Appeal No. UKEATS/0053/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 13 May 2010 and 
13 April 2011

Before
THE HONOURABLE LADY SMITH
MISS S AYRE FIPM FBIM
MRS G SMITH

D B SCHENKER RAIL (UK) LTD	APPELLANT

MR JOHN DOOLAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J MACMILLAN 
(Solicitor)
MacRoberts LLP
Capella
60 York Street
Glasgow
G2 8JX	
For the Respondent	MR G WATT
(Advocate)
Instructed by:
Morrish & Co.
Oxford House
Oxford Row
Leeds
West Yorkshire
LS1 3BE	

SUMMARY
UNFAIR DISMISSAL
Reasonableness of dismissal
Reinstatement/Re-engagement

Unfair dismissal.  Capability.  Appeal against finding of unfair dismissal upheld; the Employment Tribunal had no basis for finding that the employers were not entitled to conclude, on the expert evidence available to them, that the Claimant was fit to return to work to perform the job of production manager and had also substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.

THE HONOURABLE LADY SMITH 
Introduction
1.	This is an employer’s appeal from a judgment of the Employment Tribunal sitting at Glasgow, Employment Judge Victor Craig, in an unfair dismissal claim, registered on 24 September 2009.  The judgment ordered both compensation and reinstatement of the employee and was in the following terms:

“It was the unanimous judgment of the Employment Tribunal that the claimant was unfairly dismissed by the respondent; the Tribunal orders that the respondent company reinstates the claimant and shall make a payment to the claimant in the sum of NINETEEN THOUSAND THREE HUNDRED AND EIGHT POUNDS AND FOUR PENCE (£19, 308.04) in respect of the wages and benefits the claimant has lost between the date of dismissal and the date of reinstatement; the respondent company shall restore to the claimant all employment rights and privileges including seniority and free and subsidised travel entitlements for the claimant and his wife; the respondent is required to restore to the claimant all pension rights only insofar as it is consistent with and the claimant complying with the rules of the Pension Scheme and any requirements of the Scheme’s Trustees; the respondent shall comply with the terms of this order by 1 November 2009.”

2.	We will continue to refer to parties as Claimant and Respondent.  The Claimant was represented by Mr Watt, advocate, before the Tribunal and before us.  The Respondent was represented by Mr Powell, solicitor, before the Tribunal and by Mr Macmillan, solicitor, before us.

Background
3.	The Respondent’s business is the provision of rail freight services.  The Claimant was employed by them from 27 May 1974 to 10 October 2008, when he was dismissed.  From April 2004 he worked as an Operations Manager, a post which was specified as being “safety critical” and involved various general management duties.  Towards the end of 2004, the Claimant became unwell and received treatment for “stress/depression” which he attributed to his workload.  He returned to work at the end of June 2005.

4.	In March 2007, the Claimant was appointed as a Production Manager based in Ayrshire.  That post involved a significantly higher level of responsibility as is evident from the Tribunal’s findings in fact and from the job descriptions that were before the Tribunal; it was specified as being a “key safety post” and, as the Tribunal found, at paragraph 28, involved:

“..quite a different level of management responsibility from those described under the heading of General Responsibilities of an Operations Manager.”

5.	The Tribunal’s conclusion is readily understandable when the nature of the Production Manager’s responsibilities and the extent to which they are couched in language such as “Ensure…”, “Resolve….” and “Provide leadership and direction…” and the identification of the role as being not only “safety critical” but a “key safety post”, are taken into account (see:  Role and Responsibility Statements relating to the two posts).

6.	By June 2007, the Claimant felt that the stress condition from which he had suffered in 2004/2005 was returning and that his workload was “getting on top of him” (Tribunal: paragraph 34).  He was signed off work as unfit on account of work induced stress, in August 2007.  By January 2008, the Claimant was keen to return to work.  His GP certified him as fit to return to work on 1 February 2008.  The Claimant was asked by the Respondent to consent to release of his medical records.  He did so and the Respondent’s HR manager, Ms Jenny Pooke, sought advice from an occupational health physician employed by BUPA by letter dated 6 March 2008.  She provided his GP records for the previous four years, explained that although the Respondent was prepared to look at light duties with reduced hours for a limited period, the Claimant would be expected to return to work:

“within his 37 – 42 weekly contract with the necessity to work on call within a 4 weekly roster.  This would require him to work nights and afternoon shifts whilst on call.”

7.	The letter asked the BUPA doctor to answer a number of questions including the prospect of the Claimant being able to carry out the full duties of Production Manager.  It also asked the doctor to make a referral to an occupational psychologist for an assessment to be made.  That was against the background of his stress related illness and in circumstances where the Claimant was attending counselling sessions.

8.	The BUPA doctor who attended to Jenny Pooke’s request was Dr McNeish.  He provided a report dated 25 March 2008.  The parts of that report focused on before the Tribunal and during the course of the appeal were in the following terms:

“Dear Jenny
John Smith Doolan
...
As you are aware, he has now been off his work for a number of months with some mental health symptoms which appear to have been driven by work- related issues.  There do not appear to be any circumstances outside of work which have been contributing to his symptoms and once again today he raised concerns about his workload, targets and the possibility of an increasing workload related to increased staff responsibilities.
...
From my conversation with yourself and with John it would appear unlikely that his work pattern is going to change significantly for the better when he returns, although I believe that he has had discussion with his line manager and it has been agreed that he will have a 6-week period of a phase back to his normal duties and he is hoping very much that his work situation would be better managed following an agreement that he will have two weekly meetings with his line manager to give him an opportunity to raise any work-related concerns.
...
Clearly his employers are anxious to ascertain not just whether he is fit to return to work in the short term but whether he will be able to provide effective and regular service in the future without further sickness absence.  It is very difficult to predict how events might go when John returns but my own judgment when I saw him today was that he was at the stage of being ready to return to work.  Events over the next few months will determine whether the strategies which he has devised will be helpful ones and conducive to a long-term successive return to work….. 
Before commenting further it would be helpful to me to have a look at his medical records which you hold and also to receive an update from his General Practitioner…….I think it unlikely that I am going to see anything in the medical records or receive information from his GP which would preclude a return to work and on balance I think it may well be appropriate to allow him to start on his phased return ….
It would be helpful if I could review John in about 6-8 weeks after he has returned to work to see how all this is panning out.”

