United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SENDALL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: The Appellant, Ms McLean, commenced employment with the London Borough of Lambeth on 12 October 1990 as a Housing Officer. On 1 April 1996 her employment was transferred to the Respondent, Hyde Housing Association Ltd.

Prior to the transfer the Appellant had completed a period of maternity leave on 22 February 1996. On 10 March 1996 her sister died. Following a period of compassionate leave she returned to work for a few days and then on 29 March 1996 she went off sick, never to return before her eventual dismissal by the Respondent on 31 July 1996.

Following the transfer the Respondent carried out a restructuring process of matching its new transferred employees to available posts. The Appellant was to be assessed for the post of Housing Officer.

Starting with a letter from Ms Topping, the Manager responsible for carrying out the assessment process dated 26 April 1996, the Respondent attempted to bring the Appellant into their offices for interview. That letter was ignored.

Subsequent correspondence followed. The Appellant responded by sending in sick notes. She continued to receive sick pay. She did not respond to a request for her consent to be medically examined on behalf of the Respondent.

On 28 May the Appellant's brother, Norman wrote to her Manager, Mr Leadbetter, stating that due to her state of health he would manage "all her affairs regarding work". He also stated that the Appellant had chosen to be a carer for their elderly and infirm mother. On 29 May the Appellant telephoned the Respondent confirming her interest in the Housing Officer post. She followed that call up with a letter.

An assessment interview was fixed by letter dated 9 May for 5 June. The Appellant did not attend. Further appointments were made for 17 and 25 June. Again she did not attend. The interview was rescheduled for 9 July. On 2 July her sister telephoned to say that the Appellant could not attend on that date.

On 17 July the Respondent wrote requesting consent for a medical examination, warning her as to possible termination of her employment in the event of her continuing non-co-operation. The Respondent needed to know when and if she would be returning to work.

On 23 July Mr Reid, the Respondent's Contract Director, wrote informing the Appellant of a disciplinary hearing to be held on 30 July:

"To consider what is regarded as gross misconduct ie a fundamental repudiation of the terms of your contract by your conduct."

The letter also said:

"I must urge you to attend this meeting as a matter of urgency. If you are not planning to attend I must ask you to inform this office immediately and send your written representations or your own representative, who may state your case for you. Due to your failure to attend previous meetings, the hearing will go ahead whether you are present or not."

The disciplinary hearing did take place on 30 July in the absence of the Appellant. The panel decided to dismiss her for gross misconduct.

She appealed that decision through her representative, Mr Rudy Narayan on 5 August, on the ground that the disciplinary hearing should not have proceeded in her absence.

On 23 September an appeal hearing took place, again in the absence of the Appellant. She told the Tribunal that she had not received notification of the hearing date which had been sent by way of registered delivery letter. The appeal panel's deliberations were limited to the single ground of appeal. The panel upheld the decision to dismiss.

On 17 October the Appellant presented a complaint of unfair dismissal to the Industrial Tribunal. It came before the London (South) Tribunal on 4 February and 19 March 1997. The Tribunal then considered the matter in Chambers on 21 April and by a reserved decision with very full extended reasons dated 11 June 1997, dismissed the complaint.

The Tribunal found that the principal reason for dismissal was that, having been off sick for four months, the Appellant had failed to communicate or co-operate with the Respondent in keeping any appointments arranged or in giving authorisation for medical reports so that the Respondent could form a view as to her medical condition and a possible date for her return to work. That was a reason, the Tribunal found, relating to her conduct and not to her capability.

As to the question of reasonableness under Section 98(4) of the Employment Rights Act 1996 the Tribunal noted from the evidence that during the relevant period of non-co-operation with the Respondent the Appellant had managed to visit the Balham Law Centre and also Mr Narayan, but not the Respondent's offices. The Tribunal were satisfied that the Respondent had given the Appellant every change to co-operate. She had not done so. Consideration was also given by the Tribunal to the fact that no home visit had been arranged by the Respondent. The Tribunal did not find that course to be unreasonable. Finally they considered the Appellant's complaint that she was unaware of the date of the internal appeal hearing, but did not find this such as to render the dismissal procedurally unfair.

Against that decision the Appellant now appeals to this Tribunal. At the outset at the hearing this morning Mr Sendall of Counsel, who is present under the ELAAS pro bono scheme, made application on behalf of the Appellant for an adjournment. He told us that an application for legal aid to support representation by Solicitor and Counsel in this appeal had been turned down and an appeal to the Legal Aid Board had also failed.

We have been shown a letter from her Solicitors, Dalton Barrett indicating that they are considering making an application to the Divisional Court by way of judicial review of the decision of the London Legal Aid Area Office.

We are also told that the Appellant has approached her trade union UNISON for representation and has considered approaching the Free Representation Unit in the alternative.

It seemed to us that there had been sufficient delay in this case. We refused the adjournment not least because she had the advantage of representation by Mr Sendall, who then proceeded to present the appeal on her behalf.

He accepts that the thrust of the appeal is based on the ground of perversity. He submits that the Respondent and subsequently the Industrial Tribunal failed to sufficiently take into account the nature of the Appellant's illness, that is clinical depression and her inability to respond appropriately to the demands that were being made upon her by the Respondent for information and further, that that explained why she did not attend the initial disciplinary hearing.

He also submits that the Industrial Tribunal was wrong to treat the fact that she did not apparently receive notice of the appeal hearing, notwithstanding that it was sent by registered delivery, as amounting to a procedural irregularity which rendered the dismissal unfair.

He further submits that the employer was wrong not to have organised a home visit and the Tribunal was wrong not to regard that as a fatal flaw in the Respondent's case.

We have considered all of these submissions in the context of the very full reasons provided by the Industrial Tribunal.

We are wholly satisfied that this appeal raises no arguable point of law and in those circumstances must be dismissed.