United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NEITHER PRESENT NOR REPRESENTED


 


JUDGE CLARK: The Appellant Company was a small business operating bus services. The Applicant to the Birmingham Employment Tribunal, Mr Wilde, was one of four full-time drivers employed by the Company, having commenced that employment on 31 October 1995. There were a further two part-time drivers. Mr Stanley Pemberton was a Director of the Company.

1. The Tribunal found in a decision promulgated with Extended Reasons on 5 March 1999, following a hearing held on 13 November 1998, that on 14 January 1998 the Applicant informed Mr Pemberton that he was suffering from blurred vision and was going to see his doctor that evening. On 15 January the Applicant telephoned Mr Pemberton to say that he would be seeing his consultant the following day. On 19 January Mr Pemberton received a self-certification sick note from the Applicant specifying double vision as the reason for his absence from work.
2. Thereafter, a series of doctor's certificates were delivered, giving either double vision or myopia as reason for the Applicant's absence from work. He remained off work until his dismissal on 3 March 1998. On that day, at a short meeting, Mr Pemberton informed the Applicant that on the basis of a report from the Applicant's doctor dated 23 February and other evidence (the Applicant had been suspended on 13 February following sightings of him driving his car) he, Mr Pemberton, had concluded that the Applicant had been fraudulently claiming statutory sick pay and that as a result he was being dismissed for gross misconduct.
3. The Tribunal found that the Company could have dismissed the Applicant fairly on grounds of capability had a proper procedure been followed. However, the dismissal by reason of misconduct was unfair. Although Mr Pemberton formed a genuine belief in the Applicant's guilt, he did not have reasonable grounds for that belief, basing it as he did on a partial reading of the doctor's report; nor had he carried out a reasonable investigation; nor had he given the Applicant a proper opportunity to state his case. The final disciplinary interview on 3 March took place, the Tribunal found, after Mr Pemberton had made up his mind to dismiss the Applicant.
4. In addition to a potentially fair dismissal on capability grounds, the Tribunal found that the Company could also have dismissed the Applicant by reason of redundancy. In these circumstances, compensation was limited to a basic award of £504 and two weeks pay in lieu of notice, being a further £360.
5. Against that decision the Company now appeals. This is a Preliminary Hearing held to determine whether the appeal raises any arguable point of law. The Company has chosen not to appear and is not represented before us today. Accordingly, we have decided the matter on the papers, particularly the Notice of Appeal and PHD form submitted by the Company, and the Applicant's letter dated 25 June 1999.
6. The thrust of the appeal appears to be that the Tribunal ought not to have taken account of a letter written to the Tribunal after the dismissal by the Applicant's General Practitioner, and a sick note from the GP dated 23 February 1998 which had not been produced to the Company by the Applicant before his dismissal. The grounds of appeal refer to an earlier hearing on 23 July 1998, which was adjourned for want of time, and at which the Chairman had made some observations about the claim.
7. As to the medical evidence, that may have played a small part in the Tribunal's conclusion that the Company had not carried out a proper investigation and did not have reasonable grounds for believing that the Applicant had fraudulently claimed statutory sick pay, but the Tribunal's reasoning focused on the GP's letter on 23 February, which was before Mr Pemberton before he dismissed the Applicant.
8. The observations of a Chairman at an earlier inconclusive hearing seem to us to be nothing to the point. In short, we can find no arguable point of law to proceed to a full hearing. Accordingly, this appeal must be dismissed.