HC Deb 14 March 1980 vol 980 cc1829-38

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

2.34 pm
Mr. Michael Shersby (Uxbridge)

I am very grateful for the Adjournment motion, which gives me the opportunity of raising in the House a long-standing grievance that has been endured by my constituent, Mr. G. S. Fahey, of 24 Drayton Gardens, West Drayton. It has taken me many months to succeed in the ballot in order to raise this matter and it is perhaps timely that I should do so today, as it is my constituent's 21st wedding anniversary.

The grievance results from the way in which Mr. Fahey alleges that he was dismissed from his job as an internal ambulance driver by the Hillingdon hospital management committee, as it then was, on 31 December 1970. My constituent claims that his case was so badly handled by the committee that he was humiliated and that he received no compensation for the loss of his job. He also claims that he has endured considerable physical pain ever since his dismissal and that, quite apart from the effect that this has had On his health, it has caused considerable distress to his wife, who has cared for him so devotedly during this period, in which she has suffered two heart attacks.

The only financial consideration that Mr. Fahey received following his dismissal was a short-service gratuity of £1,078 under the National Health Service superannuation scheme. This, however, was no compensation for the loss of his job.

The background to the case is that Mr. Fahey joined the staff of Hillingdon hospital in 1961 as a general porter. In 4 December of that year he transferred to the post of internal ambulance driver. This post he held and carried out to the satisfaction of his employers until, on 1 March 1970, he suffered a shoulder injury while helping to transport a deceased patient to the mortuary.

This injury—sustained, as it was, in the line of duty—resulted in Mr. Fahey's having to take an extended period of sick leave, which lasted for about six and a half months. He was signed off by his doctor in September 1970 as being fit for light duties. The length of the period of sick leave demonstrates the extend of his shoulder injury, which appears to have been severe and which caused him considerable pain. Although he was certified as being fit for light duties, this period of sick leave lasted until 31 October 1970.

The House will appreciate that Mr. Fahey's job as an ambulance driver included heavy duties such as lifting and carrying. As he was unable to undertake these duties, my constituent believes that the hospital should have made every attempt to find him an alternative post of a kind commensurate with the job he had done previously. I mention this because it is important to bear in mind that Mr. Fahey had been an employee of the hospital since 1961. It therefore seems reasonable that the hospital should have made a really strong attempt to find him something more suitable until his sickness had been overcome. I understand that the hospital claims that it made an alternative light job available to Mr. Fahey. However, my constituent strongly denies this.

The question whether any attempt was made by the hospital management should perhaps be judged on the basis that in September he was transferred to the post of swill and refuse labourer, at a lower rate of pay. Prior to that, the hospital had said that there was no light job available. This post, the hospital maintained, was the only light duty post available in the hospital. Although my constituent did not refuse this transfer—I emphasise that he did not refuse it—the job was in no way similar to that of an internal ambulance driver. Not only was it lower paid; Mr. Fahey felt humiliated that such a transfer could even be contemplated, bearing in mind that he had given excellent service for eight years.

The wisdom of offering this post of swill and refuse labourer to Mr. Fahey was commented on by my hon. Friend the Member for Barkston Ash (Mr. Alison), who at that time was Under-Secretary of State for Health and Social Security, in a letter to Dame Irene Ward, who had raised the matter with him. He said: The wisdom of offering this post to Mr. Fahey can perhaps be questioned. It is clear that my hon. Friend was not at all sure that the offer by the hospital management committtee was reasonable. This must have been realised by the hospital, because shortly afterwards Mr. Fahey was informed that the transfer had not been confirmed, that he would continue to be paid as a driver, and that any back pay owing as a result of the transfer would be paid as soon as possible.

Mr. Fahey returned to his post as an internal ambulance driver on 2 November 1970, on the basis that he should get back to full capacity before returning to his normal duties. However, in November 1970 he was referred to the medical officer in the staff health unit for a further medical examination. I understand that the medical officer certified that there was no prospect of an early recovery of Mr. Fahey's lifting ability and that, since he would not therefore be capable of a full range of duties as an ambulance driver, retirement on incapacity grounds was recommended. I stress the words "incapacity grounds".

That Mr. Fahey was permanently physically incapacitated seems to he in no doubt. Again, I can do no better than quote the letter that the then Minister wrote to Dame Irene Ward: It was of course extremely unfortunate for Mr. Fahey that the injury to his shoulder became permanent incapacity. I stress those words—"permanent incapacity".

The crux of this case is that the Hillingdon hospital management committee accepted that Mr. Fahey could carry out only light duties following his return to work after his accident. The hospital claims that every effort was made to find him a job with light duties and that it could not do so. Mr. Fahey strongly disputes this. As a result, Mr. Fahey was retired on medical grounds a year before he would have retired in the normal way, at the age of 65, in December 1971.

My constituent believes that the hospital management committee made no real attempt to find him a job but simply wanted to get rid of him as he could no longer carry out his duties as an ambulance driver. I have already said that the job that he was offered was of a menial nature. It humiliated him, and he certainly did not feel able to accept it. Therefore, as a result of the findings of the staff medical officer, it seems that he was unfairly dismissed, with no compensation for his years of loyal service.

