United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 172_95_0707

Appeal No. EAT/172/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th July 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P M SMITH

MISS D WHITTINGHAM

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PETROCHEMICAL MAINTENANCE SERVICES LIMITED          APPELLANTS

MR T R COTT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR DAVID BERRY

(Solicitor)

Messrs Berry & Walton

Solicitors

Chancery House

8 King Street

King's Lynn

Norfolk

PE30 1ES


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at Norwich on 12th January 1995.

The Tribunal heard a claim for unfair dismissal by Mr Timothy Cott, a cleaner and demolition worker. The Tribunal unanimously decided that Mr Cott was unfairly dismissed. The extended reasons for that decision were sent to the parties on 25th January 1995. On the 22nd February 1995 an appeal was served and the appellant was stated to be a company called Petrochemical Maintenance Services Ltd, trading as PMS c/o 8 King Street, Kings Lynn, Norfolk, (Company No. 2724555).

The heading in the decision identifying the respondent refers to PMS Ltd (formerly Fine Finish Ltd). It will become apparent in a moment why in identifying names.

At the hearing of the appeal today, Mr Berry has represented the appellant. The purpose of the hearing is to decide whether the Notice of Appeal, as elaborated by the arguments submitted by Mr Berry in the skeleton argument and orally, reveals an arguable point of law. If there is no arguable point of law this Tribunal has no jurisdiction to entertain the appeal and there is no purpose served in pursuing the matter to a full hearing with both sides represented.

In order to understand the two points made by Mr Berry; it is necessary to look first at the history of the proceedings and then at the reasons given for finding that Mr Cott was unfairly dismissed.

The proceedings were started on 6th August 1994, when Mr Cott presented an originating application to the Industrial Tribunal. In box 4, in which the applicant is requested to give details of the employer, organisation or person you are complaining about, Mr Cott gave two names: Fine Finish Limited (using `i' in Fine and Finish) with an address Chancery House, 8 King Street, King's Lynn, Norfolk PE30 1ES and, secondly, Fyne Fynish Limited, (with a `y') at a different address in King's Lynn, Old Town House, 27 Wyatt Street.

He said that he had been employed since February 1984 down to 22nd July 1994 and that he was dismissed when he received a letter of dismissal while he was off sick. He believed that he was employed by the first respondent, but the dismissal letter was from the second respondent. He believed that the second respondent had ceased or was about to cease trading. He said he was unfairly dismissed. He was redundant. The notice was insufficient for his service.

Now it is also relevant to look at the Notice of Appearance received in the Industrial Tribunal on 14th September 1994, signed by Mr William Bunting, giving as his address, Old Town Wall House, 27 Wyatt Street. That is the address of the second respondent. He made no mention anywhere in the IT3 of either company. He said he was resisting Mr Cott's claim. He agreed that he was dismissed, but said it was for a medical reason. He was unable to perform duties due to arthritis. The dates of employment were accepted as correct. The grounds of opposition were that Mr Cott had had long periods of sickness before, with non-industrial related illness, and that proper and correct notice was given. Mr Cott received all monies due. Mr Cott decided to take a week's holiday in his notice period.

The case in the Industrial Tribunal was conducted on behalf of Mr Cott by Mr Jones of the Citizens Advice Bureau, and was conducted on the respondents' side by Mr Bunting as a director. It stated in the decision that he appeared for the "respondent" (in the singular). The record of the Industrial Tribunal proceedings refers to both respondent companies named in the IT1 and states the representation of both companies as being by Mr William Bunting, Director, and a Mr D Bunting, foreman.

The Tribunal said that they had heard evidence from Mr David Bunting and Mr William Bunting for the respondents and from Mr Cott in person.

They found that Mr Cott had been employed from 13th February 1984 until his dismissal on 22nd July 1994; his job involved doing cleaning and occasional demolition work. He was given notice of dismissal by the second respondent on 26th May 1994, initially 7 weeks notice, later amended to 10 weeks. The reason for dismissal was stated as "Persistent absence through illness", as a result of which the respondents had come to the conclusion that Mr Cott was incapable of performing his work.

The Tribunal were satisfied that the dismissal fell within the capability ground in Section 57(2)(a), a case of a medical condition which made him unable to continue with his work.

They dealt with the evidence of the illness. From 1992 to 1993 he was off work for a long period, but they were satisfied that that period of absence was exceptional and by reason of a prostate illness, with no connection with the latter period of illness which led to his dismissal.

There were no long periods of illness from 1993 until 3rd May 1994. Mr Cott became ill with arthritis. He had to go home. He continued to suffer with this problem and provided sick notes on a fortnightly basis. On 26th May 1994 he received notice of dismissal. On 19th June 1994 he returned to work, continued to be involved in work of a fairly heavy nature until 22nd July 1994. He then had a week's holiday prior to being dismissed on the grounds of capability.

It was in these circumstances that the Tribunal asked themselves, correctly, the question posed by Section 57(3). They referred, correctly again, to the decision of this Tribunal in East Linsey District Council v Daubney [ 1977] IRLR 181, as to what actions an employer should take when dismissing an employee in respect of illness for a period or persistent absence over a long period through illness. There has been no criticism of the Tribunal's direction as to the law.

