United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 42_93_0705

Appeal No. EAT/42/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 May 1993

Before

HIS HONOUR JUDGE HAGUE QC

MR R JACKSON

MR A D SCOTT

---

O BYRNE          APPELLANT

REHAU LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR T KIBLING

(Of Counsel)

Bradford Law Centre

31 Manor Road

Bradford

BD1 4PS

For the Respondents MR K MYDEEN

(Of Counsel)

Messrs Harris & Cartwright

Windsor Road

Slough

Berkshire

SL1 2DX


 


JUDGE HAGUE: This is an appeal against the decision of an Industrial Tribunal sitting at Leeds entered in the register on 13 November 1992. By their decision, the Tribunal found that the employee, Mr Byrne, had been unfairly dismissed by his employers, Rehau Ltd, but awarded him nil compensation. The appeal is brought by Mr Byrne against that award.

The facts are set out lucidly and in detail in the Full Reasons of the Tribunal, but for the purpose of this appeal we can summarise them as follows. Rehau Ltd is the UK subsidiary of a Europe based company engaged in the manufacture or processing of plastic materials, in particular in connection with plastic window frames. Mr Byrne was employed as a salesman from 30 September 1987 until his dismissal on 2 March 1992. He was responsible to the head of his department, Mr Copplestone, who was in turn responsible to the general sales manager, Mr Van Staveren.

Up to the beginning of 1990, Mr Byrne was a very satisfactory employee, but in that year he suffered a pulmonary illness and his performance deteriorated. Near the end of the year, he had to go into hospital for a biopsy of his lung. He underwent severe surgery of the thoracic cavity whereby it was necessary to remove certain ribs and a large portion of one lung. Mr Byrne returned to work in February 1991, but his mobility was limited, he was under medication, and in March he had to have a week off. After a meeting at the beginning of April 1991 with Mr Langnichol (standing in for Mr Van Staveren who was away) at which Mr Byrne apparently stated that he felt he could still meet the requirements of his job, the Personnel Director, Mr Burridge, wrote him a letter dated 4 April 1991 giving him a 2-month trial period to demonstrate that. On the same day, Mr Burridge wrote to Dr Newton, Mr Byrne's consultant, to ask for a report. Dr Newton's reply included the following:

"I do not think that working hard will have any effect on the natural history of his disease and I do not think that any restrictions need be placed upon his activities."

The Respondents took that as an indication that Mr Byrne could be regarded as physically fit for his job. On 3 July 1991, a little after the expiry of the 2-month trial period, Mr Byrne was sent a memo indicating that his situation would be reviewed in September 1991.

In the months following that memo, Mr Van Staveren became very dissatisfied with Mr Byrne's performance. There were conversations between them, but there was no formal occasion on which the complaints were put to Mr Byrne so that he could comment on them, until Mr Van Staveren sent a letter dated 7 October 1991 headed "Final Written Warning". This stated that the Respondents had "noticed a marked deterioration in your performance as a Sales

Representative in the following areas", which were then set out, and indicated to Mr Byrne that he would be assessed over the next three months and that if he did not achieve the requested improvements he would be dismissed. Three monthly reports on Mr Byrne were made by Mr Copplestone to Mr Van Staveren, and these were extremely critical of Mr Byrne. However, these reports were not seen by Mr Byrne and the criticisms were not put to him, although he was sent a further letter by Mr Van Staveren dated 20 December 1991 complaining in particular about the lack of any visit reports.

Mr Byrne's contract of service contained a detailed grievance procedure. At no stage does he pursue the opportunity to invoke that procedure to challenge any of these warnings or rebukes from Mr Van Staveren.

Finally, a letter dated 10 February 1992 was sent by Mr Burridge to Mr Byrne indicating the three-month review period mention in Mr Van Staveren's letter of 10 October 1991 would be extended to the end of February 1992, and summoning Mr Byrne to a disciplinary interview on 27 February. That interview took place, those present being Mr Van Staveren, Mr Burridge and Mr Byrne. Mr Byrne was not offered the chance of having a colleague of his choice with him. At the meeting, Mr Byrne was told he would be dismissed, and on the 2nd March 1992 he was sent a letter confirming their decision.

The Tribunal found that the reason for Mr Byrne's dismissal was poor performance and this fell within the category of "capability" in s.57(1) Employment Protection (Consolidation) Act 1978. But they considered that the Respondents had not acted reasonably in dismissing Mr Byrne for that reason, and so under s.57(3) held the dismissal to be unfair on two grounds.

The first ground concerned the investigations a reasonable employer should make to ascertain the reason for the employee's shortcomings, if such there be. The Tribunal said (at paragraph 18 of their Reasons):

"We are not satisfied here that adequate investigations were in fact carried out. Here was an employee who had started well and then, in the view of the respondent, begun to perform unsatisfactorily. One would have thought that the respondent would want to know the reason why. In our view, it was not sufficient here to say that this applicant did not come back with suitable responses and suggestions. There was after all the possibility after so severe an illness that this might have been a factor and that, in our view, should have been investigated further. Whatever favourable reports the respondent had received, there was always the possibility of some sort of relapse or delayed recovery."

