United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 842_95_2911

Appeal No. EAT/842/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 November 1995

HIS HONOUR JUDGE H J BYRT QC

LORD GLADWIN OF CLEE CBE JP

MRS M E SUNDERLAND JP

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MR J T HURST          APPELLANT

(1) BARLEY PARKINSON TEA LIMITED
(2) SECRETARY OF STATE FOR EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE           APPELLANT


 


JUDGE BYRT QC: This is a Preliminary Hearing in respect of an appeal against a decision promulgated on 17 July 1995 at the Manchester Industrial Tribunal. They unanimously held that the Appellant had not been dismissed by the first Respondents and so not entitled to a redundancy payment.

The first Respondents used to run a small family tea and coffee blending business. The Appellant was a vital member of their team of staff in that he was an experienced tea blender. In mid-1991, he became ill. The cause of his illness was diabetes. For a 6-month period he was on sick pay. During this period his employers engaged another employee to take his place, and taught him and trained him how to be a tea blender. By March 1992 the employers were concerned about whether the Appellant would ever be returning to work and secured a doctor's report which stated that it was unlikely that the Appellant would ever be fit to return to work again. As a result of that, the managing director told the Industrial Tribunal, they had to make arrangements for the future of the company and decided that, in the circumstances, there was no need for them to write to the Appellant formally terminating his employment. In July 1994 the company ceased trading, and the staff were dismissed, receiving payments in lieu of notice and redundancy payments. In due course the Appellant got to know of this and approached the company with a view to getting redundancy payments too.

The Industrial Tribunal that heard the case decided that it was one in which his employment, although not formally terminated by a notice, either in July 1994 or at any other time, had become frustrated by operation of law. The Appellant seeks to rely upon the case of Hebden v Forsey & Son. We have considered that authority and distilled from it the proposition that, where it is apparent an employee is unlikely ever to return to work again, it is just that sort of situation where an employer is entitled to regard the employment as at an end by operation of law. Bearing in mind the information obtained by the first Respondents from the Appellant's doctor in March 1992, that he was never likely to return to work again, and that he had a deteriorating condition, we have to consider what was the likelihood of his ever being able to work again for this company at the time when he alleges he was dismissed in July 1994.

In our view it is completely unrealistic to believe that he was ever going to be able to perform his duties for this company and had not been able to do so for something like at least two years before the crucial date in July 1994. We feel that there is every justification for the Industrial Tribunal to come to the conclusion that the employment had become frustrated by operation of law and consider the contrary to be unarguable. We think that they have directed themselves on the law correctly and see no reason how we could disturb their findings. In all the circumstances the appeal must be dismissed.