United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 274_95_1505

Appeal No. EAT/274/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th May 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J A SCOULLER

MS B SWITZER

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J ANTERKYI          APPELLANT

FORD MOTOR COMPANY LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR C SAMEK

(of Counsel)

E.L.A.A.S.


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal at London (North) as long ago as 19th and 20th May 1994. After a hearing at which the appellant was represented by a representative from the Tottenham Law Centre and the respondent, Ford Motor Company Ltd was represented by a personnel manager, the tribunal unanimously held that the appellant's claim for unfair dismissal failed.

The reasons for the decision were sent to the parties on 1st September 1994. The appellant was disappointed with the result and served a Notice of Appeal on 7th October 1994.

Unfortunately the Notice of Appeal did not articulate any coherent grounds of appeal. A letter was sent on 19th October 1994 explaining that this tribunal only has jurisdiction to hear an appeal on a question of law arising from an Industrial Tribunal's decision. The appellant was given 28 days in which to reply. It was made clear to him that, if he wished to proceed with the appeal, he should state reasons why he was dissatisfied with the decision, and, if necessary, submit a fresh Notice of Appeal.

The appellant responded. His letter dated 2nd December 1994 sets out in detail the basis of his complaint against the Ford Motor Company. It does not, however, make clear the basis of the appellant's dissatisfaction with the decision of the Industrial Tribunal against him.

That was the position at the end of 1994. We have examined the court file, because we were concerned about the long time which has elapsed since that letter was sent and this case came into the list as a preliminary hearing. From the file we have discovered that there were a number of events during 1995 about the representation of the appellant by various firms of solicitors. There were difficulties in obtaining documents from the Industrial Tribunal and needed for the appeal, and those matters explain the unfortunate delay. We make it clear that in the normal case, we would not be hearing in May 1996 an appeal about a dismissal which had occurred in May 1992. The delay is unfortunate, but there is an explanation for it.

We have to decide, in the light of the helpful submissions on the appellant's behalf by Mr Samek, whether there is a point of law in this appeal. If there is an arguable point of law which stands a reasonable chance of succeeding on the full appeal, we would allow this matter to go forward. The matter would then be decided after hearing legal submissions from both sides. If we are unable to find a reasonably arguable point of law, however, we have no option but to dismiss the appeal at this stage.

What is legally wrong with this decision? First we examine the decision. The tribunal's decision sets out the nature of the complaint. It makes the point that Mr Anterkyi was employed by Ford for many years before the events which gave rise to the decision to dismiss him. He began his employment in July 1978. Throughout his employment he was a machine operator at the Ford Enfield Plant. He was paid hourly on shift work. The Ford Handbook relating to agreements and conditions of employment for hourly paid employees, the Blue Book, formed part of his contract of service. That provided:

"the company's existing policy in respect of disciplinary measures and capability review will continue to apply in circumstances where the company is not satisfied with the reasons provided for absence, or where there is an unacceptable pattern of sickness absence."

The next six paragraphs of the decision are concerned with the sickness and absence record of the appellant. It starts with a serious eye injury in 1983 and deals with absences which occurred as a result of that. Unfortunately, as the result of six operations to the eye, the last being in 1990, there were sick absences for that period supported by medical certificates. There were also absences not covered by medical certificates. Warnings were given in 1983, 1986, 1987 and 1989 that the attendance and time-keeping record was unacceptable. There was a counselling session in February 1991. There was a warning in a letter in February 1991 that, unless there was a marked and last improvement in his attendance rate, then Ford might have to review his future. In November 1991 he was warned that the occupational sick pay payments might be suspended.

In March 1992, the appellant was visited by a welfare officer at home and warned that his frequent absences from work since January 1992, for many and varied sicknesses, was a matter of concern. The appellant said he felt could return to work on 9th March 1992. He was asked to attend a meeting with Ford's doctor on 6th March 1992. He failed to do that. He also failed to return to work on 9th March 1992. On 13th March 1992 he did attend an appointment with Ford's doctor, who stated, in his opinion, the appellant was fit to return to work. He did not return to work. He submitted a medical certificate for a knee injury.

There was a counselling meeting on 30th March 1992. At that, the Production Superintendent, Mr Hughes, (paragraph 7) told the appellant that, if his attendance did not improve, his employment would be terminated.

Mr Samek has taken us to the contemporary documents. They do not actually record any such warning, but we are in the dark about the oral evidence to the tribunal. As we read this paragraph it is probable that there was some oral evidence given to the tribunal about that meeting. But this is a matter of dispute since we understand from the appellant that his recollection is that Mr Hughes did not give evidence to or attend the tribunal hearing.

