuti
Appeal against a decision that the claimant was unfairly dismissed on the grounds of ill health. Appeal dismissed.
The claimant was dismissed on capability grounds due to ill health. He was absent ill for a series of substantial periods and for several months before the dismissal, at the time of which he, supported by his own doctors, said that he was fully unable to work. This conflicted with the views of the Occupational Therapist who said that the claimant was able to work. The claimant was also entitled, while in employment, under an income protection scheme to be paid 66 per cent of his salary while fully unable to work and a lesser proportion if partially unable to work. The respondent accepted that if the claimant was unable to work within the terms of the scheme they would not have dismissed him; the Employment Tribunal found that in these circumstances dismissal fell outside the range of reasonableness. In effect the respondent was seeking to assert that the claimant was not sufficiently unwell to fall within the terms of the scheme but sufficiently unwell to justify dismissal. The respondent appealed.
The EAT rejected the argument that the ET had substituted their own view of what was reasonable. The ET more than once used the word 'unreasonable' to describe the respondent's actions; but they had given themselves a correct direction as to the law; their Judgment should be read as a whole; their use of the word 'unreasonable' shortly after a correct self-direction should be taken to mean 'outside what a reasonable employer would have done'.
Appeal No. UKEAT/0511/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On 26 March 2012
Judgment handed down on 11 July 2012
HIS HONOUR JEFFREY BURKE QC, MS G MILLS CBE, MR S YEBOAH
CFS MANAGEMENT SERVICES LTD (APPELLANT)
MR R THOMAS (RESPONDENT)
Transcript of Proceedings
For the Appellant
MS NADIA MOTRAGHI (of Counsel)
Co-operative Financial Services Legal Department
For the Respondent
MR RICHARD LEIPER (of Counsel)
Bar Pro Bono Unit
UNFAIR DISMISSAL - Reasonableness of dismissal
The Claimant was dismissed for ill-health. He was entitled, while in employment, under an income protection scheme to be paid 66 per cent of his salary while fully unable to work and a lesser proportion if partially unable to work. He was absent ill for a series of substantial periods and for several months before the dismissal, at the time of which he, supported by his own doctors, said that he was fully unable to work. The Respondent accepted that if the Claimant was unable to work within the terms of the scheme they would not have dismissed him; the Employment Tribunal found that in these circumstances dismissal fell outside the range of reasonableness. In effect the Respondent was seeking to assert that the Claimant was not sufficiently unwell to fall within the terms of the scheme but sufficiently unwell to justify dismissal.
The thrust of the appeal was that the ET had substituted their own view of what was reasonable; The ET more than once used the word 'unreasonable' to describe the Respondent's actions; but they had given themselves a correct direction as to the law; their Judgment should be read as a whole; their use of the word 'unreasonable' shortly after a correct self-direction should be taken to mean 'outside what a reasonable employer would have done'.
HIS HONOUR JEFFREY BURKE QC
1. In this appeal the Respondent before the Tribunal, CFS Management Services Ltd, challenges the decision of the Tribunal, sitting at Bristol and presided over by Employment Judge Mulvaney, sent with Reasons to the parties on 28 June 2011, that the Claimant, Mr Thomas, had been unfairly dismissed.
2. The Claimant, in his claim form to the Tribunal, claimed that his dismissal by the Respondent on 27 April 2010 was unfair and was an act of direct disability discrimination. The Tribunal rejected the latter complaint but upheld the former. The decision to reject the discrimination complaint has not been the subject of any appeal. This appeal relates only to the unfair dismissal decision.
3. The Respondent has been represented before us by Ms Motraghi, as before the Tribunal; the Claimant has been represented by Mr Leiper, having appeared in person before the Tribunal. We are grateful to counsel for their helpful submissions and for their additional written submissions in response to our instruction to them to consider the decision in Aspden v Webbs Poultry and Meat Group (Holdings) (see para. 40 below) and Fuller v London Borough of Brent (see para. 55 below)
4. The Claimant's employment as a mortgage advisor began in April 2006; his employers were originally the Britannia Building Society; but he became an employee of the Respondent, who are part of the "Co-Op", presumably under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations.
5. We take the relevant history from the facts as found by the Tribunal. In May 2007 the Claimant, then aged 51, first went off work sick; he had a hormonal condition which caused fatigue, a benign tumour of the pituitary gland and a thyroid condition. He returned to work for a short time but went off work again in October 2007 and again in February 2008. In February 2009 he returned to work on a phased basis; but he went off work again in the summer of 2009 and, apart from one brief period, he remained off work up to the date of his dismissal. He must, therefore, have been away from work for a considerable portion of the three years between May 2007 and his dismissal, ending with a period of continued absence of four-and-a-half months.
6. The Employment Tribunal's Judgment identified three doctors who became involved in the Claimant's case. They were Dr O'Brien of AXA, who were the Respondent's occupational health advisors, Dr Cairns, described as an independent doctor, whose speciality appears to have been unknown to the Tribunal, and Dr Close, a consultant endocrinologist. There are also references in the papers to an unnamed neurologist.
