Clearly his employers are anxious to ascertain not just whether he is fit to return to work in the short term but whether he will be able to provide effective and regular service in the future without further sickness absence. It is very difficult to predict how events might go when John returns but my own judgment when I saw him today was that he was at the stage of being ready to return to work. Events over the next few months will determine whether the strategies which he has devised will be helpful ones and conducive to a long-term successive return to work….. 

Before commenting further it would be helpful to me to have a look at his medical records which you hold and also to receive an update from his General Practitioner…….I think it unlikely that I am going to see anything in the medical records or receive information from his GP which would preclude a return to work and on balance I think it may well be appropriate to allow him to start on his phased return ….

It would be helpful if I could review John in about 6-8 weeks after he has returned to work to see how all this is panning out."

**

1. Dr McNeish reported further, by letter dated 18 April 2008, after he had received a report from the Claimant's GP, saying:

"There is really no information in that report which would alter my judgment as set out in my letter to you dated 25 March 2008."

10.The Claimant underwent a medical examination for incapacity benefit purposes on 24 April 2008 and by standard form letter dated 1 May 2008, he was advised that he did not qualify for incapacity benefit (of which he had previously been in receipt). That conclusion was reached on the basis of a combination of the Claimant's own answers to a questionnaire and the assessment on 24 April.

1. Dr McNeish did not refer the Claimant to an occupational psychologist, despite Jenny Pooke having asked him to do so. The Tribunal made a finding in fact that Dr McNeish told the Claimant that he did not see that there was a need for such a referral (paragraph 57) but at paragraph 183, their reference to what the Claimant said is somewhat different – it is that Dr McNeish said it was for him to decide whether there should be such a referral, not an HR manager - and they make no findings in fact as to what Jenny Pooke was told by him or anyone else, if anything, as to his explanation for the lack of the referral which she had sought. Jenny Pooke considered that such a report was required and instructed Brenda Isles MSc, BSc (Hons) CQSW MBACP for that purpose. Brenda Isles is an occupational psychologist. She had provided services for the Respondent previously including the provision of some training courses.

1. Brenda Isles met with the Claimant for 90 minutes and provided a report (in which she referred to the Respondent as 'EWS') dated 6 May 2008. That report included the following:

"1. I was asked to meet with John Doolan and did so on 30th April 2008 at EWS offices, Lakeside, Doncaster. Our meeting lasted approximately 90 minutes. The purpose of our meeting was to provide EWS with information and feedback that would contribute to its assessment of whether Mr Doolan was fit to return to work in his current role. I was invited to provide a professional point of view, but was not required to make the final decision about Mr Doolan's fitness for work.

2. I have worked with EWS since 1997, providing various psychological, training and development services. I have knowledge of its business and am writing this report in my role of Occupational Psychologist.e worked with EWS since 1997, providing various psychological, training and development services. I have knowledge of its business and am writing this report in my role of Occupational Psychologist.

3. ….I have seen the role description of Production Manager

...**

7. It appeared that, for some time, Mr Doolan had been unable to sleep and this had lead to a general irritability. Mr Doolan told me he had been experiencing many tension headaches and found it very difficult to switch off from work once he got home. ….

...**

12. We then went on to talk about the Production Manager's role. Mr Doolan explained that it was particularly hard to do this role …..I understand that, when EWS was interviewing for the Production Manager's job, Mr Doolan asked to be considered for redundancy as he "…could see the job wasn't worth having."

…**

16. I referred again to the demands of the Production Manager's role. In reply he explained that he had "….been doing the job since 1992." …In fact Mr Doolan was a Traction Inspector in 1992. I believe he continued in this role until 2004 when he successfully applied for the post of Operations Manager. Mr Doolan then became a Production Manager in March 2007.

17. Mr Doolan described "….doing this job since 1992" on more than one occasion. Each time I reminded him that in 1992 he was a Traction Inspector and that the role of Production Manager, which he has held since March 2007, requires different things from him.

18. I am reporting on this experience as I wondered why Mr Doolan seemed to muddle his current role and that of Traction Inspector. I believe the Traction Inspector post was more structured and utilized very specific processes and systems. According to the role description, the position of Production Manager has a greater range of responsibilities, particularly around people management. Mr Doolan's perspective may give some insight into why he finds the role of Production Manager particularly stressful.

19. Throughout our meeting, Mr Doolan referred to the strain of his current role, how the job was affecting and was making him unwell…

...

