United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MS R CHAMBERS (of Counsel) Instructed by: Messrs Mayo & Perkins Solicitors 20 Gildredge Road Eastbourne East Sussex BN21 4RP


 


SUMMARY

Unfair Dismissal – Reinstatement/re-engagement

No appearance by Appellant but the EAT had the advantage of a Skeleton Argument. There was a manifest error in the decision in that the ET had awarded sum for failure to furnish particulars of employment. The Claimant had not worked for sufficient time to invoke that protection. All other aspects of the Appeal were dismissed.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal by RKS Services from a decision of the Employment Tribunal sitting at Ashford in Kent, in which they ordered the Respondent's company, the Appellant in this matter, to pay in total the sum of £4,395. It is right to say that we have received a letter from RKS Service's Solicitors to say they are without instructions and no longer acting. No-one from the Respondents has appeared. It is now well past the time, making all due allowance for travelling difficulties they should be here, and we have proceeded to hear this appeal.
2. We have the benefit of a Skeleton Argument, drafted by Mr Ivan Hare from Blackstone Chambers, and we have also had the benefit, not only of a Skeleton Argument, but the appearance by Ms Rachel Chambers, who is in a well-known employment set of chambers. We have a certain sympathy for the Tribunal that they did not have the benefit, as we have had, of such able representation. We note that this is a case in which Mr Palen was appointed as a deliver and collection driver on a salary of some £350 per week.
3. The interview took place in homely terms in that it took place in a public house, and Miss Hall, the Claimant's partner, was also there. Mr Sage, who interviewed the Claimant, had his partner, Miss Swatridge, there. During the course of that interview Miss Hall, the Claimant's partner, made reference to her medical condition. Salary was later agreed (£350) and the Claimant started work in September of 2005. He never received any particulars of employment even though, on the Tribunal's finding, he asked for one to be provided. There was no authority given to deduct any sum from his wages.
4. On 13 September 2005 the Claimant's partner was taken ill and was taken to hospital by ambulance. She contacted the Claimant by telephone at 9.30 to tell him what had happened, and the Claimant then contacted Mr Sage, his boss, and asked for time off. Mr Sage told him to stay in the depot until he arrived. Mr Sage and Miss Swatridge had arrived about an hour and a half later and they asked the Claimant how often his partner had to go to hospital or to see doctors. The Claimant told the Tribunal this questioning went on for about 20 minutes. They then pointed to a slight dent in the tailgate of the van. Then they told the Claimant to go to hospital. The Claimant's partner was released from the hospital around midday, and the Claimant stayed at home with her for the rest of the day. The finding of the Tribunal was that the Claimant was not suspended on that day, as alleged by the Respondents.
5. The Following day, 14 September 2005, Mr Palen returned to work to be told by Mr Sage his employment was terminated due to the fact they were such a small company and they could not afford incidents such as happened on the previous day, when the Claimant had gone off to hospital to see his partner. He was not, on the findings of the Tribunal, told that he would be dismissed for damaging a vehicle, neither was he told that money would be deducted from his salary to pay for the damage. The Claimant was told he would receive a cheque on 16 September for the work he had carried out. The Claimant did not receive his wages as promised, and he wrote by letter requesting his salary to be paid.
6. On 15 October 2005 the Claimant received a letter from the Respondents, dated 26 September. This letter informed the Claimant he had been dismissed for gross misconduct due to "careless damage to our company property on Monday 12 September by yourself". The letter went on to state that, "our investigations at the depot left us with no alternative but to dismiss you". In that letter they said that he was due a gross pay of £206. The Claimant responded to that letter, by a letter dated 17 October.
7. The law is set out by the Tribunal as to section 57A(1) of the Employment Rights Act 1996 of taking reasonable time off during the employee's working hours to take action which is necessary to provide assistance when a dependant falls ill, gives birth, or is injured or assaulted.
8. The Tribunal decided a number of matters. They decided that there had been an unlawful deduction of salary. They decided that there was certain sum due in respect of holiday pay. They also decided that, the Respondent's having admitted they failed to provide the Claimant with particulars of employment and they made a sum of compensation of two week's pay at £280 of £560.
9. It is accepted by the Respondent the Tribunal plainly did not have power to do that. Mr Palen had not been employed for two months and section 1 of the Employment Rights Act does provide that not later then two months, and in those circumstances from the sum of the Tribunal award of £4,395 we deduct the sum of £560. As we say, the Respondents were most ably represented and in effect, it is conceded that that is a well founded ground of appeal.
