United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr I Maccabe (of Counsel) Instructed by: Moorhead James Solicitors Kildare House 3 Dorset Rise London EC4Y 8EN
For the Respondent	Mr S Heath (of Counsel) Instructed by: Lewisham Law Centre 28 Deptford High Street London SE8 4AF


 


SUMMARY

Unfair dismissal – Mitigation of loss

The Claimant was dismissed for ill health; he had suffered a slipped disc. The T found that the dismissal was unfair. The Respondent; appeal was allowed because of a series of flaws in the Tribunal's reasoning. No point of principle arises. Remitted for rehearing by a fresh Tribunal.


 


HIS HONOUR JUDGE BURKE QC

The appeal

1. This is the appeal of the Respondents before the Employment Tribunal, South East London and Kent Bus Co Ltd (whom we shall call "SELKENT") against the judgment of the Tribunal, sitting at London (South), chaired by Ms Amin and sent to the parties with written reasons on 4 January 2007. By that judgment the Tribunal found that the Claimant, Mr Kirmizi, had been unfairly dismissed.

The facts

2. Mr Kirmizi was employed by SELKENT as a bus driver from September 1998 until his employment was terminated on 5 May 2006. He was off work through illness for some time in 2005; on his return he was put on light duties; but in January 2006 he sustained a slipped disc, went off work and did not return to work before his eventual dismissal. He also suffered concurrently from arthritis. On 13 March 2006 Mr Kirmizi was referred to SELKENT's occupational health service who reported as follows to Ms Hannan, SELKENT's general manager:

"Conclusion & Recommendations:

This is a common problem in overweight middle-aged people who have a sedentary job and take little exercise.

Recovery is a long-term process and prevention of further problems requires lifestyle modification. For this reason the prognosis is guarded.

Addressing your specific questions:

He will recover over a period of months rather than weeks.

His future health and reliability depend on his ability to modify his lifestyle in order to remain fit and well; as well as on the success of treating this episode. Undertaking other duties is difficult to predict without some knowledge of what is available. In theory, a semi-sedentary post would be useful in the short term.

Driving an automatic vehicle with power steering is not arduous and the only way it would aggravate his back pain is by requiring him to sit still for long periods, whereas the key to managing this type of back problems is to get the patient mobile and keep them moving.

He could undertake any form of employment which allows him to sit for brief periods and get up and move around at regular intervals. It is often helpful to arrange for people to attend the work-place regularly rather than sitting around at home getting bored.

I would not recommend a medical dismissal at this stage because the treatment options have not been explored and this is a condition which generally requires protracted treatment.

His symptoms have not lasted 12 months and so there is no need to invoke the DDA at this stage. His condition should be kept under regular review.

Should you require anything further, please do not hesitate to contact me.

Yours sincerely

Dr Susannah Kahtan MAHons (Oxon) MRCS (Eng) LRCP (Lond)"

3. That report was requested by SELKENT after a sickness review meeting between Ms Hannan and Mr Kirmizi on 9 March. There was a further such meeting on 21 March with Mr Davis, SELKENT's assistant operations manager; he sought further advice and, in particular, answers to specific questions from the occupational health service; on 28 March the occupational health service responded as follows:

"To answer your specific queries:

i) He is not currently fit to drive a bus for up to an hour with 5-15 minutes between journeys. This is partly due to his leg pain and partly due to the sedative side effects of his medication.

ii) The timescale is, as you know, not going to be short. He appears to have a genuine sciatica and is not even going to see an orthopaedic surgeon until ₅1h May 2006.

iii) He will, in my opinion, be unfit to drive a bus for several months. You ask when it would be appropriate to consider medical dismissal. While aware of the constraints of a business environment, I would normally suggest that an employer should allow six months for recovery from an acute sciatica. This time window allows recovery in a significant proportion of cases, and the employer is seen to be acting with circumspection.

iv) I have asked him to inform DVLA as it is likely his condition will last more than three months. it is highly unlikely that his PCV licence will be revoked but he may need to pass a medical before resuming.

v) His symptoms would have to last 12 months before the DDA can be invoked. Reasonable adjustments would include, for instance, allowing guaranteed breaks between journeys and allowing part-time work.

