B.s. V. Dundee City Council
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Drummond Young,Lord Bracadale |
| Neutral Citation | [2013] CSIH 91 |
| Court | Court of Session |
| Published date | 12 November 2013 |
| Year | 2013 |
| Date | 12 November 2013 |
| Docket Number | XA162/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 91 | |
| Lady Dorrian Lord Bracadale Lord Drummond Young | XA162/12 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in an appeal under section 37(1) of the Employment Tribunals Act 1996 by BS Appellant; against DUNDEE CITY COUNCIL Respondents: _______________ |
Appellant: Hay; Balfour & Manson LLP
Respondent: Howlin, QC; Gillespie Macandrew LLP
12 November 2013
[1] The appellant was employed by Dundee City Council (hereinafter referred to as "the respondents") in their Contract Services Department. He was dismissed from his employment on 23 September 2009. Thereafter he raised proceedings in the Employment Tribunal, claiming that his dismissal was unfair and seeking reinstatement. The Employment Tribunal reached a decision in his favour, deciding that he had been unfairly dismissed. They appointed a further hearing to determine the appropriate remedy. The respondents appealed to the Employment Appeal Tribunal, which reversed the decision of the Employment Tribunal, setting it aside and remitting to a freshly constituted tribunal to determine whether or not the respondents could reasonably have been expected to wait longer before dismissing the appellant. The appellant has now appealed to the Court of Session against the decision of the Employment Appeal Tribunal.
The factual background to the appeal
[2] The material facts found by the Employment Tribunal are as follows. The appellant, who was 55 years old at the time of his dismissal, had been employed by the respondents in their Contract Services Department for 35 years. The respondents have detailed procedures for managing sickness absence, which were the subject of findings in fact by the Tribunal. On 9 September 2008 the appellant had been absent from work on account of a foot complaint. That evening he was interviewed by the police in connection with a serious allegation made against him by a woman with whom he had had an affair. This resulted in difficulties in his marriage, which led to a separation from his wife. These events caused him to suffer from a nervous debility.
[3] The appellant visited his general practitioner and was signed off work, initially with "nervous debility" and thereafter with depression and anxiety. He remained off work on account of sickness from 9 September 2008 until his employment was terminated on 23 September 2009. He was charged with a serious criminal offence in September 2008, but on 28 May 2009 the charge was formally dropped. The appellant did not inform the respondents about the charge, but he did tell their occupational health adviser, OHSAS, once he had been referred to them by the respondents. The person principally involved in managing sickness absence for the respondents' contract at Services Department was a Mrs Wilma Hutchinson, the Administration Section Team Leader in that department. The appellant met Mrs Hutchinson informally on several occasions prior to the end of 2008 on days when he visited the office to hand in medical certificates from his general practitioner. He told her about his temporary separation from his wife and about the assistance that he was receiving from his general practitioner. Mrs Hutchinson told him that if the situation were unchanged after Christmas she would refer him to OHSAS. The appellant had not returned to work after the Christmas break, and on 15 January 2009 she decided to refer him to OHSAS. He attended his first appointment with OHSAS on 21 January, and on 28 January they issued a report to Mrs Hutchinson; this stated that there had been no improvement in the appellant's symptoms and that he would be absent for at least another eight weeks. Thereafter the appellant had a series of meetings with OHSAS, each of which was followed by a further meeting with Mrs Hutchinson. He continued to be signed off work by his general practitioner for periods of eight weeks at a time. By June 2009 Mrs Hutchinson was becoming concerned that the reports from OHSAS were all in similar terms with almost no change in content from one assessment to the next. She met the appellant on 3 June, and subsequently wrote to him expressing her view that the reports from OHSAS were of little value as an indication of progress; she added that she intended to request that the appellant should be reviewed by an occupational health doctor rather than a nurse, as had occurred previously. The appellant was reviewed again by OHSAS on 8 July. Mrs Hutchinson's concerns had not been conveyed to OHSAS, and the appellant was once again reviewed by a nurse, who stated that she was confident that he was now receiving the correct medical treatment; this was similar to earlier reports.