9.	Dr McNeish reported further, by letter dated 18 April 2008, after he had received a report from the Claimant’s GP, saying:

“There is really no information in that report which would alter my judgment as set out in my letter to you dated 25 March 2008.”

10.	The Claimant underwent a medical examination for incapacity benefit purposes on 24 April 2008 and by standard form letter dated 1 May 2008, he was advised that he did not qualify for incapacity benefit (of which he had previously been in receipt).  That conclusion was reached on the basis of a combination of the Claimant’s own answers to a questionnaire and the assessment on 24 April.

11.	Dr McNeish did not refer the Claimant to an occupational psychologist, despite Jenny Pooke having asked him to do so.  The Tribunal made a finding in fact that Dr McNeish told the Claimant that he did not see that there was a need for such a referral (paragraph 57) but at paragraph 183, their reference to what the Claimant said is somewhat different – it is that Dr McNeish said it was for him to decide whether there should be such a referral, not an HR manager - and they make no findings in fact as to what Jenny Pooke was told by him or anyone else, if anything, as to his explanation for the lack of the referral which she had sought.  Jenny Pooke considered that such a report was required and instructed Brenda Isles MSc, BSc (Hons) CQSW MBACP for that purpose.  Brenda Isles is an occupational psychologist.  She had provided services for the Respondent previously including the provision of some training courses.

12.	Brenda Isles met with the Claimant for 90 minutes and provided a report (in which she referred to the Respondent as ‘EWS’) dated 6 May 2008.  That report included the following:

“1. I was asked to meet with John Doolan and did so on 30th April 2008 at EWS offices, Lakeside, Doncaster.  Our meeting lasted approximately 90 minutes.  The purpose of our meeting was to provide EWS with information and feedback that would contribute to its assessment of whether Mr Doolan was fit to return to work in his current role.  I was invited to provide a professional point of view, but was not required to make the final decision about Mr Doolan’s fitness for work.
2. I have worked with EWS since 1997, providing various psychological, training and development services.  I have knowledge of its business and am writing this report in my role of Occupational Psychologist.
3. ….I have seen the role description of Production Manager …
...
7. It appeared that, for some time, Mr Doolan had been unable to sleep and this had lead to a general irritability.  Mr Doolan told me he had been experiencing many tension headaches and found it very difficult to switch off from work once he got home. ….
...
12. We then went on to talk about the Production Manager’s role.  Mr Doolan explained that it was particularly hard to do this role …..I understand that, when EWS was interviewing for the Production Manager’s job, Mr Doolan asked to be considered for redundancy as he “…could see the job wasn’t worth having.” ...
…
16. I referred again to the demands of the Production Manager’s role.  In reply he explained that he had “….been doing the job since 1992.” …In fact Mr Doolan was a Traction Inspector in 1992.  I believe he continued in this role until 2004 when he successfully applied for the post of Operations Manager.  Mr Doolan then became a Production Manager in March 2007.
17. Mr Doolan described “….doing this job since 1992” on more than one occasion.  Each time I reminded him that in 1992 he was a Traction Inspector and that the role of Production Manager, which he has held since March 2007, requires different things from him.
18. I am reporting on this experience as I wondered why Mr Doolan seemed to muddle his current role and that of Traction Inspector.  I believe the Traction Inspector post was more structured and utilized very specific processes and systems.  According to the role description, the position of Production Manager has a greater range of responsibilities, particularly around people management.  Mr Doolan’s perspective may give some insight into why he finds the role of Production Manager particularly stressful.
19. Throughout our meeting, Mr Doolan referred to the strain of his current role, how the job was affecting and was making him unwell…
...
Findings and Recommendations
...
46. Mr Doolan is in a safety- critical role.  I believe that the demands of this position require that he carries out his duties and responsibilities from a position of psychological and emotional robustness.  I am uncertain about the reality of being able to limit the general pressure inherent in this role in the long term, sufficiently enough to ensure Mr Doolan’s emotional wellbeing.
47. It seems important to comment on Mr Doolan’s presentation in the room…
48. In my view, there was an absence of observable expressions of emotion.  This suggests there would be very few, if any, outward signs that Mr Doolan might be struggling.  Mr Doolan’s external presentation of self-management and control may not be congruent with how he is really feeling, or responding internally to a situation.
...
54. It is unlikely that Mr Doolan could convincingly declare that he would be able to return to work in a demanding environment, without potentially succumbing to further periods of stress-related absence in the future.  For his own sake and given everything described in this report, I would encourage Mr Doolan to seriously consider whether it is in his best interests to return to his current role.  As part of his responsibility to look after his own health, I would encourage him to discuss with EWS whether he would be better suited to a different role within the company…I believe Mr Doolan would work best in a role that has more structure, where the work is much less likely to be changed or interrupted and where Mr Doolan could organise his own day in his own way.  Then Mr Doolan is likely to find that, once out of a stressful environment, he will once again fire on all cylinders …”

13.	The Claimant’s comment (at paragraph 12 of Brenda Isles’ report) that the job was not worth having was found, by the Tribunal to be a reference to the extra duties involved in the Production Manager’s role, over and above those of an Operations Manager.

14.	At a meeting on 12 May, Brenda Isles’ report was discussed with the Claimant.  He contended that it was highly unlikely that he would go off sick on account of stress again and said that if he did:

“you could start company procedures immediately with my full backing and agreement to take any steps you deem necessary.”