7. It is an important part of the factual setting of this case that the Claimant was entitled, if the relevant conditions were met, to participate in an income protection scheme pursuant to which the Claimant's salary, or a specified portion thereof, was payable, if the Claimant remained in the Respondent's employment but was medically unable to work or partially unable to work, and otherwise complied with the requirements of the scheme. The scheme was called the Britannia Income Protection Scheme, or "BIPS".
8. Under that scheme the Claimant, if he was an employee of the Respondent (originally of Britannia), was medically unable to work as defined in the policy and had been absent from work for 26 weeks within a period of 52 weeks, would be entitled to 66 per cent of his salary if fully unable to work and to a proportionate payment if partially unable to work. This entitlement ceased to apply if the Claimant was older than 69 or in other circumstances which do not apply in the present case. It was not in dispute that the Claimant, at the relevant time, satisfied all the eligibility requirements for payments under the scheme if he was "medically unable to work".
9. An employee under the scheme would be fully unable to work if fully unable, due to accident or illness, to do work of a suitable kind.
10. The precise terms of the scheme were, at our request, put before us without objection. It is not clear whether they were in evidence before the Tribunal; but nothing turns on them; the outline which we have given of those terms suffices.
11. It is not possible to consider the reasons for the Employment Tribunal's decision without setting out, in some detail, the history of the Respondent's exploration of the Claimant's fitness to work, as the Tribunal found that history to have been. In July 2007, the Claimant having been off work for two months, the Respondent obtained a report from Dr O'Brien which was based on an assessment of the Claimant by Dr Cairns. They were thus informed that the Claimant had the conditions that we have described above, as a result of which he was not fit for work, and was likely to be absent for some time.
12. In October 2007 the Claimant was again off work, after a brief return. Dr O'Brien advised that adjustment to the Claimant's hours might be required and suggested that he might be eligible under BIPS. In February 2008 the Claimant went off work again; and the Respondent again turned to Dr O'Brien. The Claimant agreed that his GP and Dr Close, who was, it seems, as a consultant endocrinologist, in charge of the Claimant's treatment, should provide information to Dr O'Brien. However, the reports thus provided to Dr O'Brien were not (presumably for reason of confidentiality) provided to the Respondent, who never saw them. Dr O'Brien reported in April 2008 that the Claimant was unlikely to be fit for work for 6 to 12 months, but that it was likely that he would be able to return to his job eventually.
13. Dr O'Brien provided further reports to the Respondent on five occasions between March and November 2008. Before the last of those reports, the Claimant had seen Dr Cairns again; Dr Cairns concluded that the Claimant remained unfit for work because of headaches, poor concentration and memory and poor exercise tolerance, although his condition might improve to the point at which he could benefit from a graduated return to work. Shortly before Dr O'Brien referred again to Dr Cairns, he had said, on 20 October 2008, that the Claimant should return to work on a graduated basis; after the Claimant had seen Dr Cairns, Dr O'Brien reported, on 28 November, to the Respondent in these terms:
"I advise that a return to work should be discussed with Mr Thomas, this is consistent with the advice from his specialist, although this advice was not given by that specialist."
14. The Respondent did not see Dr Cairns' report or any reports provided from Dr Close in October and November 2008, which in any event said nothing about fitness to return to work. So, no doubt, acting on Dr O'Brien's latest reports, they held a return to work meeting with the Claimant, on 10 December. The Claimant said that he was unable to work. Two months later there was a further return to work meeting, held on the basis of advice from Dr O'Brien that the Claimant could begin a six-week graduated return to work on reduced duties, based temporarily at the branch in Taunton which was nearest to where he lived; his regular workplaces were at Wells and Shepton Mallet.
15. On 27 February Dr O'Brien confirmed his advice as to the Claimant's ability to work, although Dr Close had provided a report that said, "I am not optimistic he will return to work given his progress to date". The Tribunal pointed out that this was the second time that Dr O'Brien's report to the Respondent appeared to be in conflict with the views of the consultants who were assessing the Claimant's condition.
16. The Claimant started a phased return to work; he had to do a training course, after which he returned to the Shepton Mallet branch, and, because Wells was further from his home, he was asked instead to work from the Clevedon branch.
17. On 8 July 2009 Dr O'Brien reported that the Claimant, "is now as healthy as he will ever be, and should now be fit for full duty". The Claimant's evidence was that this was over-optimistic and that he was struggling with the hours and the travelling. He received advice from Dr Close that the demands of his job might be excessive for his condition. So, again, Dr O'Brien was out of step, albeit unknown to the Respondent.
18. On 10 September 2009 the Respondent learned, in Dr O'Brien's absence, from another doctor at AXA that Dr Close had said in February that he was not optimistic about a return to work. In October, because the Claimant was complaining of excessive tiredness, the Respondent again contacted Dr O'Brien, who confirmed the view he had earlier expressed; meanwhile, the Claimant had again gone off work sick, never, as it turned out, to return.
