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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Fire & Civil Defence Authority v Betty [1994] UKEAT 483_92_2104 (21 April 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/483_92_2104.html Cite as: [1994] UKEAT 483_92_2104 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MORISON
MR J D DALY
MR J C RAMSAY
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR P STEWART
(OF COUNSEL)
S J F Starling
Solicitor
Head of Legal Services
LFCDA
20 Albert Embankment
London SE1 7SD
For the Respondent MS L LITCHFIELD
(OF COUNSEL)
Messrs Cordell Tibber & Co
Solicitors
640 High Road
Finchley
London N12 ONL
MR JUSTICE MORISON: This is an appeal against the unanimous decision of an Industrial Tribunal sitting at London North, which was entered in the Register on April 7 1992, which found that the employee had been unfairly dismissed from his employment with the Appellants. The background facts to this case are as follows.
The employee commenced his service with the Appellant in August 1974. He was stationed at Hornsey throughout his service and was a member of Red Watch. In 1988 the members of that Watch were given letters by the Station Commander. The Applicant's [employees'] letter made three allegations against him: namely, that he had failed to co-operate with management in the introduction of measures designed to ensure that there was equal opportunity and no racial discrimination; second, that he had failed to draw the attention of management to suspected discriminatory acts or practices; third, that he had harassed, abused or intimidated other employees.
Interviews were held in accordance with the procedure, which was not the formal disciplinary procedure, starting at 6.30 pm in the evening and continuing into the late evening on April 11 1988. The Applicant was not seen until about 10 pm. After a long interview, the third charge was dropped but the employee was found guilty, apparently, of the first two matters and he was effectively ordered to be transferred out of the Hornsey Station. He was taken back to the Station, told to pack his things and that he was no longer wanted there. So shocked was he by what had happened, apparently he lost his memory and suffered some kind of nervous breakdown. He was found the next morning outside his mother's house. He has never gone back to work again, but has remained on the sick list.
On May 19 1988 he was sent a letter saying that his posting from Hornsey was to be held in obeyance "pending further investigation". This was not calculated to put the employee's troubled state of mind to rest. During 1989 he was seen by a number of medical people including a psychiatrist. As a result of these reports it became clear at the end of that year that he was permanently unfit for work within the Fire Service. On February 13 1990 he was advised that consideration would have to be given for his retirement from the Service on medical grounds. He did not dispute that he was unfit but exercised his right to assert, as he did, that his condition had been caused by his treatment back in April 1988, and his appeal on that matter was heard and determined by an independent person nominated by the Secretary of State.
The Industrial Tribunal said that they did not find it necessary to set out what happened to that appeal. The employers wrote on March 7 1990 saying that it was necessary to retire the employee from the Fire Service on twelve weeks notice on the grounds of the medical evidence relating to his fitness to work. This letter was found by the Industrial Tribunal and accepted to be a dismissal. It would appear that none of the complaints made against this employee in April 1988 were justified and the note entered on his file was removed from it, although apparently he was never told that this had happened.
On those facts, as found by the Industrial Tribunal, they concluded that first of all the reason for the dismissal was a reason falling within Section 57(2) of the Act, namely capability (by reference to health). Secondly, there was no unfairness in the procedure leading to the dismissal and that the employee was permanently unfit to serve as a firefighter, and the employers properly examined his medical condition before taking the decision to dismiss. Thirdly, the decision to dismiss was unfair because a perfectly fit firefighter became a nervous wreck due to the treatment of the employee from 1986 to 1988. Fourthly, the employee was still sick and unable to work, therefore he had suffered no loss as a result of the dismissal, but he was entitled to his basic award of £2,760.
The employers' appeal against this decision is effectively on two grounds. Firstly, the Tribunal's decision itself and the reasoning which are challenged, and secondly, the parties have allegedly reached a compromise, agreement whereby in consideration of the employers agreeing that the employee had suffered a qualifying injury, entitling him to a lump sum gratuity and injury pension, the employee would agree to the employers' appeal to the Employment Appeal Tribunal being allowed. It seemed to us, and we have said, that we cannot entertain any dispute as to whether an agreement has been entered into or not. The right course where a settlement agreement is alleged and disputed is for the matter to be referred to a Civil Court having jurisdiction, such as the County Court or the High Court, as appropriate, for its determination.
The jurisdiction of this Court is derived exclusively from statute and our original jurisdiction does not comprise so far as we understand it, or include resolving issues between parties as to whether they have concluded a binding contract. We can, however, and have been asked to deal with the first point. The employers say that for the purpose of unfair dismissal, the Industrial Tribunal should not have concerned itself with the issues to the cause of the employee's problems. The fact that the employer may have caused or contributed to them might give rise to actions for damages for breach of duty of care or to issues as here, which have to be resolved outside the procedure of the Industrial Tribunal as to whether the injuries he has sustained were injuries attributable to his service or not.
It seems to us that implicit in the Tribunal's decision is the proposition that because they found the employee was ill, because of the way the employer had treated him, he could not fairly be dismissed on grounds of ill health. Whether the Tribunal took the view that wherever an employer injured an employee he could not fairly dismiss the employee on grounds of ill health, or were distinguishing this case from hundreds of other similar cases, where for example, an employer is in breach of his Factory Act obligations to guard a machine's blade and thus the employee's fingers or hand are amputated, we cannot discern. Nor can we discern whether the Tribunal was saying that on the facts of this case the employee could never have been fairly dismissed. No where do they say that the dismissal was premature and it appears that they were taking the view that because of the behaviour of the employer, which is to be deplored, the dismissal for the illness which the employers caused could never be fair.
It seems to us that Tribunals should not be concerned to ascertain whether the illness, which is the reason for the dismissal, was caused or contributed to by the employer. The question in issue is whether in the light of the employee's medical condition, and the enquiries and procedures the employer made and used before deciding to dismiss, the dismissal was fair. To introduce questions of responsibility for illness or injury would take a Tribunal down a path that could lead to endless dispute on matters on which they would have no special expertise. We do not consider that the employer has disabled himself from fairly dismissing an employee whom he has injured. If the injury was caused by a breach of the employers duty to the employee, the employee will be entitled and able to recover appropriate compensation.
The question as to whether the dismissal was fair or unfair depends on different factors. An employer's duty to act fairly in the dismissal is unaffected by considerations as to who was responsible for the employee's unfitness to work. Here it is clear that the employee was unfit for work. The employers were reasonably justified in so concluding after proper investigation and the matter had been fairly debated.
We consider that the Tribunal allowed their sympathy for the employee, which we share, to cloud their judgement as to the test to be applied in deciding whether the dismissal was unfair. It is regrettable that an employer of this standing could have behaved so apparently inappropriately towards a member of its staff. For the reasons we have given, we take the view that the Tribunal erred in law and accordingly we would allow the employers appeal.