4. Having received that report, Mr Davis met Mr Kirmizi and his Trade Union Representative again on 31 March. The Tribunal found, in paragraph 26, that Mr Kirmizi was informed that, as there was no resumption date given in the two reports from the occupational health service and given his limited recovery – for Mr Kirmizi was indicating that he could not do any work – SELKENT were not in a position to extend his sick leave indefinitely.
5. A further meeting on 7 April was adjourned in order to await the outcome of Mr Kirmizi's appointment with an orthopaedic consultant on 5 May. Mr Kirmizi was given a questionnaire to put to the consultant on that occasion and told that, without the completed questionnaire or further evidence, a decision would have to be made as to his future employment and that, if there was no indication of a return to work at the next meeting, arranged for the afternoon of 5 May, he might be dismissed.
6. At that meeting with his consultant Mr Kirmizi was told that he had a slipped disc and that he needed surgery; he was told that he would receive a letter as to the proposed date for surgery; but none was ever received. He was also told that his recovery would take 6 weeks after surgery. Mr Kirmizi did not ask the consultant to complete the questionnaire.
7. Later that day Mr Kirmizi and his Trade Union Representative met Ms Hannan (not Mr Davis as the Tribunal mistakenly said in paragraph 30 of their judgment). Although the Tribunal made no findings about this, we were told, without objection, that the questionnaire was completed by Ms Hannan on information from Mr Kirmizi; and we can see that it was indeed completed. It set out that Mr Kirmizi was to undergo surgery, that when that surgery would take place was unknown, that Mr Kirmizi would require a period of 6 weeks minimum for post-operative recovery and that he was unfit for any work. Ms Hannan adjourned the meeting to consult the occupational health advisors again; they advised that the planned treatment could not be done in-house and that at least 8 weeks would be required for post-surgical recovery. Having received that advice Ms Hannan decided to terminate Mr Kirmizi's employment. In the dismissal letter dated 11 May 2006 she recorded that Mr Kirmizi had, at the meeting on 5 May, confirmed that he was unable to do any other work.
8. At paragraph 30 of their judgment the Tribunal mistakenly identified Mr Davis as the manager who conducted the meeting on 5 May with Mr Kirmizi and his Trade Union Representative and made the decision to dismiss. It is agreed that it was in fact Ms Hannan, who did give evidence to the Tribunal, rather than Mr Davis, who did not. This mistake is, of course, not one of law; but we can understand SELKENT's concern.
9. Mr Kirmizi appealed against his dismissal. The appeal was heard by Mr Beckham, Operations Director, on 22 May. On the same day, Mr Beckham wrote a lengthy letter to Mr Kirmizi in which he set out the history and continued:

"In response to my questions you told me that you saw the specialist on the 5^th May where you said the decision to operate was explained to you as 100% necessary. You told me that you asked when this would be done and the consultant said it could be 1 month or 12 months, he couldn't say.

You told me that the recovery from this type of operation was 6 - 8 weeks to be back bus driving. You told me that physiotherapy had been stopped because it was not felt to be a benefit to you. Mr Richards felt your case had been progressed too quickly and said that you would be willing to undertake alternative work.

I explained in some detail the difference between permanent and temporary alternative employment. I feel staff should be aware of the difference and when they are likely to be applied.

In summary I would say that we are dealing with a period of sickness that is currently over 4 months in duration. Given my experiences of both this type of operation and the Health Service I can concur with the specialist that the timescale for this operation cannot be predicted. However, our knowledge and experience tells us that it may take some months for this operation to come to fruition.

While I fully accept I have no medical training a 6 week recovery for this type of operation seems rather optimistic to me. I base this on my practical experience with other drivers with a similar problem over the years.

