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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Stagecoach South East London & Anor v. Kirmizi [2007] UKEAT 0131_07_1210 (12 October 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0131_07_1210.html Cite as: [2007] UKEAT 0131_07_1210, [2007] UKEAT 131_7_1210 |
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At the Tribunal | |
On 14 June 2007 | |
Before
HIS HONOUR JUDGE BURKE QC
MR P GAMMON MBE
MS P TATLOW
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
APPEARANCES
For the Appellant | Mr I Maccabe (of Counsel) Instructed by: Moorhead James Solicitors Kildare House 3 Dorset Rise London EC4Y 8EN |
For the Respondent | Mr S Heath (of Counsel) Instructed by: Lewisham Law Centre 28 Deptford High Street London SE8 4AF |
SUMMARY
Unfair dismissal – Mitigation of loss
The Claimant was dismissed for ill health; he had suffered a slipped disc. The T found that the dismissal was unfair. The Respondent; appeal was allowed because of a series of flaws in the Tribunal's reasoning. No point of principle arises. Remitted for rehearing by a fresh Tribunal.
HIS HONOUR JUDGE BURKE QC
The appeal
The facts
"Conclusion & Recommendations:
This is a common problem in overweight middle-aged people who have a sedentary job and take little exercise.
Recovery is a long-term process and prevention of further problems requires lifestyle modification. For this reason the prognosis is guarded.
Addressing your specific questions:
He will recover over a period of months rather than weeks.
His future health and reliability depend on his ability to modify his lifestyle in order to remain fit and well; as well as on the success of treating this episode. Undertaking other duties is difficult to predict without some knowledge of what is available. In theory, a semi-sedentary post would be useful in the short term.
Driving an automatic vehicle with power steering is not arduous and the only way it would aggravate his back pain is by requiring him to sit still for long periods, whereas the key to managing this type of back problems is to get the patient mobile and keep them moving.
He could undertake any form of employment which allows him to sit for brief periods and get up and move around at regular intervals. It is often helpful to arrange for people to attend the work-place regularly rather than sitting around at home getting bored.
I would not recommend a medical dismissal at this stage because the treatment options have not been explored and this is a condition which generally requires protracted treatment.
His symptoms have not lasted 12 months and so there is no need to invoke the DDA at this stage. His condition should be kept under regular review.
Should you require anything further, please do not hesitate to contact me.
Yours sincerely
Dr Susannah Kahtan MAHons (Oxon) MRCS (Eng) LRCP (Lond)"
"To answer your specific queries:
i) He is not currently fit to drive a bus for up to an hour with 5-15 minutes between journeys. This is partly due to his leg pain and partly due to the sedative side effects of his medication.
ii) The timescale is, as you know, not going to be short. He appears to have a genuine sciatica and is not even going to see an orthopaedic surgeon until 51h May 2006.
iii) He will, in my opinion, be unfit to drive a bus for several months. You ask when it would be appropriate to consider medical dismissal. While aware of the constraints of a business environment, I would normally suggest that an employer should allow six months for recovery from an acute sciatica. This time window allows recovery in a significant proportion of cases, and the employer is seen to be acting with circumspection.
iv) I have asked him to inform DVLA as it is likely his condition will last more than three months. it is highly unlikely that his PCV licence will be revoked but he may need to pass a medical before resuming.
v) His symptoms would have to last 12 months before the DDA can be invoked. Reasonable adjustments would include, for instance, allowing guaranteed breaks between journeys and allowing part-time work.
"In response to my questions you told me that you saw the specialist on the 5th May where you said the decision to operate was explained to you as 100% necessary. You told me that you asked when this would be done and the consultant said it could be 1 month or 12 months, he couldn't say.
You told me that the recovery from this type of operation was 6 - 8 weeks to be back bus driving. You told me that physiotherapy had been stopped because it was not felt to be a benefit to you. Mr Richards felt your case had been progressed too quickly and said that you would be willing to undertake alternative work.
I explained in some detail the difference between permanent and temporary alternative employment. I feel staff should be aware of the difference and when they are likely to be applied.
In summary I would say that we are dealing with a period of sickness that is currently over 4 months in duration. Given my experiences of both this type of operation and the Health Service I can concur with the specialist that the timescale for this operation cannot be predicted. However, our knowledge and experience tells us that it may take some months for this operation to come to fruition.
While I fully accept I have no medical training a 6 week recovery for this type of operation seems rather optimistic to me. I base this on my practical experience with other drivers with a similar problem over the years.
It does appear to me that it could be many months before there is a chance for a return to bus driving. Unfortunately Mr Davis was quite right in his letter to you on the 16th February. His reasons for saying what he did is because our industry has the greatest of difficulty coping with sickness and absence of all causes in a fully contractual bus operation. We suffer huge penalty payments for non operation of our services both on the quantity of the miles we operate and also the service quality.
While it is most regrettable that we have to consider your continued employment at this time, I fear we must. I do not feel able to allow your sickness to continue for an indefinite or considerable time. We all know that waiting up to a year and sometime beyond for an operation is not unknown.
I believe the only option remaining is to consider some time with alternative employment, but unfortunately there are some issues with that. Prior to a recess you agreed that clerical work was all that you could do. I expressed some concern at your ability to do this type of work, given your language difficulties. I notice that we arranged an English language course for you to begin in January 2006 and you said you were unable to do this due to your illness. You assured me that you could converse with drivers OK, but I have to say that is a small part of any clerical job.
I spoke personally during the recess to the Human Recourses Director who told me that we currently have no permanent clerical vacancies open. That only leaves temporary alternative employment, but I am reluctant to consider that or the length of time we are potentially dealing with here.
