Appeal No. EAT/674/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12 December 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR D A C LAMBERT

	MR A D SCOTT

OCEAN YOUTH CLUB	APPELLANTS

MRS A PADDOCK	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr John Robson
(Of Counsel)
Messrs Churchers
138 High Street
Lee-on-the-Solent
Hampshire

For the Respondent	Mr P Rose
(Of Counsel)
Messrs Donnelly & Elliott
38 Stoke Road
Gosport
Hants PO12 1JG

	JUDGE HULL QC:  Mrs Paddock was employed by the Ocean Youth Club Limited at Gosport.  She was employed as an accounts clerk.  She was first employed in November 1986.  In 1991 she had some abdominal trouble which needed surgical attention.  On the face of it, it does not sound terribly serious, but she apparently had complications arising out of her illness.  Basically, it was a surgical problem.  

	She had a bladder operation on the 22nd July 1992 and by October, she still was not back at work.  The employers were becoming concerned, as well they might.  She had been off, in total, something like seven months since 1st September 1991.  So they wrote a letter to her on the 22nd September, which is with our papers.  They wrote a perfectly friendly and proper letter to her saying that they were proposing to diminish the wages which she received in the circumstances.  

		"Further [says Mr Hollingsworth, the Commercial Manager] the Executive Committee instructed me under the provisions of the Access to Medical Reports Act 1988 to seek your consent to approach your medical practitioner about the state of your health."

A consent form was sent which she could sign if she was prepared to have that done. It was a perfectly proper request.  The employers, not surprisingly, wanted to know what her state of health was.  

	The form was also dated 22nd September 1992.  It was addressed to Mrs Aideen Paddock and it said:

		"On behalf of Ocean Youth Club, I wish to obtain a medical report from Dr -  for the following purposes: to enquire whether you are fit to carry out your duties as described in your job description with effect 5th October 1992, or if not fit at that date when, in the Doctor's opinion, you will be fit to resume your duties."

Again, a perfectly reasonable and proper inquiry.  

	Enclosed, just behind that, is another document which was addressed to the Doctor.  He was a Dr Hajiantonis, and the document is dated 12th October 1992.  For what it is worth it appears absolutely identical with another document a little later in the bundle, document 9.  If one looks at the two documents, even the typing and the little marks on the page are identical.  The top of the little 5 at the top right hand corner has been cut off, as one can see.  There is a mistyping on the top left.  The only significance of this is that we are told by Mr Rose, for Mrs Paddock, that she has no recollection of receiving this document and that may be of some significance.  It was addressed to Dr Hajiantonis, bearing a later date than the documents which we have mentioned, and it said:  

		"As we require the report for employment purposes, its provision is subject to the Access to Medical Reports Act 1988.  The employee in question has been informed of his/her rights under the Act......

		We should be grateful, therefore, if you would answer the following questions regarding the employee's state of health, bearing in mind the nature of her work, which is outlined in the attached job description:

		1.	When in your opinion, will Mrs Paddock be fit to return to work?

		2.	Is there likely to be any further period of absence from work in connection with this current condition during the next 12 months?

		3.	Will Mrs Paddock be able to carry out all of her duties after her return to work?"

Dr. Hajiantonis replied fairly promptly to that.  On the 16th October, [this is document 10 with our papers]:

		"Thank you for your letter.........  She had a second repair operation for stress incontinence on 22nd July 1992.  Unfortunately, many complications occurred and she was, and still is, unable to pass urine freely and needs self-catheterisation."

		I feel Mrs Paddock will recover from this and be able to undertake some employment but not, as far as I can judge, in the near future."
That was the view of the general practitioner.

	One might pause and comment there that the doctor does not say when he last examined her, or when he is going to examine her, and of course another very obvious comment is that this is the general practitioner writing, and one takes it that the best view on this lady's problems might well that of the surgeon, who was not consulted.  But there it is, that is the general practitioner's view.

	So after that, the employers wrote again, on the 5th November, thanking the doctor for his letter of 16th October:

		"You commented in your letter that Mrs Paddock should be able to undertake some employment in the future, does this, in your opinion, include all of her current duties?  (I enclose a copy of her Job Description for your convenience).  Also we would be grateful for an indication of the time span involved."

The doctor replied on the 6th November, that is something like three weeks after the previous letter.

		"Thank you for your letter of 5th November asking for additional medical information about Mrs Paddock.

		Further to my letter of 16th October, Mrs Paddock is still unable to pass urine freely and continues to require self-catheterisation.  It is very difficult to predict when a full recovery will take place.

		I feel as long as she needs self-catheterisation she will be unable to do a full time job anywhere in view of the difficulty attached to this procedure.