It does appear to me that it could be many months before there is a chance for a return to bus driving. Unfortunately Mr Davis was quite right in his letter to you on the 16^th February. His reasons for saying what he did is because our industry has the greatest of difficulty coping with sickness and absence of all causes in a fully contractual bus operation. We suffer huge penalty payments for non operation of our services both on the quantity of the miles we operate and also the service quality.

While it is most regrettable that we have to consider your continued employment at this time, I fear we must. I do not feel able to allow your sickness to continue for an indefinite or considerable time. We all know that waiting up to a year and sometime beyond for an operation is not unknown.

I believe the only option remaining is to consider some time with alternative employment, but unfortunately there are some issues with that. Prior to a recess you agreed that clerical work was all that you could do. I expressed some concern at your ability to do this type of work, given your language difficulties. I notice that we arranged an English language course for you to begin in January 2006 and you said you were unable to do this due to your illness. You assured me that you could converse with drivers OK, but I have to say that is a small part of any clerical job.

I spoke personally during the recess to the Human Recourses Director who told me that we currently have no permanent clerical vacancies open. That only leaves temporary alternative employment, but I am reluctant to consider that or the length of time we are potentially dealing with here.

I have given a great deal of thought to your view that the Manager acted too quickly and I can fully understand your views here. However, I don't think there is an easy answer to it. If you did get an operation within a month of the 5^th May and make a speedy recovery your views may have some credibility. However, that already looks far from likely and all our experience tells us we are probably looking at many more months of sickness.

In making a decision in your case I admit to being torn between delaying a dismissal to see if an operation does appear in the next few weeks and denying your appeal. What makes my decision more difficult is the fully competitive contractual world we work in.

After careful thought my honest opinion is that perhaps a decision to dismiss was made at the minimum time, but I believe for the right reasons. I have asked myself what I really think would change if I delayed that decision. Given your consultants views and my experience I don't believe anything is likely to change and all I would likely do is delay the inevitable. Under those circumstances I am inclined to tell you that your appeal is denied.

My one concern here, is that I make a decision based on my experience and common sense that turns out to be wrong and your operation does come up within a short time.

I don't think I should be in a position where I have to guess at the competence of the health service when I am considering your employment. I believe that this day and age it is not reasonable for you to be told it may take a month or a year to get an operation. There I suggested the following.

That I will hold off my decision for a 2 week period until the 8^th June and in that time you need to write or contact your health Authority by phone and try and pin them down to be a lot more precise with the likely waiting time for this operation. If you can send me something in writing that gives me a good indication that your operation is likely to be sooner rather than later I will look again at my decision. If that is not possible, then I am sorry, but your appeal will be denied.

If I do not hear from you by the 8^th June I will assume you have been unsuccessful. I wish you luck and I suggest you do ask for the help of your family if they are more conversant with English. I said you should be entitled to a better standard than being told 1 month or 12.

I regret my decision could not be more favourable to you and I wish you luck with the Health Authority."

10. Mr Beckham then received from Mr Kirmizi's Trade Union a copy of a letter dated 17 May from the orthopaedic consultant, Mr Walczak, which read as follows:

"I can confirm that Hasan Kirmizi is under Mr Walczak's team for severe low back pain, shooting down his left leg. An MRI scan showed that he has a large disc at L5/S1 which will require surgery. He has been referred to the neurosurgical unit at King's College Hospital and the timescale for this is very unpredictable, but hopefully once he has had the operation he will be able to return to work within 6 weeks following the date of the operation. Obviously I can't predict when the operation will be but King's College should be able to provide information about the operation and Mr Kirmizi's recovery."

Thus, despite having adjourned the meeting to obtain some positive information as to when the operation would take place, Mr Beckham received no such information. As a result he wrote to Mr Kirmizi on 6 June rejecting the appeal.

