United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR J R KODALI THE APPELLANT IN PERSON
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PROPHET:

1. Mr Blythyn worked as a Care Assistant at the Woodside Nursing Home in Skegness from March 1994 until October 2001. He was summarily dismissed from that employment on receipt of a letter from Dr Kodali dated 19 October 2001. He submitted a complaint of an unfair dismissal to the Nottingham Employment Tribunal which was resisted by the employer on the basis that Mr Blythyn had been fairly dismissed for gross misconduct.
2. At a hearing before an Employment Tribunal sitting at Boston on 23 August 2002 with Mr Walker as the Chairman and Mr McCracken and Mr Marston as the lay members, the unanimous decision was that Mr Blythyn was unfairly dismissed and compensation was awarded to him in the sum of £1,180.48. Although the letter of dismissal (referred to above) was signed by Dr Kodali as the Managing Partner, the Employment Tribunal found Dr Kodali to be the sole proprietor of the Nursing Home and accordingly to be the appropriate Respondent. Neither Mr Blythyn nor Dr Kodali were represented at the Employment Tribunal hearing.
3. Following a Notice of Appeal from Dr Kodali, there was a Preliminary Hearing at this Tribunal on 12 February 2003 before the President, Mr Justice Burton, sitting with Mr Crosby and Mrs Tinsley, where Dr Kodali was represented by Ms Chan of Counsel, under the Employment Law Appeal Advice Scheme. She was able to persuade that Tribunal that there was an arguable case to be considered at a full hearing before the Employment Appeal Tribunal and we are constituted today to conduct that full hearing.
4. We note from the order following that Preliminary Hearing that leave was given for the Notice of Appeal to be amended. That amended Notice of Appeal is in fact in the same form as Dr Kodali's Skeleton Argument.
5. Dr Kodali has appeared here today unrepresented, but we have the advantage of the Skeleton Argument and his further oral submissions to us to consider.
6. Mr Blythyn advised the Registrar that he did not intend to be present at the hearing today but would rely on a written submission. We have that written submission dated as having been received at this Tribunal on 2 April 2003.
7. There was no issue for the Employment Tribunal to deal with in respect of whether Mr Blythyn was dismissed from his employment. It was common ground that he was so dismissed. It follows that the next issue for the Employment Tribunal to have considered, as in any unfair dismissal case, was the reason for that dismissal. Again, it was apparent that the employers regarded that as Mr Blythyn's conduct and the letter of dismissal sets out briefly the events from 6 October 2001 to 16 October 2001 as seen by Dr Kodali as constituting that misconduct.
8. An important part of the allegations against Mr Blythyn was that he had left his post without warning and without seeking to obtain permission. Although the Employment Tribunal recognised, at paragraph 12 of their Reasons, that if he had done that it would be a serious matter (as it clearly would be where elderly persons are in care) they failed to make any findings of fact as to whether he did so or not.
9. The obvious shortcomings in the procedure for the dismissal of Mr Blythyn would inevitably lead to a finding of an unfair dismissal and in the appeal it is realistically accepted that the finding of unfair dismissal must stand.
10. However, by the Employment Tribunal's failure to make appropriate findings of fact as indicated in paragraph 8 above, they were in our view unable to deal properly with remedy, either by an appropriate application of the Polkey principles or, perhaps even more importantly, by consideration of contribution, the latter being not mentioned at all by the Employment Tribunal.
11. Accordingly, the appeal is allowed on remedy only. The case is remitted for re-hearing on remedy to the same Employment Tribunal. Dr Kodali argued that it should go to a different Tribunal but we think, on balance, that the same Employment Tribunal can appropriately deal with remedy, having regard to the indications given in this judgment.
12. The Employment Tribunal will need to make findings of fact on the appropriate matters outlined in the Notice of Appeal or Skeleton Argument. Having done so they will then be able to apply themselves to both the issues of Polkey and to contribution, and to any consequent reassessment of the compensation for Mr Blythyn.
13. It should be emphasised that we give no indication of whether or not, on completion of that exercise, there will be any adjustment to the amount of compensation, since that is dependent on the relevant findings of fact which are solely for the Employment Tribunal to determine.
14. As this will be a re-hearing by the Employment Tribunal albeit limited to remedy, the parties will be at liberty to provide evidence on any matter which is relevant to that, but the Tribunal will clearly be alert to having heard already from some witnesses and having made appropriate notes of what those witnesses said at the previous hearing.
15. On that basis, therefore, the appeal is allowed. As we usually add by way of postscript, if there is any difficulty in reconstituting the same Employment Tribunal, we would request the Regional Chairman at Nottingham to constitute an appropriate Employment Tribunal for the further consideration of this case, as indicated above.