Findings and Recommendations

...

46. Mr Doolan is in a safety- critical role. I believe that the demands of this position require that he carries out his duties and responsibilities from a position of psychological and emotional robustness. I am uncertain about the reality of being able to limit the general pressure inherent in this role in the long term, sufficiently enough to ensure Mr Doolan's emotional wellbeing.

**

**

47. It seems important to comment on Mr Doolan's presentation in the room…

48. In my view, there was an absence of observable expressions of emotion. This suggests there would be very few, if any, outward signs that Mr Doolan might be struggling. Mr Doolan's external presentation of self-management and control may not be congruent with how he is really feeling, or responding internally to a situation.

...

54. It is unlikely that Mr Doolan could convincingly declare that he would be able to return to work in a demanding environment, without potentially succumbing to further periods of stress-related absence in the future. For his own sake and given everything described in this report, I would encourage Mr Doolan to seriously consider whether it is in his best interests to return to his current role. As part of his responsibility to look after his own health, I would encourage him to discuss with EWS whether he would be better suited to a different role within the company…I believe Mr Doolan would work best in a role that has more structure, where the work is much less likely to be changed or interrupted and where Mr Doolan could organise his own day in his own way. Then Mr Doolan is likely to find that, once out of a stressful environment, he will once again fire on all cylinders …"

**

1. The Claimant's comment (at paragraph 12 of Brenda Isles' report) that the job was not worth having was found, by the Tribunal to be a reference to the extra duties involved in the Production Manager's role, over and above those of an Operations Manager.

1. At a meeting on 12 May, Brenda Isles' report was discussed with the Claimant. He contended that it was highly unlikely that he would go off sick on account of stress again and said that if he did:

"you could start company procedures immediately with my full backing and agreement to take any steps you deem necessary."

1. At a subsequent meeting on 23 May, the Claimant was advised by Mr Young, the service centre manager, that, based on Brenda Isles' report, he did not believe that it was possible for him to return to his previous Production Manager's role, given that it was safety critical. He indicated that the Claimant would be provided with a list of alternative positions available in the company within the UK; lists were sent to him (see: e.g. Tribunal's judgment paragraph 103). The Claimant wanted, however, to return to the role of Production Manager. One of the vacancies notified to the Claimant was the post of driver based at Ipswich. On the Tribunal's findings, the Claimant "expressed an interest" in it. The Tribunal also found that the Claimant would have had to pay his own relocation expenses but they make no finding as to whether or not that caused him to refrain from applying for the post.

1. The Claimant was interviewed on 18 June. At the end of the interview he was advised by Mr Young that he was dismissed on capability grounds. Mr Young attached greater importance to Brenda Isles' report than to that of Dr McNeish. He did so because he believed her knowledge of their business was more detailed than that of Dr McNeish. He recorded his views in a report stating:

"The reason for your dismissal is as outlined above, however, for clarity, based on the advice and information afforded to me following the Occupational Psychologist's appointment you had with Brenda Isles, I have decided based on the professional evaluation of your capability for the role in question that you are not capable of performing in a safe and effective manner within the role of Production Manager, which is deemed as safety critical."

**

1. The Claimant appealed and his appeal was considered at a hearing on 8 July, chaired by Mr N Horrocks, business manager. The notes of that hearing were referred to before the Tribunal and in the course of this appeal. They include the following (the Claimant being referred to as 'JD' and Mr Horrocks as 'NH'):

"JD: I knew the job was making me unwell so I said it might be better if I leave under redundancy..

NH: We need to ensure your wellbeing and that you do not suffer a setback.

JD: I did say the job was not worth having last year. I had the foresight to see the additional workload and said I'd rather have redundancy.

NH: It was said we needed to ensure your well being and safety and that you continue to stay safe, it was not stated you have been unsafe.

JD: I have always been safe. In discussion it was brought up that a reduction of 13 drivers would help me. I know they are not all mine, but the PM's work together. 13 less drivers would help me considerably …..The PM left his position at Carlisle as he was fed up with the job and workload.

NH: I know the individual well and why he left, other things motivate different people. It wasn't because of the workload I know that for a fact.

JD: The job is vacant and is an ideal job for me to slot into, as there are only 21 staff there. I am willing to go there. It was advertised last week. I don't know how many have applied.

NH: Have you applied?