The Tribunal's conclusions

11. The Tribunal's conclusions were succinctly expressed at paragraphs 43 to 47 of their judgment; rather than summarise them or set out extracts from them, we shall give them in full. They were as follows:

"43. We do not agree with Mr Maccabe that the Respondent did everything they could to obtain a date for the operation. There was nothing the Respondent did except ask the Claimant to chase for a date and allowed him time to obtain this information. The Respondent also failed, to follow its own occupational health reports. A reasonable employer would, in coming to a conclusion on whether to dismiss or not, would have taken account of the Claimant's poor English (as accepted by the Respondent who had arranged for him to attend English classes); the difficulties this caused with the NHS; and would not have super imposed their own views over that of a medical practitioner in coming to a conclusion to the length of time it would take for recovery.

44. The decision reached by the Respondent was one that no reasonable employer could have reached. The Claimant's contract of employment entitled him to six months sick pay (full) and six months' half pay. Whilst this does not mean that the Claimant is guaranteed payment of sick pay for six months in this case the Respondent acted hastily. In reaching a decision to dismiss they relied on irrelevant factors — namely the length of time it would take to recover from an operation; using their value judgments to disagree with medical opinion; not contacting the NHS directly to ascertain the likelihood of an operation and ignoring the time span given by the Consultant (one to 12 months). It was clear from the evidence that the Respondent was driven only by cost consideration in this case and this was the dominating factor that led to the Claimant's dismissal. Very cursory efforts were made to seek alternative work for the Claimant (and against their own Occupational Health Report) and some alternative work (e.g. clerical work) was discounted on health and safety grounds without any foundation.

45. The Appeal hearing did no more than rehearse the disciplinary arguments and gave more credence to personal views over that of a medical practitioner. The Claimant had only been off three months at the time of dismissal. There was a real possibility in this case that the Claimant would have been fit for work subject to recovery after an operation. The only difficulty was that no clear dates for the operation had been provided. There was no evidence that he was not going to be fit once the operation was carried out. A reasonable employer would have paid sufficient regard to the difficulties of obtaining precise times for operation within the NHS waiting list and coupled with the Claimant's poor English militated against the Claimant and the Respondent failed to make any enquiries and instead rushed into a hasty decision to dismiss.

46. The Respondent failed to give any weight to the time scale proposed by the Claimant's consultant at the appeal hearing and instead relied upon subjective opinions as to the length of recovery time. It was recognised by the Appeal Officer that the Claimant had been dismissed within a short time and ignored their own occupational health report recommendations (p.71).

47. Taking into the particular facts and circumstances of this case and for the reasons given, above, we conclude that the dismissal was unfair. If the parties are unable to reach an agreement as to remedies then the case will be listed for a remedies and not before two months from the date of the promulgation of the judgment."