[4] In May or early June 2009 the respondents received information from one of the appellant's colleagues that suggested that he might have been charged with a criminal offence and that that was the reason for the appellant's sickness absence. On 17 June 2009 Mrs Hutchinson wrote to the appellant, requesting that he attend a meeting in accordance with agreed disciplinary procedures to investigate the allegation that he had been arrested in connection with a criminal offence. That meeting ultimately took place on 16 July 2009. It was attended by Mrs Hutchinson, and by two other representatives of the respondents, Mr Crozier, their Assistant Housing Repairs Manager, and Mr A Derby, their Personnel Officer. The appellant was accompanied by a trade union representative. Mr Derby questioned the appellant about his arrest and the nature of the charge that he had faced. The appellant stated that he had had a long-standing relationship with the complainer in the charge, and that when he had ended the relationship she had made allegations to the police. He became upset and broke down in tears. The appellant stated that the police investigation had been concluded and the charges had been dropped, and he showed a letter to that effect. The Employment Tribunal stated (paragraphs 27 and 28 of their judgment) that this investigatory meeting had not been handled as sensitively as it should have been, and that afterwards the appellant felt humiliated and worthless. After the charges had been dropped in May 2009 the appellant's general practitioner had noticed a dramatic improvement in his demeanour and outlook, but the meeting on 16 July caused his recovery to be set back. The respondents were informed that the appellant required further remedial counselling as a result of the meeting.
[5] A further meeting between the appellant and representatives of the respondents took place on 12 August 2009. The respondents were represented by Mrs Hutchinson and Mr Crozier, together with an Assistant Personnel Officer, Ms Jacqui Barr. The latest OHSAS report, dated 10 July, was discussed. The appellant explained that he was on sleeping tablets and antidepressants, and stated that he felt that he could not come back to work while he was on antidepressants. He stated that the meeting of 16 July had set back his recovery. At the end of that meeting the appellant was advised that he was being given a date to return to work of 14 September 2009, and that if he did not return to work on that date consideration would be given to his dismissal. He was told that there would be a review appointment with OHSAS prior to his return, and a phased return to work was discussed. The appellant was advised that he had a right of appeal if he felt that giving him a date to return to work was not reasonable or achievable. Mrs Hutchinson wrote the appellant on 13 August. She confirmed the outcome of the meeting held on the previous day and referred to the review by OHSAS that was to take place on 7 September. The letter continued:
"I must advise you that any period of absence is not conducive to the efficient operation of the service. I confirm that if you remain unfit to return to work beyond 14th of September 2009 your employment will be at risk and consideration given to dismissal. You have the right to appeal against this final opportunity to return to work...".
The appellant did not appeal against the return to work date, but his counsellor wrote to the respondents to express concern about the way in which he had been treated by the respondents in respect of the criminal investigation.
[6] On 7 September 2009 the appellant was again reviewed by OHSAS. Once again he was assessed by an occupational health nurse; the respondents had not requested that he be reviewed by a doctor. She prepared a report dated 8 September, in which she stated that the appellant remained unfit to return to work although she was once again confident that he was receiving the correct medical advice and treatment. She further stated that she was unable to predict an actual return to work date, and that she had arranged for the appellant to be reviewed by an occupational health physician on 11 September. The appellant attended an assessment with an OHSAS consultant occupational health physician, Dr Jon Spencer, on 11 September. Thereafter Dr Spencer telephoned Ms Barr to discuss the appellant's fitness to return to work. He stated that the appellant's health was improving; that he was not a candidate for ill-health retirement; and that he would expect to return to work within 1 to 3 months depending on when his general practitioner signed him fit. Dr Spencer's report was dated 14 September. It stated as follows:
"[The appellant] has not yet fully recovered but his health is improving. He is probably not fit to return to work next week but I do not consider him to be permanently incapacitated and I would expect that he would be able to return to work within the next one to three months. I would be happy for him to return to work when his GP issues a final certificate.
I recommend a phased return...".
[7] The appellant did not return to work on 14 September. He telephoned Mrs Hutchinson on that day to say that he was...
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