The Tribunal stated their conclusions reached by applying those legal principles to the facts. They said it was not in dispute that the employers took none of the steps outlined in Daubney case: i.e. consultation and discussion with the employee, and steps to discover the true medical position, described as sensible steps of consultation and discussion.

The Tribunal said that there was an initial telephone call to Mr Cott's doctor, but it was common knowledge that, without authority, the doctor would not reveal medical information. No further steps were taken. It was open to the respondents to take a number of steps, such as obtaining Mr Cott's written authority so that they could secure a report from his General Practitioner, or seeking an independent medical report as to his condition. They said that there was clearly a duty to consult and discuss the matter with him. No attempt was made to do that. Before the letter dismissing him on those grounds was ever written and given to him, it was necessary for those steps to be taken if the dismissal was to be fair. The Tribunal concluded that this was an unfair dismissal. A failure to take those steps meant that there was an insufficient reason to justify his dismissal. They went on to quantify the compensation.

Two points were taken by Mr Berry criticising the decision. The first is that there had been no finding of fact by the Tribunal as to which of the two respondents employed Mr Cott. He said that there were two persons named as employers in the IT1. The decision appealed was, according to the heading, against PMS Limited (formerly Fine Finish Limited), one of the respondents. It was erroneous of the Tribunal to come to that decision without making it clear as to which of the companies was the employer.

We have been through the details of the dates with Mr Berry. A confusing picture emerges of the two companies, with similar names interchanging names. It appears from the documents provided that there were two companies with different numbers. First, a company numbered 2724555 (which I will call 272). That was originally incorporated in 1992 as Miscellaneous and Others Limited. On 26th April 1993 272 changed its name to Fyne. On 6th September 1993 there was name swap. 272 changed its name to from Fyne to Fine. There then appeared on the scene another company 1822168 (which I will call 182), named Fine. That changed its named on same day, (6th September 1993) to Fyne. It is already clear how confusing the situation potentially was. The confusion was compounded when on 16th September 1993 182 changed its name to Fine. 182 was wound up in June 1994. 272 changed its named in January 1995 to PMS, the company appealing the decision. That is the confusing nomenclature.

In our view, the Tribunal made no error of law in hearing the case without, in the course of its extended reasons, drawing a distinction between the two companies. The Tribunal made no error of law in deciding, as is apparent from the line of the decision, that the order should be made for payment against PMS. There was no attempt in any of the documentation submitted by Mr William Bunting to draw any distinction between the two companies. I have already referred to the IT3 which responded to the IT1 which named two companies. No distinction was drawn between them. It does not appear from the Tribunal's extended reasons that any distinction was drawn at the hearing. Mr Bunting represented both of companies. There is no mention in the extended reasons to any point being taken that one of the companies was incorrectly joined as a respondent.

The matter is said by Mr Berry to be of some importance for two reasons. The first is that company 182 was wound up, where PMS company 272 was not. Secondly, he points out in his skeleton argument that there could not be any finding that Mr Cott was employed by 272 from 13th February 1984 because company 272 was not incorporated until 22nd June 1992.

These are false points. First it is possible for a person to become employed by a company, even though he was employed by another company before the later company was incorporated. There is nothing in that point. As to the question of differentiating between the solvent company and the insolvent company, no question on that was raised by Mr Bunting. It was open to the Tribunal, on the evidence and argument before them to come to the decision that the dismissal had been by PMS Limited (272), and that that was the company which should be named as liable for the payment of compensation.

A Tribunal, is not obliged to initiate investigations to find out by investigation what the position is. The Tribunal is under a duty, of being fair and helpful to an unrepresented person. There was no duty on this Tribunal to commence an investigation of its own into the history of the two companies in order to determine which one was the correct one when that point was not taken by Mr Bunting before or at the hearing.

The second point taken by Mr Berry can be dealt with more briefly, that is, there was no finding as to which of the two companies ought to have consulted Mr Cott and which of the two companies actually dismissed him. This is in the context of an overall submission that it would, in any case, have been useless to consult Mr Cott having regard to his medical condition. Reference was made to the medical condition which Mr Cott was still suffering from at the date of the Tribunal hearing in January 1995.

It does not appear from the IT3 or from anything recorded in the extended reasons that any point was raised by Mr Bunting on behalf of the respondents as to the pointlessness of any consultation. In fact, the findings of fact by the Tribunal point, particularly having regard to the dates, to this as an a unpersuasive point. The true position, is that, on the findings made by the Tribunal, it was only on 3rd May 1994 that Mr Cott became ill with the illness which led to his dismissal. In just over three weeks after that, a notice of dismissal was given, without, any of the procedures which ought to be followed by a reasonable employer in order to achieve a fair dismissal. I have already referred to their findings that the enquiries with the General Practitioner were not followed up by a written authority. Nothing was obtained from an independent medical practitioner. There was no consultation or discussion of this matter with Mr Cott.

In those circumstances the point raised by Mr Berry as to the uselessness of consultation, the futility of it, is open to him on this appeal, having regard to the findings of fact made by the Tribunal. For those reasons this appeal is not arguable in law. We would therefore dismiss it.