MR. GEORGE HENDRY

HC Deb 08 February 1978 vol 943 cc1631-42

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Graham.]

12.25 a.m.

Mr. Douglas Henderson (Aberdeenshire, East)

After several unsuccessful attempts in the Ballot for the Adjournment, I am pleased to have this opportunity of raising the case of my constituent Mr. George Hendry, of Fraserburgh. The Minister knows that I have been pressing for nearly three years for justice for Mr. Hendry, and it is only because there has been a blank and consistent wall of bureaucratic refusal that I have had to seek this opportunity to raise the matter on the Floor of the House. Mr. Hendry did not want to court pub licity for his affairs, but he has been left with no alternative.

I hope to present the facts as precisely and as fairly as I can. Mr. Hendry joined the staff of National Carriers Ltd. in May 1971 as a van driver, and until the end of 1973 he carried out his duties conscientiously and faithfully. I do not think that this is in dispute.

At the end of 1973 Mr. Hendry suffered from chest pains for about a day and a half. Since he had not had occasion to consult his doctor in the previous 22 years, he was sent to Fraserburgh Hospital for a check-up. The doctor there could find nothing wrong with him. After a further absence due to influenza, he returned to his duties on 18th January 1974. His employers then referred him to the company doctor for an examination. I am not here to argue that that was unreasonable, nor do I suggest that the firm was seeking to find a way to dismiss him, though it is natural that what followed should raise such suspicions.

Mr. Hendry was given a medical examination which lasted about five minutes. He removed his jacket, rolled up his sleeves, had his blood pressure taken and, after the doctor had sounded his chest with a stethoscope, was told that his driving days with NCL were over. He was immediately sent on three weeks' holiday. Hon. Members can imagine that. with a clean bill of health for 22 years, it came as a considerable shock to Mr. Hendry to find that he was suffering from an ailment so serious that he could no longer continue in the employment to which he was accustomed.

Mr. Hendry therefore consulted his own medical practitioner, who referred him to Dr. A. C. F. Kenmure at Aberdeen Royal Infirmary who is, I am advised, one of the leading heart specialists in Scotland, if not in Europe. Dr. Kenmure graduated as BSc with honours at Glasgow in 1955, MD with honours in 1971 and MB. ChB in 1959, and was admitted as FRCP Glasgow in 1974, MRCP Edinburgh in 1964 and MRCP London in 1965. He is consultant cardiologist at Aberdeen Royal Infirmary and the author of a number of distinguished papers on his subject. I mention his qualifications in detail because they have a considerable bearing on the weight that must be given to his conclusions.

Dr. Kenmure's examination was, as one might expect, extremely thorough—not for him a perfunctory five-minute examination involving the taking of blood pressure and the sounding of a chest with a stethoscope. He gave Mr. Hendry a full and searching examination, and his report to Mr. Hendry's family doctor on 12th March 1974 contained the following conclusions: He has no chest pain and is not unduly dyspnoeic. I think that means he is quite well— He has no ankle swelling. He has no palpitations. He has no dyspeptic symptoms. He has no urinary upset. His weight is steady. There is no past history of note. There was no evidence of congestive cardiac failure. Pulse was regular. His blood pressure was 164/98. Heart sounds normal. Chest and abdominal examination was negative. Blood examination was normal. Chest X-ray was within normal limits. Before going on to the last point, I pause to suggest that that is not a bad bill of health for a man of 59. Many hon. Members of that age would be delighted to have that bill of health after such a thorough examination from a specialist of such eminence.

The last feature that Dr. Kenmure mentioned in his report was that an ECG showed minimal evidence of myocardial ischaemia. In explaining that, he stated: I think there is no doubt that this patient has ischaemic heart disease but this seems very mild and no therapy is required. I was disturbed to note that the patient has apparently lost his job on account of his recent symptoms. In my opinion, there is no reason whatsoever why he should not continue to drive a light van and I see no reason to discontinue his employment on medical grounds. An impressive and thorough examination by one of Scotland's leading heart specialists produced that report. However, Dr. Kenmure's opinion was unavailing and Mr. Hendry was dismissed. His solicitors, A. P. Brown & Macrae, of Fraser-burgh, tried their best to have him reinstated.

At a medical examination held in the clinic at Peterhead on 31st October 1974, Dr. W. Buchan, a regional medical officer with the Scottish Home and Health Department, reported on Mr. Hendry. He reported: Blood pressure 136/80, pulse 72 regular. No signs of heart failure. I consider him fit for his job. The doctor noted that Mr. Hendry had been occupied previous to the examination in carrying and laying substantial cement slabs without any effort that caused pain. Therefore, we have not only Dr. Kenmure but Dr. Buchan, a doctor employed on contract with the Government, coming to the same conclusion about Mr. Hendry after they had separately given him fairly searching examinations.