15.	At a subsequent meeting on 23 May, the Claimant was advised by Mr Young, the service centre manager, that, based on Brenda Isles’ report, he did not believe that it was possible for him to return to his previous Production Manager’s role, given that it was safety critical.  He indicated that the Claimant would be provided with a list of alternative positions available in the company within the UK; lists were sent to him (see: e.g. Tribunal’s judgment paragraph 103).  The Claimant wanted, however, to return to the role of Production Manager.  One of the vacancies notified to the Claimant was the post of driver based at Ipswich.  On the Tribunal’s findings, the Claimant “expressed an interest” in it.  The Tribunal also found that the Claimant would have had to pay his own relocation expenses but they make no finding as to whether or not that caused him to refrain from applying for the post.

16.	The Claimant was interviewed on 18 June.  At the end of the interview he was advised by Mr Young that he was dismissed on capability grounds.  Mr Young attached greater importance to Brenda Isles’ report than to that of Dr McNeish.  He did so because he believed her knowledge of their business was more detailed than that of Dr McNeish.  He recorded his views in a report stating:

“The reason for your dismissal is as outlined above, however, for clarity, based on the advice and information afforded to me following the Occupational Psychologist’s appointment you had with Brenda Isles, I have decided based on the professional evaluation of your capability for the role in question that you are not capable of performing in a safe and effective manner within the role of Production Manager, which is deemed as safety critical.”

17.	The Claimant appealed and his appeal was considered at a hearing on 8 July, chaired by Mr N Horrocks, business manager.  The notes of that hearing were referred to before the Tribunal and in the course of this appeal.  They include the following (the Claimant being referred to as ‘JD’ and Mr Horrocks as ‘NH’):

“JD: I knew the job was making me unwell so I said it might be better if I leave under redundancy.
NH: We need to ensure your wellbeing and that you do not suffer a setback.
JD: I did say the job was not worth having last year.  I had the foresight to see the additional workload and said I’d rather have redundancy.
NH: It was said we needed to ensure your well being and safety and that you continue to stay safe, it was not stated you have been unsafe.
JD: I have always been safe.  In discussion it was brought up that a reduction of 13 drivers would help me.  I know they are not all mine, but the PM’s work together.  13 less drivers would help me considerably …..The PM left his position at Carlisle as he was fed up with the job and workload.
 NH: I know the individual well and why he left, other things motivate different people.  It wasn’t because of the workload I know that for a fact.
JD: The job is vacant and is an ideal job for me to slot into, as there are only 21 staff there.  I am willing to go there.  It was advertised last week.  I don’t know how many have applied.
NH: Have you applied? 
JD: No.  It is an ideal position for me, with a lot less stress at that location, I could do it ‘standing on my head’.  I am willing to transfer to Carlisle and have the qualifications to do so.
NH: So have you applied?
JD: No.  I was late in getting sent the vacancy list.  JP said it was the same criteria at Carlisle as Ayr.  But I am still willing to apply.”

18.	The Tribunal interpreted that exchange as showing that it was no longer open to the Claimant to apply for the Carlisle job (Tribunal judgment: paragraph 137) although we observe that it is not obvious that that was the case; there was, for instance, no evidence to the effect that the Respondent would not have entertained a late application had the Claimant made one.

19.	Mr Horrocks decided to uphold the decision to dismiss the Claimant.  At the end of the appeal hearing he advised:

“1. I believe that the report by BI does in fact provide management with a clear basis on which to make a decision.
2. The report enabled management to make a judgment based on JD’s capability to undertake the role.
3. The phased return to work would have been allowed on receipt of a favourable psychologist’s report.  However, it would not be possible to reduce the duties and responsibilities of the PM’s position, given that this is a front line management role.  On that basis I do not wish to expose JD to the further risk of this type of illness.
In conclusion I am upholding the decision to dismiss on the grounds of capability as outlined to you in the letter dated 19.06.08.”

20.	After being unemployed for six weeks, the Claimant obtained employment as a postman and at some point after his dismissal, the Claimant decided to take his pension early (the Tribunal make no finding in fact as to when that occurred).  The Claimant was in receipt of pension income by the time of the hearing before the Tribunal (it began in June 2009).

The Tribunal’s reasons
21.	The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175).

22.	Having so concluded, they then asked themselves what purport to be two questions but appear to be the same question asked twice:

“…whether the respondent company had reasonable grounds for believing that the claimant was incapable of performing the work that he was employed to do, namely that of Production Manager (Versatile) and, secondly, whether the respondent company’s grounds for such a belief was reasonable.”

23.	The Tribunal are critical of the Respondent for the weight that they placed on Brenda Isles’ report.  Their reasons for doing so appear to be as follows.  First, Dr McNeish did not consider that such a report was necessary, a conclusion they draw from the Claimant having said that Dr McNeish said it was for the doctor to decide whether there should be a referral to an occupational psychologist, not an HR manager – Dr McNeish did not give evidence.  Secondly, whilst they do not go as far as finding that Jenny Pooke was in bad faith in instructing Brenda Isles’ report, they come close to doing so – they refer to her instructing it “in spite of” Dr McNeish’s views as to its necessity and to Jenny Pooke being “slightly disingenuous” on the matter.  Thirdly, they refer, at paragraph 196 and 197 to Brenda Isles having an established relationship with the Respondent, to her being on first name terms with Jenny Pooke (as, according to his report, was Dr McNeish), to Brenda Isles not being in an “arms length relationship” (paragraph 197) with them, and state that Dr McNeish was “rather more independent” although, again, they do not find Jenny Pooke/Brenda Isles in particular or the Respondent in general to have been in bad faith.  Fourthly, they stress that Brenda Isles’ report was not a “medical” report (see paragraphs 177,188, 203 and 204).  Fifthly, they state that Brenda Isles’ conclusions “go nowhere near indicating that the Claimant was not capable of returning to his duties as a Production Manager” (paragraph 188) and they called into question whether in fact Brenda Isles was more knowledgeable about the Claimant’s work than Dr McNeish (paragraph 204).  Sixthly, they considered it “doubtful that anyone in a stressful employment would be able to ‘convincingly declare’ that he would be able to work in a demanding environment “without potentially succumbing to further periods of stress related absence in the future.”  Seventhly, Brenda Isles was considering the Claimant’s own interests.  Eighthly, the reference to Brenda Isles was by telephone – it was not surprising that at best she was able to say that there was no guarantee that the Claimant would not succumb to further periods of stress related absence.  Ninthly, the Claimant’s GP and Dr McNeish considered that the Claimant was fit to return to work as a Production Manager.  Tenthly, the DWP doctor had, after assessment, provided information which had resulted in the cessation of his incapacity benefit.

