United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WALLINGTON (OF COUNSEL) ELAAS


 


HIS HONOUR JUDGE D PUGSLEY:

1. In this case, we are extremely grateful to have had the services of Mr Peter Wallington who has appeared under the ELAAS scheme. This is a case where the Appellant is seeking to appeal from a decision of the Employment Tribunal promulgated on 7^th July 1999.
2. We consider the main amended arguable points of the grounds of appeal. We start with the basic award, that is 12 weeks at £220 per week. The criticism of that assessment of the award is quite simply this; that no allowance is made for the fact that for a period of time Mrs Lynch's year of service attracted a year and a half of notational service for the purpose of calculating the basic award since she was over 41 for some of the years of service.
3. The second point is that the Tribunal say two months for the consultation process, in fact they only seem to have compensated her for eight weeks, and eight weeks is not two months. Thirdly, this was a contributory scheme under a local authority pension scheme therefore, there would have been some loss if you limit compensation to what her net pay was without taking into consideration the sum of money that her employers would have had to, if she remained to contribute to her pension scheme.
4. There are other substantial arguable grounds. There is a real issue as to whether or not the Tribunal was entitled to make the deduction from the basic award it did under the wording of section 122: Mr Wallington takes the point, and we accept it is arguable, that some, if not all of this alleged misconduct was, in fact, after the notice had been given not before. There is a more fundamental point; whether or not in any shape or form the Applicant's ill health could be construed as conduct for the purpose of making any reduction at all irrespective of when it took place. It is not just a matter of chronology. This is a matter of substance and Mr Warrington goes on to make the subsidiary point that in some ways goes to the very heart of the matter; is someone who is suffering from stress-related illness, to be judged by the concept of reasonableness. The Tribunal does in paragraph 15:-

"Leaving aside the notice of termination the Tribunal is satisfied that the grievance procedure was thorough and fair, that the proposals to effect a return to work were reasonable, that the steps taken to redeploy the applicant were in the end wholly reasonable and therefore the failure of the applicant to co-operate was unreasonable in all the circumstances".

5. What Mr Warrington says despite what happened in this case is that you cannot assume because the employer acted reasonably in the proposals brought forward, the Applicant suffering ill health was acting unreasonably in refusing those offers and refusing to co-operate and that this Tribunal never really analysed with sufficient precision the issues that do arise, bearing in mind this was a dismissal due to incapability, due to ill health.
6. We consider that it is appropriate that the inter-relationship between the Disability Discrimination Act 1996 and the potentially fair dismissal under the Employment Rights Act 1996 is considered. We give leave for the Respondent to cross appeal as we consider there are arguable grounds here.