There was further absence without reason or medical certificate on 31st March 1992. Then there occurred a different kind of event on 4th April 1992. The appellant suffered a serious eye injury. This was as a result of an assault. He was treated at Moorfields. The Moorfields consultant advised the applicant's general practitioner that he should stay at home until his eye settled down. He went back to work on 8th April 1992, but found he could not see properly. He did not return to work again before he was dismissed on 28th May 1992.

According to the tribunal in paragraph 8 of the decision, he did inform Ford that he was able to return to work on 13th or 14th May 1992, but he did not.

By letter of 22nd May 1992, he was asked to attend a meeting on 28th May 1992. At the meeting on 28th May, of which there is a full record in the documents, a decision was made to dismiss him on the basis that his unacceptable pattern in sickness absence rendered him incapable of performing the work that he was employed to do.

During the course of his submissions, Mr Samek took us through the documents. He pointed out a number of respects in which what he described as confusing signals were given to the appellant in the letters to him. He referred in particular to the minutes of the Occupational Sickness Pay Scheme Counselling, which took place on 30th March 1992. There were warnings that, if there were no improvements in attendance he might face suspension from Occupational Sick Pay for 12 months. He referred to some letters. There was a letter of 6th April 1992. We have been referred to other letters of 8th April 1992, 12th May 1992 and 22nd May 1992 that summoned him to the meeting. We have considered in some detail the minutes of the meeting at which the decision to dismiss was taken on 28th May 1992. We take the points made by Mr Samek about some of the shortcomings in the way that Ford's intentions were being communicated to the appellant.

We look now to the reasons which the tribunal gave for their decision that the appellant was not unfairly dismissed. If there is an error of law in the decision, it must be found in paragraph 10 of the decision. Paragraph 10 of the decision reads:

"10 We find that the principal reason for the Applicant's dismissal was a belief on the part of Mr Hughes that, having regard to the Applicant's sick absence record in the part, he was incapable of performing, in accordance with his contract of employment, the work he was employed to do. We are satisfied that that was a genuine belief, held on reasonable grounds, and that there had been sufficient investigation before the decision to dismiss was taken. We accept that the Applicant's final period of absence was due to a serious eye injury and absence on that account would not have justified dismissal. The Respondent was however entitled to take account of the Applicant's record over a much longer period. We are satisfied that dismissal was well within the band of reasonable responses of a reasonable employer."

The tribunal concluded in paragraph 11 that they were satisfied that Ford had acted reasonably in treating the principal reason for the appellant's dismissal as a sufficient reason for dismissing him.

When Mr Scouller asked Mr Samek what his point of law was, he gave the clear and candid answer that this decision was perverse. He has to say that, because there is no other kind of error apparent in the decision. The tribunal have addressed themselves to the correct legal question, what was the reason for dismissal and was dismissal a reasonable response of a reasonable employer to that reason. They have taken into account what they were entitled to take into account. They have given a summary of facts support the conclusions in paragraph 10. There has, therefore, been no misinterpretation of the law. There has been no obvious misapplication of it. The only ground on which this appeal could possibly succeed is on the ground that no reasonable tribunal, taking everything into account and properly directing itself on the legal position, could have reached this decision. In other words, that it was perverse of this tribunal to hold that dismissal was within the band of reasonable responses of a reasonable employer.

We have given anxious consideration to the various points made on the documents and on the wording of the decision by Mr Samek. We have taken note of the legal tests which apply in the case of dismissal for ill-health and absenteeism; in particular, the reference to authority in Volume 1 of Harvey on Industrial Relations and Employment Law at paragraph 1206 and 1207, and again at 1249.

We have to look at the matter in the round. There is justification for some criticism of the way that Ford handled this case. It could be said that the way in which they handled it could have been fairer. There is justification for saying that some of the letters that they wrote could have been clearer. There is justification for saying that they could have taken longer and given a little more time to the applicant to improve his record before they made the decision to dismiss him. But those criticisms do not add up to a case of perversity in this decision.

In our view, the tribunal were entitled, on the material before them, to come to the conclusion that they did. It is impossible, in our view, to characterise this decision as one which is one that no reasonable tribunal could take. We might have taken a different decision than Ford if we were the employer. We might have reached a different decision from the Industrial Tribunal if we were the Industrial Tribunal. We are neither the employer nor the Industrial Tribunal. We can only interfere with this decision if it is legally incorrect. It is not legally incorrect. It is a decision the tribunal were entitled to make and the appeal is therefore dismissed.