24.	The only authority expressly taken into account by the Tribunal is East Lindsay District Council v Daubney [1977] ICR 566, for the proposition that in a capability dismissal, the employer has to consider all the available medical evidence and inform itself of the “true medical position”.  They make no reference to British Home Stores Ltd v Burchell [1978] IRLR 379.

25.	At paragraph 195, following on from their discussion of why the Respondent should not have preferred Brenda Isles’ report, the Tribunal set out what appears to be their principal reason for finding that the Claimant was unfairly dismissed:

“195. In these circumstances even if we were to conclude – which we do not – that the respondent company did have reasonable grounds for believing that the claimant was incapable of working as a Production Manager we are certainly not satisfied that they had reasonable grounds for such a belief.”

26.	We find the wording of that paragraph puzzling.  It appears that the Tribunal may have intended to say “even if we were to conclude that the Respondent had a genuine belief, which we conclude they did not”, given their earlier not too thinly veiled hints of a suspicion of bad faith.  That said, they do accept that the Respondent’s reason for dismissal was capability and, on the other hand, they perhaps meant to say that although they were satisfied that the Respondent did genuinely believe that the Claimant was incapable of returning to work as a Production Manager, they did not have reasonable grounds for their genuinely held belief.

27.	What is clear is that nowhere do the Tribunal suggest that the Respondent failed to carry out a reasonable investigation so far as the Claimant’s ability to return to the role of Production Manager was concerned and that they consider the dismissal to have been unfair because the Respondent ought not to have concluded that the Claimant was not fit to return to his former role.  They do not, for instance, suggest that the Respondent ought to have instructed any further reports or to have made any further enquiries of the Claimant himself.  They appear to have been satisfied that the Respondent carried out a reasonable investigation before reaching their conclusion.

28.	The Tribunal also set out to explain what, had they considered that the Respondent did have reasonable grounds for their belief in the Claimant’s lack of capability, would have been their conclusion regarding the question of whether or not the Respondent acted fairly within the context of section 98(4) of the 1996 Act.  At paragraph 198, they state:

“198. Even if we are wrong in concluding that the respondent company did not have reasonable grounds for believing the claimant to be incapable of performing as a Production Manager, we also have to consider whether the respondent acted fairly within the context of Section 98(4) of the Employment Rights Act.”

29.	They then answer that question in favour of the Claimant on the following basis.  First, at paragraphs 199 – 201, they engage in observations to the effect that Mr Watt, counsel for the Claimant, did not but might have argued that the dismissal was automatically unfair.  At no stage in the hearing before the Tribunal was it suggested by or on behalf of the Claimant that he was dismissed at the meeting on 23 May but  at paragraph 199, they state:

“…it would have been perfectly arguable that that meeting resulted in the dismissal of the claimant …..”

30.	They then go on to observe that in that event, the Claimant would have been dismissed without a step 1 letter having been sent to him and that the dismissal would, accordingly, have been automatically unfair.  Secondly, they state that an employer acting within the bands of reasonable response would not have rejected the Claimant’s offer to return to work with the undertaking that if he went off sick with stress again, the Respondent could start procedures immediately with his full backing to take any steps they deemed necessary (paragraph 205).  Thirdly, they state that it was outwith the band of reasonable responses to prefer Brenda Isles’ report, which was not from a doctor and “which studiously avoided indicating whether the Claimant was capable of carrying out his duties in the face of the contrary opinions of Dr McNeish, the DWP doctor and the Claimant’s own General Practitioner” (paragraph 203, 204, 205).  Fourthly, they comment that the Respondent’s concern was for the Claimant’s own health and the Claimant said he could now cope better (paragraph 206).  Fifthly, they state that while working as an Operations Manager and in his period working as a Production Manager, the Claimant had not performed in a manner which was detrimental to his or anyone else’s safety (paragraph 207).  Sixthly, they state that the safety critical element of the role of Production Manager was exaggerated by the Respondent (paragraph 207).  Seventhly, they state that the Respondent should have considered it unlikely that the Claimant’s GP would certify him as ready to work if she had felt there was a risk of harm to his health (paragraph 211).  Eighthly, so far as alternative positions were concerned, they say that a “proactive and reasonable” employer would have identified the Carlisle vacancy to the Claimant – there was an opportunity there for him to “take up” a Production Manager’s role, and they observe that although the Claimant had expressed an interest in the Ipswich job, the manager there had refused to contribute to his relocation expenses (paragraph 212).  Whilst the Tribunal does not find that it was unreasonable to refuse to do so, it may be implicit in their mentioning it that they considered that that was so.  Finally, the Tribunal considered that the Claimant’s long service was a relevant factor (paragraph 213).

31.	Turning to remedy, the Tribunal ordered compensation to cover the Claimant’s past loss of earnings and associated benefits and ordered that he be reinstated.  The benefits in question were free and subsidised travel that the Claimant would have had available to him had he not been dismissed.  No vouching of any sort was produced and there was no evidence that the Claimant had tried to mitigate his loss.  The Claimant sought the sum of £7,604.  The Respondent suggested that any such loss should be restricted to the Inland Revenue cash value, namely £506.65.  The Tribunal awarded significantly more than that.  At paragraph 224, they stated:

“In our view the real loss is probably somewhere in between but much nearer the respondent’s figure.  Doing the best we can we would estimate the loss of benefits to the date of re instatement will be One thousand Five Hundred Pounds.”

32.	In relation to his pension we would refer to the terms of the judgment.  The Tribunal’s reasons for making the order in those terms are shortly stated, at paragraph 226:

“….we recognise that his further participation in the scheme will be dependent on the rules of the scheme and the claimant complying with certain requirements. …the respondent shall restore the claimant’s rights in the respondent’s pension scheme only insofar as that is consistent with the rules of the scheme and the claimant complying with the (sic) any relevant rules of the Pension Scheme and any requirements of the Pension Fund Trustees.”