The attack upon those conclusions

12. Mr Maccabe's Notice of Appeal attacks the Tribunal's judgment on many fronts. In the course of the fact finding section of their judgment, the Tribunal made a number of criticisms of SELKENT which, Mr Maccabe submitted, were unjustified on the evidence and perverse; but these criticisms are substantially repeated in the Tribunal's conclusions; and we propose to focus on the arguments before us as to paragraphs 44 and 45 of the Tribunal's judgment.
13. Before considering Mr Maccabe's criticisms of those paragraphs, we have reminded ourselves, as Mr Heath on behalf of Mr Kirmizi urged upon us, that an appeal from the Tribunal to the EAT lies only on a point of law; we must not and do not, in this case, seek to form our own independent judgment on the facts. If the Tribunal took into account any irrelevant factor or failed to take into account any relevant factor or reached a factual conclusion which no reasonable Tribunal could reach, then there is an error of law, namely perversity; but perversity must be overwhelmingly demonstrated; see Yeboah v Crofton [2002] IRLR 634 per Mummery LJ at paragraph 93. We have reminded ourselves, secondly, that, as is agreed between the parties before us, the task of the Tribunal was to decide whether the dismissal fell within the range of reasonable responses open to an employer in the circumstances and not to substitute their own view of what would have been reasonable for that of the employer.
14. We remind ourselves, thirdly, of the need to resist any attempt to upset the Tribunal's conclusions on the basis of meticulous criticism of their reasoning or, as it is regularly called, a "fine toothcomb" approach. See for example Retarded Children's Aid Society Ltd v Day [1978] IRLR 128 per Lord Denning MR at paragraph 15, to which Mr Heath referred us.
15. As can be seen, in paragraph 44 the Tribunal set out four matters, described as irrelevant factors, on which they found that SELKENT had wrongly relied in reaching their decision to dismiss and then set out two further criticisms, namely that SELKENT were driven by cost considerations and that they made inadequate attempts to obtain alternative work for Mr Kirmizi.
16. Paragraph 45 contains a number of further reasons for the Tribunal's conclusion that the dismissal was unfair.
17. We address firstly, the arguments put before us as to the "irrelevant factors". So far as the first of these factors is concerned Mr Maccabe submitted that, although of course the length of time which would pass before Mr Kirmizi could be operated upon was material, the length of the anticipated post operative recovery period was also material and could not have been an irrelevant factor.
18. At paragraph 25 the Tribunal, referring to the meeting between Mr Kirmizi and Mr Davis on 21 March 2006, said "the occupational health and the Respondent failed to establish when the operation was likely to take place and focused wrongly on recovery time". Mr Maccabe pointed out that, at that time, Mr Kirmizi had not yet seen his orthopaedic consultant, whom he was due to see for the first time on 5 May, when a decision as to surgery was to be made. Until May it was not known whether there would be an operation, still less when any operation might take place if it was to happen; and on 5 May all that was known was that the delay could be anything from 1 month to 12 months before the operation could take place. Mr Heath, on behalf of Mr Kirmizi, accepted that, as at March, surgery was only a potential option and that the Tribunal's criticism of SELKENT for failing in March to establish when the operation was likely to take place and focusing wrongly on recovery time was misplaced. He submitted that the criticism there set out was not part of the Tribunal's reasons for concluding that the dismissal in May was unfair. However that selfsame criticism is made in paragraph 45; but, although when the dismissal occurred a decision in favour of surgery had been made, it was still wholly unclear, other than within the wide time-frame we have described, when the surgery would be performed.
19. In those circumstances, as indeed Mr Heath acknowledged, a reasonable employer must have been entitled, in our judgment, in taking his decision as to how to deal with the situation, to consider, in addition to the potential delay before the surgery would take place, the extent of any further delay after surgery before the employee could be expected to return to work. The total period before Mr Kirmizi could be expected to return to work was, plainly, a relevant or material factor; and that total period was inevitably going to consist of two parts, firstly the period up to surgery and, secondly, the period of post-operative recovery.
20. For these reasons, in deciding that the second part of the total period before Mr Kirmizi could be expected to return to work was irrelevant, the Tribunal mistakenly took into consideration a factor which they should not have taken into account. If it is necessary to describe this error as perversity, we have no doubt that that error is overwhelmingly demonstrated.
