United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 650_93_2110

Appeal No. EAT/650/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 October 1994

Before

THE HONOURABLE MR JUSTICE PILL

MRS M L BOYLE

MR J M GALBRAITH CB

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P D ENGINEERING          APPELLANTS

MR J FEIBEL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR P J DEGG

PROPRIETOR

P D Engineering

Canal Lane

Tunstall

Stoke-on-Trent

ST6 4PA

For the Respondent MR J FEIBEL

IN PERSON


 


MR JUSTICE PILL: This is an Appeal against the decision of the Industrial Tribunal sitting at Shrewsbury on the 6th May 1993.

The Tribunal unanimously held that the Application of Mr J Feibel that he had been unfairly dismissed by his employers P D Engineering succeeded. Mr Feibel was awarded compensation of £909. Mr Feibel worked for the firm as a Centre Lathe Turner from 12th July 1989 until his employment ended on 5th February 1993. P D Engineering is a small firm and Mr Degg is the proprietor and Mr Degg appeared for the firm at the Hearing before the Industrial Tribunal and appears before us today. Mr Feibel appeared in person on both occasions. It was not in dispute that Mr Feibel was a good tradesman; it was also not in dispute that during his service of about three and a half years, he had had 99 days of sickness. That sickness was present in the early part of 1993 and the Tribunal found the facts in this way. On the 21st January 1993, Mr Degg sent another employee Mr Proctor with a letter to Mr. Feibel's home when Mr. Feibel was suffering from angina. Indeed, he had been absent from work because of angina from some date in October 1992. The letter dismissed Mr. Feibel and the letter, so far as is relevant states:

"Dear Joe,

It is with regret that I have to write to you to inform you that I must terminate your employment with P D Engineering, because of your continued absence from work due to your ill health."

The Tribunal continued:

"4. We have heard from both Mr Feibel and Mr Degg. We regard both as being honest witnesses. Mr Feibel told us very fairly that he appreciated Mr Degg's problems and after all the firm had eight employees including Mr Degg, and he dismissed Mr Feibel because he needed a Centre Lathe Turner, and he succeeded in employing one within some weeks of Mr Feibel's dismissal."

The Tribunal went on to recite a long passage from the speech of Lord Bridge in Polkey -v- A E Dayton Services Limited [1988] ICR 142. In paragraph 6 the Tribunal went on to state their conclusions:

"We find that this was an unfair dismissal because of the complete lack of consultation with the employee. We accept the evidence of Mr Feibel that if Mr Degg had contacted him and asked him to come down or had visited him, he would have understood the position and things could have been settled in a friendly manner. We find the dismissal (although that, maybe, have been unwittingly) was to say the least, (inconsiderate; to send a letter by an employee to another (who is ill) is not the fairest way of dismissing an employee. Therefore, we find this was an unfair dismissal solely because of the lack of consultation."

In the firm's Notice of Appeal, Mr. Degg stated:

"The Committee was biased in as much that none of the members had experience in running their own small business i.e. under 10 employees. Also the Committee had taken little or no account of what I had said or written. Mr. Feibel was given the chance to question me but I wasn't given the chance to question him."

In a further letter to this Tribunal, dated 17th October 1994, Mr Degg added:

"My arguments will be based on the fact that I was not given the chance to question Mr. Feibel. There were some very important questions I wanted to ask him which I believed would have had a bearing on the outcome of the case"

That point has been developed orally before us, to include a submission that he was not given the opportunity to address the Tribunal upon the conclusion of the evidence.

In his reply, Mr Feibel stated, that the question whether or not any member of the Tribunal had the experience in running their own small business had no relevance to the decision and certainly did not amount to bias. The Respondent denies that the Tribunal took little or no notice of what was said by the Appellant and that the Appellant was not given the opportunity to question him as alleged. The Respondent believes that both parties were treated very fairly and in an equal manner by the Tribunal.

While the Tribunal which conducted the Preliminary Hearing directed that the Chairman's Notes of Evidence be obtained, there was no direction by way of obtaining the Chairman and members' comments upon the criticism of the procedure adopted by the Tribunal. We do not consider it appropriate to adjourn the matter further. There is a dispute between Mr. Degg and Mr Feibel as to whether Mr Degg was given the opportunity to cross-examine. What he and Mr Feibel agree upon however, is that neither party was given an opportunity to address the Tribunal upon the completion of the evidence.

We can say at once that we accept the first of Mr Feibel's submission as set out in his reply. It would not be appropriate for this Tribunal to conduct its own enquiry into the business. Both Mr Degg and Mr Feibel understand that only points of law can be taken before this Tribunal. It was a point which could of course be argued before the Industrial Tribunal namely that they should have regard and failed sufficiently to have regard to the small scale of operation and to the disturbance to the conduct of the business of prolonged absence of one employee. But that is not a reason for which this Tribunal could or should reverse or interfere with the decision of the Industrial Tribunal.

However, there are two other points. The first is the procedural one which is strongly made by Mr Degg and secondly, there is this Tribunals' own duty to consider whether the Industrial Tribunal has applied the correct test in law. The Tribunal, as we mentioned, has set out a lengthy passage from Lord Bridge's Judgment. No doubt they considered they were applying that and we should consider whether they have applied the statement of by Lord Bridge correctly. Before doing that, we refer to the Notes of Evidence and to the originating application, and the reply to it. In his original application, Mr. Feibel referred to his ill health and to the letter delivered to him. He added:

"I consider that my former employer acted unreasonably by dismissing without any attempt to make himself fully aware of all the facts and without any consultation whatsoever."

