United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS M SEAVOR-BEVAN (Representative)


 


JUDGE PETER CLARK: Mr Dudley Merrie was employed by the Respondent Council in their Parks Department from April 1971 until his dismissal on the grounds of ill-health effective on 22 March 1996.

On 25 May 1996 he died, and on 25 June 1996 his sister, Mrs Seavor-Bevan, acting as his personal representative, presented an Originating Application to the Industrial Tribunal complaining of unfair dismissal, unlawful deduction from wages and claiming arrears of holiday pay in relation to her deceased brother.

The complaint came before an Industrial Tribunal sitting at Liverpool. By a decision promulgated with full reasons on 9 July 1997, the complaint was dismissed. Against that decision Mrs Seavor-Bevan now appeals.

Today she appears before us in person. We have established that she has had the advantage of first taking advice from Counsel, Mr Donovan, who was present under the ELAAS pro bono scheme. She appreciates as a result the limits on our jurisdiction; that she must show a point of law before this case can proceed to a full hearing.

Reverting to the facts of the matter, as found by the Industrial Tribunal, it appears that the deceased had a number of difficulties. The Tribunal found that, by reason of congenital problems and other illnesses, he was limited in the work which he could do. His medical history includes epilepsy and a learning disability, cardiac arrest, laparotomy for obstruction and partially malrotated gut, appendectomy, cellulitus of the legs, associated with chronic leg odedema and elephantiatis and epididymo-orchitis.

The Tribunal went on to find that there had been a number of absences from work due to illness in the deceased's working history, culminating with an accident on 17 February 1995. He was then off work until 27 April 1995, on which date he presented himself for work. He was seen that day by Dr Bajaj who declared him unfit for work and said that he would be seen again in a month's time.

Ultimately, arrangements were made for Dr Bajaj to visit the deceased on 16 March 1996 at the Mercervale Respite Home. Subsequently a meeting took place on 21 March 1996 at which various officers of the Council were present. There was discussion about the deceased's absence from work, the results of the medical examination carried out by Dr Bajaj, the prognosis, and an offer of ill-health retirement was made. The Tribunal found that the deceased accepted the decision that he must be dismissed by reason of ill-health and dismissal took effect the following day. There was no appeal against that decision but, as we have observed earlier, sadly, on 25 May 1996 he died.

So far as the issue of unfair dismissal is concerned the Tribunal directed themselves in accordance with the judgment of Phillips J, sitting in this Tribunal in East Lindsey District Council v Daubney [1977] IRLR 181. They considered the question of whether the employer had acted reasonably in arriving at the conclusion when it did that dismissal should follow, bearing in mind the information which it had received from its doctor and they concluded that the employer had acted reasonably and that the dismissal was fair.

So far as the remaining claims were concerned, the Tribunal state in paragraph 13 of their Extended Reasons that, having examined all the relevant documentation put before them, they were satisfied that the Council had made all the payments to the deceased to which he was properly entitled. Accordingly, the complaint failed.

So far as this appeal is concerned, Mrs Seavor-Bevan has submitted that the Respondent's witnesses before the Industrial Tribunal committed perjury; that the unpaid wages claim was covered by the deceased's conditions of service and further, she complained that at a pre-hearing discussion before a Chairman, Mr E. Lloyd-Parry, held on 10 February 1997, it was directed that no reliance could be placed on Dr Bajaj's medical report.

We have considered each of those submissions but we are unable to discern any arguable point of law arising from them. The question of whether or not witnesses are telling the truth is essentially a factual issue for the Industrial Tribunal, which sees and hears the witnesses. This Tribunal decided that the witnesses before it were doing their best to tell the truth.

So far as the direction by the Chairman, Mr Lloyd-Parry is concerned, as we understand that observation, contained in a letter from the Industrial Tribunal dated 4 March 1997, the Chairman merely indicated that he did not think it would be necessary for Dr Bajaj to be called to give evidence because the issue was not whether he had produced a correct medical opinion, but whether the Respondents acted reasonably in relying on his opinion.

In these circumstances we regret to say that there is no arguable point of law in our judgment to go to a full appeal hearing and in these circumstances the appeal must be dismissed.

Leave to appeal refused.

Application for a restricted reporting order dismissed.