United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 862_95_0112

Appeal No. EAT/862/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 December 1995

Before

HIS HONOUR JUDGE P CLARK

PROFESSOR P D WICKENS OBE

MR R SANDERSON OBE

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MRS A P SHAW          APPELLANT

JOHN HIRST RADIO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR ON BEHALF OF           APPELLANT


 


JUDGE CLARK: This is an appeal by Mrs Shaw against the decision of the Shrewsbury Industrial Tribunal sitting on 10 May 1995, dismissing her complaint of unfair dismissal and/or entitlement to a redundancy payment, brought against her former employers John Hirst Radio Ltd.

Mrs Shaw had been continuously employed by the Respondent as a Sales Assistant from 6 June 1979 until, as the Tribunal found, she was dismissed by letter dated 2 September 1994.

The Tribunal's findings of fact are set out in paragraph 5 of their summary reasons, in turn repeated in paragraph 1 of the extended reasons, dated by the Chairman 18 July 1995.

On 6 June 1994 she was admitted to hospital and the following day underwent an emergency coronary heart by-pass operation. She was then away throughout the summer on paid sick leave. Her absence caused some difficulty to the employer, due to staff holidays.

On 18 August, with the Appellant's consent, her employer wrote to her general practitioner, Dr McCandless, enquiring as to the prognosis for her return to work. The doctor replied on 23 August stating that, in his opinion, she would be fit to return to work at the beginning of September. In those circumstances the employer was dismayed to receive a Medical Certificate, certifying her as incapable of work for one month from 25 August.

Mr A D Hirst telephoned the doctor, who was reported to have said that he was forced to issue the one month certificate, in order to cover the Appellant's holiday.

In these circumstances, the Respondent concluded that she was in fact fit for work from 1 September and accordingly dismissed her by letter dated 2 September.

Against that background, the Industrial Tribunal first considered the reason for dismissal. It rejected the Appellant's claim that she had been dismissed by reason of redundancy, and concluded that the reason for dismissal was some other substantial reason, and went on to find that that dismissal was fair.

In her Notice of Appeal, supplemented by written submissions contained in a letter to this Tribunal dated 24 November 1995, the Appellant takes the following points:

(1) That she received statutory sick pay for the period 1st-21st September 1994, as appears from her pay-slip dated 30 September, and that accordingly she was not dismissed on about 2 September.

Looking at that pay-slip, in conjunction with the Respondent's letter dated 2 September, which ends;

"For the reasons outlined above I reluctantly terminated your employment. At the end of this month I will pay you in lieu of notice and any accrued holiday pay."

It is clear to us that she received her full entitlement to 12 weeks gross pay in lieu of notice, in addition to her statutory sick pay for September, and pay in lieu of holiday. To that extent she was probably over-paid. We cannot see any grounds for disturbing the Tribunal's finding that she was dismissed with immediate effect by the letter of 2 September.

However, even if that view is wrong, it seems to us that since the relevant transfer took place on about 16 September, when the business was sold to Granada Television, if her employment was in fact continued after the date of transfer, the effect would be that any claim for unfair dismissal and/or redundancy which she had, would be against the transferee, Granada, and not against this Respondent. Since Granada was not made a Respondent to the proceedings, such a finding would not assist the Appellant.

(2) The Appellant points to an error in paragraph 2 of the Industrial Tribunal's extended reasons. There is a reference to a transfer date in October, not September. We do not think that is material. The Tribunal found, as they were entitled to do on the evidence, that the Appellant's employment was, on any view, terminated before the transfer date and that the dismissal was not connected with the transfer.

(3) As to the reason for dismissal, the Appellant complains that this was based upon what Dr McCandless is alleged to have told Mr Hirst in the telephone conversation in late August, which evidence was ruled inadmissible by the Tribunal. We should be surprised if the Tribunal did so rule, since hearsay evidence is admissible before the Tribunal (see Rule 9(1) of the 1993 Tribunal Rules of Procedure) and that conversation went to the question of the employer's belief at the time of dismissal.

Having considered all these matters, and reminding ourselves that our powers to interfere with Industrial Tribunal decisions are limited to correcting errors of law, not fact, we have come to the view that this appeal discloses no arguable point of law and must be dismissed.