We do not propose to set out the quite lengthy reply of Mr Degg in full. However, it did include this paragraph:

"I did not make myself aware of the state of Mr Feibel's health since I already knew. Mr Feibel seems to have omitted to state that on January 6 1993 he rang me to say that he would be returning to work on either Friday the 8th or Monday 11th January depending on what the Doctor said when he visited him on Thursday 7 January. He did in fact go to the Doctors on the Friday, but he did not turn up for work on either the Friday or Monday nor did he ring me to say he was not coming. However he did send another Doctors note with a Mr Proctor one of my employees, he also asked him to tell me that the Doctor had said and I quote "If you return to work on Monday you will be dead with a week". So you see I knew exactly the state of his health. In any case, it would not have made any difference if Mr Feibel could have returned to work within two weeks as I could not that long before taking steps to right the deteriorating situation. Quite frankly I do not know how Mr Feibel has the audacity to accuse me of acting unreasonably after the number of times he has let me down during the time he has worked for me."

It was clearly a point which Mr Degg wished to take, that to quote a word used by Lord Bridge in Polkey, it would have been futile to conduct any further discussion or consultation. It is a point which he tells us and, we accept he would have taken, had he been given the opportunity to make a statement following the evidence to the Tribunal. Furthermore, while the originating documents are not strictly in evidence, it would seem to us that Mr Degg, having made the point which he did in his reply to the Claim, the Tribunal ought themselves to have allowed him to address them and ought also to have considered the point he in effect raises as to the futility of further consultation.

In his evidence, which came first, Mr Degg referred to the lengthy absences which by reason of ill health Mr Feibel had had, and clearly he did refer, although the note is brief on the point, to the drastic affect which the absences were having. We state that, because of the entry in the Chairman's note:

"close down entirely"

and

"I have never had a team of people I could call on"

Those appear to us to be references by Mr Degg to the position in which he was placed by the time he wrote his letter dismissing Mr Feibel.

In his evidence Mr Feibel said when considering the dismissal:

"I was shocked"

"I deserved a bit more consideration, I could not go to work because of angina, I would have

understood. I have been a Director of a small Engineering company and when one has people off, it causes problems"

Mr Feibel also said:

"He could have done this in a better manner"

While of course we make no firm finding upon the point in the absence of an Affidavit from the Chairman, we do have regard to the parties' agreement that they were not given the opportunity to address the Tribunal, as is customary, at the end of the evidence and to the consequence which followed in that Mr Degg did not have the opportunity to take the point which appears to us to emerge from his reply to the originating application and his evidence. We would remit the matter on that basis. However, because we need to consider the effect of the point which would have been taken and in our view, in the circumstances of this case with both parties acting in person, the Tribunal should have considered for itself. That is the point which emerges from the latter part of the passage from Lord Bridge's speech, which is set out in paragraph 5 of the decision of the Industrial Tribunal.

"It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could not be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied."

It appears to us that the Tribunal did not have regard to that proposition. They do state in the first sentence of paragraph 6 that the dismissal was unfair because of:

"The complete lack of consultation."

However, when expanding upon that in the following sentences, it appears to us that there is a strong risk that they have confused what is fair with what is courteous. We have regard to the reference to things being:

"settled in a friendly manner"

and to use of the word:

"inconsiderate"

While there can be and often will be an overlap, what is fair within the meaning of the statute is not always the same thing as what is courteous. A dismissal may be fair and the procedure followed may in the circumstances be fair even if it is discourteous. Our view that the Tribunal have given too much attention to courtesy is reinforced by the evidence which Mr Feibel gave, to which we have referred. In our judgment there is a real risk that in this case, what the Tribunal have done is to confuse a consideration as to whether what Mr Degg did was fair with a consideration of whether courtesies were being observed. It will not always be the case that the manner in which the decision to dismiss is communicated will turn what would otherwise be a fair dismissal into an unfair dismissal, and what is inconsiderate in terms of personal relations, even between two men who were on good and friendly terms into what is unfair within the meaning of the statute.

It does not end there, We consider that, the Tribunal have not directed themselves to the part of Lord Bridge's test which we have cited. They have not considered whether from Mr Degg's point of view, it was a reasonable option open to him to decide that any further discussion would have been futile, any further consultation would have been futile and could not have altered the decision. We note that there had been considerable periods of ill health, that this one had proceeded for several months and, as appears from the originating Application, that a message had been sent to Mr Degg via Mr Proctor which made it clear that Mr Feibel would not be returning to work in the near future. These are matters, which in our view, the Tribunal should have been considered.

We refer briefly to an earlier part of Lord Bridge's speech. Lord Bridge stated that:

"in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do the job;"

We find it difficult to see that the approach there indicated can be followed, or at any rate can be followed literally, in a case of sickness which was becoming chronic as in the present case (see for example Coulson [1975] IRLR 11). We note the evidence received by the Tribunal, that at the date of the Hearing, many months after his dismissal by Mr Degg, Mr Feibel was still suffering from angina and had been put off work for another month.

We have considered whether on the evidence we should reverse the decision of the Industrial Tribunal on the basis that, on the facts which were before them, there could only have been one answer. However, in the circumstances, we do not regard that as the appropriate or approach and we propose to remit the matter for re-hearing. We remit it to a differently constituted Tribunal. To that extent the Appeal is allowed.