Appeal No. UKEAT/0089/05/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 June 2005
Judgment delivered on 28 September 2005

Before
HIS HONOUR JUDGE PETER CLARK

MR K EDMONDSON JP

MR T STANWORTH

MR S MATHEWS	APPELLANT

DHL AIR LIMITED 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	In Person	
For the Respondent	Mr James Laddie 
(of Counsel)
Instructed by:
Messrs Reed Smith LLP
Solicitors
Station Square
Coventry CV1 2FL	

SUMMARY
Unfair dismissal.  Capability.  Airline pilot whose CAA licence was restored; nevertheless dismissed following refusal to undertake ground duties.  ET decision upheld.  Dismissal fair on grounds of capability.

  

HIS HONOUR JUDGE PETER CLARK

1.	It was, I believe, that leading twentieth century advocate F E Smith, later Lord Birkenhead, who observed that there is only one point in any case.  If so, the secret lies in identifying and, in the case of the Court, determining that issue.

2.	This is an appeal by Mr Stephen Mathews, the Claimant before the Nottingham Employment Tribunal, against that Employment Tribunal’s judgment, promulgated with Reasons on 6 December 2004, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent DHL Air Ltd.

Background
3.	The principal facts, as found by the Employment Tribunal following a 6 day hearing, were these.  The Respondent operates a fleet of cargo aircraft.  The Claimant joined them as a first officer on 1 June 2001.  He was a qualified pilot, regarded as competent and experienced in his work.

4.	In January 2003 the Claimant felt fatigued.  He did not then inform his employer of his condition, but did enquire as to the notice he need give if he resigned from the employment.

5.	On 28 January 2003, while flying an aircraft about to land at Gothenburg, the Claimant became fixated on just one of the many instruments before him.  As a result the aircraft Captain took over and landed the aircraft safely.  The Captain did not report the incident.

6.	The Claimant attributed that experience to his feeling of fatigue and spoke to his own Authorised Medical Examiner (AME), appointed by the Civil Aviation Authority (CAA) who advised him that if he reported his fatigue he might lose his licence to fly and then have difficulty in regaining it.  A CAA medical licence is a pre-requisite for all working pilots.

7.	In the event the Claimant never flew again for the Respondent.  He was rostered to fly on 19 February but did not attend for work. 

8.	Following his “no-show” on 19 February the Claimant was called to an investigatory meeting scheduled for 28 February.  He did not attend that meeting, having raised questions of representation and the basis of the meeting.  He then went off sick, sending in a sick note on 4 March citing “work-related problems.”

9.	On 28 April the Claimant saw the Respondent’s Occupational Health Physician, Dr Tailor.  The Claimant gave Dr Tailor a list of complaints about his working conditions which, he contended, had contributed to his then anxiety state.  He also raised a grievance against the Chief Pilot, Captain Hall, alleging harassment and bullying.  That complaint was later dismissed by Miss Hambly, the Human Resources Manager.

10.	Clause 4.1 of the Claimant’s contract of employment read:

“The employer shall faithfully perform the duties set out in Schedule 1 and other such duties as shall be required of him by the employer.”

Schedule 1 is headed ‘B757 First Officer’ and his principal duties are there referred to.  He was appointed as First Officer by Clause 2 of the contract.

11.	Dr Tailor and Miss Hambly suggested a return to work on ground duties, she referring expressly to Clause 4.1.  The Claimant declined to do so.  He said in terms that he would not accept employment other than as First Officer.  Impasse was reached.
 
12.	On 18 November Dr Tailor saw the Claimant again.  He noted that the Claimant continued to be provided with medical certificates containing a diagnosis of stressful anxiety (a recognised psychiatric condition) and that he was unwilling to consider ground duties.

13.	Critically, the Employment Tribunal found as fact that in offering the Claimant ground duties the Respondent was genuinely offering a return to flying duties via ground duties.  The Claimant responded to that offer by letter dated 10 December stating that, on legal advice, he did not have to take ground duties so he must decline that offer.

14.	On 16 February a meeting took place with Captain Moore, Flight Operations Director.  The Claimant was represented by Captain Paxton.  At this stage the Claimant’s CAA medical licence had been revoked.  Captain Moore decided that in circumstances where there was no assurance that he would regain his licence and his refusal of a ground job that dismissal was the only available option.  The reasons given for dismissal, in a letter dated 20 February 2004, were the Claimant’s continued incapability and legal restriction (a reference to the lack of a CAA medical licence).