JD: No. It is an ideal position for me, with a lot less stress at that location, I could do it 'standing on my head'. I am willing to transfer to Carlisle and have the qualifications to do so.

NH: So have you applied?

JD: No. I was late in getting sent the vacancy list. JP said it was the same criteria at Carlisle as Ayr. But I am still willing to apply."

**

1. The Tribunal interpreted that exchange as showing that it was no longer open to the Claimant to apply for the Carlisle job (Tribunal judgment: paragraph 137) although we observe that it is not obvious that that was the case; there was, for instance, no evidence to the effect that the Respondent would not have entertained a late application had the Claimant made one.

1. Mr Horrocks decided to uphold the decision to dismiss the Claimant. At the end of the appeal hearing he advised:

"1. I believe that the report by BI does in fact provide management with a clear basis on which to make a decision.

2. The report enabled management to make a judgment based on JD's capability to undertake the role.eport enabled management to make a judgment based on JD's capability to undertake the role.

3. The phased return to work would have been allowed on receipt of a favourable psychologist's report. However, it would not be possible to reduce the duties and responsibilities of the PM's position, given that this is a front line management role. On that basis I do not wish to expose JD to the further risk of this type of illness.

In conclusion I am upholding the decision to dismiss on the grounds of capability as outlined to you in the letter dated 19.06.08."

**

1. After being unemployed for six weeks, the Claimant obtained employment as a postman and at some point after his dismissal, the Claimant decided to take his pension early (the Tribunal make no finding in fact as to when that occurred). The Claimant was in receipt of pension income by the time of the hearing before the Tribunal (it began in June 2009). The Tribunal's reasonsunal's reasons**

1. The Tribunal accepted that the Respondent's reason for dismissing the Claimant was capability (paragraph 175).

1. Having so concluded, they then asked themselves what purport to be two questions but appear to be the same question asked twice:

 "…whether the respondent company had reasonable grounds for believing that the claimant was incapable of performing the work that he was employed to do, namely that of Production Manager (Versatile) and, secondly, whether the respondent company's grounds for such a belief was reasonable."

**

1. The Tribunal are critical of the Respondent for the weight that they placed on Brenda Isles' report. Their reasons for doing so appear to be as follows. First, Dr McNeish did not consider that such a report was necessary, a conclusion they draw from the Claimant having said that Dr McNeish said it was for the doctor to decide whether there should be a referral to an occupational psychologist, not an HR manager – Dr McNeish did not give evidence. Secondly, whilst they do not go as far as finding that Jenny Pooke was in bad faith in instructing Brenda Isles' report, they come close to doing so – they refer to her instructing it "in spite of" Dr McNeish's views as to its necessity and to Jenny Pooke being "slightly disingenuous" on the matter. Thirdly, they refer, at paragraph 196 and 197 to Brenda Isles having an established relationship with the Respondent, to her being on first name terms with Jenny Pooke (as, according to his report, was Dr McNeish), to Brenda Isles not being in an "arms length relationship" (paragraph 197) with them, and state that Dr McNeish was "rather more independent" although, again, they do not find Jenny Pooke/Brenda Isles in particular or the Respondent in general to have been in bad faith. Fourthly, they stress that Brenda Isles' report was not a "medical" report (see paragraphs 177,188, 203 and 204). Fifthly, they state that Brenda Isles' conclusions "go nowhere near indicating that the Claimant was not capable of returning to his duties as a Production Manager" (paragraph 188) and they called into question whether in fact Brenda Isles was more knowledgeable about the Claimant's work than Dr McNeish (paragraph 204). Sixthly, they considered it "doubtful that anyone in a stressful employment would be able to 'convincingly declare' that he would be able to work in a demanding environment "without potentially succumbing to further periods of stress related absence in the future." **Seventhly, Brenda Isles was considering the Claimant's own interests. Eighthly, the reference to Brenda Isles was by telephone – it was not surprising that at best she was able to say that there was no guarantee that the Claimant would not succumb to further periods of stress related absence. Ninthly, the Claimant's GP and Dr McNeish considered that the Claimant was fit to return to work as a Production Manager. Tenthly, the DWP doctor had, after assessment, provided information which had resulted in the cessation of his incapacity benefit.

