United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K HARDING (Representative)
For the Respondents	MR C HENSON (Representative)


 


JUDGE H WILSON: This appeal arises out of a decision by the Employment Tribunal sitting at Stratford, on 27, 28 and 29 January 1998, which found that the Applicant was unfairly dismissed by reason of her conduct but that it was just and equitable that a percentage reduction of 100% should be applied to the basic and compensatory awards. The Tribunal made other findings and decisions but those are the two which are relevant.

The matter came before the President, with colleagues, on a preliminary point as to whether there was an arguable point of law. The President's judgment found that the Tribunal's decision fell into three parts and that the appeal which was envisaged related only to the third finding, that is to do with the percentage reduction.

The very short facts were that the Respondent company had been found to have unfairly dismissed the Appellant at a time when she was off work because of ill-health. The Tribunal found that the Appellant had been unfairly dismissed but that her own conduct represented 100% contribution and, as I have said, the Employment Appeal Tribunal found, as a preliminary point, that there were three arguable points. We deal with the matter on a full hearing basis by relation to those three points articulated by the President.

The first was the point that the Employment Tribunal failed to consider the employers' failure to take into account the Applicant's state of health when judging her performance in her duties. That is really the fundamental and crucial point and Mr Henson very candidly, when faced with the question, can point to nothing in the Tribunal's decision which shows unequivocally or at all that they took that into account when considering the question of the justice and equity of a contribution. He is therefore forced back on the submission that no experienced Tribunal could possibly not have taken it into account: we find that that suggestion, if it were true, would really undermine the need for appeal proceedings. We reject it. Our answer to the first of the President's points is that we find that the Employment Tribunal did fail to consider the employers' failure to take into account the Applicant's state of health when judging her performance in her duties. Indeed, we have been referred to and this hearing has been concerned with the occasion in the domestic procedures when the Respondents' representative explicitly said that ill-health had got nothing to do with what they were deciding, which was disciplinary.

The President's second point was that the Tribunal, having concluded that every reasonable employer would have adjourned on 20 November, should have gone on to ask themselves when a hearing could fairly have taken place and, on that basis, it was arguable that she would be entitled at least to the compensation for that period of time. We respectfully concur with that articulation by the President but do not express a view about it because it seems to us it would be for the Tribunal dealing with this matter in due course to decide whether it is the answer, or part of the answer, to what is remitted to them.

Thirdly and most importantly the President articulated the point that the Appellant wished to argue that the Tribunal had erred in law in deducting 100% from her award because they themselves failed to take into account ill health and the way it contributed or, may have contributed, to the performance of her duties. The contribution element is in respect of blameworthy conduct and if she was not performing her duties adequately through ill health then arguably there was no blameworthy conduct.

We find that the Tribunal did err in law in failing to approach the matter - the question of deduction - in that way. The President there is really summarising the case law about this matter and we, as I have said, find that it was not considered by the Employment Tribunal who stated, in their decision

"39 The reason for the dismissal... was gross misconduct for poor work performance... There was no other reason for Ms Brown's dismissal."

It was unfair because a reasonable employer would have considered an adjournment on 20 November, when, due to ill health, Ms Brown was not able to attend and there is nothing at all in the decision to suggest that they went through the proper enquiry, so far as seeing whether and, if so, to what extent, the illness being suffered by Ms Brown contributed to or caused the shortcomings which led to her being dismissed.

We think that the matter should therefore be remitted to an entirely differently constituted Tribunal to consider solely the question of contribution, if any, from basic and compensatory awards in light of all the evidence which will require further rehearsal.