15.	At that stage Dr Tailor was aware that the medical expert appointed to examine the Claimant by the CAA, Professor Bor was about to advise reinstatement of the Claimant’s CAA medical licence.  Nevertheless, Dr Tailor took the view that the Claimant would not then be operationally fit to fly without first undergoing a period of ground duties.  It will be recalled that the Claimant had done no work of any kind for the Respondent since 28 January 2003.  The Employment Tribunal accepted Dr Tailor’s evidence.  They found him to be an impressive, experienced and professional witness.

16.	The Claimant’s medical licence was restored on 1 March.  He appealed Captain Moore’s dismissal decision to Mr Flynn, the Managing Director.  Following a hearing on 4 March 2004 Mr Flynn dismissed that appeal.  The Employment Tribunal, who heard and saw the witnesses over 6 days, formed the view that Mr Flynn was a straightforward and honest witness.  They accepted his evidence that had the Claimant accepted ground duties he, Mr Flynn, would have overturned the earlier dismissal decision.

The Employment Tribunal Judgment
17.	The Claimant, who was represented by Counsel for the first 4 days of hearing below and has since represented himself, put his complaint of unfair dismissal on 3 alternative bases: (1) Dismissal for Health and Safety reasons (Employment Rights Act 1996 (ERA) Section 100); (2) Dismissal by reason of his having made a protected disclosure (Section 103A) and (3) ‘ordinary’ Unfair Dismissal under Section 98.  The Employment Tribunal considered and rejected each basis advanced and found the dismissal fair.

18.	We note that all 18 grounds of appeal before us, to which we must return, are directed to the Employment Tribunal finding under Section 98.  It follows that we need not consider the 2 alternative inadmissible reasons for dismissal put forward by the Claimant.

19.	As to ordinary unfair dismissal the Employment Tribunal (reasons paragraph 2) identified the principal issue in this way; the Claimant contended that having had his CAA licence restored he was capable of carrying out flying duties and ought to have been permitted to do so by the Respondent; the Respondent’s case was that although medically fit to fly he was not operationally fit to do so.

20.	In resolving that issue the Employment Tribunal accepted, as did the Respondent, that circumstances had changed between dismissal and appeal.  The Claimant’s CAA licence had been restored.  Consequently the reason for dismissal and its fairness under Section 98 had to be judged at the date of the appeal hearing.  See West Midlands Co-op Society v Tipton [1986] ICR 192 (HL).

21.	Applying that approach the Employment Tribunal found first that the reason for dismissal related to the Claimant’s capability (Section 98(2)(a).  They rejected the Claimant’s case that restoration of his CAA medical licence meant, without more, that he had the capability to perform flying duties.  They accepted that there was a duty on the Respondent to see that their pilots were operationally fit to fly.  Since they believed that the Claimant was not operationally fit they had established the capability reason for dismissal as at the internal appeal stage.

22.	Secondly, as to the question of reasonableness under Section 98(4), the Employment Tribunal noted a complete divergence of view between the parties.  The Respondent contended that they had a right to insist on a 2 stage process before returning the Claimant to flying duties; restoration of his CAA medical licence (which was completed by 4 March) and a successful return to ground duties (Stage 2); the Claimant asserted that, having had his CAA licence restored all that was then necessary was flight simulator training before returning to pilot duties.

23.	The Employment Tribunal resolved that issue in favour of the Respondent, holding that Clause 4.1 of the contract of employment permitted the Respondent to require the Claimant to undertake ground duties.  They express their conclusions at paragraph 4.9 of their reasons in this way:

“It seems to us to be clear that Clause 4.1 does enable DHL to deploy the Claimant to ground duties as a means of rehabilitation.  It seems to us that not only was DHL’s insistence lawful but wholly reasonable in all the circumstances.  They had Dr Tailor’s advice to that effect.  They had adopted the practice in at least two other circumstances with beneficial results, as we have heard from Captain Cockerton.  We would conclude, therefore, that DHL acted fairly in insisting upon the two stage approach.  Indeed, it would have been folly to have ignore (sic) the clear advice of Dr Tailor, which incidentally is supported by Professor Bor.”

The dismissal was fair, both procedurally and substantively.

Employment Appeal Tribunal Procedure
24.	By his Notice of Appeal dated 11 January 2005 the Claimant advanced, as we have mentioned, 18 separate grounds of appeal.

