United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS ROSALIND WILSON Representative Rochdale Law Centre Smith Street Rochdale OL16 1HE
For the Respondent	MR G LEAN Consultant Industrial Relations Adviser Construction Federation Construction House 56-64 Leonard Street London EC2 4JX


 


MR COMMISSIONER HOWELL QC:

1. Mr George Stockton seeks to have set aside as erroneous in law the decision of the Manchester Employment Tribunal rejecting his claim for unfair dismissal, set out in extended reasons sent to the parties on 26 April 1999 after a hearing on 17 March 1999 at which the Tribunal heard oral evidence from Mr Stockton himself and from his employer. The claim which had been made to the Employment Tribunal by an Originating application dated 14 August 1998 at pages 7 – 10 of the appeal file had raised complaints of unfair dismissal, disability discrimination and unlawful deductions from wages, alleged to have been committed on the part of his employers Heywood Scaffolding Services, who operate a scaffolding supply yard employing some 13 employees at the relevant time. The Managing Director of Heywood Scaffolding Services is a Mr Craigen who is referred to in the course of the evidence. He was the person responsible for discussions with Mr Stockton and for imposing what is accepted as having been a dismissal on him by letter dated 1 June 1998 at page 14 of the appeal file, which Mr Stockton received a few days later. Because of the relatively small number of employees employed by Heywood, the Respondents, it was accepted before the Tribunal that the claim for disability discrimination could not be pursued, since at the relevant time such proceedings under that Act could only be brought against employers of 20 or more people. That left the issues of whether Mr Stockton had been unfairly dismissed in all the circumstances of the case, and whether he had been paid holiday pay or other amounts to which he was entitled under his contract of employment.
2. That second issue of holiday pay is not before us on this appeal, as the Tribunal found in Mr Stockton's favour on that and awarded him the sum of £481.25 on that account, which is not disputed before us. The issues on this appeal concern only whether there was what amounted to an unfair dismissal of Mr Stockton in the circumstances of the case, contrary to the Tribunal's finding that his dismissal had been reasonable within s.98 (4) of the Employment Rights Act 1996.
3. The background to Mr Stockton's dismissal on 1 June 1998 was that he had had the misfortune to catch his hand in a circular saw on 20 November 1997 while at work and had injured two fingers on his right hand and lost the end of his right index finger. As the Tribunal recorded in paragraph 3 of their extended reasons on page 4 of our appeal file, he had undergone an operation to have the tip of his index finger re-attached but that operation had unhappily not been successful, and ultimately he had had to have further surgery to have the top of his index finger removed. As a result of that he had been off work until 5 June 1998 that being the effective date of termination of his employment, as found by the Tribunal in paragraph 4 of their extended reasons. Mr Stockton had been the Yard Manager responsible for receiving scaffolding and other plant that had been let out on hire, inspecting and testing the equipment, loading scaffolding on to vehicles and deliveries to sites. He would also on occasions act as driver, when deliveries were required. He had worked in the yard with one assistant and although he had the title of Yard Manager, much of the actual work he was required to do in the course of his employment was manual work. As the Tribunal found following his accident he had been visited in hospital by Mr Craigen, the Managing Director of the Respondent company: and as Mr Stockton had suffered such an accident in the course of his work, having been employed for nearly three years at the time of his accident, one would of course expect that any reasonable employer would be concerned about his employee's recovery.
4. However, because of the complications with his hand, the Appellant had not been able to return to work as originally expected by the Spring of 1998. Mr Craigen, again entirely properly, then asked for and was supplied with two letters from the Appellant's doctor on the prognosis about his condition and what effect it would have on his ability to return to work in the reasonably near future. The material letters, which are also before us in the appeal file, show that the Doctor advised Mr Craigen on 24 April 1998 that Mr Stockton was at that time awaiting assessment for amputation of his damaged right index finger joint, but that following amputation he would be fit to resume the work that Mr Craigen had described in the letter he had himself written to the Doctor. Following further enquiries Mr Stockton's G.P wrote again on 13 and 27 May confirming that he was expected to have his second operation in approximately four weeks, which would have been in the middle of June 1998; and that following that he would be expected to require an 8 week period of recuperation leading to his return to work in mid August 1998. Again the Doctor specifically confirmed that once this operation was out of the way Mr Stockton's fingers, while not in 'perfect working order' would be usable for practical purposes, including heavy lifting such as he would be required to undertake on returning to his employment.
5. The next thing that happened was that on 22 May 1998 Mr Craigen wrote Mr Stockton a short letter which we have at page 2D of the appeal file in the following terms:

"Dear Mr Stockton

I would be grateful if you could contact our office to arrange a meeting with myself on Monday 1st June for a discussion on your impending operation and future employment with the company."