Relevant law
33.	Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case.  Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.  The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct.  When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.

34.	In Burchell, it was found by this Tribunal that, in the light of three particular facts, the issue for a Tribunal was:

“…quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing.” (paragraph 18)

and the issue was not whether the conclusion drawn by management:

“….was by an objective standard a correct and justifiable conclusion.” (paragraph 19)

35.	Applying that approach to the present case, the issue for the Tribunal was whether a reasonable management could find, from the material before them that the Claimant was not capable of returning to the post of Production Manager.  The Tribunal also required to bear in mind that the decision to dismiss is, properly, a managerial one, not a medical one.  Whilst medical or other expert reports may assist an employer to make an informed decision on the issue of capability, the decision to allow someone to return to work or to dismiss for reasons relating to capability is, ultimately, one which the employer has to make.  It is not a decision that is to be dictated by the author of a report.  Quite apart from considerations of his duty not to dismiss an employee unfairly, an employer owes a common law duty of reasonable care to the employee and, in cases, such as the present, requires to make his own assessment of the risk of a return to work causing a recurrence of the employee’s ill health, albeit that any such assessment will normally be informed by the content of an expert report or reports.

36.	Finally, it follows from the above that it is not for a tribunal to substitute its own view for that of the reasonable employer whether in considering whether or not the employer had reasonable grounds for its belief in the reason for dismissal or whether or not dismissal was within the range of responses open to an employer where a potentially fair reason existed: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439.  The Court of Appeal gave consideration to the risks of a tribunal doing so in the case of London Ambulance Service NHS Trust v Small [2009] IRLR 563.  At paragraphs 42 and 43, Mummery LJ said:

“42. The ET used its findings of fact to support its conclusion that, at the time of dismissal, the trust had no reasonable grounds for its belief about Mr Small’s conduct and therefore no genuine belief about it.  By this process of reasoning the ET found that the dismissal was unfair.  In my judgment, this amounted to the ET substituting itself and its findings for the trust’s decision- maker in relation to Mr Small’s dismissal.
43. It is all too easy, even for an experienced ET, to slip into the substitution mindset.  In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer.  He has lost his job in circumstances that may make it difficult for him to get another job.  He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”

37.	Likewise, a tribunal requires to guard against being carried along by sympathy for a long standing employee whose employers have concluded that he is not fit to return to his job in circumstances where he was keen to try to return to work and, in all cases, to resist the temptation to test matters according to what they would have concluded and decided if they had been in the employer’s shoes.

38.	Turning to the matter of judgments, paragraph 28 of the Employment Tribunals (Constitution and Rules etc) Regulations 2004 provides:

“28 Chairmen or tribunals may issue the following -
(1)(a) a “judgment” which is a final determination of the proceedings or of a particular issue in those proceedings….”

39.	Since a judgment is a final and enforceable order, it requires to be certain in its terms.  Parties should be left in no doubt as to its meaning and import and it should leave no room for further debate as to what requires to be done by the party against whom it is directed.  Further, the judgment in a tribunal litigation between two parties can have no force or effect as against a third party.

40.	Pension loss being an issue in this case, reference requires to be made to sections 114 and 117 of the 1996 Act.  Insofar as relevant, they provide:

“114…..
(2) On making an order for re-instatement, the tribunal shall specify the terms on which re-engagement is to take place, including –
...
(b) any rights and privileges (including seniority and pension rights) which must be restored to the employee.
...
117 (1) An employment tribunal shall make an award of compensation, to be paid by the employer to the employee, if  -
(a)…..the complainant is reinstated …but
(b) the terms of the order are not complied with.”

41.	Section 117 makes further provision for the awarding of additional compensation in the event of non-compliance but with provision that no such award is to be made if the employer satisfies the tribunal that it is not  “practicable” to comply with it (s.117(4)).

The appeal
42.	Mr Macmillan submitted that the Tribunal’s judgment should be set aside and the case should be remitted to a freshly constituted Employment Tribunal for a rehearing.  The Tribunal had erred in law in that it had substituted its own judgment both in respect of the sufficiency of the grounds for their conclusion as to the Claimant’s capability and in respect of their conclusions as to whether or not, in any event, dismissal on capability grounds would have been fair.  They had made certain findings for which there was no basis in the evidence and had reached a decision which was not open to them on the findings in fact made for which there was evidence.  Separately, Mr Macmillan submitted that the Tribunal had erred in law in its judgment relating to the reinstatement of the claimant’s pension rights.

43.	Mr Macmillan pointed to various parts of the Tribunal’s judgment as showing how the Tribunal had fallen into error.

44.	Taking first the submission that the Tribunal had substituted its own view for that of the reasonable employer, Mr Macmillan referred to the following aspects of the judgment.  Whilst recognising that the nature of the Production Manager’s role lay at the heart of the case and finding, at paragraph 28, that it was a key safety post with significantly greater responsibilities than that of Operations Manager, when it came to their decision, they found, at paragraph 207, that the Respondent exaggerated the role, doing so under reference inter alia, to the Claimant’s performance as Operations Manager, which was not relevant.  Then, the Tribunal had heard no evidence from Dr McNeish yet found that the fact of his not arranging an appointment with an occupational psychologist could only mean that he had clearly decided it was not necessary (paragraphs 183 and 185) – not something which could properly be inferred from the fact that no such appointment was arranged.  Further, paragraph 195 simply did not make sense other than as showing that the Tribunal were substituting its own view.  Then, at paragraph 214, the Tribunal stated that “Frankly we think that Jenny Pooke was splitting hairs when she sought to argue that in the last paragraph of his e-mail (P121) the Claimant was not offering to return on something akin to a trial basis.  Our reading of that paragraph is that it is very much akin to an offer to return on a trial basis.” – it was not, however, the Claimant’s case before the Tribunal that he had offered to return on a trial basis.