1. The only authority expressly taken into account by the Tribunal is East Lindsay District Council v Daubneydsay District Council v Daubney [1977] ICR 566, for the proposition that in a capability dismissal, the employer has to consider all the available medical evidence and inform itself of the "true medical position". They make no reference to British Home Stores Ltd v Burchell [1978] IRLR 379. 25. At paragraph 195, following on from their discussion of why the Respondent should not have preferred Brenda Isles' report, the Tribunal set out what appears to be their principal reason for finding that the Claimant was unfairly dismissed:

 "195. In these circumstances even if we were to conclude – which we do not – that the respondent company did have reasonable grounds for believing that the claimant was incapable of working as a Production Manager we are certainly not satisfied that they had reasonable grounds for such a belief."

**

1. We find the wording of that paragraph puzzling. It appears that the Tribunal may have intended to say "even if we were to conclude that the Respondent had a genuine belief, which we conclude they did not", given their earlier not too thinly veiled hints of a suspicion of bad faith. That said, they do accept that the Respondent's reason for dismissal was capability and, on the other hand, they perhaps meant to say that although they were satisfied that the Respondent did genuinely believe that the Claimant was incapable of returning to work as a Production Manager, they did not have reasonable grounds for their genuinely held belief.

1. What is clear is that nowhere do the Tribunal suggest that the Respondent failed to carry out a reasonable investigation so far as the Claimant's ability to return to the role of Production Manager was concerned and that they consider the dismissal to have been unfair because the Respondent ought not to have concluded that the Claimant was not fit to return to his former role. They do not, for instance, suggest that the Respondent ought to have instructed any further reports or to have made any further enquiries of the Claimant himself. They appear to have been satisfied that the Respondent carried out a reasonable investigation before reaching their conclusion.

1. The Tribunal also set out to explain what, had they considered that the Respondent did have reasonable grounds for their belief in the Claimant's lack of capability, would have been their conclusion regarding the question of whether or not the Respondent acted fairly within the context of section 98(4) of the 1996 Act. At paragraph 198, they state:

"198. Even if we are wrong in concluding that the respondent company did not have reasonable grounds for believing the claimant to be incapable of performing as a Production Manager, we also have to consider whether the respondent acted fairly within the context of Section 98(4) of the Employment Rights Act."

**

1. They then answer that question in favour of the Claimant on the following basis. First, at paragraphs 199 – 201, they engage in observations to the effect that Mr Watt, counsel for the Claimant, did not but might have argued that the dismissal was automatically unfair. At no stage in the hearing before the Tribunal was it suggested by or on behalf of the Claimant that he was dismissed at the meeting on 23 May but at paragraph 199, they state:

 "…it would have been perfectly arguable that that meeting resulted in the dismissal of the claimant ….."

**

1. They then go on to observe that in that event, the Claimant would have been dismissed without a step 1 letter having been sent to him and that the dismissal would, accordingly, have been automatically unfair. Secondly, they state that an employer acting within the bands of reasonable response would not have rejected the Claimant's offer to return to work with the undertaking that if he went off sick with stress again, the Respondent could start procedures immediately with his full backing to take any steps they deemed necessary (paragraph 205). Thirdly, they state that it was outwith the band of reasonable responses to prefer Brenda Isles' report, which was not from a doctor and "which studiously avoided indicating whether the Claimant was capable of carrying out his duties in the face of the contrary opinions of Dr McNeish, the DWP doctor and the Claimant's own General Practitioner" (paragraph 203, 204, 205). Fourthly, they comment that the Respondent's concern was for the Claimant's own health and the Claimant said he could now cope better (paragraph 206). Fifthly, they state that while working as an Operations Manager and in his period working as a Production Manager, the Claimant had not performed in a manner which was detrimental to his or anyone else's safety (paragraph 207). Sixthly, they state that the safety critical element of the role of Production Manager was exaggerated by the Respondent (paragraph 207). Seventhly, they state that the Respondent should have considered it unlikely that the Claimant's GP would certify him as ready to work if she had felt there was a risk of harm to his health (paragraph 211). Eighthly, so far as alternative positions were concerned, they say that a "proactive and reasonable" employer would have identified the Carlisle vacancy to the Claimant – there was an opportunity there for him to "take up" a Production Manager's role, and they observe that although the Claimant had expressed an interest in the Ipswich job, the manager there had refused to contribute to his relocation expenses (paragraph 212). Whilst the Tribunal does not find that it was unreasonable to refuse to do so, it may be implicit in their mentioning it that they considered that that was so. Finally, the Tribunal considered that the Claimant's long service was a relevant factor (paragraph 213).

