United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1107_94_0305

Appeal No. EAT/1107/94, EAT/1108/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 May 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR S M SPRINGER MBE

MRS M E SUNDERLAND JP

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UDALITE LTD          APPELLANTS

(1) MR J H SUFFOLK

(2) MRS C A AIREY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR J SNOWDON

(Industrial Relations Consultant)

Adfield-Harvey

Industrial Relations Limited

PO Box 161

Grassy Lane

Wolverhampton WV10 8PS


 


MR JUSTICE MUMMERY (PRESIDENT): There are two appeals before the Tribunal this afternoon. They both relate to cases heard by the Industrial Tribunal held in Birmingham on 6 September 1994, involving the same employer. A preliminary hearing has been fixed for both cases to determine whether the appeals by the employers, Udalite Ltd, raise an arguable point of law, which would justify a full hearing of the appeal.

The Tribunal in Birmingham heard two applications: one by Mr J H Suffolk and the other by Mrs C A Airey, both claiming unfair dismissal. In each case the unanimous decision of the Tribunal was that the Applicant had been unfairly dismissed. The Tribunal awarded £8,598 compensation to Mr Suffolk and £5,415 compensation to Mrs Airey. Udalite appealed against the decisions by notices of appeal served on 23 November 1994. The ground of appeal in each case is that the Tribunal made an error in the application of section 57(3) of the Employment Protection (Consolidation) Act 1978.

At the Industrial Tribunal hearing, the applications were heard jointly. Although the Company entered an appearance in each case, it did not attend the hearing, but instead submitted written representations.

Before we go to the details of the case, it is important to note this statement in each of the decisions containing the full reasons. The Tribunal said in paragraph 8 of each decision:

"The failure of the respondents to attend the hearing of course meant that there was no opportunity for the applicant to cross-examine them on their written statement or for the tribunal to put questions. Clearly evidence by way of written representations does not carry the same weight as evidence given in person by those involved."

In our view, that is a correct statement of the way in which a Tribunal should treat written representations made by a party who has chosen not to attend the hearing to challenge the evidence given by the Applicants and expose itself to challenge in its evidence.

On the ground of appeal advanced by Mr Snowdon on behalf of the Company, it is first relevant to look at the wording of the section before looking at the facts of the case and the way in which s.57(3) was applied by the Tribunal to arrive at a conclusion of unfair dismissal. Mr Snowdon emphasised to us the amendment made to s.57(3) by the 1980 Employment Act and I will read out the material parts of the section in its amended form:

"Where the employer has fulfilled the requirements of subsection (1), [the requirement of subsection (1) is that the employer shall show the reason for the dismissal and that it was a reason falling within subsection (2) or some other substantial reason] then, ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]

The main point taken by Mr Snowdon is that the legal error in this decision is a failure on the part of the Tribunal to give weight, or sufficient weight, to the statutory factor expressly mentioned in subsection (3) of:

"size and administrative resources of the employer's undertaking".

This was an important feature of the written representations made by the Company in each case. Under the heading "Background" in the written representations, it was stated:

"Udalite is a small company engaged principally in the manufacture of lighting equipment and assembly of other Sheetmetal goods. The Applicant had been employed ... "

It then gives the details of the date of employment of each Applicant and the job in which they were employed. The representations go on to say:

"Udalite employs 4 employees only and it is part of the duties of all these employees that they take their turn in the paint plant as required."