45.	Turning to Mr Macmillan’s next submission, there were several respects in which the Tribunal had, he said, “gone off on a frolic of its own”.  In that regard he referred, for instance, to their commenting adversely on the fact that Jenny Pooke and Brenda Isles were on first name terms (ignoring that Dr McNeish, in his report, also addressed Jenny Pooke by her first name) and to their having engaged in discussion of what might have been their decision had Mr Watt argued that there had been a failure to follow the statutory dismissal procedure so that the Claimant had been automatically unfairly dismissed (paragraphs 199 – 201).

46.	Then, Mr Macmillan submitted that the Tribunal had reached a number of conclusions for which there was no factual basis.  He referred to the Tribunal having questioned whether or not Brenda Isles was more knowledgeable about the Respondent’s business than Dr McNeish yet they did not disbelieve her evidence or the Respondent’s evidence on that matter.  In similar vein, they referred, in paragraph 205, to her having “studiously avoided indicating whether the Claimant was incapable of carrying out his duties…” when there was no finding in fact to the effect that she “studiously avoided” doing so and the opening paragraph of her report made it clear that she was well aware that the decision as to his fitness for the role for which he was employed was not one for her to make.  He referred also in this regard to his submissions anent the Tribunal’s conclusion that the safety aspect of the Production Manager role was exaggerated.  Further, he referred to the way in which the Tribunal had dealt with the Claimant’s claim for loss of travel benefits.  They had no basis whatsoever in the evidence for their figure of £1,500 – that conclusion was also not Meek compliant as there was no way of knowing how they had arrived at it.

47.	Separately, Mr Macmillan submitted that the Tribunal’s judgment was not Meek compliant in respect that there was no rational explanation for their conclusion that Dr McNeish had in fact decided that a referral to an occupational psychologist was unnecessary and no rational explanation for their conclusion that it was not open to the Respondent to rely on Brenda Isles’ report as supporting them in their conclusion as to the Claimant’s capability.

48.	Otherwise, Mr Macmillan submitted that the Tribunal had engaged in speculation and conjecture as to Brenda Isles’ professionalism.  Much of what they said in paragraphs 196 and 197 appeared to call it into question yet there was no proper basis on which they could do so. He submitted that the flavour and tenor of the judgment was such as to give a clear impression of the Tribunal substituting its own view and having an imbalanced approach.

49.	As to the pension matter, Mr Macmillan submitted that the Tribunal had issued a judgment that could not be enforced.  The terms of the relevant pension scheme were not known.  It was not known what would be the position of the pension trustees.  There had been no enquiry or evidence about these matters.  The fact that the Claimant had passed from being a contributor to the pension scheme to being a recipient of pension income may well have made it impossible to restore him to the position he was in prior to his dismissal.  It was wholly inappropriate for the Employment Tribunal to have directed the Respondent in these terms.

50.	For the Claimant, Mr Watt submitted that the Tribunal had had a clear basis for its findings in fact and their approach accorded with the guidance in East Lindsey District Council v Daubney, Spencer v Paragon Wallpapers [1977] ICR 301 and Elmbridge Housing Trust v O’Donoghue [2004] EWCA 1103.  The questions for the Tribunal were whether or not the Respondent had taken reasonable steps to inform themselves of the Claimant’s medical condition and whether or not dismissal was within the range of reasonable responses.  They had properly addressed them.  Mr Watt essentially submitted, particularly under reference to paragraphs 179, 180, 181, 182, 183, 203 and 204 of the Tribunal’s judgment, that Dr McNeish’s views were to be preferred to those of Brenda Isles and the Tribunal were right so to conclude.  Regarding their inference that Dr McNeish had decided that a referral to an occupational psychologist was not required, he submitted that they were entitled so to infer.  As to the Respondent’s criticisms of paragraph 195, he submitted that it followed from paragraph 176 and was clarified by paragraph 198, although he seemed to accept that a “conundrum” was posed by the way that the Tribunal had expressed themselves in paragraphs 195 and 176 and ultimately accepted that paragraph 195 did not correctly articulate the test that the Tribunal required to apply.  Regarding the Tribunal’s finding that the safety criticalness of the post was exaggerated, Mr Watt referred to the findings that the Claimant had been safe in the past when working as an Operations Manager.

51.	Regarding Brenda Isles’ report, Mr Watt submitted that the Tribunal’s judgment ought not to be interpreted as rejecting it and her conclusion was in fact far from being to the effect that the Claimant was not fit for his job.  She did not find that there was a high risk of a resumption of ill health; she only found that there was a risk of resumption.  Whilst he did not submit that there was anything improper or unprofessional in Brenda Isles’ approach, he stated that her prior relationship with the Respondent may have had a bearing on matters.  He seemed to suggest that it could have been because of that that the Respondent put more weight on her report but he did not develop the submission to show why that meant that the Respondent should not have relied on it.

52.	Mr Watt stated that he did not now found on the assessment of the DWP doctor.

53.	Regarding the Tribunal’s consideration of what would have been the outcome had it been argued that the Claimant was dismissed at the meeting on 23 May without the statutory dismissal procedures having been complied with, the passage was, he submitted, pro non scripto and should be ignored.

54.	Overall, Mr Watt submitted that notwithstanding the deficiencies accepted by him, to which we refer above, the Tribunal could be seen to have in fact adopted the correct approach and the appeal should be refused.

Cross appeal
55.	The cross appeal related solely to that part of the judgment dealing with the Claimant’s pension rights.  Mr Watt submitted that the Tribunal had erred in respect that they ought to have made an unconditional order restoring the Claimant to his prior pension rights.  The terms of the order should have been “to restore to the Claimant all pension rights.”  Absent such an order, the Claimant was being denied the right to return to advance a claim under s.117(1)(b) of the Employment Rights Act 1996 if the trustees of the pension scheme refused to readmit him.

56.	For the Respondent, Mr Macmillan opposed the cross appeal.  Mr Watt’s submission failed to take account of the provisions of s.117(4) of the 1996 Act and unreasonably put the Respondent into the position of being obliged to try and achieve an outcome which it was not within their power to bring about.