		I hope this information is helpful to you."

It is noteworthy that the doctor does not say, "I have again examined this patient to see whether my previous letter still represents the correct position, or whether I can write anything further in this letter."  

	Only five days later, virtually immediately on receiving that, the employers wrote dismissing Mrs Paddock on the grounds of her medical condition.

		"We much regret having to make this decision, but as your doctor was unable to say how long the situation would continue, we had little option."

	So there it was.  Now it is to be observed that at no stage in this story had the employers thought it right to consult Mrs Paddock.  This, one would have thought, as in the great majority of cases was a matter where they should have done.  It is true that she had consented to inquiries being made of her medical practitioner, but it was not explained to her whether this was with a view to facilitating her return to work, perhaps starting on light duties, or whether in fact the inquiries were being made with a view to her possible dismissal.  Nor was it explained to her, so far as we can see, that if she were unable to return in the near future,  the employers felt they had reached a point at which they could not carry on making use of part-time or temporary labour to replace her, and they would have to consider the question of dismissal.

	Those are the normal grounds on which, of course, consultation with the employee is normally looked for; indeed, as a matter of practice, insisted on.  If the employer is going to say "consultation was not a requirement of fairness here", then he must quite plainly show that in the circumstances no consultation could, on any rational view, in any way affect the decision to dismiss, when it was made.  Clearly, that is a heavy burden; because in the nature of things, the employer cannot know what is in the employee's mind and it would be a very bold employer who was able to say, with complete assurance, that he knew everything that should be in the employee's mind.  

	She complained to the Industrial Tribunal on the 22nd December 1992 that she had been unfairly dismissed.  The employers put in an answer on the 19th January.  The Industrial Tribunal sat to hear her complaint of unfair dismissal on the 7th May 1993 under the Chairmanship of Mr Robjant.  

	They considered a number of matters.  They set out the facts and refered to the documents which we have referred to.  They set out some further facts.  They said that the Club did not provide the Applicant with a copy of the doctor's report, and it had not told her that it was seeking the report (that was the second report of course).  The Club did not contact the Applicant or attempt to discuss the matter in any way before making the decision to dismiss.

	By the end of the first week in December 1992, the Applicant no longer required a catheter.  On the 22nd December, her doctor had certified that she was fit for work.  In fact, the Applicant believed that she would have been fit to return to work a week before, on 15th December.  

	Then they say this, in paragraph 6:

		"6.	An employer must satisfy the Tribunal not only as to the reason for a dismissal, but also, pursuant to Section 57(3) of the Employment Protection (Consolidation) Act 1978, that the employer had been reasonable in relying upon that reason in dismissing the employee.  In particular, where an employee is away sick, and the employer has received a medical report in respect of the employee, it is well established that the employer should normally consult with the employee before making a final decision to dismiss.  In particular, the employer must establish whether there is any reasonable prospect of the employee returning to work."

	Mr Robson tells us that that paragraph is wrong.  He says that it must be a matter for the employer, in each case, to decide whether it is necessary and reasonable to consult the employee.  That is true in a sense, but it is a question which can only be asked in one way, and answered in one way, save in the exceptional cases which were referred to by Lord Bridge in the Polkey Decision.  It will be a rare case indeed where the employer says, "No, there is no point in consultation."  Certainly the facts and matters which Mr Robson has laid before us, citing from the documents, do not justify the submission that here the employer was justified in saying he would not consult.

	It appears to us what is set out in paragraph 6 is impeccable, as a practical direction by the Tribunal to themselves, in law.  It is well-established that the employer should normally consult with the employee before making a final decision to dismiss.  It is a momentous decision.  And it simply will not do to say, "Well here the employee could add nothing to the views of the general practitioner."  How can one possibly say that, without hearing the evidence?  Had she been back to the hospital, as so often happens, to have a further examination there?  They had not consulted the hospital.  Was she feeling in herself much better?  She had to conduct this minor operation on herself.  Was that proving invariably necessary?  Was she experiencing symptoms, or a lack of symptoms, which made her feel that matters were at last getting better?  What were her feelings about returning to work?  Was she prepared to make sacrifices so that she could return to work?  Those were the sort of matters which she might have been able to enlighten her employers about.  She might have told them when she had last consulted the doctor who had reported on her, and what he had said about it then.  Had she consulted him after he had made his first report to the employers, and if so had it been for a full examination or was it simply in the nature of a routine, to collect perhaps a repeat prescription, or something of that sort?

	All those were matters which she might have told the employers about.  Of course, it is quite useless for us to speculate, because we cannot say.  But it certainly cannot be said, in our view, that this was a case where the employer either rationally asserted or reached a rational conclusion that any consultation would be entirely useless, or that he could properly reach such a conclusion.