In the light of s.57(3) and the written representations, we turn to the decision, which was in similar terms in each case. Taking first the case of Mr Suffolk, the Tribunal set out the details of employment. He was employed as a sheet metal worker and driver from 8 May 1984 until 4 March 1994. Mrs Airey was employed as a general operator from 12 October 1987 to 4 March 1994. In each case the Company denied that the Applicant was dismissed and alleged, in the alternative, that if there was a dismissal, the dismissal was fair by reason of lack of capability due to ill health. The Tribunal summarized the circumstances leading up to the termination of employment. Each Applicant was one of four employees who, from about 1991, were required to work from time to time in the powder paint shop in addition to their normal duties. In June 1993, Mr Suffolk was away sick with emphysema. They then give the details relating to a letter of confirmation from Mr Suffolk's general practitioner, who strongly recommended he should no longer work in the paint shop. When he returned to work on 14 June 1993 he was found alternative work. From 20 August 1993 to 14 February 1994 he was laid off due to shortage of work. On 9 February he had a discussion with representatives of the Company who advised him that work was again available, but that he would have to take his turn in the paint shop. On 14 February 1994 his GP wrote to the Company in identical terms to the letter sent in June. The Respondents wrote to the Applicant on 21 February confirming what was said at the meeting on 9 February. The Applicant replied on 25 February confirming he was able to resume work, but not in the paint shop. On 3 March the Applicant saw Mr Theobald and was told he was dismissed. In a letter dated 10 March the Applicant was advised that:

"Owing to your inability through ill health to fully carry out those duties as specified under the terms and conditions of your employment, we are left with no alternative but to give notice of dismissal."

The effective date of termination was expressed to be 4 March 1994.

The Tribunal summarized Mr Suffolk's evidence in relation to regular working in the paint shop from 1991 until June 1993 and his account of the circumstances leading to his dismissal. The Tribunal referred to the point highlighted in the written representations of the Company, that they are a small company and that the workforce had to be flexible. It was part of Mr Suffolk's normal duties to take his turn in the paint shop. After the period of lay-off and after the discussion with him on 9 February, he did not resume work on 14 February. Accordingly, the letter of 21 February was sent to him. The Applicant continued to refuse to work in the paint shop and was, therefore, told he would have to be dismissed.

The Tribunal set out in paragraph 8 the matters already quoted about the status of the written representations. The Tribunal noted that the sequence of events leading up to Mr Suffolk's dismissal were in broad terms not in dispute. The Tribunal preferred overall the evidence given by the Applicant personally as opposed to the written representation of the Respondents. They were satisfied that the letter of 25 February did not amount to notice of termination. The Tribunal found that Mr Suffolk was dismissed on 3 March. That was confirmed by the letter of 10 March.

The Tribunal made its findings that the reason for the dismissal was the Respondent's belief that Mr Suffolk could not carry out his duties due to ill health. They accepted Mr Suffolk's evidence that no attempt was made by Mr Theobald to investigate his medical condition or discuss with him the possibilities of finding alternative work, something they had been able to do before. No suggestion was made to him as to any re-examination of the conditions in the paint shop, something which might have resulted in changes being made and thus enable the applicant and others to work there without ill effects.

The Tribunal summarized its findings as follows:

"(1) For the purposes of Section 57(1) and (2) of the Employment Protection (Consolidation) Act 1978 the reason for dismissal related to the capability of the applicant assessed by a reference to his health."

They dealt with section 57(3) and found the dismissal was unfair. They set out four factors in relation to that conclusion:

"(a) The tribunal are not satisfied that the respondents adequately investigated the matter or adequately consulted with the applicant or adequately examined the possibilities of alternative work.

(b) The respondents failed to obtain up to date medical evidence or to examine reasonably conditions to enable the applicant to cover the full range of the duties.

(c) The tribunal are not satisfied that the respondents have acted consistently in their treatment of employees with medical conditions.

(d) The respondents have not acted as any reasonable employer would have done in all the circumstances."

They went on to assess compensation.

The relevant facts are very similar to the case of Mrs Airey. They dealt with the circumstances that led up her dismissal. They referred to the fact that she had started to work in the paint shop from about January 1992 but, as a result, suffered from the heat and fumes and was off sick for a period of time. This was known by her supervisor, who, in the event, put her back on assembly work at the end of May 1992. During 1993 Mrs Airey was left in the paint shop for three months without a break. After a break she was put back in again with the result that she was again away sick. She gave permission for the Respondents to contact her doctor and also agreed to see an independent doctor. However, no appointment was made for her. From 20 August 1993 to 14 February she was laid off due to shortage of work. On 15 February the Applicant saw her doctor. He advised her against working in the paint shop. On 21 February the Respondents advised the Applicant to return to work, making it clear that they were unable to relieve her of her paint shop duties. The Applicant replied saying that she was not prepared to work in the paint shop on medical advice, but would work in other departments. On 3 March she saw Mr Theobald and was told that she had resigned. At the same time he told her that he was dismissing her for medical reasons.