Discussion and decision
57.	It was common ground between the parties that the reason given by the Respondent for dismissing the Claimant related to his capability for the job for which he was employed – a potentially fair reason in terms of s.98(1) and (2) of the 1996 Act.  Further, it was not disputed that the Respondent addressed matters both on the basis of a consideration of the Claimant’s own wellbeing and of their interest in having him perform the job for which he was employed and it was not suggested to the Tribunal or to us that that was not entirely appropriate.  We can well understand why an employer would, in circumstances such as the present case where they were on notice that the Claimant’s work had made him ill in the past, consider that, in implement of their duty to take reasonable care of the Claimant, they required to consider his health and wellbeing as well as their own interests.

58.	In determining whether or not the Claimant’s dismissal was fair or unfair (s.98(4)) of the 1996 Act) there were, accordingly, three initial questions that the Tribunal required to address: whether the Respondent genuinely believed in their stated reason, whether it was a reason formed after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.

59.	As we have explained, the Tribunal did not suggest that the Respondent failed to carry out a reasonable investigation.  We are thus unclear as to why Mr Watt appeared, in part of his submission, to approach matters as though they had determined that there was such failure in this case.  Nor did the Tribunal find that the Respondent’s belief was other than genuinely held.  Whilst the unsatisfactory wording of paragraph 195, to which we refer above, might suggest that they considered doing otherwise, a finding of lack of genuine belief would require, in fairness to all concerned, to be clear and unambiguous and the Tribunal made no such finding.  There would need, for instance, to be a clear finding in fact that the Respondent did not genuinely hold the belief which they purported to hold.  The requirement for clarity is because such a finding would, at the very least, raise questions of bad faith.  That left the matter of whether or not the Respondent had reasonable grounds for holding it.  Having carefully considered the Tribunal’s findings in fact and reasoning on this issue, we are persuaded that Mr Macmillan’s criticisms are well founded.  Overall, we have the clear impression that the Tribunal set about determining whether they would, on the available material, have dismissed the Claimant and erred in law by so doing.

60.	As to the progress of reasoning in which the Tribunal engaged, they plainly considered that the Respondent should have either not instructed Brenda Isles at all or, having done so, should have placed little or no weight on her report.  As to the former, there is no proper basis for their criticism of her being instructed.  To do so was a management decision and in the case of an employee such as the Claimant who had, by that time, suffered two significant bouts of stress related illness caused by work, the obtaining of the views of an occupational psychologist would not be unusual; the Tribunal made no findings in fact to that effect nor indeed, any other findings in fact to suggest that it would be unreasonable for an employer to obtain such a report in these circumstances.  All that they point to is what they heard from the Claimant in evidence about what Dr McNeish said when he examined him and their findings in that regard seem to come to no more than that his view was that it was for the doctor to decide whether a reference should be made.  Dr McNeish did not, however, give evidence nor did he say anything in his report about the matter nor was there any finding that Jenny Pooke was aware that he held any such views.  These circumstances form no proper basis for criticising her for instructing it, yet the Tribunal plainly do so.

61.	Turning to Brenda Isles, we note that Mr Watt was at pains to refrain from criticising her professionalism yet, rather like the Tribunal, sought to suggest that there was something about her relationship with the Respondent which might call into question the worth of her report without going as far as to say that she was in bad faith.  We cannot accept that either his or the Tribunal’s approach, to which we refer above, had any proper foundation in the facts.  She was a professional who had previously received instructions from the Respondent including instructions to provide training courses.  She, in common it seems, with Dr McNeish, was on first name terms with Jenny Pooke – we observe in passing that, in the 21st century, the use of first names is the norm in many walks of life where it would have been unheard of 20 years ago.  She accepted instructions by telephone.  These matters do not justify the Tribunal concluding that she was not “at arms length” and not “independent” or hinting, as they strongly do, that she would be other than entirely professional in her approach.

62.	What of the report itself?  The Tribunal having made much of her close relationship with the Respondent, it would have been difficult for them to find that the Respondent was not entitled to take the view that she had a detailed knowledge of their business and they do not do so.  Although they suggest that her knowledge might not have been greater than that of Dr McNeish, there was no basis in the evidence for them to draw any conclusions about the nature or extent of his knowledge of the Respondent’s business and they make much of the fact that he was entirely independent of them – there is no suggestion that he had had any prior experience of the Respondent’s business at all.  As to the fact that it was not a medical report, we cannot see that that is of any relevance.  It was a report by a professional person whose discipline was obviously relevant to a consideration of the Claimant’s circumstances.  Further, Brenda Isles spent a lengthy period with the Claimant for the purposes of her assessment and evidently took care to ascertain the content of the Production Manager’s role and its comparison with the role of Operations Manager.

63.	The Tribunal state that her report comes nowhere near indicating that the Claimant could not carry out his former role and seem to suggest that her failure to state a conclusion as to his fitness for the post should count against her.  We would, however, observe that she correctly proceeds on the basis that the decision as to his fitness was not hers to make.  Further, she approached matters, also correctly, on the basis that within a short time, the Claimant would have to return to full Production Manager duties and that it is a pressured role which is safety critical.  She assessed the Claimant’s personality as being that it was likely that there would be few if any outward signs if he was struggling and she plainly concluded that there was a real risk of him succumbing to further periods of stress related illness if he returned to the role of Production Manager; indeed, Mr Watt’s submission was that her report identified that there was such a risk.  The point is not, as the Tribunal put it, whether he could carry out the role, but whether or not he could do so without it making him ill again.  We are entirely satisfied that it was open to an employer to conclude that Brenda Isles’ report was putting them on notice of the risk being as we have stated above – it was a conclusion that was clearly open to them on the basis of her assessment of it being ‘unlikely’ that he could ‘convincingly declare’ that he could return to a demanding role without ‘potentially succumbing to further periods of stress – related absence’ together with her clear encouragement to him to look to pursuing a different role in the company so as to enable him to ‘fire on all cylinders’ again in the context of him having advised her throughout their meeting that the Production Manager role made him unwell.  The Tribunal’s own view that it was not likely that “anyone in a stressful employment” would be in a similar position to the Claimant is beside the point and is, in any event, a view which was not based on any evidence or finding in fact.

