United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR McCARTHY (of Counsel) Instructed by: Mr F Whitty TGWU 16 Palace Street London SW1E 5JD


 


JUDGE BYRT QC: This is an ex parte hearing in an appeal from a decision given by the Industrial Tribunal sitting at Southampton in February 1997, when it held that the applicant's application for unfair dismissal on the basis that he had been unfairly selected for redundancy and due to his trade union activities, was dismissed.

So far as the appellant's complaint is concerned that he was unfairly selected for redundancy, criteria were selected and points were awarded to the appellant in accordance with those criteria, but unfortunately he failed to score sufficient to beat the cut off line. Part of the explanation was that there was a mistake made over the number of occasions when he was absent from work. I say a mistake: it was recorded that he had been absent from work for 28 days in the year, whereas in actual fact he had been ill for 24 days of those 28 days with of an attack of shingles. This fact was not picked up by the respondents due to an error of the nurse who scrutinised the appellant's medical records. This factor was not drawn to the attention of the employers when they were awarding points. Had that fact been taken into account, the probabilities are that he would have beaten the cut off line for redundancy.

There is a further factor on this same issue. It was an unwritten policy of the respondents that periods away for illnesses would not be taken into account. It is arguable at least that this part of their policy was not known to the appellant at the time when he was arguing why he should not be redundant. This is another aspect which causes us a degree of concern.

There is a further area of concern. The Industrial Tribunal clearly came to the view that it was the appellant's own fault that mitigating circumstances such as might have been taken into account were not put before his employers at the time when he had an opportunity to do so. One such circumstance was that he was heavily engaged in trade union affairs (with the cognisance of the respondents) and that this accounted for the fact that he had not participated in training as much as he might have and this effected the points he scored on skills. It is apparent from the findings of the Industrial Tribunal that the applicant had a meeting with management on a Sunday at 3 o'clock, the date of which was not specified. The same day he wrote a letter in which he did state that he was in difficulties in part due to the fact that he had been participating in trade union activities. We have not actually seen that letter, but we feel that this is a fact which possibly the Industrial Tribunal may have overlooked and it would effect or possibly might have effected their subsequent findings.

For these reasons, we feel that there is an arguable case to go to a full hearing. It is important however, that when this matter does go before a full tribunal for a full hearing, the letter we have referred to, should be available for the Employment Appeal Tribunal to see.