United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR V ONUEGBU (Solicitor) Tottenham Legal Advice Centre 754-758 High Road London N17 0AL


 


JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (North) on 26th April 1999. It comes before us by way of preliminary hearing to determine whether there is an arguable point of law such as to justify consideration of the appeal in full by the Employment Appeal Tribunal.

1. On behalf of the appellant, who is the employee and applicant before the Employment Tribunal, Mr Onuegbu submits that there are three matters of complaint.
2. First, he says, that in relation to the complaint of unauthorised deduction from wages the tribunal erred in law in concluding that the failure to pay wages was not an unauthorised deduction.
3. Secondly, in relation to the history of unfair dismissal, he says, first of all, that the tribunal erred in law in failing to find that the reason for dismissal was the request by the appellant for back pay during her absence. Secondly he complains that the dismissal took place on or about 10th May 1998 without the procedures having been gone through by the respondents involving a meeting with the appellant.
4. It is perhaps helpful in this particular case, by way of preliminary hearing, to set out some of the detailed facts in this case.
5. The appellant began work for the respondents in 1986. She was absent from work from 28th August 1997 until her employment ended on receipt of a letter of 8th May 1998. It appears that the first part of the appellant's absence was covered by sick notes supplied to the respondents for the period to 30th September 1997. No subsequent sick note was supplied. Mr Green, the manager, spoke direct to the appellant's general practitioner who said that a sick note had been issued and a copy could be provided for the period to 28th October 1997. During that period of 3rd October, the appellant had gone to visit her mother in Jamaica who was seriously ill. Letters from the respondents to her thereafter went answered. The Employment Tribunal found that this correspondence warned of the risk of loss of pay and then suspended pay from 1st December 1997 on failure to attend an attendance review meeting. It is clear on all the material before us that those were steps which the employer was entitled to take under the contract of employment. It appears that there was no further letter notifying the actual loss of pay following its suspension or referring to dismissal.
6. On 31st January 1998 the appellant returned to England and contacted the respondents and gave an explanation of her absence. On 25th February 1998 she wrote to the respondents enclosing backdated medical certificates until 2nd February 1998 and apologising for not having been in touch due to the stress of her mother's illness.
7. At paragraph 2 of the Employment Tribunal's decision delivered on 26th April 1999, the tribunal found as a fact that the appellant was absent continuously from 22nd August 1997 until 8th May 1998 due to "carpal tunnel syndrome".
8. In response to the letter of 25th February the respondents invited the appellant to an attendance review meeting on 31st March to consider "continued cause for concern regarding your sickness absence and the possibility of referral to the Occupational Health Unit." The day before that meeting was to take place, on 30th March, the respondents postponed the meeting indicating that it would be rearranged. The letter was headed "Sickness monitoring and disciplinary hearings". Then on 7th May the appellant's representatives wrote to the respondents suggesting that the appellant had not been suspended and that no disciplinary action had been taken. In reply the respondents asserted that the appellant had repudiated her contract by not attending for work without explanation and that letter suggested, apparently for the first time, that the appellant was no longer an employee and that the proposed meeting was not a disciplinary meeting but was an opportunity for an explanation and representations. The letter was from the department of the Borough Solicitor. It made a reference to the P45 and declined to pay any wages on the basis that departure had been without explanation.
9. Before the Employment Tribunal the first issue dealt with was the allegation of unlawful deduction from pay and in paragraph 19 they set out the matters they took into account. They found that the suspension of pay was lawful under the contract of employment and they appear to have dismissed the claim on that basis.
10. In argument before us, Mr Onuegbu on behalf of the appellant, was inclined to concede that he could only really support a claim for unlawful deduction of wages from 2nd February 1998 until the date of dismissal.
11. It does seem to us that there is an arguable ground of appeal as to whether the Employment Tribunal considered whether the respondents had gone through the process of determining whether pay should be discontinued entirely for the relevant period, consequent upon the suspension, which they had found to be perfectly within the terms of the contract. There is no doubt that the appellant on the facts had failed to comply with the absence procedures of the respondents, in failing to keep the respondents aware of what was happening. But the fact that pay was suspended may not, it seems to us, be the end of the matter. The question arises as to whether in reaching their decision on this part of the case the Employment Tribunal considered the actual process of the respondents in determining not only that pay should be suspended but that there should be no entitlement to pay at all.
12. The next matter that was considered was unfair dismissal. Complaint is made that the Employment Tribunal should have found that the reason for dismissal was the letter of 7th May 1998. It is pointed out that until 7th May employment continued and that the reply was the very next day. It is suggested that in consequence there can be no other explanation but that the reason for dismissal contained in the letter of 8th May, or effected by the letter of 8th May, must have been the claim for unpaid money in the letter of 7th May. Support for that is said to be contained in the first decision of the Employment Tribunal which identified the effective date of termination in which the Employment Tribunal said:

"11 … The Applicant then sought advice from a law centre which wrote on her behalf regarding the failure to pay her wages to her and as a result of that the Respondent wrote its letter of 8 May 1998."

It is said that that is a finding that the 8th May letter and the dismissal were because of the claim for money.

13. That is clearly not what the Employment Tribunal were saying in their decision. They were simply saying that one letter was replied to by another letter. A number of matters were raised in the letter of 7th May, pointing out that there was an internal disciplinary procedure and that the Tottenham Neighbourhood Law Centre would be representing the appellant. There is nothing within the decision of the Employment Tribunal to lead to the conclusion that the rather general comment about one letter replying to another is to be taken to mean that there was a finding that the dismissal was because of unpaid money. The argument addressed in this connection was simply one of fact and the tribunal found the reason for dismissal, in the body of their decision, and it seems to us that there is no error of law.
14. On all the evidence before us, bearing in mind the enormous length of time that the employee was away from work without warning the respondents, the Employment Tribunal was entitled to find that that was the reason underpinning the respondents' decision and not the letter of the day before. We dismiss the appeal on this ground.
15. Finally, bearing in mind the fact that the dismissal took place within the body of the letter of 8th May, we have looked at the way in which the Employment Tribunal approached the issue of the fairness of dismissal. It seems to us that there is an arguable point of law as to whether, in considering the fairness of the dismissal, the Employment Tribunal asked itself the following two-fold question. First, did they consider whether the respondents followed their own general procedures as to giving an opportunity to an employee to explain themselves before deciding upon a dismissal? Secondly, did the Employment Tribunal consider whether the respondents followed their own particular procedures which they had set themselves in this case of holding the meeting with the employee which they had earlier postponed? We are not satisfied at this stage that it would be reasonable to conclude that the tribunal had so obviously considered those matters, that no argument arises as to whether or not the tribunal was in error in law in failing to do so. We consider that there is an argument in law on that ground also.
16. Accordingly, we permit this matter to proceed to appeal on the basis of whether or not the tribunal erred in law in finding no unlawful deduction from wages and whether they erred in law in failing to consider whether the employer had adopted the procedures that it had set for itself before reaching a decision to dismiss.
17. This matter will therefore go to a full hearing, to be listed for a day in Category C. Skeleton arguments must be filed 14 days before the hearing.