According to the Tribunal's findings (and there is no dispute about this) a meeting did in fact take place between Mr Craigen and Mr Stockton on 1 June 1998 at which Mr Craigen asked to see Mr Stockton's hand and had mentioned that the employer was having some difficulties because of his continuing absence from work. However the Tribunal specifically found that although Mr Stockton had understood from the letter he had been sent that his continued employment was at risk, the meeting did not in fact contain any discussion of the question of his dismissal and was a relatively brief meeting. Mr Stockton's evidence was that he was therefore surprised when on 5 June 1998 he received a letter of immediate dismissal from Mr Craigen which we will set out in full, as submissions have been made to us on it. It is at page 14 of the appeal file: It is dated 1 June 1998.

"Dear George

I am writing further to our meeting earlier today and must most regrettably confirm that, due to your continued medical condition, which prevents you from fulfilling your duties as yard operative, we now have no alternative but to terminate your employment with effect from today's date.

As explained this decision has not been taken lightly and only after consultation with yourself and the receipt of a medical report from your doctor. I have given consideration to further absence through your medical condition and alternative employment opportunities. I regret nothing suitable exists and I have waited reasonable time over your medical condition and therefore not prepared to wait any longer.

Your contract of employment entitles you to 3 weeks notice and the company will pay to you the equivalent of three weeks wages, at your normal take home pay level, as compensation in lieu of this. This money being paid without any deductions.

Finally, may I thank you for your past service with this company and wish you all the best for the future.

Please feel free to contact me if there is anything within this letter that you either do not understand or do not agree with."

Despite the suggestion that Mr Craigen was willing to engage in further discussion contained in that final sentence, it has not been argued before us by Mr Lean, who appeared on behalf of the Respondents, that that letter was anything other than an unequivocal notice of immediate dismissal of Mr Stockton from his employment and we consider that to be beyond all possible doubt.

6. Miss Wilson who appeared on behalf of the Appellant sought to criticise the way the Tribunal had concluded that the Appellant's dismissal in these circumstances was reasonable, on the principal ground that on the basis of the Tribunal's own findings it was apparent that there had been no proper consultation or discussion with the employee carried out by the employer, as to possible alternatives to immediate dismissal before that was imposed in the uncompromising terms of the letter of 1 June 1998. In addition, she criticised the Tribunal for referring in the course of their decision to matters she said were irrelevant to the question of whether there had been an unfair dismissal or not; since by their nature they raised considerations that only became relevant once it had been decided that there was an unfair dismissal and went to issues of what the proper measure of compensation or other remedy for such a dismissal was. That necessitates us looking at the actual terms of the Tribunal's decision which (at paragraphs 10-17 of their extended reasons beginning at page 5 of the appeal file) began by referring to the meeting that took place between the appellant and Mr Craigen on 1 June. The Tribunal recorded that:

10. "A meeting took place between the applicant and Mr Craigen on 1 June. We accept that this was a brief meeting at which Mr Craigen asked to see the applicant's hand. We accept that while he did not specifically mention dismissal Mr Craigen made it clear that the applicant's continued absence was causing difficulties in the yard and that situation could not be allowed to continue. We also note that the letter requesting the applicant to attend that meeting stated that the purpose of the meeting was to discuss his "impending operation and future employment with the company.

11. "We also accept that the applicant's continued absence was causing difficulties in the yard. The summer is a busy period in the scaffolding business. The applicant needed to be replaced and the respondent could not do that on a temporary basis. At the time of the meeting on 1 June a date had not been fixed for the applicant's operation. The respondent knew that was some weeks away following which the applicant would require a further 2 months to recuperate before being able to return to work. It was likely therefore that the applicant would continue to be off work for a further 2 ½ to 3 months. Mr Craigen therefore wrote to the applicant on 1 June 1998 advising him that his employment had been terminated. That letter was received by the applicant on or about 5 June 1998.

12. "Whilst we have some criticism of the respondent for failing to make this sufficiently clear to the applicant at the meeting on 1 June we find that the applicant knew that the purpose of the meeting was to consider the question of his continued employment and that his job was at risk.

13. "We also note that the final paragraph of the letter of 1 June stated that if there was anything in the letter which the applicant did not understand or did not agree with the applicant should contact Mr Craigen. The applicant did not though make any attempt to contact Mr Craigen, even though he was shortly afterwards advised of the date of his operation.

14. "We find that the reason for the termination of the applicant's employment was his continued absence from work following his accident in November 1997. That is a reason relating to the applicant's capability to do the work which he was employed to do.

15. "We reject the suggestion that he applicant was dismissed to make way for Mr Craigen's nephew.

