United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 254_95_2202

Appeal No. EAT/254/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 February 1996

HIS HONOUR JUDGE N BUTTER QC

MRS T A MARSLAND

MR B M WARMAN

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MR D NAZARETH          APPELLANT

MARLEY AUTOMOTIVE COMPONENTS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


JUDGE BUTTER QC: This is the Preliminary Hearing of an appeal by Mr Nazareth in relation to a decision of the Industrial Tribunal held at Ashford, Kent, on 18 January 1995. The unanimous decision of the Tribunal was that the dismissal was fair and the application was dismissed. The employers admitted that the Applicant had been dismissed they said for capability. They denied that they had acted unfairly. Mr Nazareth has appeared in person today and has argued his case with vigour. He has a substantial Skeleton Argument which we have considered. He draws attention to a number of matters of law which he says are relevant here, and has referred to the Statutory Sick Pay General Regulations 1982 among others.

Basically, his complaint is in relation to the overall conduct of the Industrial Tribunal, in the sense that he says that witnesses whom he wished to call, were not allowed to be called. He says that the employers should have produced various documents which they did not. He has provided the Tribunal for our benefit today with a bundle of documents containing some two hundred pages. We have considered the more important documents in that bundle.

We have to consider whether there is here a reasonably arguable point of law. If not, we do no service to the Appellant in allowing the matter to proceed. The Tribunal below considered the facts which can be summarised relatively shortly. The Applicant, they say, was employed as a Process Operator at the relevant site, from 4 September 1989 to 22 July 1994. They deal with the question of accidents, and say that in April 1993 the Applicant asked a colleague to make an entry in the accident book, recording that the Applicant had suffered pain in his right hand. There is evidence which indicates that an accident of some kind did occur at that point of time. The Applicant was away from work for a significant period. He was away from about 20 April 1993 until 20 July 1993.

A number of meetings were held later in 1993 to discuss with Mr Nazareth his medical condition. A number of employees, including the Applicant, were laid off work from 1st November 1993 until the beginning of December 1993. When he returned, he was expected to carry out his normal full duties which the Tribunal say he did, and made no complaint until February 1994. In February 1994, he complained about having to lift jigs on and off the line in the Paint Plant, and as a result, he received a verbal warning for refusal to carry out what the employers regarded as a reasonable instruction. There was a disciplinary interview held on 7 March. At that meeting the Applicant apologised for his earlier action, and was reminded that the company were awaiting a report which had been promised earlier, in relation to his medical condition.

Subsequently, an allegation was made concerning a further accident, which is said to have occurred on 7 February 1994. From 21 March 1994 the Applicant went off sick and remained off sick, it would seem, for some nineteen weeks, and did not return to work thereafter. Between 23 March 1994 and 28 June 1994, there was what the Tribunal, with studied moderation, described as a remarkable sequence of correspondence between solicitors acting on behalf of the Applicant and the employers. In the course of their reasons they set out some extracts from the correspondence. On 24 March the Applicant's solicitors wrote saying specifically among other things:

"(18) We have been instructed by our client to write to both his GP and the Royal Victoria Hospital, not to disclose any information to you in connection with his `industrial accident on Wednesday 14 April 1993'."

Attempts were made to have meetings with the Applicant in relation to his medical problems and as to the question of what work he could or would be willing to perform. A meeting was envisaged at the end of March 1994 and another in April. These did not take place. On 12 May the Applicant's solicitors wrote saying that the Applicant would only attend a meeting when he had been pronounced "well and in good health", and provided various other conditions were met. On 13 May, the employer's solicitors wrote saying:

"(24) Our client has a right and indeed a duty to ascertain Mr Nazareth's present state of health and the likely prognosis to the extent that it bears upon his ability to return to work.

Yours client's failure to provide any information whatsoever as to his state of health, coupled with a refusal to release the Medical Report prepared by Mr Sewell following his examination, places Mr Nazareth's continued employment by the company in serious jeopardy."

There was a further letter on 16 May in an attempt to arrange another meeting, but the Applicant solicitors wrote saying their client could not attend the proposed meeting. On 9 June, the solicitors wrote saying:

"(27) For the reasons that have been made clear to you and to your client in the past, Marley Automotive Components Limited cannot allow the current uncertainty as to your client's availability for work to continue."

On 24 June 1994, a Mr Penfold wrote personally to the Applicant, setting out the number of days of when the Applicant had been away from work:

"... during the last 15 months, you have been absent for a total of 135 days... the company, whilst sympathetic to your current health problems, cannot hold your job open indefinitely, particularly when your prospects of being able to return to work appear so uncertain."

... It is unfortunate that you are not prepared either to meet or talk to the company, but will only communicate with us through your Solicitors.

The difficulty is compounded by your failure to authorise the release of the Medical Report which Dr Sewell apparently prepared following his original examination.

It follows, therefore, that all I have to go on are the Medical Certificates which have been sent to our Solicitors and which merely confirm that you will be unfit for work for periods of one month. There is nothing before me to suggest that you are likely to be fit to return to work at the expiry of the current Certificate.

In all the circumstances, the company has concluded that it can no longer continue to employ you and I should be grateful if you would accept this letter as formal notice of termination. You are entitled to four weeks notice and it follows, therefore, that your employment will cease on the 22nd day of July. Your P45, together with any monetary entitlements will be despatched to you immediately following the 22nd day of July."

The Tribunal having referred to those extracts and having considered the evidence, said in paragraph 7 of their reasons:

"We find that the Applicant was dismissed with effect from 22 July 1994,... We find that the reason for the dismissal, pursuant to section 57(2)(a) of the Employment Protection (Consolidation) Act 1978 was the capability of the Applicant,..."

and they go on to consider in the following paragraph the question of the fairness of the dismissal, and deal with that important aspect. They go on to say in paragraph 9:

"... It is beyond dispute that throughout this period the Applicant and his Solicitors refused to allow the Respondent to see any medical reports other than the routine doctor's certificates, and the Solicitors and the Applicant refused to have any meeting with the Respondent to discuss these important matters.

11 In this case, the Respondent [the Company] tried very hard to consult with and about the Applicant and his condition, but the Respondent's efforts were frustrated at every turn. In the end, the Respondent concluded, quite rightly in our view, that it had no alternative but to dismiss the Applicant.

12 We gave no hesitation in finding that the Respondent acted fairly. This was a fair dismissal and accordingly this application is dismissed."

The Tribunal today has considered the various arguments which have been presented to it. In our unanimous view, no reasonably arguable point of law has arisen. The Tribunal did not misdirect itself in relation to matters of law. No procedural error has been shown to exist and the Tribunal were entitled to reach the decision which it did. Taking all matters into account, we come to the clear conclusion that this appeal fails and must be dismissed.