19. On 2 November 2009 there was an absence review meeting chaired by Mr Gilyeat. The Claimant said that he was able to do his work but not to travel the distance from home to work. Mr Gilyeat suggested that the Claimant could undertake a lesser role at a branch nearer to his home; but the Claimant rejected that offer on the basis that his health would not allow him to take on that role because of his continuing headaches; so, he was himself saying that he could not do even a lesser role.
20. The Respondent then sought yet another report from Dr O'Brien, asking specific questions as to the Claimant's ability to undertake either his role as mortgage advisor or the proposed lesser role and whether his condition impacted on his ability to drive about 30 miles. Dr O'Brien obtained another report from Dr Close which informed Dr O'Brien that the Claimant was on optimised therapy for his hormonal conditions, that he might require radiotherapy because of the growth of his tumour and that he was still troubled by headaches and was seeing a headache specialist. Despite that, Dr O'Brien reported that the Claimant was fit for work.
21. There was a further sickness review meeting in February 2010. Of this meeting the Tribunal said:
"5.24. [...] The meeting recorded that the claimant considered himself unfit for work and that his GP had signed him off work, that the AXA Report of 21 January 2010 confirmed that the claimant was fit for work. The claimant informed the respondent that his consultant, Dr Close, had recommended to AXA that they consult the claimant's neurologist and asked if that had been done. Ms McGuinness later spoke to Dr O'Brien who said that he had not contacted the claimant's neurologist as Dr Close had not recommended that he did. He had simply acknowledged that he was not an expert in the field and 'if it was required, contact him'. Ms McGuinness recorded in her notes that Dr O'Brien 'felt it was excessive obtaining a report from the neurologist and would not change/add to the current situation and would not change his advice to us'."
The records of that meeting show the Claimant as saying that he was "not good" and could not see a return to work in the short term.
22. The next step is set out in paragraphs 5.28 and 5.29 of the Tribunal's Judgment in these terms:
"5.28. The respondent sought further confirmation from Dr O'Brien asking for confirmation: 1) that contacting the claimant's neurologist was not appropriate, as he had up to date information; 2) that despite the claimant and his GP stating that he is unfit to work, Dr O'Brien maintained that he was fit to return to work; and 3) that eligibility for BIPS was not an option.
5.29. Dr O'Brien responded on 12 March 2010. He said:
'1) Dr Close is an endochrinologist [sic] and he his [sic] given a high quality assessment of Mr Thomas' endocrine (hormonal) health. He has commented on Mr Thomas' headaches and has said firstly that Mr Thomas is under the care of a neurologist and secondly there is no evidence that the neurologist has come to any conclusion in this case. What Dr Close has stated is that he is an endochrinologist and not a neurologist so he is not able to advice [sic] on the headache. Your first email gave it incorrectly, but I understood you in your second email correctly notes [sic] Dr Close's discipline. I am a generalist and the information available suggests that I would be correct in concluding that the neurologist has no definitive information to give. This case has run on for some considerable time and I do not think there will be any resolution of the headaches in the near future.
2) It is my opinion that Mr Thomas is as medically fit for work as he will ever be and that he should be in work.
3) There is insufficient evidence of medical conditions causing Mr Thomas's absence for me to support a BIPS claim; although this is a panel decision, I have experience of how they work and I have the relevant policy and guidance available to me'."
23. It is clear from that response that Dr O'Brien was, in addition to advising the Respondent, also advising BIPS.
24. On 31 March 2010 there was a final sickness review meeting, about which the Tribunal made the following findings in paragraphs 5.30 to 5.32:
"5.30. A final sickness review meeting took place on 31 March 2010. This was conducted by Mr Rippin, Regional Mortgage Manager and attended by Gilyeat, Ms McGuinness [HR consultant] and the claimant with his union representative, Miss Bailey. At the meeting the claimant referred to bouts of amnesia, memory problems and said that his neurologist had referred him for tests for a possible diagnosis of transient epileptic amnesia. The meeting recorded that this was in addition to existing symptoms of severe headaches, energy loss, memory loss, lack of concentration, and to the pituitary gland tumour which was growing again, and for which radiotherapy was required.
5.31. The claimant was asked if he was fit for work and he said no. His GP had signed him off for another month. The claimant again raised the question of how Dr O'Brien could certify fit for work without speaking to his neurologist. He was informed that the occupational health practitioner's view was that the information from the neurologist would be inconclusive and would not change the recommendation. At the end of the meeting the claimant was too unwell to remain for the outcome, which was given to his union rep in his absence.
5.32. The outcome of the meeting was that the claimant's employment should be terminated on grounds of capability due to ill-health. Mr Rippin's reasons for reaching that conclusion, were that the claimant's health appeared to have got worse with the latest condition and that there was no prognosis for a return to work. There was no suggestion in Mr Rippin's stated conclusions that the claimant was in fact fit for work and unjustifiably absent."
25. It is fair to say, in relation to that last remark of the Tribunal, that it was never part of the Respondent's case that the Claimant was unjustifiably absent.