That Mr. Fahey was a loyal, hardworking and trustworthy ambulance driver is not questioned. My constituent is an old soldier and very proud of that fact. He served as a driver class 1A in the Royal Army Service Corps from 1936 until his release in 1945. He served his country at Dunkirk. His release certificate, which is signed by his commanding officer, states: Driver Fahey has a most excellent record of service during the war. He is a very capable driver of all types of vehicles and has an accident-free record. Has experience of break- down and recovery work and general maintenance of mechanical transport. Sober, hardworking and very trustworthy. I mention this simply to illustrate the character of my constituent, who has suffered so much during the past 10 years.

To sum up, Mr. Fahey asserts that because the hospital could not or would not try to find him suitable light duties following his return to work it dismissed him on these medical grounds.

Why was Mr Fahey retired in that way after more than eight years of loyal service? He had only 12 months to go before reaching the normal age of retirement. Surely it would have been more gracious to have found him some light duties job other than that of a swill labourer for those few months before his retirement. It is hard to believe that some light duties job could not have been found in a large hospital such as Hillingdon hospital. Perhaps my hon. Friend will consider that point.

Why did Mr. Fahey not receive any compensation for the loss of his job? As my hon. Friend the Member for Barkston Ash said, he suffered "permanent incapacity" as a result of an accident that was sustained at work in the line of duty. I hope that my hon. Friend will consider those points with some care, even if he cannot reply in detail today. Perhaps he would consider also whether Mr. Fahey would be treated in that manner in the different climate of employer-employee relations that exists 10 years later, in 1980. Would not Mr. Fahey be able to claim that he had been unfairly dismissed if he were treated in that way today?

I hope that my hon. Friend will help me to secure a just and gracious settlement of a long-standing grievance that has caused so much suffering to my constituent. It has brought his good name into question. Perhaps consideration could be given to a small ex gratia payment, which would demonstrate that he should have been treated in a more generous and considerate manner.

2.46 pm
The Under-Secretary of State for Health and Social Security (Sir George Young)

My hon. Friend the Member for Uxbridge (Mr. Shersby) has for some years now been diligently pursuing the case of his constituent Mr. G. S. Fahey. That is to be expected from an hon. Member who has established such a good reputation as a constituency Member. I am glad that we are able to have this debate to clarify the position on the various issues raised. No one who has listened to my hon. Friend can fail to have sympathy for Mr. Fahey. The basic facts are not in dispute.

I understand that Mr. Fahey joined the staff of Hillingdon hospital as a general porter in September 1961, and transferred to the post of internal ambulance driver on 10 December 1961. From then until 1970, a period of more than eight years, he was employed as an internal ambulance driver and there is nothing to show that his service was anything other than satisfactory. Indeed, I understand that on at least one occasion he was commended by the secretary of the management committee for his vigilance and prompt action in frustrating the theft of petrol from a hospital vehicle. I endorse the personal commendation about Mr. Fahey that has been referred to.

While helping to transport a deceased patient to the mortuary on 1 March 1970 Mr. Fahey unhappily injured his shoulder, and that led to an extended period of sick leave. He was signed off by his general practitioner in September 1970 as fit for "light duties", although he in fact remained on sick leave until 31 October 1970. His pent in the ambulance department included not only driving but such "heavy" duties as lifting and carrying; indeed it was while undertaking such duties that Mr. Fahey injured his shoulder in the first place. The management, therefore, tried to find him an alternative "light" job within the hospital. The only "light duty" post available within the hospital was the post of swill and refuse labourer, and in September he was transferred to that post, at a lower rate of pay. While such a transfer might seem inappropriate for a man with restricted ability to lift, I am assured that in fact this post involved only "light" lifting. When I read the background to this case I queried that action. However, it appeared that. that was the only job available that involved no lifting. I understand and sympathise with Mr. Fahey's reaction when he was offered that post.

Mr. Fahey later objected to this transfer, and on 29 October he was told that as the transfer had not yet been confirmed—Mr. Fahey was at that stage still on sick leave—he would continue to be paid as a driver. As the transfer had resulted in a lower rate of pay, and Mr. Fahey's sickness benefit was still being made up to half pay by the management committee, he was also told that any back pay owing would be paid as soon as possible, and this was, in fact, done.

Mr. Fahey returned to his work as an internal ambulance driver on 2 November 1970, on the understanding that he would gradually work his way back to full capacity before returning to his normal duties. On 12 November he was referred to the staff health section for a medical examination. After examining Mr. Fahey and discussing his case with his general practitioner, the staff medical officer concluded that: Mr. Fahey is unable to do any lifting whatsoever because of the condition of his left shoulder. He would therefore only be fit for 'light' duties. He is unlikely to recover his lifting ability within the next year"— Mr. Fahey would have reached the normal retiring age of 65 in a little over one year— and I therefore consider that he is 'permanently unable to carry out his duties'. I therefore recommend to the Hillingdon group hospital management committee that he be retired on medical grounds. Following this report, Mr. Fahey was seen by the then assistant secretary to the hospital management committee, Mr. Knowles, on 26 November and given notice that he would be compulsorily retired on 31 December 1970 because of his physical incapacity to fulfil the duties required. He was told that this action was necessary following the medical report stating that he was permanently unable to carry out his duties as a driver. This was confirmed in writing to Mr. Fahey on the same day. He was also told that during the five weeks' period of notice he should continue to assist Mr. Graves—the head of the transport department—with occasional driving duties whenever there was no lifting or carrying involved.