As we read it, the Tribunal were there expressing the view that the Respondents should have made further medical enquiries, either of Dr Newton or elsewhere, in order to ascertain whether Mr Byrne's unsatisfactory performance remained attributable to his illness, and if so what were the prospects of a proper recovery.

The second ground for the Tribunal's finding that the Respondents had not acted reasonably in dismissing Mr Byrne was that, at the final disciplinary hearing, he had not had the points of complaint put to him and had not been given a proper opportunity to state his case.

Mr Byrne elected for compensation, as to which the Tribunal in paragraph 20 of their decision said this:

"The question then arises as to what would have been the likelihood of dismissal had the procedures of the respondent been satisfactory in all respects. We are satisfied from the evidence that we have heard that the performance of the applicant all round during the year 1991, after his return from sickness, was well below the standards achieved at the outset of his employment and that commercially it was the view of the respondent that the demands which could legitimately be placed upon an employee in the applicant's position, no matter how great his personal difficulties, were such that the applicant was not fulfilling them. We do not hold the applicant specifically to blame for this. The impression that he has made upon us is of a courageous individual who was doing his best to come back to work after a very severe illness for which he was still receiving treatment and that he was simply not at his best and that, on balance of probability, that is what accounted for the failures which the respondent regarded as unacceptable. Had full investigation been made and that had come to light, then having regard to the demands which had to be made of this applicant in the present difficult times, we would have regarded his dismissal as being inevitable. Furthermore in our view he was very much to blame in his failure to avail himself of the very comprehensive grievance procedure available to him. He was a senior and responsible employee and in our view both sides are under an obligation to contribute to the resolution of difficulties. In all the circumstances therefore we consider it just and equitable that there be no award of compensation."

In the first part of that paragraph, the Tribunal made the clear finding that Mr Byrne's performance after his return from sickness fell below acceptable standards, and plainly considered that his apparently continuing inability to fulfil the demands legitimately made of him justified his dismissal. However, the Tribunal thought, "on the balance of probability", that his failures were attributable to his severe illness. But when the Tribunal said that "Had full

investigation been made and that had come to light, then having regard to the demands which had to be made

of this applicant in the present difficult times, we would have regarded his dismissal as being inevitable.", they were, it seems to us, making assumptions about the result of the full investigations which in our view are not really compatible with what the Tribunal had said in paragraph 18 of their decision (set our above) as regards further medical enquiries. It must be remembered that Dr Newton had in effect indicated that Mr Byrne was physically fit for his job, but events had shown that this was probably not so. Further medical enquiries might very well have revealed (as the Tribunal appears to assume) that Mr Byrne's recovery had not been delayed and that no further improvement in his condition could be expected. On that basis, the Tribunal's finding that dismissal was inevitable would be fully justified. But the inquiries might have revealed that there had been a delay in Mr Byrne's recovery, and that substantial improvements could be expected in the future. In that event, there might have been a chance that Mr Byrne would have been retained. Another possibility, albeit perhaps an unlikely one, is that Mr Byrne's failures were in no way attributable to his illness, in which case difference considerations would arise.

Section 74(1) Employment Protection (Consolidation) Act 1978 provides that:

"...... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

In Sillifant -v- Powell Duffryn Timber Ltd [1983] IRLR 91 at p.96, Browne-Wilkinson J said in relation to the application of Section 74(1) in this kind of case:

"There is no need for an "all or nothing" decision. If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."

These dicta were quoted with approval by Lord Bridge of Harwich in Polkey -v- Dayton Services Ltd [1988] ICR 142 at p.163. We think it follows from the Polkey case and from later authorities including Red Bank Manufacturing Co Ltd -v- Meadows [1992] ICR 204, Rao -v- Civil Aviation Authority [1992] ICR 503 and Dunlop Ltd -v- Farrell [1993] ICR 885 that unless the Industrial Tribunal can answer the question whether if the employer had followed the proper procedures and acted fairly the employee would have been dismissed reasonably clearly one way or the other, the Tribunal should make a percentage assessment of the likelihood of dismissal which must then be reflected in the compensatory award.

We are conscious that "decisions of industrial tribunals must be read as a whole and bearing in

mind that they are not drafted like pleadings" (per Wood J in Chaplin -v- H J Rawlinson Ltd [1991] ICR 553 at p.559D). Nevertheless, we have come to the conclusion that in the present case, in view of the Tribunal's reference to "the balance of probability" as to the result of further investigations, there was no (or at any rate, no sufficiently clear) finding that Mr Byrne's dismissal would necessarily have been inevitable. Nor did the Tribunal sufficiently assess the percentage chance of Mr Byrne not being dismissed if the Respondents had not acted unfairly in the respects found by the Tribunal in paragraph 18 of their decision, i.e. particularly if adequate investigation (particularly medical enquiries) had been made but also if Mr Byrne had had a proper opportunity to state his case before the decision to dismiss him was made.

We therefore allow the appeal and set aside the assessment of the compensation at nil. In the circumstances we think the appropriate course is that the question of the amount of compensation should be remitted to the same Industrial Tribunal for reconsideration, and we so order.