Mr. Hendry was offered redundancy money of about £180 by National Carriers Ltd. and the refund of his pension contributions. He has steadfastly refused to accept any of the cheques that National Carriers has sent him. I have the un-cashed cheques. Mr. Hendry feels that if he cashed them or presented them for payment, it would be an admission on his part that his dismissal was regular and appropriate. Consequently, he feels that his prospects of reinstatement or of alternative employment would be impaired.

I have been fighting Mr. Hendry's case for almost three years. In August 1976 I succeeded in persuading National Carriers to arrange for a further medical examination. I had assumed that it would be carried out by an independent specialist, but when Mr. Hendry presented himself for the examination he was examined by the same doctor who examined him in the first place. I am sorry to say that he was given just as superficial and perfunctory an examination as on the previous occasion and that the result was the same as before.

As the Minister knows, I have taken up the case with him and with Sir Dan Pettit, the chairman of the National Freight Corporation. On each occasion I have come up against a brick wall.

Before I come to my appeal to the Minister, I draw attention to an interesting case which was reported in The Times on 26th April 1977. I refer to the case of East Lindsey District Council v. Daubney. It is an English case but I suspect that it has some relevance to the situation in Scotland.

Mr. Daubney, who was dismissed by the council on health grounds, had his appeal that he had been unfairly dismissed upheld by Lincoln Industrial Tribunal, whose decision was confirmed by the appeal tribunal. I shall quote one or two extracts from the judgment of Mr. Justice Phillips. The report reads: The employers appealed on the grounds that the industrial tribunal had erred in finding that they ought to have inquired further into their medical advisers' decision and in holding that they ought to have given Mr. Daubney the opportunity to seek an independent medical opinion. Mr. Justice Phillips said: While employers could not be expected to set themselves up as medical experts, the decision to dismiss or not to dismiss was not a medical question but a question to be answered by the employers in the light of the available medical advice. He went on to say: The employee had to be consulted and the matter discussed with him. If employers took such steps as were sensible, according to the circumstances to consult the employee and to inform themselves upon the true medical position, it would be found in practice that all that was necessary had been done. I stress the importance of two phrases from that judgment. The first is "available medical advice" and the second is "The employee had to be consulted". No note, as far as I can gather, was taken by National Carriers of Dr. Kenmure's opinion, based as it was on a searching examination, and Mr. Hendry tells me that no genuine consultations took place with him. In effect, the company pulled up the drawbridge marked "Our doctor's report" and laughed at any onslaughts from Mr. Hendry, his solicitors or his Member of Parliament.

It may be said that Mr. Hendry's proper course was to seek a remedy at an industrial tribunal. Unfortunately, his dismissal came during the days of the old and unlamented Industrial Relations Act, which required that a person in Mr. Hendry's position should make an application within four weeks of the termination of his employment. Mr. Hendry tells me that he was not advised of this when he registered at the employment exchange in Fraserburgh and that no forms for making an appeal to the tribunal were available at that time.

The Minister of State, Department of Employment, in a recent letter to me on 3rd November 1977, pointed out that Mr. Hendry could still apply to a tribunal, even now, although in that event he would be liable to meet the employer's costs if he was unsuccessful. I do not believe that that is a fair or reasonable situa tion. Mr. Hendry has, by now, a somewhat jaundiced view of Government Departments, nationalised industries and all officialdom. I can understand that and I believe that the Minister will be able to do so, too.

Mr. Hendry is ready and anxious to return to work. He is prepared to be examined by any independent medical practitioner appointed by the Minister or jointly with National Carriers. I believe that he has had rough justice and now deserves a break. I hope that the Minister will give him that tonight by announcing that he will ask National Carriers to arrange for such an independent examination.

12.37 a.m.

The Under-Secretary of State for Transport (Mr. John Horam)

I am grateful to the hon. Member for Aberdeenshire. East (Mr. Henderson) for raising this case, because it is a matter of importance. I know the care and concern which the hon. Member has shown over it. I understand and sympathise with him in his concern for his constituent, Mr. Hendry. It is unfortunate when someone has to cease employment as a result of a medical condition. As the hon. Gentleman stressed, there is no blame at all attached to Mr. Hendry, and his conduct while working for National Carriers is in no way to blame for his subsequent situation.

It is also right that the management should give proper consideration to the circumstances of the case. When an employer is a responsible public corporation such as the National Freight Corporation, one can expect proper consideration. The normal response in such a situation would be to refer the matter to the National Freight Corporation to be dealt with by its management. This case has already been fully examined by the Corporation but, nevertheless, the hon. Member asks me to intervene. In those circumstances, I can consider intervening. to ask the NFC to look at this issue again only if I have reason to believe that, through some extraordinary circumstances, the NFC management has been unaware of some relevant fact or had not given proper consideration to the case.