16. "We accept that the applicant's continued absence from work was causing the respondent difficulties in the yard and that he needed to be replaced. The respondent had made reasonable enquiries of the applicant's doctor and while the doctor had advised that the applicant would ultimately be fully fit to resume his work no date for the applicant's operation was available following which the applicant would require 2 months in which to recuperate. Having regard to its size and administration sources, we find that the respondent acted reasonably within section 98(4) of the Employment Rights Act 1996 in treating this as a sufficient reason to terminate the applicant's employment. The applicant's claim of unfair dismissal is therefore dismissed.

17. "It is further noted, although this forms no part of our decision, that while the applicant had his operation on 22 June 1998 he remained on invalidity benefit, and was therefore unfit for work, until January 1999 when he was able to return to work."

7. Miss Wilson's principal submission was that in holding that the difficulties caused to an employer of this size by the continuing absence from work of its yard manager through his accident was: "A sufficient reason to terminate the applicant's employment." and from that drawing the conclusion that the respondent had acted reasonably within s.98 (4) of the Employment Rights Act 1996, the Tribunal had erred in failing to address the question of whether, although such a reason might be capable of being a reasonable ground in substance for bringing an employee's contract of employment to an end, the employer had actually carried out the process of dismissal in a reasonable manner, as it is required to do before a dismissal can be reasonable and fair within the terms of s.98 (4) of the Act. She referred us in particular to well established authority showing that the reasonableness of the process of the dismissal itself is a relevant consideration in determining whether the actual dismissal imposed on an employee has or has not been fair within s.98 (4). She further referred us to authority making clear that it is the duty of an employer in such circumstances, where an employee of theirs has been incapacitated through accident or injury and is hoping to return to work within a reasonable time to make its own enquiries as to the employee's state of health and likely ability to return to his duties; and also to consider whether reasonable arrangements can be made such as allowing the employee to return to work to lighter duties for some period, or what alternatives there may be to imposing the harsh penalty of immediate dismissal on an employee who has suffered such an accident in the course of his employment.
8. In particular, she referred us to the judgment of a division of this Appeal Tribunal in Mitchell v Arkwood Plastics (Engineering) Ltd [1993] ICR 472. 473B-F in which these points are clearly set out. As the judgment delivered by Judge Hargrove QC shows at page 473E it is a proper area which a Tribunal is required to consider whether before an immediate dismissal was imposed, there had been discussion between the employers and the employee on the question of whether alternative employment or some light work might be available. Even if an employer has reached the conclusion that "enough was enough", that is a matter of fact and degree, which is required to be addressed in the course of the decision of a Tribunal considering questions of whether the dismissal imposed has been reasonable. In addition, Miss Wilson submitted that the Tribunal's references in paragraph 13 and paragraph 17 of their reasons to matters after the dismissal letter of 1 June, in particular and the extended period while Mr Stockton had, in fact, subsequently remained on invalidity benefit, showed that the Tribunal might have allowed their minds, wrongly to have been affected by matters that were, on authority, irrelevant to the question of whether the dismissal imposed by the letter of 1 June had been fair or not, in the circumstances as they then stood.
9. Mr Lean, on the other hand, submitted that the basic question of whether a dismissal and the way it is carried out is reasonable or not in all the circumstances of the case is a question of fact and degree, which it is the proper province of the Employment Tribunal to determine. It is not for this appeal Tribunal to interfere with the decision of an Employment Tribunal on such factual issues, provided that it can be seen that the relevant matters were present to the minds of the Employment Tribunal, which Mr Lean submitted that they had been in this case. In particular he referred to the Tribunal's reliance on the relatively small size and administrative resources of this employer, and submitted that having regard to that, the Tribunal's actual conclusion in this case was reasonable and should be left to stand.
10. We have considered these arguments, but at the end of the day have concluded that the Tribunal did err in law in the way they dealt with the issue of reasonableness in this case, as recorded in their extended statement of reasons. In particular, having regard to the Tribunal's own express findings as to what had taken place, we consider that the Tribunal erred in particular in failing sufficiently to address the question of whether the respondents carried out a proper procedure of consultation and discussion with their employee, in this case, on ways of coping with the difficulties to which it is to be accepted his continuing absence from the yard were imposing on the business, before imposing the immediate dismissal on him which they did in the letter of 1 June 1998. That is not something that appears to have been addressed in paragraph 16 of the Tribunal's stated reasons at all. We refer in particular to the Tribunal's express finding in paragraph 10 of their stated reasons that dismissal was not mentioned in the course of the meeting of 1 June at all and that meeting had been only a brief one. It was at that meeting, if at all, that a proper discussion of the employer's concerns and an opportunity for Mr Stockton to deal with them so far as he could, (by making alternative suggestions, such as Miss Wilson suggested, the possibility that he could return earlier to his duties in the yard if he was given an apprentice or an assistant to help him with the heavy lifting) should have been gone into; and it appears clear from the Tribunal's findings that this never took place.
