United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P WOODHOUSE (Solicitor) Instructed by: Messrs Bond Pearce Solicitors Oceana House 39-49 Commercial Road Southampton SO15 1GA


 


HIS HONOUR JUDGE D SEROTA QC

1. This is an appeal by the Respondent from a decision of the Employment Tribunal at Southampton, promulgated on 11 March 2003. Mr D J Teagle was the Chairman of the Tribunal. On that occasion the Employment Tribunal found that the Applicant had been discriminated against on the grounds of disability. He was awarded compensation of £37,061.87. He was found to have been wrongfully dismissed and lost his notice pay and there was therefore a further entitlement to £1,019.05. Previously his claim for unfair dismissal had been dismissed, we think on 27 November 2002, because he lacked the qualifying period of service.
2. Mr Wilson has the misfortune to suffer from osteoarthritis, obviously quite severe osteoarthritis. It was common ground that he was disabled and it was also common ground that disability was a factor in his dismissal. The Respondent indeed made a formal admission of discrimination against the Applicant under section 5 (2) of the Act in that the Respondent failed to comply with its duty under section 6 (1).
3. The Applicant was a lorry driver, driving heavy goods vehicles. He had previously worked for the Respondent and returned to work as a probationer on 10 December 2001. As a probationer, during the probationary period of six months, he was entitled to one week's notice; but once he had ceased to be a probationer he was entitled to four week's notice. The probation period was never extended formally. He was dismissed, however, on the basis that he was still a probationer. That is the basis of the four week's award which we have mentioned.
4. On 3 July 2002 he was asked to undertake work on a rigid vehicle. He was unable to work at ground level and he explained this and his work was rescheduled and he was sent home and instructed to see his general practitioner. He was then suspended pending examination by the Respondent's doctor who signed him fit for work but he was not permitted to return to work and he then received a letter of termination dated 1 August (the letter was received on 7 August) and 1 August was the date of dismissal. The letter does not refer to his disability in any way and was based upon an assumption, the falsity of which has not been challenged before us, that he was still on his probationary period and therefore could be dismissed on seven day's notice.
5. Mr Wilson commenced these proceedings and a questionnaire was served upon the Respondent; and the Respondent then said it would revisit the situation and propose to reinstate him. There is a letter of 2 October 2002 in which they state they will reinstate Mr Wilson; but the letter, as the Employment Tribunal noted, gave no indication as to what job he would be offered and as to how his disability would be recognised. The letter of 2 October was followed up at a meeting on 8 October and a further letter on 9 October. Reinstatement was again offered but in a very unspecific way. We note that the Respondent maintains, at a directions hearing on 27 November, a further offer of reinstatement was made.
6. Furthermore, and we think this is relevant, when Mr Wilson was dismissed he needed to support himself and he therefore went down to the job centre with a view to seeking Job Seekers Allowance. He obviously had considerable difficulties in that regard and subsequently learned that Mr Catford, a manager at the Respondent, had completed forms sent out by the Job Centre in which Mr Catford had stated that the Respondent believed he was capable of doing his job, that he was a thief, that the quality of his work was poor and that he was dismissed at the end of his probationary period.
7. The Employment Tribunal are, understandably, highly critical of Mr Catford's conduct in this regard and did not regard his conduct as being acceptable, nor did they regard his explanation for failing to acquaint the Job Centre with the true position concerning Mr Wilson's leaving the Respondent as being at all satisfactory.
8. The Employment Tribunal, in paragraph 10, came to the conclusion that the offer of reinstatement was not one which could be reasonably accepted. After leaving employment with the advice of the Employment Service, the Applicant decided to retrain. The Employment Tribunal came to the conclusion that his decision was not unreasonable and that therefore the period that he was out of work, for which he was entitled to be compensated, included the training period.
9. Finally, the Employment Tribunal came to the conclusion, having considered the guidance of the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, that the compensation that Mr Wilson should receive for injury to his feelings fell into the middle bracket and awarded him £7,500. The Respondent appeals against that decision.
10. We must say that we are extremely grateful to Mr Woodhouse, who has appeared on behalf of the Respondent, for his helpful Skeleton Argument and his submissions, and we feel that he has said everything that can properly be said in support of this appeal.
11. The first ground of appeal is that the decision of the Employment Tribunal to the effect that the Applicant could not reasonably be expected to accept the offer of reinstatement was perverse.
12. We bear in mind, firstly, that when an Employment Tribunal gives its decision it cannot be expected to cross every 't' and dot every 'i'. It needs, obviously, to set out its factual findings and its reasoning sufficiently to explain to the parties why it has come to the decision it has and also to enable an appellate court to see whether or not there has been an error of law. Perversity is an extremely high hurdle to surmount where there is material evidence that might justify the decision that has been come to.
13. Although the case was not referred to specifically by Mr Woodhouse, Mr Woodhouse is obviously aware of the decision of Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 and so we need say nothing more about it. He referred us to the decision of Wilding v British Telecommunications Plc [2002] EWCA Civ 349 and submits that the Employment Tribunal in this case fell into error in that it should have asked itself whether an offer had been made before going on to consider whether it was reasonable to reject the offer. He submits that it was quite clear that an offer was made and suggests that this was not found to be the case by the Employment Tribunal.
14. We are unable to agree with this submission. It is quite clear that the Employment Tribunal was satisfied that an offer had been made; but it was an offer that was wholly unsatisfactory and there was ample material upon which the Employment Tribunal were entitled to find that it was reasonable to reject the offer. The Employment Tribunal clearly found that the offer was unspecific, as we have noted, and furthermore that having regard to the conduct of Mr Catford it was by no means unreasonable for the Respondent to have come to the conclusion that the offer was not necessarily made in good faith.
15. So far as the second ground of appeal is concerned, Mr Woodhouse submits that the finding that it was reasonable for the Applicant to retrain was wrong in law and perverse. He drew our attention to the decision of the Employment Appeal Tribunal sitting in Scotland in Simrad Ltd v Scott [1997] IRLR 149 which refers to a three-stage test; that three-stage test requiring factual quantification of losses claimed. Secondly,