64.	We would add that we do not consider that the fact that Brenda Isles received her instructions by telephone was of any relevance.  Then, as regards the GP’s certification of the Claimant as fit for work, in common with the DWP doctor’s assessment, that finding is one of general fitness for work, not ability to carry out a particular role; their certificates are not indicative of deficiency in Brenda Isles’ assessment.  So far as Dr McNeish’s report is concerned, even if it could be regarded as finding that the Claimant was fit to return to the job of Production Manager, that does not show that the Respondent was not entitled to rely on Brenda Isles’ assessment, particularly in circumstances where the Tribunal do not find that a reasonable investigation required further report(s) to be obtained.  However, we observe that Dr McNeish’s report was not, as the Tribunal state, wholly contrary to her assessment.  He found that the sole cause of the Claimant’s difficulties was his work and he recognised that his work pattern was not likely to change significantly for the better.  In addressing the question of whether or not the Respondent could be assured that the Claimant would be fit to return without a recurrence of his stress- related illness, he is cautious – “It is very difficult to predict…” and rather than commit himself to any prediction, he suggests that the Claimant return to work and he assess him again in 6 – 8 weeks time.

65.	In these circumstances, the Tribunal’s conclusion that the Respondent had no reasonable grounds for their belief in the reason relating to the Claimant’s capability on which his dismissal was based, was not tenable.

66.	Turning to the Tribunal’s separate consideration of the fairness of the dismissal, under s.98(4), we are satisfied that it too is flawed.  First, notwithstanding that they purport to be approaching their consideration on the hypothesis that the Respondent’s reason was a genuine one formed on reasonable grounds, they import into their considerations their views to the effect that Brenda Isles’ report did not constitute reasonable grounds for that belief.  Then, we agree with Mr Macmillan that their observations at paragraphs 199 to 201 to the effect that they could have made a finding of automatically unfair dismissal had Mr Watt argued that the Claimant was dismissed on 23 May, are wholly irrelevant to the issue of fairness under s.98(4) and seem strongly indicative of a desire to find in favour of the Claimant.  He relied on their assessment of compensation for loss of travel benefits as also being similarly indicative and we can see why; it is hard to resist the conclusion that the Tribunal were distracted from the lack of evidence on that matter by sympathy for the Claimant.

67.	We turn to the Tribunal’s suggestion that a reasonable employer would not have rejected the Claimant’s “offer” that if he went off sick again with stress, procedures against him could be started immediately with his full backing.  The Tribunal appear to have overlooked that, given the terms of s.203 of the 1996 Act, however sincerely the offer was meant, it would not be open to the Respondent to found on any such undertaking at a future date – the offer was in fact valueless.  Moving on to their considerations of the safety critical element of the role, the Tribunal’s finding of exaggeration, at paragraph 207, appears to be in conflict with their earlier findings, at paragraph 28.  We note that they then confine their considerations to the question of what had happened in the past when the Claimant was an Operations Manager and when he, latterly, worked as a Production Manager.  The former role was not, however, as pressured, the Claimant had only worked as Production Manager for a short period before going off sick on account of stress and the Respondent’s task was to make a risk assessment for the future, a task which is not a matter of assuming that the absence of any past safety incident means that there is no future risk.  So far as the Tribunal’s assumption that the GP would not have certified him as ready to work if she had felt he was at risk of harm was concerned, as we have already observed, her certificate did not address the question of whether he was fit to work as a Production Manager again and what were the risks of another breakdown in his health.  She did not give evidence and there was no evidence before the Tribunal that she knew or understood what the role of Production Manager entailed.  As to the matter of alternative positions, the Tribunal import a test of the “reasonable and proactive employer” which goes beyond what the law requires and take no account of the Claimant having chosen not to apply for other vacancies of which he was aware, according to their finding at paragraph104.  Also, they appear to assume that the Carlisle job was one to which the Claimant would have been entitled if he had applied but that makes no allowance for the possibility of him being in competition with other applicants.  Finally, so far as the Ipswich job was concerned, we are unsure whether the Tribunal intended to make any finding regarding reasonableness on this matter but if they did intend to find that no reasonable employer would have failed to contribute to his relocation expenses, they had no basis for doing so.  They had heard no evidence as to the sums which would have been involved or the reasons for refusing to make such a contribution. Those matters are the very least that would require to have been covered in evidence before a judgment could properly be made on the issue.

68.	As will be apparent from the above discussion, we accept that the Tribunal’s reasoning does not support their conclusion that the Claimant’s dismissal would have been unfair even if the Respondent had had reasonable grounds for their belief as to his capability.

69.	We turn now to the pension issue, including the cross appeal, which is now academic but it is appropriate that we set out our conclusions on the matter.  We consider that the Tribunal’s order leaves matters so uncertain as to be an error of law.  Its provisions impose some, albeit unclear, requirement on the Respondent yet the Tribunal had no basis on which to think that any restoration of the Claimant to the status of being a contributor to the pension scheme was possible and it was certainly not something which was within the Respondent’s power.  Having made an order in these terms, the possibility of the Respondent having to meet a claim under section 117 was raised; it could have involved liability for both compensation and an additional award of compensation.  The statute provides the Respondent with no answer so far as the former is concerned and as regards the latter, their protection is limited to circumstances in which they can show it was “not practicable”, considerations of reasonableness being, apparently, irrelevant.  In short, the consequences for the Respondent could have been punitive.  We are satisfied that, in the circumstances, they were entitled to have any order relating to restoration of pension rights restricted to requiring them to do that which was within their power.  It follows that the cross appeal was not well founded.  The order proposed by Mr Watt was even less certain than that imposed by the Tribunal.

Disposal
70.	In the above circumstances, we will pronounce an order upholding the appeal and remitting the case to a freshly constituted Employment Tribunal for a rehearing.  Mr Watt did not demur from the submission that that would be the appropriate disposal if we were minded to grant the appeal.