26. The Claimant appealed against his dismissal, asking, among other questions, whether he was covered under BIPS. The Respondent was told that he did not qualify under BIPS because of the advice from Dr O'Brien. Dr O'Brien was consulted again and repeated that there was no need to seek a neurologist report or any further medical evidence.
27. The Claimant's appeal was dismissed. The decision-maker, Mr Morgan, was told on behalf of the Respondent that Dr O'Brien had confirmed that the Claimant was as well as he would ever be, and that there was no suggestion of a return to work in either the short or medium term. Mr Morgan decided that the Claimant was saying he was unfit for work (we repeat that nobody suggested that he was not genuine) and was unable to provide a prognosis for a return to work.
The Tribunal's Conclusions
28. The Tribunal began their conclusions as to unfair dismissal by pointing out, justifiably on the evidence, that the claim was unusual because the Claimant contended that he was unfit for work and agreed with the Respondent's contention that there was no prognosis for a return to work in the immediate future; and, equally justifiably on the evidence, the Tribunal acknowledged that what the Claimant sought was payment under BIPS on the basis that he was unfit to work, which, as a result of Dr O'Brien's advice, he was not receiving.
29. In paragraph 11 of their conclusions the Tribunal said this:
"[...] It was not disputed that the claimant met the eligibility of requirements of the scheme, save in respect of the requirement that he had to be medically unable to work. Under the respondent's scheme, an employee who met the eligibility requirements would be entitled to remain in employment and be paid a proportion of their income. The respondent contended that the claimant was medically unfit for work and that therefore he was not eligible under the income protection scheme. Nevertheless, they dismissed him on ill health grounds and there was no allegation or indication that the respondent considered the claimant to be dissembling or malingering."
30. They then, at paragraphs 12-15, set out their self-directions on the law in these terms:
"12. In a capability dismissal the Tribunal must ask three questions in determining whether the respondent acted reasonably in treating ill health as a reason for dismissal:-
Was there proper consultation with the employee including warning of the risk of dismissal?
Were there proper medical investigations? In every case, a fair procedure should be followed.
Was there consideration where appropriate of alternative employment?
13. We were referred to the cases of Liverpool Area Health Authority v Edwards  IRLR , First Manchester Ltd v Kennedy UKEAT/01818/04 [sic] and White v South London Transport Ltd EAT  ICR 293.
14. In the Edwards case the judgment stated:
'We do not think that an employer faced with a medical opinion, unless it is plainly erroneous as to the facts in some way or plainly contains an indication that no proper examination of any sort has taken place, is required to evaluate it as a layman in terms of medical expertise.'
15. In the Kennedy case Burton J postulated that the test should be 'whether no reasonable employer could have relied on the (medical report of the occupational health provider) to dismiss'."
31. These self-directions are not challenged in this appeal.
32. At paragraphs 16-17 the Tribunal found that the Respondent had no access to the reports of medical advisors as to the Claimant's condition other than Dr O'Brien, but that there was a clear conflict of medical opinion in that the Claimant's GP had signed him off sick for an extended period and the Claimant himself was saying that he was unfit for work. At paragraph 19 they said:
"19. The respondent itself concluded at the date of the termination of the claimant's employment that the claimant's health appeared to be worse with his latest condition and that there was no prognosis for a return to work. In those circumstances, we concluded that it was unreasonable of the respondent to rely on a report from its occupational health advisor, which concluded that the claimant was fit for work, based on examinations by other practitioners which were one year old. In all the circumstances, the respondent should have taken steps to explore the evident difference of opinion between its own occupational health advisor who had never met with or examined the claimant and had not spoken to the claimant's GP, and/or the claimant's neurologist to find out what the reasons were for the claimant's absence from work. Furthermore, the decision to dismiss was taken at a time when the respondent had been made aware of another condition of amnesia, as well as the apparently worsening headaches. The fact that there had been no definitive diagnosis of either of these conditions did not prevent them being assessed as conditions which might impact upon the claimant's fitness for work. These conditions and the severity of them were not referred to Dr O'Brien for further consideration.
20. The last report provided by Dr O'Brien was on 21 January 2010. The claimant was not dismissed until 31 March 2010. There was an obvious error in Dr O'Brien's report which was that Dr O'Brien believed the claimant to be in work at the time that he wrote the report although the claimant had been absent from work for six weeks. The respondent said that this was brought to Dr O'Brien's attention and that he said it would make no difference to his assessment, although there is no record of this having been brought to Dr O'Brien's attention in the notes provided to the Tribunal.
21. Dr O'Brien's report of 21 January 2010 stated that the claimant 'remains under investigation for headache and no diagnosis has been reached'. Under the heading future plans Dr O'Brien focus [sic] is the claimant's ability to increase his hours and not on the claimant's ability to work at all and we therefore consider that Dr O'Brien's understanding of the fact that the claimant was in work did impact on the conclusions in his report. There was, therefore, a flaw in the advice provided by Dr O'Brien, an obvious flaw of which the respondent would have been aware. For the reasons set out about and summarized below the Tribunal concluded that the respondent's assessment of the claimant as being fit for work would have been unreliable."