The NHS superannuation scheme at that time provided for a short service gratuity for staff with between five and 10 years' service who Ceased to be employed by reason of permanent ill health or infirmity". As Mr. Fahey was compulsorily retired on medical grounds, he received a short service gratuity equivalent to one year's wages which I understand was £1,078.99.

Mr. Fahey has complained that the proposal to transfer him to the post of swill and refuse labourer, and the medical examination by the staff medical officer were "engineered" to secure his "dismissal", and that his retirement on medical grounds constituted "victimisation". I can only say that, although I have personally reviewed the case in some detail, I have not been able to find any evidence to support such an assertion. When it became clear that Mr. Fahey would be unable to resume his normal duties, an effort was made to find an alternative job that he would be able to perform satisfactorily. Unfortunately, no such job could be found. The only appropriate post available was the one to which I have referred, which involved duties such as the collection of litter but did not involve any heavy lifting. Perhaps, not surprisingly, this offer was not acceptable to him.

Mr. Fahey has implied that, because he was still able to carry out certain driving jobs, a "light duty" post would have been found for him in the transport department. This is not the case. When Mr. Fahey returned to work in the transport department, it was on the understanding that he would initially undertake "light" duties and gradually take on the full range of duties. As he could only be given light duties he was considerably under-employed and this put an unreasonable pressure on the work-loads of his colleagues in the department. Such a situation could be tolerated only in the short term, for as long as there was a prospect of his recovering his full capacity to undertake his regular duties. Following the medical examination, when it was clear that Mr Fahey would not be able to undertake his full regular duties, he continued to be assigned to light duties during his period of notice.

It is very unfortunate for Mr. Fahey that the injury to his shoulder resulted in his being permanently unable to carry out his former duties. It does seem, though, that the hospital authorities made reasonable efforts to find him a suitable "light duty" post which did not involve any lifting before deciding that he should be retired on medical grounds. This matter was first investigated in 1971 by the then Under-Secretary of State, my hon. Friend the Member for Barkston Ash (Mr. Alison), at the instigation of Dame Irene Ward, and has been re-examined a number of times since then. Following my own extensive re-examination of this case I can only reiterate the view of my predecessors, that unhappily I cannot see what action my Department could have usefully taken then, or could now take in this matter.

My hon. Friend raised a number of matters that I shall happily refer to the relevant hospital authorities because I think that they should be directed to them rather than my Department.

My right hon. Friend asked about the disablement benefit under the national insurance industrial injuries scheme. Following the industrial accident, Mr. Fahey made a claim for disablement benefit, and was examined by a medical board on 10 August 1970. The board accepted that he had a strained left shoulder as a result of the accident, and assessed the resulting disablement at 3 per cent. from 30 August 1970 to 29 February 1971. This was a final assessment, which meant that the board considered that the effects of the injury would pass by the end of the period of assessment. As a result of this assessment, Mr. Fahey received a small disablement gratuity and a special hardship allowance for the period between the expiry of his industrial injury benefit entitlement and his resumption of work.

In March 1971, Mr. Fahey applied for a review of his case on the ground of "unforeseen aggravation", arguing that his condition had worsened since the medical board's decision and that the worsening was due to the effects of the accident. However, a medical board which examined him on 27 May 1971 decided that there had been no unforeseen aggravation of the injury. When Mr. Fahey was notified of the medical board's decision, he was advised of his right to appeal to the medical appeal tribunal. When later interviewed, he stated that he did not wish to appeal to the tribunal. In 1972, Mr. Fahey made a further application for a review of his case, but the medical board on 20 November 1972 again decided that the conditions for review were not satisfied. On this occasion he did exercise his right of appeal to the medical appeal tribunal, but on 10 April 1973 the tribunal confirmed the board's decision.

Both the medical board and the medical appeal tribunal are independent bodies, specifically established by Parliament to decide questions arising on claims for disablement benefit. They do not come under my Department's jurisdiction, and it is not open to me to intervene or change in any way the decisions which they make. It would, however, be open to Mr. Fahey at any time to seek a further review of his case by a medical board. Should he wish to do so it would be advisable, in view of the medical appeal tribunal's previous findings, to furnish medical evidence in support of his application, although this would not, of course, be essential to such an approach.

I must tell my hon. Friend that I am very sorry that I cannot offer a more constructive response to Mr. Fahey's case, particularly as I understand that today is his twenty first wedding anniversary. But he can at least be assured that every possible avenue has been pursued in examining his case, leading ultimately to the initiative of my hon. Friend and to this debate in Parliament.

Question put and agreed to.

Adjourned accordingly at three minutes to Three o'clock.