Before I say what my view on the matter is, I shall go briefly through the history of the case. Mr. Henry was employed by NCL on British Rail parcels contract work. He was off duty from 21st December 1973 suffering from cardiac franchaensa. On 14th January 1974 he said that he intended to resume work. NCL decided, in view of the nature of the illness, that it was sensible for him to be medically examined by the company's doctor before being allowed to resume work.

Mr. Hendry was duly examined at Aberdeen on 23rd January 1974. The doctor noted that he had been in hospital two weeks, reported him fit to return to duty, but stated: as his condition has been attributed to myocardial ischaemia, however, he must not be employed as a motor driver. He will require other duties which are not over-strenuous. Unfortunately, this restriction is likely to be permanent. The depot manager at Aberdeen informed Mr. Hendry in writing on 29th January 1974 that, as no post was available commensurate with the doctor's restriction, it was unfortunately necessary to stand him off, which is the usual company practice. Mr. Hendry had paid leave until 23rd February 1974.

On 8th March 1974 Mr. Hendry's general practitioner—Dr. Ross of Fraserburgh—wrote to the depot manager in Aberdeen saying that in his opinion and in the opinion of Dr. Kenmure, a cardiologist at Aberdeen Royal Infirmary, there was no medical reason why Mr. Hendry should be removed from his present job.

The NCL's company doctor was again contacted. He replied on 26th March 1974 in these terms: I have received a copy of Dr. Kenmure's report on this man"—that is, Mr. Hendry. It does not, however, change my view that he is unfit to resume motor driving. I have been in touch with Dr. Ross and informed him accordingly. It is noteworthy that Dr. Kenmure, in his letter to Dr. Ross of 20th June 1974, thought that there was no doubt that Mr. Hendry did, indeed, have mild ischaemic heart disease. He recognised that patients with ischaemic heart disease were likely to be barred from holding a heavy goods vehicle licence or a passenger service vehicle licence and presumed that it was at the discretion of his employer whether Mr. Hendry should be allowed to continue driving a parcels delivery van.

I disagree somewhat with the hon. Member for Aberdeenshire, East in that it appears on the facts of the case that Dr. Kenmure was not in essence disagreeing with the report of the NCL company doctor on the medical facts.

Eventually, on 10th September 1974, Mr. Hendry wrote to the depot manager applying to leave the service under the arrangements agreed with the unions for ill-health cases. Incidentally, that was approximately nine months after the incident, but he was kept on the books by the company for that time and would have been kept on the books for a further year and three months. It is the practice of NCL in such circumstances to keep an employee on the books for two years to see whether during that period a job crops up which will allow him to be employed in a way commensurate with his state of health.

However, Mr. Hendry did not choose to take up that option. At least, he did not do so after the nine-month period. In October 1974 he was again examined by the medical officer, who confirmed that Mr. Hendry was permanently unfit for his normal duties". NCL wrote to Mr. Hendry and interviewed him on 31st October 1974. He was told that he would be allowed to leave the company's employ on 1st November 1974 in accordance with his application. A cheque for £183.60 was offered to him as payment of the amount due under the resettlement arrangements operating inside the company. As the hon. Member said, Mr. Hendry refused the cheque, and he has not cashed the cheque or any part of it. He said that he would refer to his lawyer and that he would claim unfair dismissal. The Aberdeen depot manager and the lawyer met on 3rd December 1974, and Mr. Hendry still refused to accept a cheque because he wanted to reserve his position.

There the matter rested. On 7th April 1977, however, the hon. Member wrote to the depot manager asking him to reconsider the matter. The managing director of National Carriers Ltd., Mr. Brian Hayward, replied on 11th May 1977. The hon. Member wrote again on 25th May and Mr. Hayward replied on 3rd June. In this correspondence he made clear the considerations leading to the company's decision. He said that it was always difficult when professionals disagree, and in view of the onerous duties placed on employers under legislation for the health, safety and welfare of its employees the Company always acts on the advice of its Medical Officer who, after long industrial experience, fully understands the exact nature or the duties involved in any particular case. It is important to bear in mind, first, that the medical officer knows the problems facing a worker in a particular job. He has industrial experience, which is particularly relevant in this case.

Mr. Henderson

Did not the medical officer qualify in 1967, so that he could not have had more than four or five years' experience?

Mr. Horam

I am not aware of that fact. That is new to me. I do not have those facts at my disposal. I am glad to know, if that is the case. But certainly the medical officer had six or seven years' industrial experience. Whether that is a long or a short time in this situation I am not competent to judge. Certainly he has relevant industrial experience and is used to considering cases against the background of the normal duties of the person concerned, as against the simple medical facts. But one should not make too much of that distinction, perhaps. The job involved lifting and carrying heavy packages and on many occasions climbing flights of stairs.

Mr. Hayward also made it clear that there had been full consultation with Mr. Hendry there had been a number of discussions between him and his manager before the decision was taken.

