United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1239_94_0911

Appeal No. EAT/1239/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th November 1995

Before

HIS HONOUR JUDGE P CLARK

MR R N STRAKER

MR A D TUFFIN CBE

---

FACCENDA CHICKEN LTD          APPELLANTS

(1) MR R EVANS (2) MR M RAMSDALE          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR PATRICK GREEN

(of Counsel)

Messrs Shoosmiths & Harrison

Solicitors

52/54 The Green

Banbury

Oxfordshire

OX16 9AB

For the Respondents MR JASON GALBRAITH- MARTEN

(of Counsel)

Messrs Tracey Barlow Furniss & Co

Solicitors

68 Bridge Street

Worksop

Nottinghamshire

S80 1JE


 


JUDGE CLARK: This is an appeal by the employer against a unanimous decision of the Bedford Industrial Tribunal following a hearing held on 12th October 1994 that the respondents were both unfairly dismissed.

The factual background is that the appellants process fresh poultry products. Mr Evans was employed as a foreman and Mr Ramsdale as chicken catcher. Both worked on the same team in Nottinghamshire.

In November 1993 the appellants published the working arrangements for Christmas. There was to be a break between 23rd and 26th December (inclusive), but employees were expected to resume work on 27th and 28th December, which were bank holidays.

Both respondents, along with others, complained that they did not wish to work on those two days. They were verbally instructed by their manager, Mr Gibbins, to work on those day and both men protested vociferously. That instruction was confirmed by a written memorandum which made it clear that if they did not attend for work they would be treated as having terminated their employment. Both men then resigned themselves to working on 27th and 28th December, and the Tribunal found that neither at anytime stated they would not report for duty.

Neither man in fact reported for work on those days. On 29th December both attended different doctors who certified them as being unfit for work. In the case of Mr Evans the diagnosis was chest infection; in that of Mr Ramsdale, influenza.

On 29th December Mr Floyd, the appellants personnel manager, wrote to both men, asking them to contact him "to discuss the situation in order for the company to make the correct decision with regard to your future with the company."

The Tribunal set out what happened next at paragraph 7 of their reasons:

"Both applicants made contact and both were asked to attend a meeting on 3 January, at which meeting both were effectively told that they had terminated their own contracts. The respondents [the employers] did not accept the medical certificates produced by the applicants as being genuine largely because of the applicants' protests before Christmas. We can understand that the respondents were suspicious of the circumstances relating to the absence of both men, however they were presented medical certificates signed by a medial practitioner. The respondents were not competent to look behind those certificates and in any event made no further enquiry."

The Tribunal then concluded in paragraph 8:

"The respondents have maintained that in these circumstances the applicant were not dismissed. That cannot be right. We are unanimously of the view that the respondent by their actions on 3 January summarily dismissed both applicants and in this respect we have referred ourselves to the judgment of the Court of Appeal in Igbo v Johnson Mathey Chemicals Limits [1986] IRLR 215. We are satisfied that in the circumstances of this case there was a dismissal and area equally satisfied that the dismissal of both applicants was unfair, for the respondents actions taken without further investigations and in the manner in which those actions were taken do not fall (in our unanimous view) within the parameters of reasonableness."

The main thrust of Mr Green's argument on behalf of the appellants is that in paragraph 7 of its reasons the Tribunal misdirected itself by substituting its own view of the veracity of the employees for that of the employer.

He submits that the correct test for determining whether a particular decision to dismiss is unfair requires an Industrial Tribunal:

(1) to consider the evidence before the employer at the time when the decision to dismiss was taken. It must not substitute its own view of the evidence which it has heard for that of the employer considering the matter prior to dismissal.

Linfood Cash & Carry Ltd v Thomson [1989] ICR 513

(2) to make careful findings as to whether the employer arrived at a reasonable decision on the evidence before the employer.

Vickers Ltd v Smith [1977] IRLR 11

Iceland Frozen Foods v Jones [1983] ICR 17

(3) only on such findings can a conclusion that dismissal was outside the range of reasonable responses be based.

In this case he argues that the Tribunal fell into error by finding, on the evidence which it had heard, that the employer ought to have believed the respondent's claims that they were unfit for work on the relevant days. They thus substituted their own view for that of management.

It is important to note that on 3rd January the appellants treated the men as having dismissed themselves by not attending for work on the relevant days. They persisted in that line of defence in their Notice of Appearance and at the Tribunal. As a matter of law the concept of self-dismissal was rejected in London Transport Executive v Clarke [1981] ICR 355. The men were dismissed and that point is now conceded by Mr Green, albeit that he contends that dismissal took place following the appeal hearing on 13th January.

What the Tribunal had to consider was whether the employer had established a reason for dismissal within Section 57(1) or (2) of Employment Protection (Consolidation) Act 1978 and if so, whether it had acted reasonably in treating that reason as a sufficient reason for dismissal under Section 57(3).

It was, we think, implicit in the Tribunal's findings that the reason for dismissal related to conduct. As to reasonableness we are satisfied that this experienced Tribunal Chairman considered the three-fold test in British Home Stores v Burchell [1980] ICR 303. The Tribunal found that the employer had failed to carry out a reasonable investigation. There was ample evidence to support that conclusion. It was common ground that at the interview held on 3rd January both men told Mr Floyd that there was only an emergency service operating at their General Practitioners' surgeries on 27th and 28th December and accordingly they both attended on 29th December, the date of their respective medical certificates. No enquiries were made by the employer to find out whether that was true. The employer simply did not accept the medical certificates as being genuine; Mr Floyd said in evidence that they [the employer] could not accept their absence was genuine.

Mr Green further complains that no mention is made in the Tribunal's reasons of the internal appeal which was heard by Mr Ward, the Group Personnel Manager, and Mr Gibbins, their manager, on 13th January, and that this was a matter which went to the adequacy of the appellant's investigation. Having read the Chairman's Notes of Evidence we find no ground for that complaint. Mr Gibbins made it clear that when he saw both the respondents on 3rd January he did not accept that their sicknesses was genuine; it all seemed a convenient coincidence, and Mr Ward's evidence was that they came up with no other reason for their absence other than that they were sick. They both told him on that occasion that they had intended to come into work. It follows in our view that the respondents maintained their story and the appellants their scepticism. No further investigation was carried out as a result of the appeal process. We do not think that the Tribunal can be criticized for not setting out the evidence relating to the appeal.

Overall, we prefer the analysis advanced by Mr Galbraith-Martin, who appeared for the respondents. The Industrial Tribunal did not purport to make its own finding as to the veracity of the respondents. It accepted that the employer had grounds for suspicion, but had not carried out sufficient investigation to have reached the stage at which it had reasonable ground for its belief that the men had not been genuinely too ill to attend work on the relevant days.

In our judgment the Industrial Tribunal was entitled to conclude that the appellant had failed to carry out a reasonable investigation; that it reached that conclusion without misdirecting itself and that it was further entitled to conclude that dismissal was outside the range of reasonable responses.

Mr Green also adverted, faintly, to an argument based on perversity. We bear in mind the high onus on appellants to establish this ground of appeal, and have no hesitation in rejecting such an argument in this case.

Accordingly this appeal is dismissed.