United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN SCOTT (of Counsel) Messrs Thompsons Solicitors Congress House Great Russell Street London WC1R 3LW


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Bury St Edmunds Employment Tribunal against part of that tribunal's remedies decision, promulgated with extended reasons on 1st September 1999, following their finding that she had been unfairly dismissed by the respondent in a liability decision promulgated on 25th March 1999.

Liability

1. The appellant commenced employment with the respondent on 18th August 1986. She started as a reporter and then became chief reporter. In 1990 she worked as a features writer.
2. In November 1997 she was working a four-day week. On 6th November it was agreed in principle between the appellant and the editor, Mr Satchwell, that she could move to a three day week in order to allow her to study part-time for a PhD at University College London. Thereafter it was agreed that she could go onto a three-day week, which started in January 1998.
3. That agreement soon fell down, the appellant feeling that she was being given too heavy a workload to complete in three days each week.
4. On 22nd January she wrote to the Editor saying that she would be away from work for two weeks on medical advice. She was being subjected to hostile, irrational and unjustified pressure in her department, causing her health to suffer. She never returned to work before her employment was terminated finally on 30th June 1998.
5. During the intervening period correspondence passed between her trade union, which was not recognised, and the respondent.
6. In April, the appellant's general practitioner wrote to the respondent's occupational health adviser stating that the appellant was suffering from an acute anxiety state and pointing out "she immediately worsens on any contact from work and becomes agitated", concluding "I consider she has an anxiety state brought on by conditions at work and that there is little possibility that she will be able to return to the same work".
7. On 16th June the editor wrote the appellant terminating her employment with effect from 30th June. In that letter he mentioned the background of her own doctor's opinion that she was unlikely to return to work.
8. The appellant commenced these proceedings by an Originating Application presented on 11th August 1998. She complained of unfair dismissal and disability discrimination. The latter claim was later withdrawn. The respondent resisted the claim of unfair dismissal solely on the ground that the appellant was not dismissed.
9. During the course of the liability hearing the respondent sought leave to amend the Notice of Appearance to allege that if the appellant was dismissed it was by reason of ill health incapability. That application was refused by the tribunal. They found that the respondent's letter of 16th June constituted notice of actual dismissal. In the absence of any permissible reason for dismissal advanced by the respondent the dismissal was unfair.

Remedies

10. At the remedies hearing held on 20th July 1999 the appellant gave further evidence. The respondent called no evidence.
11. We have paid particular attention to the findings by the tribunal at paragraphs 7 and 8 of the remedies reasons. We need not repeat them in this judgment.
12. On the basis of those findings the tribunal limited the compensatory award for unfair dismissal to three months loss of earnings and pension loss. In addition they awarded £300 for loss of her statutory rights and a basic award. On termination she had received 11 weeks pay in lieu of notice, as was her entitlement.

Appeal

13. The appeal is directed to the tribunal's finding that after three months the appellant would have been fairly dismissed on grounds of ill health incapacity.
14. In support of the appeal Mr Scott places reliance on the approach of the Scottish Court of Session in King v Eaton Ltd (No. 2) [1998] IRLR 686, a redundancy case and the judgment of Knox J on behalf of the EAT in Boulton & Paul Ltd v Arnold [1994] IRLR 532.
15. In summary, the submission which strikes us as worthy of full argument is that the respondent called no evidence as to what would have happened had an incapacity through ill health procedure been followed.
16. Further, Mr Scott points out that at the liability hearing stage one of the reasons for the tribunal declining to grant permission to the respondent to amend the Notice of Appearance to allege a potentially fair reason for dismissal, namely ill health incapacity, was that the appellant was not equipped to meet such a case at short notice and had not obtained medical evidence which might assist her in relation to such a case.
17. Mr Scott emphasises that at the remedies hearing no further medical evidence was called by either party. There was no evidence from the respondent as to the steps that would have been taken had they followed the ill health incapacity route to dismissal.
18. In these circumstances, relying heavily on King v Eaton, Mr Scott submits that this was not a case in which the tribunal was entitled to reconstruct history.
19. We think, as we indicated earlier, that these points are arguable and ought to proceed to a full hearing. The case proceeds on the grounds of appeal as presently constituted.
20. For that purpose, we shall direct that the case be listed for one full day, Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. There is no requirement for Chairman's Notes of Evidence. Copies of the skeleton arguments will be lodged with this Court at the same time as they are exchanged. There are no further directions.