21. The second irrelevant factor set out in paragraph 44 is "using their value judgments to disagree with medical opinion". We agree with Mr Heath that this is a reference to the letter from Mr Beckham to Mr Kirmizi of 22 May, at the fifth paragraph in the extract from that letter which we have set out earlier in this judgment. We agree with Mr Maccabe that it was open to Mr Beckham to take into account his own experience in the circumstances. Those circumstances were that, in answer to the relevant question in the questionnaire, Mr Kirmizi, presumably as a result of what he was told by the consultant, had put forward a period of 6 weeks minimum post-operative recovery. Mr Beckham recorded in his letter that Mr Kirmizi had given him an estimate of 6 to 8 weeks; but the occupational health advisors had said earlier that the period would be months rather than weeks and, on 5 May, had told Ms Hannan that the period would be a minimum of 8 weeks but probably longer (see her letter of 11 May 2006). In those circumstances with an uncertain picture, Mr Beckham was, in our judgment, entitled to take his experience into account in forming a judgment. In any event he did not override medical opinion; he simply said in the letter that a 6 week recovery period seemed rather optimistic; and that was supported by the sources we have described. In our judgment the Tribunal have been clearly demonstrated to have erred in law in this respect too.
22. Mr Heath submitted that, in making the two points to which we have just referred, the Tribunal were not expressing themselves clearly and that, reading the judgment generously as one should, the Tribunal should be taken to have concluded not that the two factors so far considered were irrelevant but that SELKENT had, in relation to the assessment of recovery time, acted unreasonably; the two points should be read as criticisms of the employer's judgment, as though the semi-colon after "operation" in the seventh line of paragraph 44 were not there and the word "by" was there instead.
23. That reading of paragraph 44, in our judgment, goes much further than generosity permits; it requires a re-writing of the words. There is a criticism of SELKENT's "super-imposing their own views over that of a medical practitioner" in paragraph 43; but the words of paragraph 44 are different.
24. However, lest it be correct that in paragraph 44 the Tribunal was repeating the criticism made in paragraph 43 – albeit expressing it in a different way – we accept Mr Maccabe's submission that such a criticism was not one which could have reasonably have been made. We have reminded ourselves again of the high threshold set out in Yeboah v Crofton; but on the facts of this case there was a variety of medical opinion as to the relevant period; Mr Beckham was not bound to proceed on the opinion of "a medical practitioner" (we take the Tribunal to have been referring to Mr Kirmizi's consultant) and was, as we have indicated, entitled to take his own experience into account. There is no indication that Mr Beckham regarded the post operative recovery period as in a different league from 6 weeks; as we have said, he only indicated – with some support – that he thought, based on his experience, that the period would be longer then 6 weeks. The criticism is an example of the Tribunal's substituting their own view as to how the recovery period ought to have been approached for that of SELKENT and was not one which was open to a reasonable Tribunal.
25. The next irrelevant factor is said to be "not contacting the NHS directly to ascertain the likelihood of an operation". We have had some difficulty in understanding how this could be described as an irrelevant factor. The Tribunal were, it seems, criticising SELKENT for not taking a step which the Tribunal believed should have been taken; but failure to take a step is not taking into account an irrelevant factor – although failure to make proper enquiries might lead to the conclusion that the employers had disabled themselves from taking account of a relevant factor, namely the answer that such enquiries would have produced.
26. If the relevant words are to be taken as a criticism of the Tribunal, forming part of the Tribunal's conclusions that the dismissal was unfair, is that criticism justifiable? We need to draw attention to the fact that elsewhere in the judgment SELKENT are criticised for not doing more to find out when the operation would take place; but in paragraph 44 the criticism is different; it is that SELKENT did not contact the NHS directly to ascertain the likelihood of an operation. Mr Maccabe submitted (1) that SELKENT were under no duty to contact the NHS directly as opposed to seeking information through Mr Kirmizi who, as the patient, had access to his doctors and the relevant hospital which SELKENT did not have and (2) that, whether his first submission was correct or not, in relation to the ascertainment of a more positive picture as to the likely date for the operation the specific criticism that SELKENT did not contact the NHS directly to ascertain the likelihood of an operation was wholly misconceived; for by the time of the dismissal the likelihood of surgery was established. Up to 5 May the position was that (contrary to the misplaced criticism in paragraph 25) it had not been determined that an operation would be needed; hence the question in the questionnaire "what treatment is Mr Kirmizi likely to receive". As the Tribunal found, Mr Kirmizi was told on 5 May that he needed surgery; and SELKENT adjourned the meeting later that day to consult the occupational health advisors as to whether the treatment could be carried out in-house and what the post operative recovery period would be.
