Elmbridge Housing Trust v O'Donoghue

The Court of Appeal allowed the employer's appeal and restored the Employment Tribunal's decision that the dismissal for incapability was fair. The court applied the ordinary test for ill-health incapacity — whether the employer could reasonably be expected to wait longer — and concluded that, on the material before the Tribunal, the employer was entitled to treat the employee's failure to provide a properly completed consent form for medical reports as justifying dismissal for capability. The court rejected the Employment Appeal Tribunal's substitution of findings on the factual matrix, finding no perversity or error of law in the Tribunal's reasoning and noting that the statutory fairness test in section 98 of the Employment Rights Act 1996 was appropriately applied.

Background and facts:

• The claimant, a housing manager who was contractually required to live on-site, went off work with stress/depression from 14 March 2001. She sought re-housing but that request was refused by the Trust.
• The Trust sought the claimant's consent to obtain medical reports from her GP and to occupational health assessment. The claimant returned an occupational health consent form after deleting the paragraph permitting disclosure of clinical information to the employer and later sent correspondence seeking to limit disclosure to a "designated officer" and to attach an explanatory letter to the earlier form.
• The Trust required a legible, properly completed form and repeated the request, giving deadlines and extensions. The claimant maintained she had complied or sought clarification but did not produce an unequivocal, accepted consent sufficient for the Trust's occupational health advisers to release advice to the employer.
• The Trust dismissed her on 28 June 2001 for incapability. The claimant applied to the Employment Tribunal for unfair dismissal; the Tribunal found the dismissal fair. The Employment Appeal Tribunal allowed an appeal and substituted a finding of unfair dismissal, remitting for remedy.

Procedural posture:

• This is an appeal from the Employment Appeal Tribunal's decision of 29 October 2003 overturning the Employment Tribunal decision of 12 June 2002 (extended reasons 15 July 2002).

Issues framed by the Court of Appeal:

• Whether the Employment Tribunal's conclusion that dismissal for incapability was within the range of reasonable responses was perverse or otherwise an error of law.
• Whether the Employment Appeal Tribunal was entitled to set aside the Tribunal's decision and substitute its own findings rather than remitting.
• Whether procedural failures after dismissal (a voluntary appeal offer delayed) rendered the dismissal unfair.

Court's reasoning and disposition:

• The court reiterated the established test for ill-health incapacity (see Spencer v Paragon Wallpapers Ltd) and emphasised that appeal on fact is limited to errors of law such as perversity. The Tribunal's findings were to be read generously and in context.
• The Court of Appeal concluded the Employment Tribunal had validly found that the employer was entitled to require a properly completed consent form, that the claimant had not provided the required consent in a form acceptable to the employer and its occupational health advisers, and that dismissal for incapability on 28 June 2001 was within the band of reasonable responses.
• The Employment Appeal Tribunal was wrong to characterise the dismissal as misconduct and to substitute its own factual findings; the matter did not involve a legal error by the Tribunal sufficient to justify interference. Any delay in the employer's voluntary internal appeal procedure did not make the dismissal unfair in the circumstances.

Other comments:

• The Court noted the EAT's unusual step of substituting findings rather than remitting and treated that as unjustified on the facts before it.

The appeal was allowed. The Court of Appeal restored the Employment Tribunal's decision that the dismissal for incapability was fair because the employer was entitled to require a properly completed consent to medical enquiries and, given the material before it, the Tribunal's conclusion that dismissal was within the range of reasonable responses was not perverse or an error of law. The Employment Appeal Tribunal was wrong to substitute its own findings.

Appeal from the Employment Appeal Tribunal decision of 29 October 2003, which had set aside the Employment Tribunal decision of 12 June 2002 (extended reasons 15 July 2002) and remitted the case for remedies. The Court of Appeal allowed the employer's appeal and restored the original Employment Tribunal decision.