Appeal No.	 EAT/1163/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 1997

Before
HIS HONOUR JUDGE N BUTTER QC
MR P DAWSON OBE
MR D J HODGKINS CB

MRS G KAVANAGH	APPELLANT

YOUNG'S & COMPANIES BREWERY PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T A CEDENIO
(Representative)
Employment Advice & Tribunal Service
32 Castle Road
Epsom
Surrey
KT18 7NZ	

	JUDGE N BUTTER QC:     This is the preliminary hearing of an appeal by Mrs Kavanagh in respect of a decision of the Industrial Tribunal held at London (South) on 26 June and 26 July 1996.  The Extended Reasons for the decision were sent out later in September 1996.  The unanimous decision of that Tribunal was that the Applicant was not unfairly dismissed.

	In their Extended Reasons the Tribunal set out the facts in very great detail.  I can summarise the position quite shortly.  The Applicant complained that she was dismissed unfairly within the terms of Section 57(3) of the 1978 Act, and she also claimed that she was discriminated against by the Respondents by reason of her sex, contrary to the Sex Discrimination Act 1975.

	The Applicant had commenced work with the Respondents as far back as February 1974 and she was employed continuously by them until her employment was ended on 12 January 1996.  She was, and for many years had been employed as a Bought Ledger Clerk working in the Accounts Department under the control of Mr Walby, Financial Accountant.  The Applicant had had the misfortune to suffer from ill-health.  The details are set out fully and it is unnecessary and inappropriate for me to go through the detail in relation to them.  

	The employment was terminated on the ground of ill-health with effect from 12 January 1996.  The Applicant had a right of appeal which she did not however exercise.  In paragraph 18 of their decision, the Tribunal said:

“18.  It is not in dispute that the reason for the dismissal ... was capability, the Applicant’s sickness absence due to her back condition being the cause of her capability so that she could not attend work.  The evidence of the Respondent was that it was her sickness absence from and including 5 September 1995 that was the reason for her dismissal on 12 January 1996, by which time she had been absent from work for 18 weeks and four days and nothing which preceded this.  ...”

	Paragraph 19 has been the subject of argument before us and I go to a sentence half-way through:

“19.  ...  Although the Applicant was undergoing treatment, which continued after her dismissal, and there were hopes that she would be fit to return to work in some six to eight weeks, which would bring her to the beginning of March at the earliest, those treating her were of the opinion that some further period of sick leave was likely beyond that date.  ...”

	The Tribunal then go on to say that their doubts about this were justified by the subsequent history.  Mr Cedenio, on behalf of the Appellant, has raised a point with regard to that.

	Mr Cedenio has argued that, on the documents, and we have looked at a number of reports and letters, that it was only the opinion of one person, as distinct from the appropriate medical evidence, which influenced the employers and we are told that the physiotherapy, which did not commence until February, was in fact successful.  

	The Tribunal refer to the case of East Lindsey District Council v Daubney[1977] ICR 566 and dealt with the question as to the steps which employers should take to ascertain the true medical condition and to discuss the problem fully with the Applicant.  The Tribunal held that there had been consultation.  

	Mr Cedenio has relied upon one particular sentence in the case of East Lindsey District Council v Daubney.  The facts of that case were significantly different from those in the present case, but reliance is placed upon the passage to be found at page 571 of the report at letter E:

“While employers cannot be expected to be, nor is it desirable that they should set themselves up as, medical experts, the decision to dismiss or not to dismiss is not a medical question, but a question to be answered by the employers in the light of the available medical advice.”

	The word “light” is, in our view, of importance.  Employers are not bound to act upon medical evidence.  They are entitled to interpret it.  They must certainly have it in mind when they reach a decision.  

	The Tribunal continued, having dealt with the question of full consultation, which they were satisfied had taken place, to outline the position in paragraph 21.  They said:

“21.  The Applicant considered that the period of some four and a quarter months was too short a period of sickness absence on which to reach a decision to dismiss someone of 22 years’ service, and believed that there should be a period of six months on full pay and then a period on half pay.  That is a practice in public service, but there is no requirement upon an employer to provide such sickness absence provision in order to deal fairly with an employee, much will depend upon the practice of the individual company and the industry.  We are unable to find a period in excess of four months, likely to extend well beyond this to be an unreasonably short period in which, or at the end of which, to reach a decision to dismiss.  We accept the evidence of the Respondent that with sick leave which cannot reliably be estimated in terms of time away from work, that the employment of temporary staff did not provide a satisfactory solution.  The Respondent did, in fact, employ temporary staff to replace the Applicant.  Accordingly, and not without difficulty, for we regard this as something of a borderline case, we are satisfied that the Respondent acted fairly and reasonably, having regard to equity and the substantial merits of the case, in deciding to dismiss the Applicant on 11 January 1996, this despite her long and satisfactory service.”

	We consider, on the material before us, that the Tribunal correctly directed itself and despite the argument of Mr Cedenio to the contrary, we are entirely unpersuaded that they acted perversely or were not entitled to reach the conclusion on the basis of the material before them.
	
	I turn to the question of the sex discrimination.  The main point made on this appeal is that the Applicant, through her representative, had sought to obtain answers by way of a questionnaire from the Respondents and they, the Respondents, had declined to provide answers.  We have been referred in particular, to question 3 of the questionnaire which said:

“3.  Please state whether other employees of the company had prolonged periods of sickness.  If so, could you supply the names of the employee(s), the date(s) and what action, if any was taken.”

	The Respondents declined to provide the information for reasons which they set out in correspondence.

	It is argued today that the Industrial Tribunal in their decision should specifically have referred to the matter of the questionnaire and to the Respondents’ unwillingness or refusal to answer it.  It is, however, reasonably plain that the question as to how the employers had dealt with other employees in relation to sickness was canvassed and considered before the Industrial Tribunal, and the Tribunal accepted in substance the evidence of Mr Walby.  They set out their conclusions with regard to the aspect of sex discrimination quite briefly in paragraph 22 of their decision.  They draw attention to the fact that the Applicant’s complaints were materially directed towards Mr Walby’s alleged treatment of her during her previous periods of maternity leave, which were substantially longer than three months before the date of her complaint and commenced more than two years before.  The Tribunal noted that at no time had the Applicant complained that Mr Walby’s attitude towards her amounted to discrimination or harassment.  In the end they said:

“22.  ...  We are satisfied that Mr Walby would have equally made such a request to male employees who were taking time away from work to attend to hospital appointments.  There is no evidence to satisfy us that Mr Walby at any time dealt with the Applicant in a way different from the way he would have dealt with male employees and we can find no evidence of discrimination under the provisions of the Sex Discrimination Act 1975.”

	We do not think that the fact that the decision does not make any specific reference to the questionnaire vitiates that decision and, on the basis of the arguments and material before us, we are unanimous in our view that there is, in reality, no reasonably arguable point of law arising in this appeal.

	In these circumstances and for these reasons it follows that the appeal fails and must be dismissed.