Viridor Waste v Edge (Unfair Dismissal : Reasonableness of dismissal), Court of Appeal - United Kingdom Employment Appeal Tribunal, March 25, 2015, [2015] UKEAT 0393_14_2503

Resolution Date:March 25, 2015
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Viridor Waste v Edge (Unfair Dismissal : Reasonableness of dismissal)
 
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Copyright 2015

Appeal No. UKEAT/0393/14/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE

At the Tribunal

on 5 March 2015

Judgment handed down on 25 March 2015

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

SITTING ALONE

VIRIDOR WASTE APPELLANT

MR GRAHAM EDGE RESPONDENT

JUDGMENT

UKEAT/0393/14/DM

APPEARANCES

UKEAT/0393/14/DM

SUMMARY

UNFAIR DISMISSAL

UNFAIR DISMISSAL: Reasonableness of Dismissal

DISABILITY DISCRIMINATION: Reasonable Adjustments; Exclusions/Jurisdictions

The Claimant suffered from a long standing chronic degenerative condition of his spine, particularly affecting his neck. After being absent from work for some ten months in 2011, he sought ill health retirement, which was recommended by doctors on the basis of his description to them of the symptoms from which he suffered. Within two weeks of their report, holding that the Claimant was permanently unfit for any work, he was observed displaying a range of movements without any apparent difficulty or discomfort, which appeared inconsistent to those he had been describing to those doctors, who now revised their opinion such that they held him fit for some work, albeit restricted by his underlying condition. The employer disciplined him for exaggerating his condition to the doctors, and absenting himself from work when he was fit to do some. A Tribunal held that the employer genuinely believed that he was culpable, after a reasonable investigation, and that if it had reasonable grounds for its belief dismissal would fall within the range of reasonable responses. It held however that the grounds were not reasonable. An appeal against that conclusion was allowed, on the basis that the Tribunal had taken the wrong approach - it had not asked what the grounds were upon which the employer acted, but rather determined for itself what it made of the medical evidence, and substituted its own view as to whether the Claimant had exaggerated; it made two factual errors which separately fed into its analysis; and took account of two matters which on analysis were of no logical relevance. It thought perversely that the change of view by the Doctors was ``not an entirely different prognosis''.

Separately, the Tribunal decided that the employer had been under a duty to make reasonable adjustments in the light of the Claimant's neck trouble, but had chosen not to do so because it thought the Claimant might be absent from work again. Accordingly, there was no proper basis for thinking that its omission to act at any stage thereafter was part of a continuing act, such that time had not expired. By deciding not to implement the adjustment when it might have done the employer was refusing to comply with its duty, such that time started running at that point. Accordingly, the claim was brought out of time unless extended. The Tribunal had not as it should have done determined if it was just and equitable to extend that time. The appeal was allowed, and the questions whether there were reasonable grounds for what had been found to be the employer's genuine belief, whether the dismissal was wrongful, and whether time should be extended for bringing a claim in respect of the employer's breach of its duty to make a reasonable adjustment were remitted to a fresh Tribunal.

UKEAT/0393/14/DM

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THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

  1. For reasons given on 7th July 2014 an Employment Tribunal at Manchester (Employment Judge Goodman, Mr Ostrowski and Mr Dodd) held that the Claimant had been unfairly dismissed, wrongfully dismissed, and in one respect had been discriminated against by failure of his employer (``Viridor'') to fulfil its duty to provide a reasonable adjustment at work.

    The Facts

  2. The Claimant had worked for Viridor for 26 years before his dismissal on 15th February 2013. He had had a medical history of degenerative musculoskeletal disorders for some years prior to a car accident on 7th January 2011, after which he was absent from work for a year and a half. All the doctors who examined him after that thought him to suffer genuinely from symptoms which justified this absence. In November 2011 the question arose whether he might be recommended for early ill health retirement, obtaining the benefit of the ill health retirement terms which had, through a succession of transfers of undertaking, become the responsibility of Viridor to fund.

  3. Doctor Habbab examined him, and recommended ill health retirement on the footing that he was unfit to work again in any capacity.