27. It is, therefore, wholly clear on the evidence that, by the date of the dismissal, SELKENT knew that Mr Kirmizi would have to undergo surgery. We do not see, in those circumstances, how the Tribunal could have justifiably concluded as part of their reasons for finding that the dismissal was unfair, that SELKENT had not contacted the NHS directly to ascertain the likelihood of an operation.
28. In this respect, too, we conclude, the Tribunal erred if they truly intended to regard this factor as an irrelevant factor; and if they intended in the relevant words to spell out a criticism of SELKENT, which formed part of their decision that the dismissal was unfair, that criticism was wholly unsupported by any evidence.
29. We turn to the fourth irrelevant factor namely "ignoring the time span given by the consultant (1 to 12 months)". We have similar difficulties to those we have set out in relation to the third irrelevant factor in understanding how this could be seen as an irrelevant factor; to ignore something which is regarded as relevant is not to take into account an irrelevant factor but is, it seems to us, with respect to the Tribunal, the opposite i.e. failing to take into account a relevant or potentially relevant factor; and we regard it as appropriate to treat this part of paragraph 44 as if the Tribunal had expressed themselves in that way. Nevertheless, as Mr Heath with professional candour accepted, the evidence was that SELKENT did not ignore that very wide time span. Neither the Tribunal's findings nor the correspondence tell us whether Mr Kirmizi told Ms Hannan on 5 May that the consultant had told him of that time span; but Mr Beckham's letter to Mr Kirmizi of 22 May expressly referred to it and went on to explain why he needed to know more about when the operation would take place and that he was delaying his decision to enable Mr Kirmizi to obtain more precise information from the health authority. The Tribunal made no finding that that letter was insincere or dishonest.
30. In those circumstances this criticism of the employer also, we feel bound to say, is one which is in our judgement was unsupported by evidence and was one to which no reasonable Tribunal could come. Mr Beckham did not ignore the time span; he acted as a result of it by delaying his decision in order to give Mr Kirmizi an opportunity of narrowing it.
31. Mr Heath submitted that what the Tribunal intended to say was that SELKENT did not pay sufficient regard to the time span; he drew attention to the passage in paragraph 43 where the Tribunal stated that SELKENT had done no more than to ask Mr Kirmizi to chase up a date and give him time to obtain that information. Mr Maccabe submitted that, in that passage, the Tribunal were responding to a submission he had not made, that SELKENT had done everything they could to obtain a date for the operation; his argument had been that SELKENT had acted within the range of reasonable responses by proceeding as they had and they were not under a duty to seek information from the NHS directly as opposed to through Mr Kirmizi; but we do not need for present purposes to decide whether Mr Maccabe is correct in that; for in our judgment the point made by the Tribunal in paragraph 44 is a different point; it is that SELKENT ignored the time span, not that they did insufficient to narrow it.
32. We come next to the first part of paragraph 45 in which Mr Maccabe submitted, generally, that similar errors on the part of the Tribunal were to be found. The first sentence of that paragraph has two parts; in the second part the Tribunal repeated the criticism that SELKENT had disagreed with medical opinion as to the post-operative recovery period. We have already addressed this point. In the first part the Tribunal said that the appeal hearing did no more then rehearse the disciplinary arguments. The words "disciplinary arguments" appear to us to be inappropriate; but we agree with Mr Heath that the Tribunal intended by those words to describe the discussion which had taken place between Mr Kirmizi, his Trade Union Representative and Ms Hannan on 5 May and that the word "disciplinary" is an accidental mis-description. However the Tribunal found that there was a long discussion about alternative work (paragraph 34); and (although the Tribunal made no finding as to this) it is not in dispute that Mr Beckham did not simply follow the original decision; as we have set out earlier, he regarded the extent of the delay before the operation as important and gave Mr Kirmizi the opportunity to obtain more precise information as to the extent of that delay. The conclusion that Mr Beckham did no more than rehearse the arguments before Ms Hannan is, in our judgement, overwhelmingly demonstrated as unsupported by and contrary to the evidence.
33. The Notice of Appeal and Mr Maccabe's submissions in support of it contain other criticisms of the Tribunal's judgment; but the conclusions we have reached on the arguments which we have addressed thus far are, in our judgment, sufficient to establish that the Tribunal's decision that Mr Kirmizi was unfairly dismissed was fatally flawed and cannot stand. In paragraph 47 the Tribunal said that they concluded that the dismissal was unfair for the reasons given above; those reasons, of course, included the reasons set out in paragraphs 44 and 45 which, for the reasons we have explained, cannot stand. They are substantial reasons which form a substantial element of the Tribunal's general conclusion. It is, without going further, inevitable that the Tribunal's general conclusion, in the circumstances, cannot survive; and the appeal must be allowed.