6 "…the extent to which any or all of those losses are attributable to the dismissal or action taken by the employer, which is usually the same thing…there has to be a direct and natural link between the losses claimed and the conduct of the employer …"

and then the third part of the assessment is whether it is reasonable to make the relevant award.

16. It was submitted by Mr Woodhouse that the Employment Tribunal in this case had made no attempt to assess the causatory link and had conflated causation with reasonableness. We are not able to accept that submission. In our opinion, reading the award as a whole, it is quite clear that the Employment Tribunal came to the conclusion that there was a direct causatory link between the decision to retrain and the termination of his employment.
17. The Employment Tribunal make specific reference to the attempts Mr Wilson made through the Job Centre to find other employment and to the advice he had received from the Employment Service to the effect that he needed better qualifications if he was to obtain a satisfactory job other than heavy goods vehicle driving or another job that required him to undertake manual work which was inappropriate to him given the nature of his disability.
18. It seems to us, therefore, that it is impossible to say that this decision was either wrong in law or perverse.
19. It is then said that compensation was excessive. It is right to say that the Employment Tribunal, having considered the Vento case, dealt with compensation in this way:

15 "The Tribunal has come to the conclusion the injury to feelings suffered by the Applicant was not at the highest level but equally it was not trivial or inconsequential. We consider that the injury to feelings should be placed in the middle band nearer the bottom than the top of the scale; we place the compensation for injury to feelings at £7,500.00."

20. In our view this part of the decision is certainly justified by the evidence in the case, that entitled the Employment Tribunal to conclude that the appropriate band was within the middle of the three bands suggested by the Court of Appeal in Vento. It is submitted that the Employment Tribunal somehow misdirected itself in that it simply placed the compensation in the middle band because the injury to feelings was neither trivial nor inconsequential nor at the top end of the scale.
21. We do not believe that is a fair reading of what the Employment Tribunal said and it seems to us that there was ample justification for the Employment Tribunal coming to the conclusion it did. We draw attention to the fact that the Applicant had been dismissed in a discriminatory way. The Respondent's manner of his dismissal was far from perfect. No attempt was made to set out the correct reasons. He was offered re-employment in a way that the Employment Tribunal concluded was reasonable for him to refuse to accept. Furthermore, one has the way in which Mr Catford approached the matter of the termination of his employment with the Job Centre and Employment Service.
22. It seems to us, therefore, that there is no arguable point in this ground.
23. So far as the fourth ground is concerned, on the authority of the decision in Gbaja-Biamila v DHL International (UK) Ltd (EAT/1224/98) Mr Woodhouse submits that the Employment Tribunal wrongly focused on the Respondent's conduct rather than the injury to the Applicant. In our opinion, having read the decision of the Employment Tribunal, this is not a fair criticism and the Employment Tribunal clearly dealt with the matter on the basis of the injury to Mr Wilson's feelings and we refer to paragraph 15 of the decision.
24. In the event, we are satisfied that none of the four grounds advanced eloquently by Mr Woodhouse raises an arguable point of law. There is no prospect of this appeal succeeding and in the circumstances we therefore dismiss it.