	The Tribunal goes on:

		"7.	In this case, the doctor in his letter of 6 November had said that:

			"It is very difficult to predict when a full recovery will take place."

			and he said of the applicant:

			"I feel as long as she needs self catheterisation she will be unable to do a full time job anywhere in view of the difficulty attached to this procedure."

		8.	On the face of it, this was clear evidence to support the employer's decision that there was little prosect of the employee returning to work in the foreseeable future and that there may be little alternative but to dismiss the employee.  But in this case the applicant was not only unaware of the existence of this report,[that of course is the second one] but she clearly disputed it contents.  

	They are not saying there that a month later or six weeks later she felt that it was wrong.  She, they say, disputed its contents.  The clear, the natural meaning to put on that is that if she had been shown that report, she would have said, this is wrong in various ways.  Indeed subsequent events, they say, showed that within a period of six weeks of the dismissal, the Applicant was able to return to work.  That is merely so to speak in parenthesis.  It is not in our view judging the thing with the wisdom of hindsight.  She was in fact able to return within six weeks.

	Then they go on in 9:

		"9.	Mr Hollingsworth himself acknowledged that had he been aware at this time that the applicant would have been able to return to work within a month or so, he would have gladly had her back."
Pausing there, supposing that Mrs Paddock had said to Mr Hollingsworth or a representative, "I believe I am getting better quite quickly now, and I believe I shall very shortly be able to return to work."  If Mr Hollingsworth had been in any doubt about that, or any other member of the executive committee had been in doubt about that, then surely as a matter of common decency - she had been an employee who was apparently trusted and reliable - they would have said, "Well if that is her view, we must certainly seek further medical advice."  And the likelihood is that that medical advice would have said, "Yes.  Contrary to the rather gloomy prognosis of the general practitioner, she is indeed getting better, quickly".  All these were questions of fact, not for us, but for the Industrial Tribunal. 

	They say:

		9.	......."Furthermore, the applicant pointed out that she could well have returned to work in November had arrangements been made for her to go home very two hours or so to attend to the catheter.  The fact that the respondents had been paying the applicant in full during her absence suggests that they would have been prepared to accommodate her.  Accordingly, the Tribunal are satisfied both that there should have been consultation at this point, and that that consultation may well have resulted in the applicant retaining her job.

		10.	It is clear that the reason for the dismissal was the applicant's ill health.  But it was wholly unreasonable of the respondents both to fail to tell the applicant that they were seeking a further report from her doctor, and to fail to discuss that report and its prognosis with her.  Accordingly, the Tribunal find that the applicant was unfairly dismissed."

	Then they go to say that she had unfortunately not been able to obtain further employment.  They assessed for the future that she would be unable to obtain employment for something like 52 weeks, and gave her compensation on the basis really of an indemnity.

	They did not say to themselves, well even if there had been consultation, it is only perhaps a 75% chance that she would have kept her job.  They are not obliged to do that,  if they take the view that on balance of probability the consultation would have prevented her losing her job.  But it is manifest from the way they put it that that is their view.  Quite apart from their assessment of compensation, in this very well reasoned decision, they say that Mr Hollingsworth himself acknowledged that had he been aware at this time that the Applicant would have been able to return to work within a month or so, he would have gladly had her back.  

	It clearly stands out that the view of the Tribunal was that she would not have lost her job, had consultation taken place.

	When we analyze what is said to us by Mr Robson, with great moderation, it does appear to us that in reality what he is saying is that this Tribunal should have taken a different view on the facts.  They should have found that consultation could properly be dispensed with in all the circumstances.  They should, in any event, have found either that it would have made no difference or that there was only a modest prospect that it would have made any difference.

	Those are all facts which might possibly have been found by the Industrial Tribunal.  But they are facts which can only be arrived at by the body which is charged with the responsibility of finding facts and which heard the evidence.  We do not know, because the Notes of Evidence have not been called for, exactly what Mr Hollingsworth said about his understanding of the position, or exactly what Mrs Paddock said about her understanding of the position.  What would she have said if she had been consulted?  How did her medical condition appear to her?  When did she see the doctor?  All these are matters which are hidden from us, because we do not know what the answers are.  They are purely questions of fact.  We do not think, having read this Decision of the Industrial Tribunal, and with the assistance of course of Mr Robson, that we can say, any of us, that we can find any error of law in the Decision. 

	It appears to us that the Tribunal have directed themselves impeccably and that the findings of fact which they made are ones which they were entitled make.  In those circumstances, the Appeal falls to be dismissed.