33. They then at paragraphs 22-24, under the heading "Summary", said:
"22. The Occupational health advisor on whose assessment the respondent relied, had never met or spoken to the claimant. He had not obtained an independent assessment within 12 months of his final report. He relied on the report of the claimant's consultant endochrinologist [sic] who had indicated to Dr O'Brien that he had no knowledge of the claimant's neurological problems. He took no account of the fact that the claimant had been signed off as unfit for work by his GP for six weeks before his report and for two months following it. Dr O'Brien did not obtain a report from or speak to the claimant's GP. Considering whether the respondent acted reasonably in relying on Dr O'Brien's report we concluded that it did not. The respondent was aware of the claimant's conditions and the severity of them from the claimant himself; the respondent was aware of the GP's assessment. The respondent was aware that the claimant maintained that he was unfit. The respondent itself concluded that the claimant's condition prevented him attending work and that there was no prognosis for his return to work. In the circumstances, we consider that it was unreasonable for the respondent's [sic] simply to rely on the occupational health report which contradicted its own conclusions.
23. We were informed by the respondent that it is not unusual for assessments by occupational health advisors to be provided without ever having seen the individual in question. This does not accord with the Tribunal's understanding and it was our conclusion that in those circumstances there is a heavier responsibility on the respondent to ensure that it provides the occupational health advisor, or that the occupational health advisor is provided with, sufficient information of the claimant's health and symptoms and the prevailing circumstances to make the report reliable. In this case the respondent did not inform the occupational health advisor of the fact that the GP had signed the claimant off as unfit for work for a considerable period of time, nor did it update the advisor with the claimant's state of health at the date of dismissal even though it concluded that the claimant's condition had worsened.
24. In the light of the income protection scheme provided by the respondent, had the claimant been assessed as unfit for work, he would have remained in employment and been eligible under the income protection scheme. We did not accept the respondent's contention that the claimant might have been dismissed in any event due to the discretion to dismiss retained by the respondent in the scheme policy. It was accepted by the respondent, by Ms McGuinness, in the respondent's evidence that this discretion was to enable the respondent to dismiss in circumstances of misconduct of [sic] for some other reason unrelated to the employee's ill health. There was no reason other than the claimant's ill health to dismiss him at the time that the respondent dismissed him."
34. The authorities make it clear that the overriding question for the Tribunal, in considering the answers to the three questions set out in paragraph 12 of their Judgment (see para. 30 above), which questions are taken from the EAT's decision in Kennedy, is not whether the employer has acted reasonably in dismissing the employee on ill?health grounds but whether, in so doing, the employer has acted as no reasonable employer could have done. At paragraph 19 of its Judgment in Kennedy the EAT referred to the principle derived from the well?known misconduct cases such as British Home Stores Ltd v Burchell  IRLR 379 and Iceland Frozen Food v Jones  ICR 17 in the context of misconduct dismissal. In the context of ill?health dismissals the EAT said in paragraph 19 in Kennedy:
"[...] It is similarly common ground that the Employment Tribunal must not substitute its own views for that of an employer if the employer formed and had a reasonable belief in the facts, and acted reasonably."
35. At paragraph 34 of the same Judgment the EAT said:
"[...] Mr Snarr accepted that the test would be whether no reasonable employer could have relied on the report of Dr Farrand to dismiss. We agree with that formulation [...]."
36. We should add that the context of the last extract from that Judgment was that the employee was arguing that the employer should not have relied on the report of Dr Farrand because there was other evidence to the contrary.
37. That the law is as we have expressed it is confirmed by the recent Judgment of the EAT in Scotland, presided over by Lady Smith, in Dundee City Council v Sharp UKEATS/0009/11. The employee in that case went off work with psychiatric symptoms in September 2008 and remained off work until August 2009, when the employer, who had throughout been taking advice from an independent occupational health service, gave him a return to work date of 14 September. Before that date the employer was advised that the employee was still unfit; at a meeting on 23 September the employee said that he was still unfit, and he was dismissed. The EAT allowed the employer's appeal against the Employment Tribunal's conclusion that the employee had been unfairly dismissed. At paragraph 28 the EAT said this:
"The Tribunal appears to have formed a different view about the content of that letter, a view that, as we have indicated, we ourselves would not have formed. But what the Tribunal was required to address was not its view of the letter of 12 November 2003, or its view of the error in the letter of 7 March referring to two collapses, when there had only been one, but as to whether the Respondent had acted reasonably in their reliance on the reports of Dr Farrand, which it cannot be doubted that they placed. In essence, what would be needed would be a finding that the ordinary principle of Liverpool v Edwards had, on the facts of this case, been ousted so as to make it unreasonable for an employer to have done that which ordinarily it is reasonable for them to do. And from that point of view, Mr Snarr accepted that the test would be whether no reasonable employer could have relied on the report of Dr Farrand to dismiss. We agree with that formulation; indeed it was ours, adopted by Mr Snarr in the course of his submission, and he submitted that the answer here was that no reasonable employer would have so acted, i.e. that any reasonable employer would have concluded, effectively, that the report was not worth the paper it was written on or was obviously flawed."