10. The grounds of appeal centred on what they say is the failure of the Tribunal to deal adequately with the provisions of section 57A, citing such cases as Qua v John Ford Morrison Solicitors [2003] IRLR 184, and Moore v Macculloch and Wallis Ltd [2003] All ER (D) 33. It is true that the Tribunal does not cite the case of Qua and set out the relevant questions in a way that the guidelines in Qua suggest. The point is made in the Appellant's submissions that the Tribunal failed to address the question of whether the amount of time taken off was reasonable under the circumstances. It is true the Tribunal does not cite authority, but neither side were professionally represented. There is a long stream of authority in cases such as Bailey v BP Oil Kent Refinery Ltd [1980] IRLR 287, Thomas and Betts Manufacturing Co Ltd v Harding [1980] IRLR255, Anandarajah v Lord Chancellor's Department [1984] IRLR 131, and more recently Wilson v Ethicon Ltd [2000] IRLR 4 that it is not an error of law not to follow guidelines.
11. Quite simply it would have been better if the Tribunal had followed the guidelines and set them out but the failure if not in itself an error of law in the context of this case. The Tribunal concluded, as it was entitled to do, that the Respondent, Mr Palen, took time off due to his partner's illness. She was taken ill and was taken to hospital by ambulance. She fell ill and her illness required immediate attendance at a hospital. There is no suggestion that, on the evidence in the Tribunal decision, that Miss Hall was suffering from an underlying medical condition, which was likely to suffer regular relapses, and therefore outside the remit of section 57A on the guidelines in paragraph 21 of the Qua case. As to whether it was necessary for the Respondent to provide assistance, the Respondent to the appeal had to go to hospital according to the Tribunal's decision. It was not disputed by the Appellant at the Employment Tribunal it was necessary for the Respondent to go.
12. In plain words we find no problem in saying that the Tribunal could, on the facts open to it, come to the conclusion, that this was a case to which the Act applied. The undisputed evidence was that Miss Hall was suffering from chest pains, and coming home would obviously need care of someone at that time. The Tribunal did not need to spell it out, and we think that their decision, like most decisions, including those of this appeal, could have been improved. We consider that the Tribunal noted the salient fact that Miss Hall was taken to hospital by ambulance and obviously did not think it relevant that the matter could have been dealt with by her GP, as is now contended, not.
13. It is right to say the Tribunal did not explicitly say that Mr Palen had complied with the requirement of telling the Appellant how long he expected to be absent. There is no obligation to the Tribunal to set out each and every aspect of a statutory test. And we consider that in all the circumstances the Tribunal have set out that the time spent was reasonable and that the other matters of the act were complied with.
14. The Tribunal's reasons make it clear the Respondent was dismissed, not only for taking time off due to the illness of his dependent, but he might take time off in the future: page 10 at paragraph 8.5. This conclusion rests of the finding of fact that Mr Palen's employment was terminated due to the fact that they were a small company and they could not afford incidents such as happened on the previous day, when the Claimant had had to go to hospital: see page 6 at paragraph 4.7. The Tribunal accepted that the Respondent was informed that he was dismissed due to his partner's illness as they had no way of covering his work while he was away. It is, in our view, sufficient reasoning to justify the findings the Tribunal made, that this was an unfair dismissal. The Tribunal made the determination he was dismissed for the fact he may need to take time off in the future and thus he was dismissed for a reason related to the right to take time off under section 57(A).
15. The Appellant seeks to argue that the Employment Tribunal applied an uplift of 30% to the compensatory award because of the employer's failure to follow either disciplinary or grievance process. It should be inferred that the uplift applied for each failure, rather than a global uplift. The addition of the word grievance is something of an error because really this was for breaching the disciplinary process. We find no problem in saying that, whilst it could be a matter that could have been better expressed, the uplift of 30% was an exercise of the Tribunal's discretion under section 31(3) of the Act. They could in fact have gone higher. No doubt they took into consideration the seriousness of the failure to comply; there was no disciplinary procedure whatever and the fact that had the employers given Mr Palen the opportunity to defend himself he might be able to save his job. This was a fundamental failure rather than a less serious failure of disciplinary procedure. We consider in all the circumstances that, whilst the matter could have been better expressed, this was a matter within the discretion of the Tribunal.
16. So, putting the matter in this way, we consider, for the reasons we have given, that the appeal should be allowed in respect of the award for failure to provide written reasons, which was a clear error of law. We have considered all submissions made on behalf of the Appellant. We dismiss the other grounds of appeal. The decision will therefore be varied to reduce the amount payable to the sum of £3,835.