Consequences

34. Mr Maccabe invited us to substitute for the Tribunal's conclusion the contrary conclusion that Mr Kirmizi was fairly dismissed. He referred us to O'Kelly v Trusthouse Forte Plc [1983] IRLR 369 in which Sir Donaldson MR, at paragraph 90, said:

"The EAT can correct errors of law and substitute its own decision insofar as the Industrial Tribunal must, but for the error of law, have reached such a decision. But if it is an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly, the EAT can only remit the case for further consideration."

and submitted that, if all the errors of law on which he relied were eliminated, only one conclusion could have been reached by the Tribunal. Mr Heath submitted that when the central issue, as in this case, was the section 98(4) issue i.e. whether the dismissed was reasonable in the circumstances, it must be very rarely that an Appellate Tribunal would regard itself as able to conclude that only one result was possible if errors of law on the part of the Tribunal were eliminated.

35. We recognise that we have not addressed all Mr Maccabe's arguments, for reasons which we will shortly explain; but we are firmly of the view that, even if all of those arguments succeeded and all errors of law on which Mr Maccabe relies were eliminated, we could not conclude that a decision in the favour of SELKENT is inevitable. It would not be sufficient if we were to believe that such an outcome would be likely or more than likely.
36. In the circumstances Mr Kirmizi's claim must be remitted for re-hearing and; having concluded that the Tribunal's decision has been fatally and substantially flawed by a number of errors of law in the course of their reasoning, it is inevitable that we must remit to a new Tribunal: see paragraph 46.4 of the judgment of the EAT in Sinclair Roche & Temperley v Heard [2004] IRLR 763. We accept that this will cause delay and expense – but such a remission always has that effect; and we do not see any route by which such a remission can be avoided in the circumstances of this case.
37. We were told by Mr Maccabe that Mr Beckham is retiring or has retired and may have gone or be going to live abroad. That cannot be a persuasive reason for not making a remission; and, assuming Mr Beckham's willingness to co-operate, the availability of modern technology should enable any difficulties to be overcome. It will be for the parties to consider whether they wish to seek directions from the Tribunal as to how Mr Beckham's evidence can be best presented.
38. Because we have decided that, at the very least for the reasons we have set out, the Tribunal's decision cannot stand, we have felt it better not to embark on an analysis or decision upon other points taken by Mr Maccabe. A few such points in particular stand out. The first is the argument, to which we have referred earlier, that the Tribunal erred in regarding SELKENT as under a duty to make their own enquiries of the NHS as to the extent of the delay before surgery; the second is his argument that the Tribunal erred in finding that there was some shortcoming in SELKENT's search for alternative work for the Claimant when the Claimant himself was telling SELKENT that he was not fit to do any work. A further point was that there was no evidence that Mr Kirmizi's poor English put him at a disadvantage in his dealings with the NHS. All of these may be controversial issues at the remitted hearing; since we have come to a clear conclusion that this appeal succeeds, for the reasons we have set out earlier, without considering those arguments, we believe that it would be unhelpful for us to make any comment on these issues; any comment from us would be immaterial to this decision and might influence the re-hearing in a manner adverse to one party or the other. We have, therefore, not made any such comment.

Conclusions

39. For the reasons we have set out the appeal is allowed and Mr Kirmizi's claim is remitted for hearing by a fresh Tribunal.
40. There is one final point which, albeit reluctantly and perhaps diffidently all of us have felt we cannot avoid making. We have been concerned in this case by the substantial number of what appear to be typing errors or apparent omissions of words in the Tribunal's judgment; an example of the latter is to be found in the last sentence of paragraph 30. We fully understand the great pressure under which Tribunals and their staff have to work; but we hope that mistakes on this scale – which we have never seen before – can be avoided in future.