11. The facts were that the letters to which we have referred from the appellant's doctor had made clear that medically, his condition was going to be restored to full function so far as his duties in the yard were concerned, within a reasonably short space of time following his further operation. The letter inviting him to a meeting with Mr Craigen dated 22 May 1998 at page 2D had simply, on its face, invited him for a discussion about what was referred as his "future employment with the company" without making it at all clear that the employer had in mind bringing that future employment to an end, or making it any way clear what the specific difficulties were so as to give Mr Stockton an opportunity of considering and making his own suggestions for how they might be dealt with. When the meeting of 1 June 1998 actually took place, it was according to the Tribunal's findings, a brief one only. Again, as is clear from the Tribunal's findings, no discussion of the possibility of Mr Stockton's immediate dismissal, or of what alternatives there might be to this, took place at all. Mr Lean drew our attention to the terms of the letter of dismissal itself which in terms purported to "confirm" an intimation that the employer had no alternative but to terminate Mr Stockton's employment immediately. But that is inconsistent with the Tribunal's express finding that dismissal had not been mentioned at the meeting, and as Mr Lean, very fairly told us, the appellant's clear evidence to the Tribunal had been that he had not in any way understood himself to have been dismissed in the course of the meeting.
12. Thus, on the basis of the Tribunal's findings, there had been no discussion of the possibility of immediate dismissal at the meeting; and we think it apparent that there had been no meaningful discussion of what possible alternatives to dismissal there might be. Whether or not immediate dismissal was in the employer's mind prior to that meeting, the fact remains that on the Tribunal's findings, there was no adequate discussion of the employer's concerns, or of the apparent necessity of finding a replacement for Mr Stockton immediately, even though this had not apparently been an immediate necessity before. Such discussion did not take place prior to the meeting, nor did it do so in the course of the meeting, which was a brief one as recorded by the Tribunal, and as was conceded before us, one at which the employee did not have the advantage of any representation or assistance. Nor had he been supplied in advance with any specific indications of what the employers concerns were, as would have been only reasonable in the circumstances if immediate dismissal was in fact being contemplated.
13. Therefore, in our judgment the only reasonable conclusion having regard to the Tribunals actual findings was that no proper opportunity was ever given to the employee in this case to understand and deal with the employer's concerns and no proper indication was given that immediate dismissal was the only real option which the employer considered it had, or that this was what it had in mind. Mr Lean referred us to the size of the employer's undertaking, which we accept was not a large one with only some 13 employees; and the nature of this type of business means of course, that its administrative resources would be limited. However, we do not think that even in an operation of a relatively modest size and type, that an employer can be heard to say in circumstances such as these, that there is no duty even to raise the concerns it has, in a way enabling the employee to have a reasonable chance of dealing with them, enabling any possible ways of avoiding an immediate dismissal to be considered.
14. We have therefore concluded the Tribunal were wrong in holding that on the basis of its own findings this was a reasonable dismissal. We accordingly unanimously set aside their decision to that effect, (as stated in paragraph 2 of the statement of their actual decision on page 3 of the appeal file before us) and substitute on that issue, our own decision that by reason of the lack of a reasonable consultation prior to the imposition of immediate dismissal by the letter of 1 June 1998, the dismissal of Mr Stockton in the circumstances of this case was unfair under s.98(4) of the Employment Rights Act 1996. Having substituted our decision on that, we remit the case to the Tribunal for questions of remedy and any possible compensation due to Mr Stockton to be considered and determined. That consideration will of course, as was common ground before us, include consideration of whether the carrying out of a proper procedure in this case would have yielded any different result or would have resulted in any extended period of employment of Mr Stockton with the firm. But those are matters of fact and degree which come at the next stage of the consideration of an unfair dismissal case and follow the question of whether the dismissal was unfair or not.
15. On the basis of our decision on the major issue, we have not therefore found it necessary to express a separate conclusion on the extent to which the matters characterised by Miss Wilson as irrelevant in paragraphs 13 and 17, of the Tribunal's reasons did or did not play a determinative part in the Tribunal's conclusion. We record simply our acceptance of her submission that an applicant's failure to respond after a letter imposing a dismissal in unequivocal terms cannot of course make a difference to whether the imposition of that dismissal was itself fair or unfair on the part of the employer; and also that the subsequent medical history of this particular applicant and the extent to which he remained dependent on state invalidity benefit was likewise, of no relevance to that question. whether the actual dismissal and the way in which it was imposed on him was unfair.
16. For those reasons, this appeal is allowed and the case is remitted to the Tribunal for questions of remedy to be considered and determined.