  4. As a result of information received that he was carrying out activities inconsistent with his alleged symptoms, Viridor arranged for covert surveillance only a couple of weeks after the Claimant had been seen by Dr. Habbab. The investigator produced a DVD showing the Claimant walking round a supermarket, bending down once or twice, driving a van, lifting the tail gate of a hatchback car (this involving his arms stretching above shoulder height) lifting bags of shopping, and assisting an elderly gentleman into and out of a vehicle. However, the DVD did not correspond fully to a written summary of its contents prepared by the investigator in which a still wider range of activity was recorded.

  5. There was a clear contrast between the range of easy and apparently pain free movement evident on the DVD, and the way in which the Claimant had described his problems to doctors earlier in the year, and to Doctor Habbab, evident from the following extract from his report of mid-November 2011:

    ``Mr Edge used crutches to attend this assessment and also wore a soft collar to his neck. He described severe constant pain, with sleep disturbance and restricted use of his major joints. His mobility was noted to be 30 - 50 yards at most, with aids. He was noted to be unable to climb stairs without assistance, and was seen to have difficulty in managing 5 steps at the assessment.

    His pain level was noted to be constantly severe (rated by Mr Edge to be 8/10 but did on occasions become more severe (rated 10/10). On such occasions he stated that he could not leave his bed.

    Mr Edge stated that he had difficulties in safely handling kettles (or similar) and although he could drive his car to go shopping was unable to lift the consequent bags'.''

    Viridor sought further medical opinion in the light of this apparent discrepancy.

  6. Doctor Habbab reviewed the video in December 2011. He now no longer felt that the person he described as the ``individual in the video'' (the Claimant accepted it was him) was likely to meet the criteria for ill health retirement, since he appeared able to walk unaided, climb in and out of a van without noticeable problems, was able to drive and turn his head without visible difficulties, to bend and pick up a coin from the ground and lift shopping bags amongst many other activities incompatible with significant musculo-skeletal difficulties.

  7. Viridor obtained advice from a Doctor Weadick who noted there was no need or indication for the soft collar the Claimant often wore (which the GP had asked him to cease using on a number of occasions), and that, whereas the Claimant had radiological evidence of arthritic change in his back and larger joints, ``what is less apparent is the degree of disability that this causes''. He observed:

    ``his history would seem to vary and is not in keeping with the observed footage on the surveillance DVD, which Mr Edge accepts is him. Whilst he is not fit for a full role, he is thought fit for restricted duties in a sedentary position by the independent specialist and his GP. I would concur with this, from reviewing all the information available to me.''

  8. A consultant orthopaedic trauma and spinal surgeon, Mr Kapoor, reported at Viridor's request in February 2012. His report set out the Claimant's recent and past medical history in detail, recording that chronic degenerative change in his spine had caused symptoms long before the accident in question, and that it fluctuated in severity. He then said:

    ``However, on several examinations by quite a number of experts Mr Edge was found to be having disabling symptoms...

    [he set out some comments indicating this, amongst which was a letter from a Doctor Rice, of 31st August 2011 - therefore only shortly before the DVD was compiled - saying amongst other matters that the Claimant had ``substantial impairment and worsening ability to carry out activities of daily living. He was unable to raise his arm over his shoulder and had quite a restricted range of movement in his neck'' and then continued:]

    ... [In the DVD recordings] it is quite clear that Mr Edge was showing very minimal, if any, disability carrying out day to day chores. He was found to be driving, repairing a car, shopping, and found to be lifting objects without any expression of pain and discomfort. He was also able to raise his arms above his head. He was able to help an elderly man getting in and out of a vehicle. Mr Edge was not found to be using any walking aids.''

    His summary was:

    ``Certainly looking at all the above there seems to be a lot of discrepancy in the disability Mr Edge has described compared to the video surveillance report presented to me.''

  9. After the DVD came to light the Claimant said that he had good and bad days. As to that Mr Kapoor commented:

    ``However, the video surveillance was carried out on 4 days at random times and intervals and on all these occasions Mr Edge did not reflect any signs of disability, pain or loss of function which he has been describing in his previous examinations.

    However I do believe that he does have chronic degenerative changes in his spine of a constitutional nature. There is no surgical solution to this problem and certainly at times he does get some exacerbation. Employment which involves very frequent bending and lifting may not be suitable for him. However, I feel that given the evidence which I have seen...

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