United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 486_95_0407

Appeal No. EAT/486/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 July 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR R SANDERSON OBE

PROFESSOR P D WICKENS OBE

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MR E BADU-DONKOR          APPELLANT

GUYS & ST THOMAS' NHS TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR B UDUJE

(Of Counsel)

Brixton Community Law Centre

506-508 Brixton Road

London SW9 8EN

For the Respondents MR T LINDEN

(Of Counsel)

Messrs Taylor Joynson Garrett

Solicitors

Carmelite

50 Victoria Embankment

London EC4Y ODX


 


JUDGE CLARK: Mr Badu-Donkor appeals against a decision of the London (North) Industrial Tribunal sitting at Whittington House on 7 February 1995, that he was not entitled to a compensatory award following his admitted unfair dismissal by the Respondent, his former employer. The Industrial Tribunal ordered the Respondent to pay to the Appellant a basic award of £3,460.08. Extended reasons for the Tribunal's decision are dated 17 March 1995.

The history of the matter is that the Appellant commenced employment as a night cleaner with the former local health authority on 1 May 1977. He worked at St Thomas's Hospital. The Hospital is now run by the Respondent Health Trust. On 3 October 1982 he was promoted Night Domestic Supervisor. His duties were almost exclusively supervisory, although he occasionally filled in for absent supervisors and did some cleaning duties when the need arose.

On the night shift of 8/9 July 1993 the Assistant Domestic Services Manager, Mrs Olalla, reported him for allegedly sleeping on duty. Disciplinary procedures followed. He was dismissed by the Support Services Manager, Mr Webb-Bowen on 23 September 1993.

Following his dismissal he exercised his right of internal appeal and on 25 November 1993 he presented a complaint of unfair dismissal to the Industrial Tribunal. That complaint was not proceeded with pending the outcome of the internal appeal procedure. On 28 January 1995 his first appeal was dismissed. However he pursued a further internal appeal which was heard on 12 October 1994. He was successful. The appeal panel directed that he be reinstated in a post of Night Domestic Supervisor.

During the lengthy appeal process the Respondent had carried out a staff reorganisation. The document outlining the changes is dated 28 March 1994. As a result, the job to which he was to return was different from that which he had left in September 1993. Due to reductions in staff, he was now expected to perform more cleaning duties than formerly, although the evidence of Mr Platt before the Industrial Tribunal was that such duties would not in practice exceed five hours a week, despite the reference to nineteen hours per week in his new job description. He protested. He asked to be considered for redundancy. He complained about the increase in cleaning duties. He said that at his age (60) and in his state of health, he could not perform such duties. Attempts were made to resolve the position. All failed. He never returned to work.

Hence the Industrial Tribunal hearing held on 7 February 1995. The unfair dismissal being admitted, and the Appellant eschewing any prospect of an order for reinstatement or re-engagement, the only issue was compensation.

The Respondent argued that he was not entitled to a basic award by virtue of the provisions of Section 73(7A) of the Employment Protection (Consolidation) Act 1978. That was rejected by the Tribunal, which held that following his successful appeal hearing on 12 October 1994, he had not in fact received an offer from the employer which, if accepted, would have the effect of reinstating him in his employment in all respects as if he had not been dismissed. Whereas in all other respects, including pay and conditions, the job offered was the same as before the Tribunal held, the duties were different in that he was liable to be required to perform more actual cleaning duties. Against that finding there is no appeal or cross-appeal by the Respondent.

However, in considering the question of a compensatory award, the Tribunal concluded that he had failed to mitigate his loss, applying the common law principles imported into the equation by Section 74(4) of the 1978 Act, in that he was physically fit to undertake the work required under what is described by the Tribunal as the offer of re-employment, but had declined the offer because he preferred to work in his wife's business and had made no genuine attempt to find alternative employment. Had he taken up the offer of re-employment by the Respondent he would, the Tribunal found, have suffered no loss. Accordingly, they made a nil compensatory award.

In support of the appeal, Mr Uduje first attacks the Industrial Tribunal's finding of fact that the Appellant was fit for the changed nature of the new supervisor's job. He points to a medical report from Dr Williams dated as long ago as 10 June 1988, in which that doctor pronounced the Appellant fit for his then duties, and also a note from the Appellant's General Practitioner, Dr Carol Glasson, dated 6 February 1995, the day before the Tribunal hearing which records his complaint that:

"He is finding the cleaning machines too heavy to use and is currently awaiting an operation to improve his breathing."

She gave no opinion as to his fitness to use such machines, and indeed he was not using them at the time he visited her surgery. There is also reference in her letter to a blocked right nasal airway, and the medication that he was taking.

In summary, there was no medical opinion before the Industrial Tribunal that he was unfit for the work. Further, in cross-examination the Appellant told the Tribunal that he loaded goods onto a van when assisting in his wife's business, and then promptly recanted.

Findings of fact are for the Industrial Tribunal. They see and hear the witnesses. We can only interfere with such a finding where there is no evidence to support it. On the evidence before this Tribunal we are unable to detect any error of law in that important finding of fact.

Next, he submits that there is no mention in the Tribunal's reasons of the question of loss of status or breakdown in mutual trust and confidence. As to the first point, it does not appear to have been raised below. As to the second, although the point is raised in the Appellant's written summary of his case, document A1, that suggestion was made in relation to the offer of re-employment, not the original unfair dismissal. Had he been offered full reinstatement into his old job, he would have taken it.

It is also submitted that the decision was perverse. Reliance is placed on Fyffe v Scientific Furnishings Ltd [1989] ICR 648. That was a rather different case where the Tribunal held that the employee's failure to accept a compensation package following dismissal, amounted to a failure to mitigate his loss, and a majority of this Appeal Tribunal characterised that Tribunal decision as perverse. Here the issue was simply this: had the employer proved that the Appellant had failed to mitigate his loss by refusing the offer of re-employment. This Tribunal held that it had. On the evidence before it and the findings of fact which it made, we cannot say that such a decision was perverse.

Finally, Mr Uduje sought to take a new point before this Tribunal. Whereas it had been common ground on the pleadings below that the effective date of termination was 23 September 1993 and the Tribunal record that fact at paragraph 3(b) of their reasons, Mr Uduje wishes to argue, based on the case of BBC v Beckett [1983] IRLR 43 that dismissal did not take place until the Appellant's refusal of the offer of re-employment in late 1994. Accordingly, he wishes to argue that the question as to whether or not there had been a failure to mitigate would not arise, based on the decision of this Tribunal in Fougère v Phoenix Motor Company Ltd [1976] ICR 495.

In our judgement, this is not one of those exceptional cases where we should depart from the general principle enunciated in Kumchyk v Derby City Council [1978] ICR 1116, that new points, not involving a jurisdictional issue, ought to be allowed to be taken in the E.A.T. In any event we accept Mr Linden's submission, that to allow this point to be argued, would necessarily involve further fact finding by the Industrial Tribunal. In these circumstances we do not permit Mr Uduje to take the point.

Having considered all that has been said by him in this appeal, we are unable to discern any grounds for interfering with this Industrial Tribunal's decision. It must stand. The appeal is dismissed.