United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS PELHAM (of Counsel) Instructed by: Messrs Lauristons Solicitors 84 Borough Road Middlesborough TS1 2PF


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of the employee's appeal against a Decision of the Employment Tribunal, sitting at Newcastle, chaired by Mr Burton, and promulgated with Extended Reasons on 13 September 2000. The employee, Mr Hambley, was employed from 1987 by the employers, who produced textiles for the shoe making industry, in the finishing department of the employers' factory, near Saltburn.
2. He was dismissed on 31 December 1999; the reasons for the dismissal related to his capability. He claimed unfair dismissal and disability discrimination. The latter claim was dismissed by the Tribunal, seemingly by consent, during the course of the hearing, and no further issue arises on it. The unfair dismissal claim proceeded and was held by the Tribunal to have failed.
3. The facts, for present purposes, can be very shortly stated. Mr Hambley was employed as a production operator. In his department were a number of machines. The Tribunal found that the operation of all involved lifting and handling significant weights.
4. In October 1998, Mr Hambley suffered an injury to his right elbow at work. He was off work, returned to work on light work in a different department, went off work again, and then came back and worked for three months or more, on a machine called a sueding machine in his own department.
5. He was then away again, returned to work in May, but had to be taken off that work because a local General Practitioner who provided the employers with occupational health advice saw Mr Hambley working at the sueding machine and was alarmed by what he saw in terms of Mr Hambley's injuries, and its effect on his ability to do the work Mr Hambley was taken off that work, a day later went off again, sick, and then came back and was on light duties, suffered another injury, went off work again in September, and never returned.
6. The Tribunal correctly directed itself that, in order to dismiss an employee for long term absence, the employer must, first of all, acquaint himself with all the relevant facts relating to the absences e.g the nature of the condition complained of, the likely prognosis, and the length of time it is going to take, before an employee can return to work effectively.
7. It further directed itself, in paragraph 13 of its Decision, that the third obligation upon an employer, before fairly dismissing an employee, is to consult with the employee; and the Tribunal said that it was in the area of consultation that the Tribunal had particular concerns in this case, having satisfied itself and found that the first two obligations which arise in a long term sickness dismissal, were to be resolved in the employers' favour. There was, in fact, no consultation, with the employee, as the Tribunal found, before he was dismissed on 1 October, at a meeting called for the purpose of dismissing him; there was no more than a perfunctory discussion.
8. The Tribunal found that the Respondents had failed to discharge their duty in respect of consultation; there had been discussions but not discussions to enable the employee to contribute, by way of consultation, to the decision that was ultimately to be made terminating his employment. The Tribunal then went on, however, to decide that consultation, to put it shortly, would have made no difference.
9. Various grounds of appeal are advanced in the Notice of Appeal in the employee's Skeleton Argument, but all of those have wisely been abandoned by Miss Pelham, who appears today, on behalf of the employee, save for the last two grounds, which go to the consultation issue alone. Putting it in very summary terms, what Miss Pelham submits is that it is only in very exceptional circumstances that the Tribunal can conclude that an absence of any consultation, at the stage to which we have referred, does not render the dismissal unfair.
10. Furthermore, she submits, having regard to what was said in the House of Lords in the very familiar case of Polkey v A E Dayton Services Ltd [1987] IRLR 503, it was an error of law for the Tribunal to express its own view as to whether or not consultation would have made any difference. It would have been open to the Tribunal to find that the employer had reasonably concluded that consultation would not have made any difference, but in this case, on the findings, it does not appear that the employer ever considered consultation; and in any event, the approach, which might have been a permissible one for the Tribunal, was, arguably, not that which the Tribunal adopted.
11. For those reasons we conclude that there is an arguable case here that the Tribunal's Decision, in relation to consultation, was in error of law, and that the points taken in the Notice of Appeal referable to consultation are points which should go to a full hearing.

An hour and a half, Category C. The ordinary Order that emerges from the preliminary hearing will set out when Skeletons are required from both parties.