38. Many who read the Employment Tribunal's Judgment in this case and who, thus far, have read our Judgment, may find both somewhat difficult to comprehend. Why, one may ask, did the Tribunal say more than once that the Respondent relied on Dr O'Brien, who repeatedly expressed the view that the Claimant was not unfit for work, when, as the Tribunal must have understood, the Respondent was seeking to justify its dismissal of the Claimant on the grounds of incapacity through ill health? Surely, it might be thought, the Respondent was not seeking to rely on Dr O'Brien but to justify departure from his views, which did not support such a dismissal.
39. We are prepared to say that, when we first read the Employment Tribunal's Judgment, we reacted in the manner described above; but we did not understand the framework in which the Employment Tribunal had to reach their Judgment in this case, which is undoubtedly unusual and was described, in the course of argument, as bizarre both by the bench and the Bar.
40. The framework within which the Tribunal had to reach their decision was this:
(1) The BIPS scheme provided for the payment of benefits if the Claimant was fully unable to do work of a suitable kind for 26 weeks out of 52 (and he had been off work through ill health for that period at the date of the dismissal).
(2) It is not clear, and appears not to have been discussed before the Employment Tribunal, whether BIPS or the Claimant's rights under it were incorporated into the Claimant's contract of employment. There may well have been an implied term that the Claimant would not be dismissed without cause other than ill-health if he fell within the terms of the scheme; see Aspden v Webbs Poultry and Meat Group (Holdings) Ltd  IRLR 521, although the Claimant did not put his case forward on that basis and we were not asked to consider Aspden or subsequent cases which have considered Aspden; see Hill v General Accident  IRLR 641 and Briscoe v Lubrizol  IRLR 607.
(3) In any event the Respondent accepted before the Tribunal that, if the Claimant was unfit to work within the terms of BIPS, whether as a matter of policy or of contract they would not have dismissed him but would have retained him in employment for as long as he was unfit or until another reason for dismissal intervened and entitled the Respondent to terminate his contract of employment and bring his payments under BIPS to an end (e.g. gross misconduct, reaching specified age of 70).
(4) Thus if the Claimant was unfit to work within the terms of the scheme, he would not have been dismissed, and the Respondent would not have considered themselves as entitled to dismiss him.
(5) Yet the Respondent dismissed the Claimant on the grounds of his continuing ill-health with no prognosis for any return to work and felt able to do so although Dr O'Brien had expressed the view that the Claimant was not unfit to work.
41. In relation to dismissal, therefore, the Respondent distanced itself from Dr O'Brien's opinion; but, in relation to the Claimant's entitlement to benefits under BIPS, which the Respondent regarded, if established, as having the effect that he could not or would not be dismissed, they sought to rely on Dr O'Brien's view. They were seeking to ride the same horse - the Claimant's health - in two different directions.
42. In this context, therefore, the Tribunal were not considering the usual case in which an employee dismissed for ill health seeks to argue that his condition was not as serious as the employer asserted it to be, and/or that the employer had made insufficient enquiries to enable themselves to dismiss within the band of reasonable responses; they were considering, perhaps uniquely, a case in which the alleged unreasonableness lay in the Respondent seeking to dismiss for ill health in a situation in which, if the employee had been unfit for work within BIPS, they accepted that they would not have dismissed him.
43. At paragraph 22 the Tribunal said:
"In the circumstances, we consider that it was unreasonable for the respondent's [sic] simply to rely on the occupational health report which contradicted its own conclusions."
44. When they said this, they were expressing their conclusion that it was unreasonable for the Respondent to rely on Dr O'Brien's occupational health reports as justifying their refusal to acknowledge that the Claimant was unfit to work, which would, on their own case, have meant that he would not be dismissed, while reaching the conclusion that the Claimant was unfit to work and should be dismissed. The same analysis applies to the second sentence of paragraph 19 of the Tribunal's Judgment.
45. What we have set out in the last few paragraphs was explained to us by Mr Leiper, on behalf of the Claimant. Ms Motraghi, on behalf of the Respondent, did not seek to challenge that explanation by way of reply; and when the Tribunal's Judgment is considered in the light of that explanation, the problems of understanding which originally confused us when we read the Tribunal's Judgment were swept away.
46. We have regarded it as important to set out the context of the Tribunal's Judgment as we have understood it. It certainly does not follow that Ms Motraghi's grounds of appeal cannot succeed; what we have set out, we hope, makes it easier to understand the Tribunal's approach to a situation in which the Respondent was seeking both to dismiss the Claimant on the grounds of ill health and to assert, in reliance of Dr O'Brien, that the Claimant was not unfit for work within the terms of the scheme.
