Wilding v British Telecommunications
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice Brooke,Lord Justice Sedley |
| Judgment Date | 19 March 2002 |
| Neutral Citation | [2002] EWCA Civ 349 |
| Docket Number | Case No: A1/2001/0927 EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2002 |
[2002] EWCA Civ 349
Lord Justice Potter
Lord Justice Brooke and
Lord Justice Sedley
Case No: A1/2001/0927 EATRF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Laura Cox QC and John Horan Esquire (instructed by Russell Jones and Walker) for the appellant.
David Bean QC and Philip Thornton Esquire (instructed by The Solicitor, Group Legal Services, British Telecommunications plc) for the respondent
In this appeal, Mr Wilding appeals from a judgment of the Employment Appeal Tribunal ("the EAT") dated 9 th April 2001, dismissing his appeal from the decision of the London (North) Employment Tribunal ("the Tribunal") dated 10 June 1999. ("The Remedies decision").
On 21 January 1999, the Tribunal, after a contested five-day hearing, had decided that the respondent, British Telecommunications Plc ("BT"), Mr Wilding's former employers, had
i) unlawfully discriminated against Mr Wilding contrary to S.4(1)(d) of the Disability Discrimination Act 1995 and
ii) unfairly dismissed Mr Wilding.
("The Liability Decision")
The Remedies hearing took place on 18/19 May 1999, two issues were dealt with, namely
i) whether the appellant failed to mitigate his consequent loss of earnings by his refusal to accept the offer of a job made to him by BT by letter of 15 February 1999 and
ii) the appropriate amount of damages for injury to feelings, which Mr Wilding argued should include an element of aggravated damages.
The Tribunal found:
i) that Mr Wilding had unreasonably refused the offer of further employment and
ii) that no element of aggravated damages should be included in relation to the injury to Mr Wilding's feelings.
Mr Wilding appealed both of these findings to the EAT, but did not pursue the appeal as to aggravated damages at the appeal hearing. The EAT dismissed his appeal on the issue of mitigation and it is against that decision that he appeals to this court.
The History and Background.
For the purpose of a full understanding of the matters argued before us, it is necessary to set out the history in some detail.
At the time of his dismissal in March 1998, Mr Wilding had worked for BT for 29 years (virtually all his working life) and was employed as a senior manager. However, in March 1998 he had not been working for some time because of a back problem, which stemmed from a severe injury to his back, suffered in a road accident in 1993. From 1994, adjustments had been made to his working conditions to enable him to continue working and, until 1997, his reviews and appraisals showed that he was performing his duties satisfactorily. Following his accident in 1994, he was under the care of a General Practitioner, Dr. O'Neill and, in July 1995, during a period when he was off work, the question arose whether he should be medically retired. An assessment from the BT Occupational Health Service (Dr Sinha) and from a specialist were obtained, according to which the prognosis was that Mr Wilding had a good chance of full recovery provided that no complications ensued. Adjustments were made by BT to Mr Wilding's car-parking facilities and he returned to work in December 1995. Thereafter, further adjustments were made to his work schedule to enable him to work from home. However, he was off work again in November 1996.
Around that time Mr Wilding saw a specialist who advised that surgical treatment was unlikely to be successful. Further, in January 1997, Mr Wilding indicated that he did not wish to consider medical retirement and returned to work. He became concerned about his financial position and started to explore the possibility of obtaining compensation for industrial injury under the scheme which was in place with BT. In April 1997 he became manager of BT's NET and CSC NET Operations and was supervised by a Mr Townsend. At the end of May 1997 Mr Townsend interviewed his managers, of which the applicant was one of eight. Mr Wilding's disability and work capability were discussed. Mr Townsend allocated a project with a substantial budget to Mr Wilding in relation to which he reported back to a Mr O'Neill. This project allowed Mr Wilding to work from home and gave him the flexibility he needed.