I have given a great deal of thought to your view that the Manager acted too quickly and I can fully understand your views here. However, I don't think there is an easy answer to it. If you did get an operation within a month of the 5th May and make a speedy recovery your views may have some credibility. However, that already looks far from likely and all our experience tells us we are probably looking at many more months of sickness.
In making a decision in your case I admit to being torn between delaying a dismissal to see if an operation does appear in the next few weeks and denying your appeal. What makes my decision more difficult is the fully competitive contractual world we work in.
After careful thought my honest opinion is that perhaps a decision to dismiss was made at the minimum time, but I believe for the right reasons. I have asked myself what I really think would change if I delayed that decision. Given your consultants views and my experience I don't believe anything is likely to change and all I would likely do is delay the inevitable. Under those circumstances I am inclined to tell you that your appeal is denied.
My one concern here, is that I make a decision based on my experience and common sense that turns out to be wrong and your operation does come up within a short time.
I don't think I should be in a position where I have to guess at the competence of the health service when I am considering your employment. I believe that this day and age it is not reasonable for you to be told it may take a month or a year to get an operation. There I suggested the following.
That I will hold off my decision for a 2 week period until the 8th June and in that time you need to write or contact your health Authority by phone and try and pin them down to be a lot more precise with the likely waiting time for this operation. If you can send me something in writing that gives me a good indication that your operation is likely to be sooner rather than later I will look again at my decision. If that is not possible, then I am sorry, but your appeal will be denied.
If I do not hear from you by the 8th June I will assume you have been unsuccessful. I wish you luck and I suggest you do ask for the help of your family if they are more conversant with English. I said you should be entitled to a better standard than being told 1 month or 12.
I regret my decision could not be more favourable to you and I wish you luck with the Health Authority."
"I can confirm that Hasan Kirmizi is under Mr Walczak's team for severe low back pain, shooting down his left leg. An MRI scan showed that he has a large disc at L5/S1 which will require surgery. He has been referred to the neurosurgical unit at King's College Hospital and the timescale for this is very unpredictable, but hopefully once he has had the operation he will be able to return to work within 6 weeks following the date of the operation. Obviously I can't predict when the operation will be but King's College should be able to provide information about the operation and Mr Kirmizi's recovery."
Thus, despite having adjourned the meeting to obtain some positive information as to when the operation would take place, Mr Beckham received no such information. As a result he wrote to Mr Kirmizi on 6 June rejecting the appeal.
The Tribunal's conclusions
"43. We do not agree with Mr Maccabe that the Respondent did everything they could to obtain a date for the operation. There was nothing the Respondent did except ask the Claimant to chase for a date and allowed him time to obtain this information. The Respondent also failed, to follow its own occupational health reports. A reasonable employer would, in coming to a conclusion on whether to dismiss or not, would have taken account of the Claimant's poor English (as accepted by the Respondent who had arranged for him to attend English classes); the difficulties this caused with the NHS; and would not have super imposed their own views over that of a medical practitioner in coming to a conclusion to the length of time it would take for recovery.
44. The decision reached by the Respondent was one that no reasonable employer could have reached. The Claimant's contract of employment entitled him to six months sick pay (full) and six months' half pay. Whilst this does not mean that the Claimant is guaranteed payment of sick pay for six months in this case the Respondent acted hastily. In reaching a decision to dismiss they relied on irrelevant factors — namely the length of time it would take to recover from an operation; using their value judgments to disagree with medical opinion; not contacting the NHS directly to ascertain the likelihood of an operation and ignoring the time span given by the Consultant (one to 12 months). It was clear from the evidence that the Respondent was driven only by cost consideration in this case and this was the dominating factor that led to the Claimant's dismissal. Very cursory efforts were made to seek alternative work for the Claimant (and against their own Occupational Health Report) and some alternative work (e.g. clerical work) was discounted on health and safety grounds without any foundation.
45. The Appeal hearing did no more than rehearse the disciplinary arguments and gave more credence to personal views over that of a medical practitioner. The Claimant had only been off three months at the time of dismissal. There was a real possibility in this case that the Claimant would have been fit for work subject to recovery after an operation. The only difficulty was that no clear dates for the operation had been provided. There was no evidence that he was not going to be fit once the operation was carried out. A reasonable employer would have paid sufficient regard to the difficulties of obtaining precise times for operation within the NHS waiting list and coupled with the Claimant's poor English militated against the Claimant and the Respondent failed to make any enquiries and instead rushed into a hasty decision to dismiss.
46. The Respondent failed to give any weight to the time scale proposed by the Claimant's consultant at the appeal hearing and instead relied upon subjective opinions as to the length of recovery time. It was recognised by the Appeal Officer that the Claimant had been dismissed within a short time and ignored their own occupational health report recommendations (p.71).
47. Taking into the particular facts and circumstances of this case and for the reasons given, above, we conclude that the dismissal was unfair. If the parties are unable to reach an agreement as to remedies then the case will be listed for a remedies and not before two months from the date of the promulgation of the judgment."
The attack upon those conclusions
Consequences
"The EAT can correct errors of law and substitute its own decision insofar as the Industrial Tribunal must, but for the error of law, have reached such a decision. But if it is an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly, the EAT can only remit the case for further consideration."
and submitted that, if all the errors of law on which he relied were eliminated, only one conclusion could have been reached by the Tribunal. Mr Heath submitted that when the central issue, as in this case, was the section 98(4) issue i.e. whether the dismissed was reasonable in the circumstances, it must be very rarely that an Appellate Tribunal would regard itself as able to conclude that only one result was possible if errors of law on the part of the Tribunal were eliminated.
Conclusions