They summarized Mrs Airey's evidence in relation to her work in the paint shop and its effect on her health. They referred to the same passages in the Respondent's written evidence already quoted in Mr Suffolk's case. They came to the same conclusions about the reason for Mrs Airey's dismissal and the unfairness of it, as they had done in the case of Mr Suffolk.

In those circumstances what is wrong with the decisions as a matter of law? It is clear from the passages quoted in the concluding paragraphs that the Tribunal, having made certain findings of fact on points that were not contested by the Respondents because they did not turn up for the hearing; that the reason for dismissal was belief that the two Applicants could not carry out duties due to ill health. The Tribunal proceeded to address the alleged unfairness of the dismissal, having in mind s.57(3) criteria. The Tribunal, therefore, referred to the correct statutory provisions. There is no indication in the decision that the Tribunal misinterpreted these provisions or misapplied them to the facts of the case. It is made clear in paragraph 11(2) of the decision that the Tribunal reached its conclusion that:

"the dismissal was unfair having regard to the criteria in Section 57(3)".

Those criteria include the size and administrative resources of the employer and they made a special note of that factor in paragraph 7 of each of the decisions.

Mr Snowdon submitted that there was a legal error in these two decisions. His submissions can be summarized as follows. If capability is the cause of dismissal, the dismissal is fair if the employer acted reasonably. He argued that these employers did act reasonably. In the case of a small business, such as this, just getting over a period of lay-off, there were continuing problems of sickness with half of the workforce, that is, two of the four. That meant that two of the four employees were affecting the business. The two employees concerned could not carry out an essential part of the duties for which they were employed. In order to avoid the collapse of the Company, the employer dismissed those two employees and replaced them. In those circumstances, Mr Snowdon contended that the Company neither had the time nor the resources to investigate, consult and examine further. Also the possibilities of alternative work were clearly negligible. Mr Snowdon argued that the test of reasonableness in s.57(3) should take into account that half the workforce could not do the job required, so they were dismissed on capability grounds. Bearing in mind the length of time involved in the problems in question, the Company had been as reasonable as it could be. He accepted that the Company may well have been unwise in accepting a previous adviser's recommendation to submit a case in writing, instead of turning up to the hearing. Mr Snowdon himself regards that as an inadvisable course. An appearance might have produced a different decision.

We pause to say that we agree with what Mr Snowdon has accepted. But the consequence of not attending has to be accepted by the Company. It is inadvisable for an employer to make representations in writing and hope, by staying away, to avoid the testing of the assertions in the written representations by cross-examination of witnesses and by challenge to the legal argument. Mr Snowdon concluded his submissions by saying that this Company did what was reasonable; it took into account all the things that it should have done and the dismissal was fair within the meaning of s.57(3). The Tribunal's error was in declaring the dismissal to be unfair.

While we understand the points made by Mr Snowdon, we are not able to accept them as amounting to an arguable point of law. A Tribunal may err in law by overlooking s.57(3) or by overlooking some of the factors expressly mentioned there when it comes to consider whether a dismissal is fair or unfair. It is clear from this decision that the Tribunal did have in mind all the criteria of reasonableness set out in s.57(3). As to the weight given to the various criteria, that was a matter for them. It is a matter we cannot interfere with unless we conclude that the Tribunal were perverse, that is, reached a conclusion which no reasonable Tribunal, addressing all the relevant factors, could have reached.

In our view, this is not a case of perversity or of misdirection on the relevant statutory provisions or of misapplication of them. It is a case of an employer seeking on an appeal to obtain a different result on a matter of fact and degree. We have no power to interfere with Tribunal decisions simply because we might have reached a different decision on s,57(3) or on the ground that we think another Tribunal might have reached a different decision. On these matters it is primarily and, in most cases, exclusively, for the Industrial Tribunal to have the last word.

In those circumstances, there is nothing to argue about at a full appeal and the case will,

therefore, be dismissed. We make the same order in both the cases of Mr Suffolk and Mrs Airey.