United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0501/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 March 2011

Before

HIS HONOUR JUDGE PETER CLARK

MR D J JENKINS OBE

MR G LEWIS

MR J G LAMBERT APPELLANT

VICOMTE BERNARD DE ROMANET LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

UNFAIR DISMISSAL

Procedural fairness/automatically unfair dismissal

Compensation

Contributory fault

Unfair Dismissal under s98A(1) and 98(4) Employment Rights Act 1996.  Employment Tribunal find 100% contribution and deduction under s123(1).  No compensatory award (save in respect of loss of statutory rights).

No error in Employment Tribunal approach.  Ingram (UKEAT/0601/06.  23 April 2007.  Elias P) considered and followed.

HIS HONOUR JUDGE PETER CLARK

1.            The parties in this matter before the Sheffield Employment Tribunal are Mr Lambert, Claimant and Vicomte Bernard De Romanet Ltd, Respondent.

2.            With the permission of HHJ Richardson the Claimant appeals against that part of the Tribunal’s reserved judgment, promulgated with reasons on 12 June 2010, as awarded him no compensation, save for £300 in respect of loss of statutory rights for his unfair dismissal by the Respondent.

3.            The Claimant commenced employment with the Respondent as a Wine Adviser on 15 May 2003.  On the job application form, which he completed on 2 May, in answer to the question whether he had had any serious illnesses he responded, “Some various short-term illnesses many years ago, all okay now”.  We see that he was born on 23 July 1955.

4.            In April 2004 he was promoted to Field Manager.  That did not work out and by agreement he reverted to being a junior wine adviser in Doncaster, which assisted his travel arrangements.  On 13 November 2005 he commenced a period of sick absence, never to return to work until his dismissal by the Respondent on 26 March 2007.  The only communications which the Respondent received from him during and about his sick absence was a sick certificate for three months from 28 December 2005, and that referred to, “Work stress” and a further sick note citing depression in April 2006.  In addition, the Claimant raised an expenses claim on 14 December 2006.

5.            The Tribunal found that the Respondent attempted to arrange a discussion with the Claimant about his continued sick absence on 19 December 2005, 5 January, 13 April and 11 August 2006 and 19 February 2007.  In these circumstances the Respondent wrote to the Claimant on 19 March 2007, warning him that if he did not respond within seven days they would conclude that he had chosen to leave the company.  They then mention self termination.  The Claimant did not respond and his employment was treated by the Respondent as ended on 26 March.

6.            Following grievances raised with the Respondent the Claimant commenced these proceedings by a form ET1 dated 25 June 2007.  In addition to his claim of unfair dismissal he also raised, among others, a claim under the Disability Discrimination Act 1995 (DDA).

7.            In connection with the DDA claim he was seen by a consultant psychiatrist, Dr Vinchenti, who prepared a report dated 20 January 2008.  The Tribunal’s findings about that medical evidence are at paragraph 4.25 of their reasons.

8.            As to unfair dismissal, the Respondent conceded that the dismissal was automatically unfair under section 98A(1) of the Employment Rights Act 1996 (ERA).  The Respondent plainly had not engaged with the statutory dismissal and disciplinary procedure and dismissal was admitted.

9.            Further, the Tribunal found that the dismissal on grounds of capability were substantively unfair.  The Respondent, they found, had made no real effort to inform itself of the true medical position (reasons paragraph 7.1).  However, they went on to hold that he was not entitled to a compensatory award for lost earnings.  At paragraph 7.2 they say this:

10.         The Tribunal awarded him a basic award representing four weeks gross pay, under section 120(1A) ERA.

11.         The Appellant has recently indicated to the EAT that he will not be attending this hearing and wishes to rely on written submissions.  We therefore take into account his grounds of appeal and the skeleton argument which he has lodged.  The Respondent today is represented by Mr McCombie of counsel and we accede to his application that we should hear and determine the appeal today.

12.         The Claimant’s grounds of appeal are set out at paragraphs 3.1 to 3.11 of the Notice of Appeal.  The first question is whether the Tribunal was wrong to proceed straight to a nil compensatory award on the basis of their findings, as we understand paragraph 7.2 (a) that he had contributed to his dismissal to the extent of 100 per cent for the purposes of section 123(6) ERA and (b) that it would not be just and equitable to make any award under section 123(1).

13.         The short answer, it seems to us, is that if either finding is permissible it is unnecessary for the Tribunal to (a) calculate the Claimant’s loss or (b) consider the statutory uplift under Employment Act 2002 section 31, see Ingram v Bristol Street Parts (UKEAT/0601/06 23 April 2007, Elias J, President presiding) to which we referred Mr McCombie this morning and would have referred Mr Lambert, had he attended this hearing, paragraph 42.  It is otherwise where a deduction of less than 100 per cent is made, see for example Digital Equipment v Clements No 2 [1997] ILR 140, on which Mr Lambert seeks to rely.

14.         Next it is said that at paragraph 7.2 the Tribunal failed to give adequate reasons why the Claimant’s failure to keep the Respondent updated during his lengthy sick absence justified a 100 per cent reduction in the compensatory award.

15.         Pausing there, as we understand paragraph 7.2, the Tribunal drew a distinction between the Claimant’s lack of communication with the Respondent about his health during the six month sick absence, which they found to be contributory conduct, that is conduct by the Claimant which contributed to his dismissal, and the Respondent’s knowledge, acquired after dismissal through Dr Vinchenti’s report, that the Claimant had not given full disclosure of his medical history prior to appointment, a matter which goes to the section 123(1) question and not the section 123(6) question, see Devis & Sons Ltd v Atkins [1977] ICR 662 (HL).

16.         As to the 100 per cent deduction under section 123(1) in respect of the Claimant’s non-disclosure at the outset it is plain that, reading the reasons as a whole, the Tribunal took the view that had he made full disclosure at the outset, either he would not have been employed, or more particularly, a point urged on us by Mr McCombie, his absence over that 16 month period would have been managed differently.  At all events they concluded that it was not just and equitable that he receive any compensation in view of his misleading the employer from the start.  That is a finding which we conclude was a permissible one.

17.         As to the contribution finding it is equally clear to us that the Tribunal concluded that the Claimant’s lack of response to enquiries by the Respondent about his health contributed to his dismissal to the extent of 100 per cent.  It is important to note that the question here is whether, and if so to what extent, the employee contributed to his dismissal, not the unfairness of the dismissal.

18.         As to whether it was open to the Tribunal to make a finding of 100 per cent contribution, we are satisfied that it was, see Ingram paragraphs 29 and 45.  As the Tribunal point out, the Claimant was able to raise an expenses claim but not respond to perfectly proper enquiries by the Respondent as to his health.  That level of non cooperation caused his dismissal, albeit that the dismissal was unfair.

19.         For these reasons we shall dismiss this appeal.