Unfortunately Mr Wilding's back problem recurred and he was absent through sickness and unable to work, to the extent that Mr Townsend had to reallocate his work to another team member in his absence. In the ensuing several months, Mr Townsend kept in contact with Mr Wilding who constantly consulted his GP. Dr O'Neill advised Mr Wilding not to return to work and not to work from home either, as he had further medical problems which may or may not have been related to his back. He was advised to speak to the Occupational Health Service to seek counselling. On 2 October 1997 Mr Townsend visited Mr Wilding to discuss how his work could be progressed and mentioned the question of medical retirement. The course of events over the next six months up to the date of Mr Wilding's dismissal are best taken from the findings of the Tribunal's Liability Decision:
"14 … Mr Wilding was reluctant to take this step [i.e. medical retirement] because of the financial considerations and it was at that time that he was optimistic that his compensation under the Injury Compensation Scheme would be successful. He indicated that whilst this was being progressed by his union he would wish to remain in employment. In regard to working from home [he] said he would take the advice of his doctor.
15. Miss Flanagan requested the Medical Report from Dr. O'Neill, the applicant's GP in October 1997 who reported
"There is really no effective treatment other than pain relief which we are providing him with. I think therefore that medical retirement is the only viable conclusion to his unfortunate story., I know that he has been to work as long as possible, perhaps the time has come for him to consider medical retirement".
We saw many notes of subsequent conversations between the nurses at the Occupational Health Scheme's Office during November and December 1997 and his medical condition was discussed and also his inability to return to work. Dr Sinha did not re-examine him personally but on the notes of his staff and on the notes of telephone conversations, Dr Sinha concluded that medical retirement was the only option, having had discussions with Mr Wilding about his condition in the light of consideration of a general practitioner's report. Dr Sinha was of the view that Mr Wilding accepted that medical retirement would be the doctor'' decision and this was confirmed in a letter from Dr Sinha to Mr Townsend on 10 December. He stated:
"I have now reviewed Mr Wilding's papers and discussed with Mr Wilding his health and future prospects. Mr Wilding is now in full agreement that he is unable to give a regular and effective service. His medical condition is permanent and long-standing and therefore it is unlikely that he will be able to give a full and effective service. Medical retirement has been discussed and now I am fully agreeable that medical retirement should be considered here as the best option. I agree to issue you a Medical Retirement Certificate in this case subject to authorisation. Mr Wilding is fully aware of this decision".
16. Mr Townsend wrote formally to Mr Wilding regarding his sick pay on 12 December 1997 and on the 16 th Mr Townsend informed Mr Wilding that he was changing the PCGU work and consolidating it under Roy Traube and suggested that he co-operated with this man.
17. On 19 December 1997, Mr Townsend wrote finally to Mr Wilding asking for continuation of Medical Certificates and suggested he contacted his union about the matter of sick pay and at the same time the injury compensation was being pursued. To that end Dr White wrote on 7 January that in his opinion Mr Wilding did not qualify under the scheme as his injury appeared not to have been caused by the accident in 1993.
18. On 8 January 1998 Mr Wilding saw his GP, Dr O'Neill, again, who said he would if necessary give the applicant a medical certificate for one year if he would recover greater benefits in that way. Mr Wilding informed the General Practitioner he did not wish for this to happen and asked for a month's certificate but he also informed Mr Townsend that this is what the GP had offered. On the same day the applicant learnt that his application under the Injury Compensation Scheme had been refused. Under that scheme he would have been entitled to 80% of lost earnings until his retirement which appeared to be at 65. The applicant informed us that because of this he was determined to return to work.
19. It is clear that the respondents were now actively considering medical retirement under the scheme. Mr Townsend held a case conference on 16 January with personnel for Human Resources to ensure that correct procedures were followed. As a result Ingrid Simmons of the Equal Opportunities Advisor, who wrote to Dr Sinha on 29 January 1998 pointing out that Mr Wilding had been classified as disabled under the Disability Discrimination Act 1995 and that as a medical retirement certificate had to be signed by Dr Sinha in order to satisfy the company's procedures, he needed to have a notification of Mr Wilding's capabilities within the confines of this disability. She pointed out that Mr Wilding anticipated being back to work within the next month.
20. In reply to Ingrid Simmons, Dr Sinha replied on the same day by e-mail that he would not foresee Mr Wilding giving a regular...
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