25.	In the usual way this appeal was considered on paper by Silber J.  He directed that the appeal be listed for Preliminary Hearing.  Unusually, he directed that the Respondent would be at liberty to be heard.  Normally Preliminary Hearings take place without the Respondent being present.  The Respondent was also ordered to lodge written submissions in opposition to the matter proceeding to a full appeal hearing.  No time estimate for the Preliminary Hearing was contained in those directions seal-dated 11 February 2005.

26.	The Preliminary Hearing came on for hearing before a division presided over by Rimer J sitting on 13 April 2005.

27.	The Claimant appeared in person, the Respondent was represented by their solicitor, Ms Dhindsa, who had conducted their case below.  She had also lodged written representations in advance of the Preliminary Hearing, among other points, contending that certain of the grounds of appeal raised new points not advanced below (see the Kumchyk principle, approved by the Court of Appeal in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719).  As to each ground of appeal it was contended that no reasonable prospect of success existed.

28.	The Preliminary Hearing procedure exists to weed out appeals or parts of appeal which have no reasonable prospect of success.  That process begins at the earlier paper sift stage.  It is designed to avoid Respondents to appeals being put to unnecessary trouble and expense in defending weak appeals.

29.	In giving judgment at the Preliminary Hearing stage in the present case Rimer J:

(1)	held that the Claimant had identified points (not in terms specified) which ought to go forward to a full hearing, without saying that every point deserved to do so.  The only specific issue identified was whether the Employment Tribunal misdirected themselves on the question of capability (Judgment, paragraph 5).

(2)	noted that the Respondent raised the Kumchyk issue, but declined to deal with it due to lack of time available, reserving those questions to the full hearing and

(3)	dismissed the Claimant’s application to adduce fresh evidence on appeal.

30.	At the end of his skeleton argument prepared for this Full Hearing, which took place on 28 June 2005, Mr James Laddie, now appearing on behalf of the Respondent, diffidently raised the question as to the utility of holding a Preliminary Hearing with both parties present and then allowing through all grounds of appeal, even although it appeared that not all should be allowed through simply, due to want of time.

31.	We think that the point is well made.  The remedy had already been identified, by the President, Burton J, in consultation with other EAT Judges, although this case is a good example of the need for procedural refinement.  In future, where it appears at the paper sift stage that a hearing of longer than the standard one hour is necessary at the Preliminary Hearing a direction attaching a realistic time estimate (subject to the views of the parties) will be given.

Preliminary Applications
32.	I note from the Court log that the majority of the 1 day set aside for the full hearing of this appeal was taken up with preliminary applications, namely:

(1)	The Claimant’s application in relation to Notes of evidence and Chairman’s comments

(2)	The Respondent’s application to exclude ‘new points’ on appeal

(3)	A further application by the Claimant to adduce fresh evidence.

33.	We gave rulings on each application; in short we dismissed the first and third applications made by the Claimant and, with Mr Laddie’s assent, left over the ‘new point’ issues for argument in the substantive appeal.

The Substantive Appeal
34.	Mr Mathews accepted that there was only one point in his appeal.  It was the only point specifically referred to in the judgment of Rimer J at the Preliminary Hearing.  It was whether the Employment Tribunal misdirected themselves in law on the meaning of capability in Section 98(2)(a) ERA.  It was not a new point, thus disposing of the Respondent’s objection to grounds 1, 4, 5, 6, 10, 11 and 14 of the Claimant’s grounds of appeal.  The point is fully and fairly made in ground 3, which reads:

“3.  In reaching its determination of the grounds for dismissal the tribunal misdirected or misunderstood or misapplied the law in applying the statutory test of Section 98(2)(a) they failed to consider that the Appellant was qualified to perform his job on 1st March 2004, his medical had been reinstated.  A pilot’s medical licence is substantially concerned with the aptitude of ability to do the job.”

