United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G PITT Representative National Sawmilling Association 76 West Croft Leominister HR6 8HQ
For the Respondent	JANE WOODWARK (of Counsel) Instructed by: Messrs Deas Mallen Souter Solicitors Eldon Chambers, 23 The Quayside Newcastle-upon-Tyne NE1 3DE


 


JUDGE COLLINS:

1. This is an appeal against the decision of an employment tribunal sitting at Newcastle whose reserved extended reasons were promulgated on 27 April 1999. The tribunal held that the respondent Mr Crosland was dismissed from his employment on the ground of incapacity but that the dismissal was unfair because the decision to dismiss was taken with undue haste. It was their view that a reasonable employer would have allowed a further three weeks for the employee to consider his position and make proposals, although they accepted on the evidence that any proposals that the employee might have made would have made no difference. Subsequently, there was a remedies hearing, the extended reasons being promulgated on 17 June 1999 and the result was that the respondent was awarded a basic award which together with other payments totalled £3,383.68.
2. The history is that Mr Crosland is now some 38 years old and was a wood machinist employed by the appellants from 22 September 1977 to 23 October 1998. The appellants are a small family company with 14 employees, 7 of whom are members of the family extending over 3 generations. In about July 1998 the respondent began suffering from deafness and was thereafter on sick leave. We have not been told whether or not there are civil proceedings arising out of his deafness and it is not our concern.
3. On 21 October 1999 the respondent saw an ENT Specialist. On the following day Mrs Crosland went in to see Mrs Hudson and told her that Mr Crosland was diagnosed as deaf and that he should not return to work until his medical condition relating to dizzy spells had been properly assessed. That evening there was a directors' meeting at which Mr Crosland's future was discussed. On 27 October Mr and Mrs Crosland came to a meeting with Mr and Mrs Hudson. Mr Crosland asked if he could work in the office until everything was sorted out. Mrs Hudson wanted him to resign as he was saying he could no longer work as a machinist. Mr Crosland was in a position of uncertainty and he was advised to go to the Citizens Advice Bureau, either by Mrs Hudson or by his wife.
4. Two days later, there was a further meeting. There was a serious conflict of evidence between the Croslands and Mrs Hudson about it. The tribunal after what they described as 'anxious consideration' accepted Mrs Hudson's account on the balance of probabilities. The meeting of 29 October is crucial. The tribunal accepted Mrs Hudson's account as substantially accurate:

"Both Mr and Mrs Crosland attended and that she alone had the discussion with them upstairs in the office. The applicant said that he had been advised not to resign and enquired again whether he could work in the sales office or stacking shelves in the sales area. Mrs Hudson said that they were only a small company and that there was no post available if he could not work as a machinist. She said that she had taken legal advice and as a result would be terminating his employment."

5. By letter dated the following day he was told that he was being dismissed with effect from one week earlier, 23 October 1998. Although the tribunal at paragraph 4G noted this anomaly nothing appears to turn on it. No argument has been directed to us that the backdating of the notice was in itself unfairness on which the respondent was entitled to rely.
6. The tribunal expressed their conclusions in paragraph 5 of their reasons.

"We conclude however that the dismissal was unfair because the decision to dismiss was taken unduly hastily. The applicant was not seen by an ENT surgeon until 21 October and was dismissed within 8 days. Having regard to the length of his employment with the Respondent, the Employment Tribunal concludes that he should have been given further time to consider his position.

7. Pausing there for a moment, it would be impossible not to have sympathy with an employee of 21 years standing who found himself dismissed for incapacity, 8 days after the medical appointment which had confirmed his incapacity. But in our judgment the fact that he had been employed for 21 years is irrelevant. If the employers acted unreasonably in his case they would have been equally unreasonable if the employee had been employed for 2 years and 1 day. The question is whether on the facts known to the employer on 29 October they acted reasonably in treating the respondent's disability as a reason for dismissing him and although the length of his service excites ordinary human sympathy it does not in our judgment, bear on the essential question in the case.
8. The tribunal continued:

"We take into account the small size of his employer's undertaking; the need to replace the applicant as a machinist and the length of time that the applicant had been absent in that year. We do not consider that it would have been reasonable for the Respondent to wait until all the medical tests had been conducted, indeed we note that at the date of the Employment Tribunal hearing the applicant is still awaiting an appointment on 19 April 1999 with a well-known neuro surgeon. He is still unfit for work as a machinist.

And then they proceed to the nub of their decision:

"On the other hand we consider that a reasonable employer would have given the applicant a further 3 weeks to consider his position and make more reasoned proposals, perhaps for a return to work in a non noisy environment part time. Having regard to the size of the employer's undertaking, we conclude that the Respondents would not have acceded to such a request, but we do not conclude that that would have been unreasonable."

9. It is not for this tribunal simply to substitute its own judgment for that of the tribunal below in what is essentially a balancing exercise, taking into consideration all the facts in the case and coming to a judgment as to whether the dismissal was fair or not. We remind ourselves of the statutory test set out in s.98 (4) Employment Rights Act 1996. Where the employer has fulfilled the requirements of s.98(1), that is by showing the reason for the dismissal,

''.. the determination of the question whether the dismissal is fair or unfair, having regard to the reasons shown by the employer:

(a)depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and

(b)shall be determined in accordance with equity and the substantial merits of the case.''

10. The employer was aware on 29 October that the employee could not for the foreseeable future undertake his old post as a machinist. Mrs Hudson in this small company was perfectly well aware of the other opportunities for employment that were available and took the view that there was no work available for the respondent other than that of machinist. The tribunal accepted that if she had taken that decision in three weeks time she would not have been unreasonable in so doing. In these circumstances in our judgment it is not possible to uphold the tribunal's decision that the employers acted unreasonably on 29 October. They had all the information that the tribunal considered it reasonable for them to have. The employee also had access to all that information. The possibility that the employee might have been able to make some reasoned proposals of a different nature was first, speculative and second, a prospect that the tribunal themselves held was doomed. For those reasons we shall allow the appeal and the decision of the tribunal that the respondent was unfairly dismissed will be set aside.