United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M K GALBERG (OF COUNSEL) (Instructed by) Messrs Ivor Walker 5c Frognal Mansions 97 Frognal London NW3 6XT


 
HIS HONOUR JUDGE WILSON: This has been the hearing of the preliminary matters in connection with the Appeal by the Respondent Company against the finding and award by the Employment Tribunal in the Applicant's favour, having found that he was unfairly dismissed.
1. We have had regard to what the skeleton argument and the Notice of Appeal sets out as amplified by Mr Galberg's submissions to us today. There are two grounds upon which he seeks to proceed with the Appeal. First is that the issue of frustration of the contract has not been properly dealt with in the Extended Reasons for the Tribunal's decision so that the Appellant Company cannot see why it failed on that ground. Secondly, the Tribunal failed to ask itself whether, if the Company's procedures had taken place, the question of quantum would not have been affected, particularly in regard to the consideration set out in the Polkey decision.
2. The Applicant in this case had worked for the Respondent Company for 23 years and is now over 63 years of age. The Tribunal found that the Company's representative begrudgingly conceded that nobody else on the Company's books had worked for as long and we note of course, that this is a national company. The Applicant had been off ill for many months. There were no enquiries from the Respondent Company and then came the announcement, without any prior warning or consultation, of his dismissal. The Respondent Company said in its Notice of Appearance that the Appellant had gone sick after a transfer which he did not like and that he had ceased to send sick notes with effect from 13th March 1998. In fact, the Respondent alleged also that the Applicant had been working for another company for 6 months until June 1998.
3. The Employment Tribunal issued a decision supported by Extended Reasons which occupy nearly 5 full pages of A4 typescript and it is conceded by Mr Galberg that the statement of law concerning the first of his submissions - that is the issue of frustration - is accurately set out in paras 9 and 10 of the Decision. He makes no complaint about that statement of the law. In para 11 of the Extended Reasons, headed "Conclusions" the Tribunal states that it is of the unanimous opinion that the Respondent had not discharged the burden that rested on them and had not shown the Contract of Employment between the parties had been frustrated. The Tribunal was of the firm view that frustration of the contract had been argued as an afterthought and that the Contract of Employment had not been terminated by operation of law. The Respondent has not addressed any of the considerations listed above in para 10 and we agree that that is a mis-print and should read para 9.
4. In para 9 itself in the conclusion of that paragraph, the Tribunal had stated that the burden of proof, which is a high one, is on the party who seeks to argue that the contract has been frustrated and they found that that high standard of proof had not been discharged. Mr Galberg complains that the Tribunal did not consider the matters which were referred to in para 9 and he has referred us to the hand-written document which, at the Tribunal's request, was handed in during the course of the hearing. In particular, he has referred us to that part of his manuscript which divides matters into two columns dealing with the various considerations.
5. It seems to us quite plain that the Tribunal did consider the matters. The fact that they failed to put a sentence into their decision to that express effect does not adversely affect the value of the decision as it stands.
6. So far as his second complaint is concerned, we note that in para 10 it is stated that the key to a fair dismissal for long-term illness is a fair procedure which must, at the very least, in a case such as this, contain 3 elements. Firstly, consultation with the employee; secondly, proper medical investigation; and lastly, where appropriate, consideration of alternative employment.
7. Mr Galberg submits that had there been consultation in May 1998 and had there been medical investigation at that time, the result would have been a failure to make a diagnosis and complete uncertainty about a future return to work. On the evidence before the Tribunal, that did not emerge until September or October 1998, a few months later.
8. It seems to us that had consultation taken place and had there been proper medical investigation with a company of this size, it is likely that the conclusions reached in September might have been reached considerably earlier. That is not known and the reason that it is not known is totally due to the default of the Appellant Company who, as the Tribunal stated in para 9, totally disregarded the rights of the employee. It seems to us therefore, that had the Tribunal expressly referred itself to the considerations in Polkey, it would have made no difference to their conclusions or to the conclusions that they reached and in our view, on further and full argument, this Appeal has no prospect of success and is therefore dismissed.