United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr B Napier, Queen's Counsel Instructed by- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT
For the Respondents	Mr I D Truscott, Queen's Counsel Instructed by- Central Legal Office Trinity Park House South Trinity Road EDINBURGH EH5 3SE


 


LORD JOHNSTON:

1. In this appeal both parties raise separate issues. The appellant employee has appealed against a decision of the Employment Tribunal sitting in Glasgow in respect of one aspect of its findings with regard to compensation, particularly, that of future loss. The respondent employer has cross-appealed on the substance of the matter and we will deal with that issue first, since it obviously will bear upon the other in terms of procedure before this Tribunal.
2. The background to the matter is that the appellant was employed for a considerable number of years as a nurse with the respondents. Her employment was terminated in January 1999 on grounds of capability or lack of it. The background to the matter was ill-health with regard to the appellant, who appears to have suffered, both from back trouble and also angina. During the time of her employment she had been employed predominantly on the night shift which issue was at the core of the case.
3. Having heard 7 days of evidence, the Tribunal issued the following certificate of credibility as far as the appellant was concerned, on page 3 of the judgment as follows:-

"At times, we found the applicant difficult to follow. She had a considerable tendency to embroider her responses, and she also attempted to answer what she conceived to be the next question on a number of occasions. On several occasions, she had to be told by the chairman to stick to the point. We found her generally credible, to the extent that she believed that what she was saying was the truth. Assessment of reliability was more difficult, particularly where there was clearly a degree of exaggeration. At what point exaggeration departs from the truth is sometimes very difficult to assess. Taking an overall view of her evidence, we came to the conclusion that the applicant would not tell an outright lie, but would not be averse to embellishing her version of events to her advantage to such an extent that the truth was being seriously challenged."

4. Mr Truscott, Q.C., appearing for the respondents, categorised that the certificate, so called, has effectively, branding the appellant as an unreliable, if not untruthful witness, and he submitted that the essential factual issues should be looked at against a background of the credibility, or lack of it, of the appellant.
5. The appellant succeeded before the Employment Tribunal in relation to disability discrimination under section 6 with regard to reasonable adjustments, in particular, a failure on the part of the appellant properly to justify why she should not return to the night shift. She also succeeded in relation to unfair dismissal by reason of the Tribunal concluding that the employer did not place sufficient evidence before it to warrant a refusal to place the appellant on the night shift for financial reasons. We have to say in passing that we are not sure what test the Tribunal was applying in this context with regard to the reasonableness of the dismissal but we will leave that matter as its stands.
6. Fundamentally, Mr Truscott relied upon the contradictory findings, or, indeed, the lack of finding of the appellant's credibility, particularly with regard to a meeting which was held in September 1998 which, effectively, initiated the dismissal process. The Tribunal deal with the matter on pages 5, 6 and 7 of their decision.
7. Before us, Mr Truscott informed us, that in her evidence-in-chief, the appellant had maintained that she was not fit to return to duties, while in answer to him, she said that she was. This, he submitted, was a fundamental crisis of credibility which was required to be resolved by the Tribunal and that they had not. The only finding they make in this respect is on page 6, where they say:-

"Even if permanent night shift was available, the applicant was still not in a position to say when she might return."

8. Mr Truscott submitted that the failure on the part of the Tribunal to resolve this question of credibility with regard to fitness, or lack of it, to return to work, fatally undermined the whole decision, not least in the context of whether it was reasonable to expect the employer to make any adjustments in respect of a person who was not telling the truth.
9. Mr Napier, Q.C., for the appellant, in response to this argument, submitted that it was not incumbent upon the Tribunal to resolve the matter in the way suggested by Mr Truscott. They had properly examined the evidence and they were entitled to conclude the matter on the basis that they have adopted.
10. We have to say that we have found the approach of the Tribunal thoroughly unsatisfactory. We consider that there is much force in the submission by Mr Truscott that the credibility issue, with regard to fitness to return to work at the time of the September meeting, is fundamental and it is impossible to conclude whether or not a failure to make reasonable adjustments, or, indeed, to embark upon any further medical investigation, was justified or necessary in the absence of a finding one way or the other. According to what finding might be made, the attitude of the employer might have been different. If she was not fit to return to work, there was no question of a reasonable adjustment arising. If she was, then there was equally no reason to make an adjustment because she was so fit, save on the question of whether the employer wished her to work on the night shift. That point, however, in our view, does not arise until such times as the credibility issue has been resolved.
11. In these circumstances we are driven reluctantly to the view that the Tribunal have not properly addressed the issue that was focussed before it and have left an evidential gap which fundamentally flaws the whole approach when it comes to the decision, in both regards, to the disability discrimination and reasonable dismissal. We are not in a position to make a substitute finding and, therefore, it is the inevitable consequence of this conclusion that the Tribunal's findings cannot stand and the matter will have to be remitted to a fresh Tribunal for a full rehearing.
12. That being so, the issue raised by Mr Napier in his appeal with regard to future loss, can be subsumed into the same hearing. However, suffice it to say that if we had been satisfied that this was the only live issue, we are equally satisfied the Tribunal have not properly addressed the issue of future loss, and, indeed, do not seem to have made adequate findings of fact in that respect. If, therefore, we are going to deal with this matter alone, we would have adjourned this appeal in order that the matter could be remitted back to the same Tribunal for clarification on the issue of future loss.
13. However, that step is now not necessary, in view of the decision we have taken in the cross-appeal.
14. In these circumstances, for this limited reason but fundamental to the whole case, this appeal will be allowed, the findings of the Tribunal quashed and the case remitted to a fresh Tribunal for a new hearing.
15. It is singularly unfortunate that a Review was refused in this case. It probably would have settled the current issue. We commend this procedure in cases such as this when limited issues are raised on appeal capable of being resolved by reconsideration.