47. We should add, before turning to Ms Motraghi's grounds of appeal, that there was no suggestion that the level of unfitness relied upon for dismissal was in some way less than that required for the Claimant to qualify for full benefit under BIPS.
Grounds of Appeal
48. Ms Motraghi's principal grounds, grounds 1-3 in the Notice of Appeal, are set out under three headings: (1) the Tribunal failed to apply the test set out in Kennedy and section 98(4); (2) the Tribunal impermissibly substituted its view for that of the Respondent; and (3) the Tribunal failed to apply the principle set out in Edwards. These three grounds, as developed orally by Ms Motraghi, can be reduced without ill effect to these propositions: that (1) the Tribunal failed to apply the principle embodied in the decisions of the EAT in Edwards, Kennedy and Sharp that the Tribunal in an ill-health dismissal case should not decide the question of fairness posed to them by section 98(4) of the Employment Rights Act 1996 on the basis of what they regard as reasonable or unreasonable but on the basis of considering whether no reasonable employer would have been entitled to dismiss in the circumstances; (2) the Tribunal in this case decided not whether the Respondent's decision to dismiss was outside the band of reasonableness but whether the Respondent had acted in a manner which the Tribunal regarded as unreasonable; and (3) by so doing the Tribunal made the error of substituting their judgment of what was reasonable for that of the employer.
49. Mr Leiper, on behalf of the Claimant, does not differ to any substantial degree as to the principles. He accepts that, if the Tribunal had made their decision on the basis of what appeared to them to be reasonable or unreasonable, they would have committed the error of substitution. He submits, however, that, if their Judgment is properly understood and read as a whole, the Tribunal did not make that error.
50. As we have said, it is not disputed that, at paragraphs 13-15 of their Judgment, the Tribunal correctly directed themselves as to the applicable law. They expressly referred to the "no reasonable employer" test as embodied in the authorities to which they referred. Ms Motraghi submits, however, that the Tribunal did not adhere to their self-direction. She relies in particular on paragraph 19, in which the Tribunal said:
"[...] we concluded that it was unreasonable of the respondent to rely on a report from its occupational health advisor [...] the respondent should have taken steps [...]."
51. Further, in paragraph 22, in a sentence we have already quoted more than once, the Tribunal said:
"[...] we consider that it was unreasonable for the respondent's [sic] simply to rely on the occupational health report which contradicted its own conclusions."
52. Further, Ms Motraghi submits that the use of the word "simply" in that last sentence reveals departure on the part of the Tribunal from their self-direction into the error of substitution; for the Tribunal had found that the Respondent, in the light of the Claimant's informing them at the sickness review meeting on 22 February 2010 that Dr Close had recommended to AXA that they should consult a neurologist, took that up with Dr O'Brien (paragraph 5.24), and that the Respondent had thereafter again gone back to Dr O'Brien in March 2010 (paragraph 5.28) and again in the context of the appeal (paragraph 5.35). In making detailed criticism of the Respondent for failing to refer the possibility of the development of amnesia and worsening headaches to Dr O'Brien, and for failing to explore the difference of opinion between themselves and Dr O'Brien as to the Claimant's fitness for work, Ms Motraghi submitted, the Tribunal fell into the errors of making their decision on the basis of what they regarded as reasonable and of failing to apply the test that they had earlier directed themselves to apply. In their analysis of the facts and in setting out their conclusions at paragraphs 16-23 the Tribunal had not referred, again, to the "no reasonable employer" test and, it was submitted, demonstrably departed from it.
53. Mr Leiper, on behalf of the Claimant, submitted that the Tribunal could not be shown to have departed from the principle which they had correctly directed themselves to apply. The Tribunal were, however, dealing with a very unusual case in which the Respondent accepted and sought to act upon the Claimant's assertion (the genuineness of which was not in doubt) that he was unfit to work and had no prognosis for a return to work, yet accepted that if the Claimant was unfit to work, he was entitled to be retained in employment and to receive benefit under BIPS. They claimed to be acting within the range of reasonable responses when dismissing him for ill health and, at the same time, relying on Dr O'Brien's opinion that he was not unfit to work.
54. In that context, Mr Leiper submitted, the Tribunal's Judgment should be read as a whole; the Tribunal should not be criticised on the basis that they had, almost immediately after a correct self-direction, forgotten that self-direction on the grounds that they had used the word "unreasonable" in paragraphs 19 and 22. The Tribunal had not said that the employer could have acted more reasonably; their use of the word "unreasonable" should be taken to mean, in the context of their self-direction, "outside what a reasonable employer would have done".