Perhaps I may comment on the hon. Member's point about the court case involving the East Lindsey District Council. In that case, in our view the two main principles which were shown to be relevant to the decision of the appeal tribunal were that when dismissing a man on medical evidence employers should ensure that they have sufficient information on which to take a decision whether to dismiss him and should take sensible steps to consult the employee before doing so. NCL feels that in that respect it behaved properly. First, there were two investigations by the medical officer in addition to the advice given by Dr. Kenmure, the consultant, who does not disagree with the medical facts of the case.

Secondly, the firm did talk to the employee on a number of occasions about his position before finally he left the company, about nine months after the incident that we are talking about. In both instances, therefore, NCL feels that it has obeyed the letter and the spirit of the law.

On 12th July the hon. Member wrote direct to Sir Daniel Pettit arguing that there was a strong case for an independent examination", meaning a medical examination. Sir Daniel replied on 26th July 1977 saying: we would be in a completely indefensible position if we were to disregard the advice of the Company's Medical Officer in this matter and Mr. Hendy was subsequently to have an accident because of his medical condition.

Mr. Gordon Wilson (Dundee, East)

The normal rule in damages cases is that there shall be corroborative medical evidence. In other words, there should be two medical examiners carrying out two medical examinations, one confirming the other. In this instance there were two medical examinations, but both were by the same medical practitioner. In this case, therefore, there is no corroborative evidence at all which shows that this gentleman was in a state that would require him to be dismissed.

Mr. Horam

Again, I must bow to an hon. Gentleman's knowledge of the Scottish situation. I did not know that there had been corroborative evidence in Scottish cases of damages. Nevertheless, as I understand it, NCL is saying that in this case it behaved in accordance with the procedures of the law and of industrial relations practice. I do not think that it would be the case that the situation was different in Scotland in this respect, although obviously the hon. Gentleman is drawing an analogy from another field. The facts are that NCL behaved properly according to the law as it applies both in England and Scotland in this respect.

As the hon. Gentleman said, Mr. Hendry then took up the case with the Under-Secretary of State for Employment, who brought out the point that unfortunately the relevant Act was the Industrial Relations Act 1971 and not the Employment Protection Act, under which Mr. Hendry's position would have been better as regards the proceedings that he would have been able to draw upon once he decided to take the course of action he did. He has been unfortunate in that respect.

Having carefully considered the matter, and having listened with great care to the points made by the hon. Gentleman, which have been basically that there should have been an independent examination of Mr. Hendry, who must feel some degree of bitterness for the situation that has emerged, I nevertheless feel that NCL has demonstrated by its handling of the case from beginning to end—when Mr. Hendry got right to the top of the company and received a reply from the chairman himself—that it has behaved reasonably.

In addition, both the hon. Gentleman and, if he reads Hansard, Mr. Hendry must bear in mind that the company has to pay attention to the public interest. It is a matter of grave concern that it should not employ someone who may, because of the condition of his health, suffer an effect which could lead him in some way to mishandle a vehicle, for example, with consequences for the general public. That must be a matter of grave concern to the company and is something that it must take into account. I am sure that Mr. Hendry himself acknowledges that to be a correct attitude.

Mr. Hendry behaved properly in the three years that he was employed by the company, and it is unfortunate that he has suffered this problem at the age he has. It is also unfortunate that the company was unable to offer him alternative employment at that time. It was not the case, although I understand that Mr. Hendry may feel it to be, that the company was wishing to secure grounds for his dismissal.

What I have said demonstrates that the company did all it could to keep Mr. Hendry on, but there was no suitable alternative employment available at that time or for the few months following. It was his choice, after a period of nine months or so, to seek to end his relationship with the company and take the course he did. NCL has looked carefully at the case. It has twice asked its company doctor to look at it. It has taken a view of Dr. Kenmure's independent evidence. It has made its decision in full knowledge of the facts.

Mr. Henderson

Dr. Kenmure was specific that there was no reason why Mr. Hendry should not go back to being a van driver with the company. If there is doubt in the company's mind about Dr. Kenmure's view, would it not be possible for it to arrange for him to examine Mr. Hendry and to say that it will be bound, as Mr. Hendry would be, by Dr. Kenmure's opinion now?

Mr. Horam

If the facts that I have are correct, Dr. Kenmure basically said that Mr. Hendry had a mild ischaemic heart disease and was likely to be barred from driving a heavy goods vehicle, for example, and presumably, therefore, it was at the discretion of his employer to consider whether he should be driving a van. That is the ground on which Dr. Kenmure rests, and it does not seem to me that there is a fundamental difference between the medical facts as diagnosed by the company doctor—

The Question having been proposed after Ten o'clock on Wednesday evening and the debate having continued for half an hour, Mr. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at five minutes to One o'clock.