35.	In advancing the argument Mr Mathews began with the proposition that the operator of an aircraft, here the Respondent, had a duty not to permit any member of its crew unless he had specified training, experience, practice and periodical tests in respect of the duties which he was to perform and the operator had satisfied himself that the person is competent to perform his duties.  (Halsbury’s Laws. Volume 8. paragraph 809).  The Respondent would not dissent from any part of that proposition.  The question here is whether, in forming the opinion that the Claimant was not operationally fit to return to flying duties (with or without flight simulator training) before undergoing a period of ground duties, the Respondent had shown a reason for dismissal (in circumstances where the Claimant flatly refused to undertake ground duties) related to his capability.  We pause to observe that this question is not directed to the Claimant’s qualifications, referred to in Section 98(2)(a) and defined in Section 98(3)(b), a point made by Mr Mathews.  He had the necessary qualifications for flying.  It is a question of capability, defined in Section 98(3)(a) as meaning:

“his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”

36.	An employer’s reason for dismissal is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee, as Cairns LJ formulated the matter in Abernethy v Mott Hay and Anderson [1974] ICR 323; a formulation later approved by the House of Lords in Devis v Atkins [1977] AC 931.

37.	What then, on the Employment Tribunal’s findings, caused Mr Flynn to dismiss the Claimant’s internal appeal as at 4 March 2004?  It is set out at paragraph 3.51 of the Employment Tribunal’s reasons thus:

“3.51  Mr Flynn’s evidence was to the effect:-

1	That he was fully aware that the medical licence had been reinstated but that was only Stage 1 of the procedure.

2	DHL were legally responsible for Stage 2, namely that the Claimant must be seen to be operationally fit to fly.

3	In reaching the decision that he was not operationally fit he took into account Dr Tailor’s advice that had been conveyed to him and how the Claimant had conducted himself throughout the correspondence and during the appeal.

4	He saw a return to ground duties as an essential first step to a return to flying duties.

5	He took into account the breakdown of relationships between the Claimant and his line manager, Captain Hall, and between the Claimant and Miss Hambly.

6	He wrongly took into account the replacement of Captain Doust by Captain Paxton believing that the Claimant had fallen out with Captain Doust which was not, in fact, the case.

7	Mr Flynn finally applied a test of whether or not he would entrust his own family to an aircraft piloted by the Claimant and came to the conclusion that he could not take that chance.”

We have earlier observed that the Employment Tribunal accepted Mr Flynn’s evidence.

38.	Looking at that set of facts or beliefs in Mr Flynn’s mind, including the mistaken belief at point 6 in that list (an employer may rely on a genuine but mistaken belief in advancing the capability or conduct ground for dismissal; cf redundancy dismissals) was the Employment Tribunal entitled to conclude that the capability ground was made out by the Respondent?

39.	Mr Mathews’ central thesis is that once his CAA medical licence was restored no question of incapability arose.  The Employment Tribunal disagreed.  They accepted the Respondent’s 2 stage approach.  Quite simply, in our judgment they were entitled to do so.

40.	Even following the hearing before us Mr Mathews has made yet another application to adduce fresh evidence.  That and a costs application to which we shall return, has delayed final consideration of our reserved judgment in this case.  We can deal with this further fresh evidence application shortly and without calling on the Respondent.

41.	The new evidence consists of a response by Ray Pusey of the Aviation Directorate dated 19 July 2005 in response to an enquiry by Mr Mathews directed to Karen Buck MP, the minister responsible for aviation.

42.	Mr Pusey’s substantive reply reads:

“The CAA advises that an Employment Tribunal would have no jurisdiction to challenge or quash a flight crew licensing or a medical decision by the CAA.”

43.	Mr Mathews did not include a copy of his enquiry of Ms Buck which prompted that response.  However the reply is plainly right.  What it illustrates, in our view, is the fundamental misconception underpinning the Claimant’s case.  There is no question of the Respondent or the Employment Tribunal challenging the CAA’s decision to restore the Claimant’s medical licence.  That was stage 1 of the 2-stage process.  The Respondent then wished to ease the Claimant back into flying duties after more than one year off work via ground duties.  That he flatly refused to contemplate.  In the absence of his undergoing that process the Respondent genuinely deemed him incapable of a return to flying duties.  That is why his internal appeal failed.  It was a potentially fair reason for dismissal related to his capability for performing flying duties, being work he was employed by the Respondent to do.

In these circumstances we conclude that this appeal discloses no error of law.  It fails and is dismissed.

Costs
45.	The Claimant’s post-hearing application for costs is not dependent on the outcome of the appeal, but relates to the period 13 May – 28 June 2005 and steps in the preparation of the appeal for hearing before us following the directions given by Rimer J and members at the Preliminary Hearing.  Having read the rival submissions and documents in support we have concluded that the Claimant has failed to make out any of the grounds for ordering costs now contained in Rule 34A EAT Rules.  Consequently that application is also dismissed.