Appeal No.	 EAT/149/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 February 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR L D COWAN
MRS E HART

ZENECA LTD	APPELLANTS

MR T JOHN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR SHRIVES
(Solicitor)
Hammond Studdards
2 Park Lane
Leeds
LS3 1ES	
For the Respondent	MR LEWIS
(of Counsel)
Clive Robinson Solicitor
29 Cliff Lane
Holmfirth
Huddersfield
HD7 1XE	

	MR JUSTICE KIRKWOOD	Listed before us today was an appeal by Zeneca Ltd from a decision given by an Industrial Tribunal at Leeds on 18 December 1995 that the Appellant had unfairly dismissed its employee, Mr John.

	Mr John suffers from Menière’s disease.  That kept him from work continuously from 18 August 1994.  With it, he was not fit for his ordinary work.  He was under the care of his own doctor and he was seen by the Appellant’s Medical Officer.  The Appellant’s doctor referred Mr John for the advice of a Consultant, Mr Smelt.  

	On 1 March 1995 the Appellant, in accordance with its standard practice in respect of employees continuously off sick for 26 weeks, gave Mr John 12 weeks’ notice that his employment would terminate on 23 May 1995.  That was notice of dismissal on a ground relating to capability.

	By 1 March Mr John had not yet been to see the Consultant, Mr Smelt.  He was awaiting an appointment and did in fact see the Consultant soon after.  Mr Smelt’s report came to hand on 23 March 1995.  It contained this passage:

“However, I am sure the symptomatology is far worse than a normal unilateral Menière’s sufferer and I cannot help escaping from the conclusion that there must be considerable psychological overlay in Mr John having a severe and protracted reaction to persistent and intermittent dysphoria.  ...  I would expect him to be able to work in a general office pursuing cleaning duties albeit with occasional weeks or days when he is in the throes of an attack of endolymphatic hydrops when he will be off sick with severe vertigo.  The prognosis should be reasonable as he shows little change in his audiogram over the last few years.  It may be that the endolymphatic hydrops will burn out and there is no sign that the left has developed the same problem.”

	The Appellant’s Medical Officer, Dr Quinlan, informed Mr John’s Manager, Mr Hardy, of the substance of that report in a memo in these terms:

“I have had a reply from Mr Smelt. He corroborates my opinion that Mr John is capable of working in a general office environment pursuing cleaning duties albeit with occasional days or weeks off sick with recurrent vertigo.  I have written to Mr John’s GP regarding a final certificate but please note that this may not be forthcoming.  I will keep you informed of progress.”

	In the light of that, the Appellant identified other work for Mr John to do that accorded with the advice of Mr Smelt and Dr Quinlan.

	On 28 April 1995 Mr Hardy saw Mr John and his trade union representative.  Mr John was told that he was expected to return to work on the expiry of his current four week sick note.  On 2 or 3 May Mr John’s GP, having seen Mr Smelt’s report, signed Mr John off as fit to return to work with effect from 11 May.  On 5 May Mr John’s GP issued another four week sick note.  On 12 May the Appellant’s Medical Officer spoke to the GP and, as the Industrial Tribunal accepted, learned from him that the sick note was not issued because of Mr John’s physical health, but because of his anxiety about returning to work.

	On 18 May 1995 Mr Hardy saw Mr John again and told him his view that Mr John’s reluctance to return to work was no longer to do with his capability to work, but related to his conduct and Mr Hardy told Mr John his understanding of the reason for the current sick note from the GP.  Mr John was told that if he did not return to work on 23 May his employment would terminate with effect from that date.  Mr John did not return to work.  On 24 May he was told by letter that his employment had terminated at midnight on the 23rd.

	The Industrial Tribunal accepted Mr Hardy’s evidence that his decision for the dismissal was on grounds related to conduct rather than capability.  The Industrial Tribunal found that it was established by the Appellant that Mr John had been dismissed for a potentially fair reason.  It found however, that the Appellant had acted unreasonably and the Industrial Tribunal gave two reasons for that.  The first was in these terms:-

“11.  ...Mr Hardy had not read Mr Smelt’s opinion directly when making his decision.  He merely had the memorandum from Dr Quinlan which indicated that Mr Smelt had said that the applicant was physically fit to come back to work.  If Mr Hardy had seen the actual opinion he would have seen the reference to considerable psychological overlay.  [The GP] Dr Michael Taylor’s reason for giving the applicant his sick note as indicated to Dr Magnus Taylor [that is the employer’s Medical Officer] was anxiety.   ”

	It was the unanimous decision of the Tribunal that a reasonable investigation would have included Mr Hardy seeing Mr Smelt’s opinion directly.  That reason has troubled us.  On a proper reading of Mr Smelt’s report there is no relationship whatever between “considerable psychological overlay” and “anxiety about a return to work”.  Mr Smelt referred to psychological overlay in the context of the symptomatology in Mr John of Menière’s disease.  Mr Smelt took it fully into account in his recommendation.  The accepted understanding of the GP’s last sick note did not go to the disease at all, it went to anxiety about returning to work.  We are satisfied that the Industrial Tribunal approached that aspect wrongly.

	Secondly, on this aspect the Industrial Tribunal’s finding of unreasonableness by Mr Hardy in not reading Mr Smelt’s report, clearly implies that Mr Hardy, a layman in medical matters, was not entitled to rely upon the advice and reading of Mr Smelt’s report of his own company’s Medical Officer.  That seems to us to be untenable.

	The second reason was in these terms:-

“11.  ...  It was unreasonable for him to decide that the applicant should be dismissed when his GP had given him a sick note for 4 weeks relating to anxiety.  If there had been a reasonable investigation of events he would also have seen Mr Smelt’s opinion containing the reference to psychological overlay.  ...”

	Even if the conclusion can be sustained that it was unreasonable to proceed in the light of the sick note relating to anxiety, it is clear that that conclusion is substantially tainted by the Industrial Tribunal’s own approach to Mr Smelt’s report.

	Those matters were all raised in exchanges with Counsel at an early stage of the hearing.  We indicated that we were so troubled that it seemed inevitable that the case would have to be remitted to be heard by a fresh Industrial Tribunal.

	Counsel for the Respondent, however, addressed further argument to us on a completely different aspect in an endeavour to persuade us to dispose of and dismiss the appeal today.  The point argued in brief summary is this.

	Notice was given on 1 March 1995.  It was on capability grounds.  Notice once given cannot be withdrawn unilaterally.  The material date for the Industrial Tribunal to consider, it was argued, was 1 March 1995.  Notice given on that date cannot possibly, the submission went on, be regarded as reasonable, because Mr Smelt’s examination and report, which the employer knew about, was still awaited.

	The argument has more elaboration than my summary shows.  That argument was not put before the Industrial Tribunal at all.  There was therefore room for considerable debate as to whether the Appeal Tribunal should hear it at all, but having heard the nature of it outlined, we indicated that, even if other aspects of the argument were correct, which we did not decide, there can be no general proposition of law that the giving of notice, whilst the Consultant’s report is awaited, is necessarily unreasonable.  It must depend on all the circumstances of the particular case and decision as to that must lie within the province of an Industrial Tribunal, rather than that of the Employment Appeal Tribunal.

	For those reasons we have allowed the appeal and ordered that the case be remitted to the Industrial Tribunal for trial de novo by a freshly constituted tribunal.