United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBIN DAVIS (Solicitor) Messrs K E Davis & Sons Solicitors Warley CHambers Warley Road Hayes Middlesex UB4 0PU
For the Respondent	MR JONATHAN COHEN (of Counsel) Instructed by: Messrs Olswang Solicitors Apex Plaza Forbury Reading Berkshire RG1 1AX

SUMMARY

Employment Tribunal denied entitlement to full pay during notice period – see Section 88 Employment Rights Act 1996, also no basic award ordered following finding of unfair dismissal – appeal allowed in both respects and remitted for rehearing to new Employment Tribunal.


 


HIS HONOUR JUDGE PROPHET

1. This is a full hearing of an appeal by Mr Harte, arising out of a Decision by an Employment Tribunal sitting at Watford on 7 October 2003, under the chairmanship of Mr Willans, with Mr Howlett-Bolton and Mr Shah as the lay members. Mr Davis, a solicitor, represented the Claimant, Mr Harte, and the employer was represented by Mr Cohen of Counsel. At this appeal hearing today the representation is the same and we are indebted to both for the quality of their submissions to us.
2. The form of the Decision and Reasons from the Employment Tribunal is unusual in that there is no clear distinction between the Decision and the Reasons. It may be, for the future, that the Chairman, with the assistance of the Regional Chairman, might wish to consider generally the form of decisions. However for the purposes of this appeal we have extracted the relevant parts as being:

(1) that Mr Harte was not entitled to any basic award, notwithstanding that the Employment Tribunal found that he had been unfairly dismissed.

(2) that there had been no deduction from his wages, pursuant to Section 88 of the Employment Rights Act 1996.

3. The relevant facts, in brief, are that Mr Harte was employed as a warehouse supervisor from 1984. From May 2002 he was absent from work due to sickness. In early November 2002 he advised his employer that he wished to return to work on light duties, and had a doctor's certificate to that effect, but he did not have it with him. The employer, quite reasonably, wanted to see the medical certificate. The Employment Tribunal then indicate that there was a dispute of fact as to whether the employer at that stage advised Mr Harte that, in any event, there was no work for him to do. Unfortunately the Employment Tribunal failed to resolve that dispute of fact, and that appears to us to be a deficiency in setting out the relevant facts.
4. However, what followed then was that Mr Harte obtained a medical certificate from his doctor, signing him as being unfit for work for six weeks and on receipt of that the employer gave him notice of dismissal on the grounds of ill-health, but only paid him statutory sick-pay during the notice period. As we have mentioned already, the Employment Tribunal then found that that dismissal was unfair, but awarded neither a basic award nor any compensation.
5. Before the Employment Tribunal, Mr Harte submitted that he was entitled, by virtue of Section 88 of the Employment Rights Act 1996, to his full pay during the notice period, but the Employment Tribunal rejected that submission. The relevant part of the Reasons for doing that are to be found in paragraphs 31 and 32 of the Judgment. They read as follows:

"31. The Tribunal in considering the claim for unlawful deduction of wages were persuaded by the Respondent's arguments that the applicant fell within neither category of individuals that would otherwise have entitled him to receive notice money."

That appears to be a reference to Section 88 (1) (a) and Section 88 (1) (b) of the Employment Rights Act 1996. The Employment Tribunal go on as follows:

"32. This is based upon the way in which the Applicant presented his case. On the one hand he maintained that he was fit to return to work but in fact he cannot have been since he produced a further sick note from his general practitioner say that he was unfit to work, the same day. On the other hand he maintained that he had only obtained the sick note so as to enable him to apply for benefit and in fact he was actually fit to return to work, so clearly on his own evidence he was not incapacitated. In the view of the Tribunal, therefore, that claim failed."

6. Despite Mr Cohen's urgent attempts to persuade us to the contrary, it is our view that that is not a satisfactory way of deciding that matter. What the Tribunal would have to do, particularly in regard to Section 88 (1) (b), was to make a finding itself as to whether the employee was or was not incapable of work under his contract of employment (ie as a warehouse supervisor) because of sickness or injury, and in our view they did not do that. In reaching a conclusion on that matter they would have been obliged to give some consideration to the medical certificate and to have borne in mind that the doctor would have had a professional duty in indicating whether or not the Applicant was or was not sick, in addition to considering what it was that Mr Harte was saying in respect of his approach in obtaining the sick note.
7. Consequently it is our view that the Employment Tribunal's conclusion in respect of the Section 88 point is not satisfactory and we will allow the appeal on that matter.
8. Turning now to the matter relating to the failure to award any basic award, we are puzzled by the Employment Tribunal entering into the area of illegality. The matter here is dealt with at paragraph 37 of the Judgment as follows:

"37. There was still the broader point argued by the Respondents that it was contrary to public policy to award any compensation at all in a case of this kind. The Applicant's case, as advanced before the Tribunal made it plain that his conduct in obtaining a sick note simply so that he could claim benefit so tainted his claim of illegality that he was not entitled to any compensation at all."

And at paragraph 41:

"41. Further the Tribunal accepted the Respondent's arguments that there is a matter of public policy, it was not right to award any compensation at all in the circumstances of this particular case, the contract being so tainted with illegality because of the Applicant's conduct."

We assume that the Employment Tribunal was there referring to the contract of employment, but if that was the case, as Mr Davis has said, it is difficult to see how the Employment Tribunal could have made any findings of any rights at all for the employee if the contract was illegal.

9. Mr Cohen has attempted to say that there is an overriding point here by which the Tribunal could have regarded what the Tribunal found was the approach by the employee to obtaining the sick note from his doctor as justifying a finding of illegality, but we have considerable doubts as to whether there could be any support for such a finding. However, be that as it may, the problem, we think, is that there was no satisfactory reasoning by the Tribunal to arrive at that conclusion.
10. In general terms, a basic award would usually be the minimum award consequent upon a finding of unfair dismissal, and if there was going to be any reduction on that basic award the normal approach would be to consider the matter under one of the sections in the Employment Rights Act. In this particular case Mr Cohen has conceded to us that there was no submission made to the Employment Tribunal under Section 122 (2), but the matter fell to be considered under Section 122 (1) because there was, subsequent to the ending of Mr Harte's employment, an offer made to him of reinstatement.
11. That matter is dealt with quite shortly by the Tribunal at paragraph 38, where they say this:

"38. The Tribunal were reminded that they had an overriding discretion when it came to compensatory awards and further reminded that in relation to the basic award the Employment Rights Act 1996 Section 122(1) was relevant because the Respondents had offered to reinstate the Applicant and his failure to take up that offer should have the effect of reducing any basic award to which he might otherwise be entitled."

Again, however, we are satisfied that that is not a satisfactory way of dealing with this matter. What Section 122 requires is that if there is an offer of that kind, the Tribunal has to make a finding as to whether the Claimant unreasonably refused the offer by the employer, and there is no such finding in the Employment Tribunal's Reasons.

12. Furthermore there is no clear indication about the timing of the offer and the matters that followed that offer and it is really necessary, we feel, for that matter, amongst others, to be properly considered before a satisfactory judgment can given on the issue of whether or not Mr Harte was or was not entitled to a basic award.
13. On all the above matters, therefore, our conclusion is that this Judgment by the Employment Tribunal is not safe and that the only proper way of resolving these issues satisfactorily is for the appeal to be allowed and these matters remitted for complete rehearing to a differently constituted Employment Tribunal. We so Order.