United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which is presented to us on behalf of the employee.

The facts can be taken from the Industrial Tribunal's decision. Mr Kamal, the former employee, was employed by Price's Patent Candle Company Limited, until he was dismissed. The conclusion of the Industrial Tribunal was that he had been unfairly dismissed, but that any award of compensation and basic award of monies should be reduced by 50 per cent. Underlying their decision was the fact that Mr Kamal had worked for the Respondents since 1995. He was regarded as a satisfactory employee.

On 13 October 1997 Mr Kamal told the Manufacturing Director and somebody from Personnel that, as a result of his work in the Blending Department in the factory, he had contracted a complaint in his lungs; that he had been referred to the hospital; that he had had a biopsy and that he had been told to take two to four weeks off work but, as he could not afford to be off work and survive only on statutory sick pay, he would like to work in another part of the premises and accordingly, he asked to be transferred.

The Manufacturing Director agreed to a transfer for up to two months at his existing pay rate which was, in fact, substantially higher than the pay for the job which he was doing. He was asked to produce doctor's certificates and his consent for the medical records, that he had referred to, to be disclosed to the Respondent's doctor.

In fact, during the period when he was acting in a transferred capacity, he committed two disciplinary offences which provoked a disciplinary hearing and a final warning. They related to him not being present at his place of work when he should have been, and being seen on a walk-way on the roof of the factory. But he was pressed for the medical records and the medical evidence of his sickness and told that unless he produced them, his job was on the line. He then eventually produced a medical certificate dated 30 October excusing his attendance from work for two months. The reason given was "occupational lung disease under investigation". That was considered by the Manufacturing Director. He noted that there was still no diagnosis proving any sickness. There was no evidence of a biopsy which had been taken before 13 October. It seemed to him that only now was the process of investigation going on. The Company's own doctor had still had no authority to examine the employee and Mr Green accordingly concluded that he had not been told the truth. In other words, that the transfer application had been procured by a false representation. He decided, in the circumstances, to dismiss the Applicant and he was dismissed.

The majority in the Industrial Tribunal concluded that there should be a 50 per cent deduction from the compensatory and basic awards, on the basis that there was at least a 50 per cent chance that he would still have been dismissed had the employers followed a fair procedure. The minority member was of the view that the employers had acted prematurely; that they should have carried out further investigations; that the matter was at an early stage and accordingly, whilst agreeing that the dismissal was unfair, disagreed with the conclusion that there should be any reduction. It is against that decision that the appeal has been advanced before us.

The essence of the grounds of appeal can be summarised in this way. Firstly, that the Industrial Tribunal failed to consider adequately, if at all, which acts of alleged misconduct by the Appellant led the Respondent to summarily dismiss the Appellant. We do not agree with that submission. It seems to us that there is sufficient analysis in the Industrial Tribunal's decision to show on what basis they had approached the decision to dismiss and the faults on the part of the Applicant.

Secondly, it is said that the 50 per cent chance was an assessment which was made without the Tribunal first having established which acts led to the dismissal. Again, for the same reason, we think that there is nothing in that.

They then say that the finding of 50 per cent was perverse. As we understand it, the Tribunal was applying (what is colloquially called) a Polkey deduction in this case, having concluded that the dismissal was unfair by reason of the procedure which had been followed. They say that the Industrial Tribunal erred in reducing the basis and compensatory awards. We do not agree.

They also say that the Industrial Tribunal erred when ordering the Appellant to supply a report. The Industrial Tribunal does not have jurisdiction to order the Appellant to provide documents which are not in existence. We have great difficulty in understanding that ground of appeal. If the documents were not in existence it follows, inevitably, that the Applicant had deceived his employers into transferring him on the basis of information which he gave them. It is not a question, in any event, of the Tribunal ordering the Appellant to provide documents, or whether it has jurisdiction to do so. The basis on which they arrived at their conclusion that the dismissal was unfair was because the employers had not followed a proper disciplinary procedure and the reason why they made the reduction, by a majority, was for the reasons set out cogently, in paragraph 18, of the Tribunal's decision.

Accordingly, we are not satisfied that there is arguable point of law raised by this Notice of Appeal and the appeal will be dismissed.