55. Attractively as Ms Motraghi put her submissions, we regard Mr Leiper's analysis as correct. Although a Tribunal which has adopted a correct direction in this area may forswear the use of the words "reasonable" or "unreasonable" and instead constantly refer to the range of reasonable responses, or may say - and we have seen in other cases words to this effect - "when we use the word reasonable/unreasonable hereafter we intend those words to mean, 'within/outside the range of reasonable responses'"; but a Tribunal which has given itself a correct self-direction but does not adopt one of those precautions should not, in our judgment, be taken without more to have abandoned that self-direction because, very shortly after that self-direction, it uses in its Judgment the words "reasonable" or "unreasonable". A judgment should not be artificially divided up so as to give rise to an argument, as in this case, that the Tribunal has departed from its own self-direction. Very recently in Fuller v London Borough of Brent  ICR 806 Mummery LJ, at paragraph 30, said this:
"30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the Tribunal but then overlooked or misapplied at the point of decision. The Tribunal Judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an Employment Tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round; those are all appellate weaknesses to avoid."
56. In our judgment, when the Employment Tribunal's Reasons are read as a whole or, to use Mummery LJ's expression, "in the round", there is nothing to show that, in paragraphs 19 and 22 in particular or elsewhere in their expression of their conclusions, they had departed from the correct self-direction which they had so recently given in their relatively brief Judgment. The criticisms made of the Respondent by the Tribunal were not said by Ms Motraghi to be of themselves in error. She agreed that the Respondent was seeking to rely on Dr O'Brien's reports, which contradicted their own conclusions. The criticisms which the Tribunal made were all of matters that they were entitled to take into account in coming to a conclusion that the Respondent had acted in a manner that no reasonable employer would have acted; none of them is a criticism which could not support that conclusion.
57. We return to the last sentence of paragraph 22. In our view, the Tribunal, when using the word "simply", should not be taken to have forgotten their earlier findings as to the numerous references to Dr O'Brien which the Respondent made. They did not say that the Respondent relied upon one report from Dr O'Brien and no more; that is not what the word "simply" meant in the context. Properly construed in the highly unusual context of this case, the Tribunal should be understood to have been saying in that sentence that, while accepting that the Claimant was unfit to work, to the point at which they could dismiss him on ill-health grounds, they sought to avoid the consequences of the Claimant's eligibility under BIPS by relying only on Dr O'Brien's view. There was no other support for so doing, and their own conclusions about the Claimant's condition pointed in the opposite direction.
58. Ms Motraghi's fourth ground of appeal is on a narrower front. She draws our attention to the statement in paragraph 20 that Dr O'Brien's report contained an obvious error, namely that the Claimant was in work when he was not and had not been for some time. In paragraph 21 the Tribunal state that that error impacted on Dr O'Brien's report of 21 January 2010; and his report was, as a result, flawed. However, Ms Motraghi submits, the Respondent's evidence, as demonstrated by paragraph 18 of the witness statement of Ms McGuinness, the Respondent's HR consultant, was that this error was pointed out to Dr O'Brien before the meeting of 22 February 2010, as noted in the record of that meeting. The Tribunal, it is submitted, ought to have found but did not find that this was brought to Dr O'Brien's attention; they only said, in paragraph 20, that it was the Respondent's case that this had been brought to his attention, and that he said it would make no difference to his assessment.
59. However, the Tribunal found at paragraph 23 that Dr O'Brien took no account of the fact that the Claimant had been signed off as unfit for work by his GP for six weeks before his report and for two months following it. Furthermore, the witness statement of Ms McGuinness does not record that she told Dr O'Brien the full picture; but paragraph 5.22 contains a finding that the Respondent told Dr O'Brien in November that the Claimant was signed off work, a fact that he simply does not appear to have taken into account. The criticism made by the Tribunal of the Respondent for relying on Dr O'Brien when Dr O'Brien was maintaining a view in contradiction to what appeared to the Respondent to be the case was, in our judgment, one which the Tribunal were entitled to make. There is no support here, as we see it, for the substitution argument. The Tribunal were, in our judgment, putting forward this criticism, together with others, as part of the material which led them to the conclusion that the Respondent's approach was not that of a reasonable employer. The view that Dr O'Brien's report was flawed and should have been appreciated by the Respondent as flawed was a tenable view.
60. Finally, Ms Motraghi took us to the second sentence at paragraph 23 of the Judgment; she submits that in saying that, where the occupational health advisor provides assessments without ever seeing the employee whose health is being assessed, there is a heavier responsibility on the employer to ensure that the occupational health advisor has full information, the Tribunal were inventing a new principle of law unsupported by authority; there is no heavier burden on an employer in the circumstances outlined than in any other set of circumstances as a matter of law.
61. In our judgment, the Tribunal were not seeking to set out or, for the purposes of their conclusions, to rely upon any new principle of law. What the Tribunal said in paragraph 23 was an application by an industrial jury of common sense. In considering whether an employer has acted outside what would be open to a reasonable employer in relying on the report of an occupational health advisor, it is open to a Tribunal to take the view that, if that advisor has not himself seen the Claimant, it is important that the employer should have provided to the advisor sufficient information to enable them to place reliance on his report. We see no error of law in that observation of the Tribunal in this case.
62. Further, we accept Mr Leiper's submission that there is nothing in the Judgment which suggests that, if there was an error of law in the respect submitted by Ms Motraghi, it can be shown to have made any difference to the result.
63. For the reasons we have set out, this appeal fails and is dismissed.