1. Turning to remedy, the Tribunal ordered compensation to cover the Claimant's past loss of earnings and associated benefits and ordered that he be reinstated. The benefits in question were free and subsidised travel that the Claimant would have had available to him had he not been dismissed. No vouching of any sort was produced and there was no evidence that the Claimant had tried to mitigate his loss. The Claimant sought the sum of £7,604. The Respondent suggested that any such loss should be restricted to the Inland Revenue cash value, namely £506.65. The Tribunal awarded significantly more than that. At paragraph 224, they stated:

"In our view the real loss is probably somewhere in between but much nearer the respondent's figure. Doing the best we can we would estimate the loss of benefits to the date of re instatement will be One thousand Five Hundred Pounds."

1. In relation to his pension we would refer to the terms of the judgment. The Tribunal's reasons for making the order in those terms are shortly stated, at paragraph 226:

"….we recognise that his further participation in the scheme will be dependent on the rules of the scheme and the claimant complying with certain requirements. …the respondent shall restore the claimant's rights in the respondent's pension scheme only insofar as that is consistent with the rules of the scheme and the claimant complying with the (sic) any relevant rules of the Pension Scheme and any requirements of the Pension Fund Trustees."

Relevant law

1. Although this was a capability dismissal rather than a conduct dismissal, the Burchell *analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did. The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the "true medical position" (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell *approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.

1. In Burchell, it was found by this Tribunal that, in the light of three particular facts, the issue for a Tribunal was:

 "…quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing." (paragraph 18)

**

and the issue was not whether the conclusion drawn by management:

"….was by an objective standard a correct and justifiable conclusion." (paragraph 19)

**

1. Applying that approach to the present case, the issue for the Tribunal was whether a reasonable management could find, from the material before them that the Claimant was not capable of returning to the post of Production Manager. The Tribunal also required to bear in mind that the decision to dismiss is, properly, a managerial one, not a medical one. Whilst medical or other expert reports may assist an employer to make an informed decision on the issue of capability, the decision to allow someone to return to work or to dismiss for reasons relating to capability is, ultimately, one which the employer has to make. It is not a decision that is to be dictated by the author of a report. Quite apart from considerations of his duty not to dismiss an employee unfairly, an employer owes a common law duty of reasonable care to the employee and, in cases, such as the present, requires to make his own assessment of the risk of a return to work causing a recurrence of the employee's ill health, albeit that any such assessment will normally be informed by the content of an expert report or reports.

1. Finally, it follows from the above that it is not for a tribunal to substitute its own view for that of the reasonable employer whether in considering whether or not the employer had reasonable grounds for its belief in the reason for dismissal or whether or not dismissal was within the range of responses open to an employer where a potentially fair reason existed: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439. The Court of Appeal gave consideration to the risks of a tribunal doing so in the case of London Ambulance Service NHS Trust v Small [2009] IRLR 563. At paragraphs 42 and 43, Mummery LJ said:

"42. The ET used its findings of fact to support its conclusion that, at the time of dismissal, the trust had no reasonable grounds for its belief about Mr Small's conduct and therefore no genuine belief about it. By this process of reasoning the ET found that the dismissal was unfair. In my judgment, this amounted to the ET substituting itself and its findings for the trust's decision- maker in relation to Mr Small's dismissal.

**

** 43. It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal."

1. Likewise, a tribunal requires to guard against being carried along by sympathy for a long standing employee whose employers have concluded that he is not fit to return to his job in circumstances where he was keen to try to return to work and, in all cases, to resist the temptation to test matters according to what they would have concluded and decided if they had been in the employer's shoes.

1. Turning to the matter of judgments, paragraph 28 of the Employment Tribunals (Constitution and Rules etc) Regulations 2004 provides:

"28 Chairmen or tribunals may issue the following -

**

(1)(a) a "judgment" which is a final determination of the proceedings or of a particular issue in those proceedings…."

1. Since a judgment is a final and enforceable order, it requires to be certain in its terms. Parties should be left in no doubt as to its meaning and import and it should leave no room for further debate as to what requires to be done by the party against whom it is directed. Further, the judgment in a tribunal litigation between two parties can have no force or effect as against a third party.

1. Pension loss being an issue in this case, reference requires to be made to sections 114 and 117 of the 1996 Act. Insofar as relevant, they provide:

114…..