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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gordon v Ralph & Anor [1994] UKEAT 742_94_0111 (1 November 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/742_94_0111.html
Cite as: [1994] UKEAT 742_94_0111, [1994] UKEAT 742_94_111
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At the Tribunal
HIS HONOUR JUDGE HULL QC
MR D J JENKINS MBE
MISS A MACKIE OBE
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR K O'NEILL
(TRADE UNION REPRESENTATIVE)
USDAW
188 Wilmslow Road
Fallowfield
Manchester M14 6LJ
JUDGE HULL QC: This is a Preliminary Hearing. The Appellant, Miss Gordon, began work in the Respondents' shop on 25 September 1991 and finished on the 23rd October 1993, so in other words she did just over two years in that employment. She was employed as an assistant in the bakery and served members of the public. Her behaviour was not, apparently, impeccable, and she received warnings. Eventually, there came a time on Monday, 18th October 1993, when she had failed in various respects to give her employers satisfaction and having caused some irritation and upset, she simply rang up, and according to her employers (whose evidence was accepted) she said "She would not be in work on that day". Miss Gordon told the Tribunal, in due course, that she had explained that she was feeling like flu. Mrs Ralph said that was not so. The Industrial Tribunal accepted Mrs Ralph's evidence.
The next day, (page 17 or our bundle) the Ralphs decided they had had enough, and wrote as follows:
"Dear Michelle,
As you have not attended work today without explanation, and in view of the two written warnings and one verbal warning that I gave you. Your employment with this firm is terminated as from Saturday 23rd October 1993."
It is to be inferred (Miss O'Neill, who has appeared for Miss Gordon today, agrees with this) that that Notice reached Miss Gordon the next day, 20th October, so that probably she was under notice from the 20th to the 23rd when her employment ended.
She complained to the Industrial Tribunal that she had been unfairly dismissed. The Industrial Tribunal heard evidence and they found the facts which I have outlined already. The Tribunal went on to find that the employers had acted fairly. They had given an oral warning and two written warnings. The Tribunal found that the employers had acted fairly in dismissing Miss Gordon, on the occasion of her non-attendance. They of course had in mind a Doctor's certificate which was obtained. It appears that on the 20th, a Wednesday, perhaps having received the Notice of Dismissal, Miss Gordon saw the Doctor, and the Doctor said, not that she was suffering or had been suffering from flu, but he said (and this on the Wednesday) "In my opinion [she] is suffering from viral/flu-like illness and is unable to attend work until 25th October".
The point of law which is urged on us by Miss O'Neill, very properly, is that here, she says, Miss Gordon had no opportunity to explain herself and it is absolutely fundamental to fairness that an employee should be given an opportunity to explain themselves, unless the circumstances are such that it is clear that no explanation could assist the matter. An opportunity for an explanation must be given by a fair employer.
We entirely accept the general proposition. But here, it appears to us, the submission made is beside the point. Miss Gordon, having been absent on a previous occasion without explanation - and when the explanation was given, it turned out to be quite an improper one - was ringing up to say she would not be at work. And that was the obvious occasion when any normal person would give an explanation, saying, I am feeling unwell or I have suffered a bereavement, or we have a crisis at home, perhaps with the children or with my parents, or something of that sort. No such explanation was given. The call was abrupt and Miss Gordon rang off.
In those circumstances, she had quite clearly had her opportunity of explaining her absence. The Tribunal was entitled, at any rate, so to conclude. It would be quite different if there had been no conversation between them. What excuse could there be for a cursory telephone call like this, unless it was suggested that Miss Gordon was so unwell that she could not even give an explanation of her condition to her employer; but that was not suggested. So the Tribunal was entitled to conclude, in our view, that that was an opportunity for an explanation, and that it was not taken by the employee; on the contrary, it might be thought, she was treating her employer with indifference and offhandedness as she had done before.
That was a possible view of the facts. It is not up to us, of course, to say what the facts were, it is for the Tribunal to find the facts. And in those circumstances, they found that the dismissal was fair. They said expressly that she was fairly dealt with and that in their view, her dismissal was not unfair. We do not think, therefore, that the point of law which Miss O'Neill pressed on us, arises. The appeal will have to be dismissed with regard to that part of the case.
With regard to the other part of the case, Miss O'Neill invited our attention to Schedule 3 of the Act providing that the employee is entitled to her normal pay for her normal working hours if, during any notice period, she is incapable of work through sickness or injury. Here, quite clearly, there was evidence before the Tribunal, in the Doctor's certificate, that from the 20th to 23rd October, Miss Gordon was absent from work through illness.
The Tribunal were not satisfied that this was a notice period, but there, as plain as anything on page 17, is the Notice which it appears to us (as an almost inevitable inference was operative from 20th October to 23rd October. So it was a notice period and it appears that she is entitled to her pay, which would be of the order, we think, of £60 for the period of absence, less of course any statutory sick pay which she did in fact receive during that period. We very much hope that the parties can adjust and agree this small matter. We are obliged, it seems to us, to give leave to appeal on this small matter. It may be that if this case is not settled and does in fact come on to appeal, it will be necessary for this Tribunal to consider whether costs have been unreasonably incurred and the parties will have to consider that. But we cannot say that we can dismiss the Appeal on that ground, at this stage. It appears to us that prima facie the ground which is urged as a matter of law does arise, and we therefore must allow it with, I must say, some regret. But there it is, that is a point which one devoutly hopes that the parties can adjust between themselves.
Before leaving the case, I would like to repeat that nothing we say is to be taken as any indication that we think that the rules laid down in Polkey and in many, many other cases with regard to fairness can ever be disregarded by an employer.