United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J RITSON (of Counsel) Messrs Kendrick Williams & Co Solicitors 23a Chapel Ash Wolverhampton West Midlands WV3 0TR


 


LORD JOHNSTON: This is the judgment of the tribunal on a preliminary hearing in the appeal at the instance of B P Smith (Practising as Kendrick Williams & Co) against Mrs K Kaur. The matter arises by reason of the fact that the employer seeks to appeal against the decision of the Industrial Tribunal to the effect that the employee/respondent was unfairly dismissed from her employment with him and that certain compensatory orders were made as a consequence.

The background to the matter is that the appellant is a sole practitioner solicitor and the respondent worked for him for a number of years in an important capacity. She went off work through illness and as is apparent from the detailed findings of the Industrial Tribunal, after sundry procedures and interchanges of communications between the parties, she was eventually dismissed in circumstances which the tribunal categorised as unfair, principally because, we think it is fair to say, the tribunal took the view that the employer acted prematurely in the context of not seeking further information as to the medical state of the employee.

Against that background Mr Ritson who appeared on behalf of the appellant cogently argued a number of points. First of all, not in the order in which he presented them, he was concerned to suggest that the decision of the tribunal was perverse on the question of unfairness to dismiss by reason of the fact that given the context of the business and the history of the matter, it was not reasonable, effectively, to require the appellant to do anything further in relation to information being received or gathered as to the respondent's medical condition and accordingly it was perverse of the tribunal to find in this context that the dismissal was unfair.

The problem for us in that respect is it is to our mind, though well put, simply a rehearsal of an argument that could have been and probably was presented to the Industrial Tribunal, who have weighed it in the balance with their own phrase in paragraph 17 of their decision. It therefore seems to us that while the argument is more than stateable before the Industrial Tribunal, it looses that status before this tribunal who is only concerned in the context of perversity as to whether or not the decision of the tribunal was one that no reasonable tribunal properly directed could reach, and we do not consider that test is satisfied.

More to the point with regard to the hearing before us, Mr Ritson pointed out that as a matter of fact, although not immediately mentioned in the tribunal's original reasons, there had been an offer of re-employment made to the respondent some three months after her dismissal. This, it was submitted, should have been taken into account specifically with regard to a matter of mitigation, although it was also put as an issue of causation in relation to the whole question of compensation. The matter was however dealt with by the Chairman when an application for a review was made to him. The particular document is to be found at page 15 of the bundle, where he specifically states as follows:

"Although this was not specifically referred to in the findings of fact set out in the decision statement (which were concerned with events leading to the applicant's dismissal) it is certainly in my notes, described as an offer made in October 1996 on the basis of three hours a day, which was not accepted because at the time the applicant believed she had another job and in any event because of the deterioration in relations between the parties by that time, she felt disinclined to accept".

We recognise the force of the argument that this is a factor which should have been taken into account in the assessment of the compensation or reduction thereof, more than merely being included in the overall total of 40% which appears in the findings of the tribunal's own reasons to relate to the general conduct of the then applicant; rather than the specific question of re-employment. This was bound in with an argument that in any event the figure of 40% was not properly assessed by the tribunal even against that background, and when the two issues of contribution by conduct and re-employment were taken into account, the argument before us essentially was that the issue of compensation had been fudged by the tribunal and should be re-investigated.

We have considerable sympathy with this approach, which was well argued, but we have come to the view that at the end of the day it would not be possible for this tribunal to reach any different conclusion on the basis that the tribunal below had erred, in as much that, it is always very difficult for an appellant to upset an assessment of contribution related to conduct by an Industrial Tribunal which is essentially sitting as a jury; and more importantly in the present case, we consider that what the Chairman has said in relation to the application for review on the issue of re-employment, plainly makes it clear to us that he did not take the matter materially into account because he thought the offer was of no point having regard to the deterioration in relations between the parties, as he specifically states.

Furthermore, there was a general submission made by Mr Ritson that the whole question of fairness or unfairness had not been properly considered with regard to the appropriate weight given to the size of the business and the importance to it by the employee. Suffice it to say that we consider that is a factor which the tribunal have taken into account, and on that issue we will not interfere.

In these circumstances, the substance of our decision is with some hesitation we are of the view that a full hearing of this case would not lay the basis for any disruption or alteration in the findings the tribunal have made both with regard to contribution and re-employment, and for theses reasons this application is refused and the appeal will be dismissed.