United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1103_95_1903

Appeal No. EAT/1103/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 March 1996

THE HONOURABLE MR JUSTICE HOLLAND

MR J H GALBRAITH CB

MRS M T PROSSER

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MR GEORGE PAUL WRIGHT          APPELLANT

THE SNACK FACTORY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

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APPEARANCES

For the Appellant MR A K ROSE

(of Counsel)

Messrs Laurence Lee & Co

(Solicitors)

529 West Derby Road

Liverpool L13 8AA


 


MR JUSTICE HOLLAND: We have an appeal by an Applicant, Mr G P Wright, against a decision of the Industrial Tribunal held at Liverpool on 13 July 1995, which decision set out in extended reasons sent to the parties on 31 August 1995, was that he had not been unfairly dismissed. That decision reflected a finding by that Industrial Tribunal, that having regard to the reason shown by the Respondent employers, the latter did act reasonably in treating it as a sufficient reason for dismissal.

On behalf of Mr Wright, now the Appellant, Mr Rose submits on the occasion of today's preliminary hearing, that his client has an arguable point meriting a full hearing. Essentially and by reference to section 57(3) of the Employment Protection (Consolidation) Act 1978, he submits that he has an arguable case that the Industrial Tribunal failed adequately to establish "the reason" and failed further to evaluate the appropriate range of responses to any such reason. As to this, we agree and we will direct that the matter go forward for a full hearing.

In order to assist the Tribunal engaged in that full hearing, we would add the following: first, as was pointed out to Mr Rose this morning, at that full hearing he will be confronted by a formidable argument that a continuing indefinite absence commencing on 11 March 1993 can be equated with the dismissal on 11 January 1995. All that said, what has concerned this Tribunal this morning is three fold. First, the evaluation by the Industrial Tribunal of "the reason" and the range of appropriate responses did not extend to making any finding as to the nature of the injury and thus of the source of the continuing incapacity. This plainly concerns us. It concerns us as to the weight of "the reason" and it concerns us as to the assessment of appropriate responses because it is difficult to discern any ability to evaluate, for example, the potential for an alternative mode of employment without findings in that particular area.

Our second concern is this: the Industrial Tribunal, seemingly like the Respondent employers, do not appear to have heeded the fact of on-going litigation between the Appellant and the Respondent, with the former claiming on grounds of the negligence of the latter, damages for personal injuries leading first to the absence and, second, to consequential loss, such presumably including the wage loss arising from absence from work. We are concerned as to how the employers in arriving at "the reason" or matching the response to that reason, failed seemingly to communicate with their own or the Appellant's solicitor to ascertain the medical position as it then ascertained in the course of conduct of litigation which, in part, would be directed to the continuing absence from work. That not only does not appear to have been a matter to which the employers addressed their mind to but neither, on the face of it, did the Industrial Tribunal.

The third and final matter that concerned us is what appears to be the consultation process as described in paragraph 12. Thus it is, although we are in no position to make any judgment at all within our remit, not least because it is an ex parte hearing, we felt it right to indicate, on the one hand, the apparent strength of the Respondent's position, on the other hand, the matters of concern which have persuaded us that this matter merits an inter parte hearing.

We would conclude by advising Mr Rose that whereas this Tribunal does not readily receive further evidence, it does have a continuing and very proper sense of curiosity and he would be well advised to arrive at the full hearing able to tell its members what at all material times was allegedly wrong with his client and also help by providing answers to understandable questions as to what on earth was the state of the litigation that was going on between his client and the Respondent as any material time. Whether he gets asked those questions by this Tribunal remains to be seen but it would be nice to think that they would get answers if posed.