Appeal No. EAT/0496/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 September 2003

Before
HIS HONOUR JUDGE J BURKE QC
MS K BILGAN
MR R N STRAKER

MISS A MILTON-TOMKINS	APPELLANT

IPC MEDIA LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS A MILTON-TOMKINS
THE APPELLANT
IN PERSON	
For the Respondent	MR W J DIAMOND
(Representative)

JUDGE J BURKE QC:

1	This is an appeal by Ms Milton-Tomkins against one part of the decision of the Employment Tribunal sitting at London South, chaired by Ms Taylor and sent to the parties with Extended Reasons on 26 March 2002. 

2	By that decision the Tribunal found that Ms Milton-Tomkins had been unfairly dismissed by her employers, IPC Media Ltd, to whom we shall refer as “IPC”;  but they rejected her claims of breach of contract and sex discrimination.  Ms Milton-Tomkins sought to appeal against a number of aspects of the Tribunal’s decisions, but was given leave at the preliminary hearing of her appeal to appeal at a full hearing only against the Tribunal’s award of compensation for unfair dismissal, that award having been limited to the sum of £250 in respect of loss of statutory rights.

3	For present purposes the facts can be very briefly stated.  Ms Milton-Tomkins was employed from 1990 by IPC.  From 1991 she was a Senior Sales Executive.  There was a history of difficulty between herself and her line manager, Mr Foster, into which we need not go.

4	In October 1999 Ms Milton-Tomkins had a baby who was born prematurely.  Thereafter, she was on maternity leave.  Tragically her baby died in December 1999 as a result of a cot death.  Despite that, she returned to work on 28 February 2000 and continued to work until early October of that year.  During that period Mr Foster was himself off sick;  but he came back in October;  and within days Ms Milton-Tomkins herself went off work through sickness.  IPC offered her an alternative role.  She said she would consider it but could not make up her mind while she was still off work and unwell.

5	In December 2000 IPC, with Ms Milton-Tomkins’ consent, obtained a medical report from her general practitioner which said that she was off work through anxiety and depression and was not at that time fit to return;  but that report gave no prognosis at all as to the future and said nothing about when she could or might expect to return to work.

6	On 30 March 2001 a further sickness certificate for eight weeks was provided to IPC.  On 6 April, without obtaining any further report and, therefore, in the absence of any prognosis, IPC wrote to Ms Milton-Tomkins dismissing her with effect from 15 June of that year.  The Tribunal, perhaps unsurprisingly, found that the dismissal was unfair.

7	Before the hearing, which took place over one day, Ms Milton-Tomkins’ solicitor had provided to Mr Diamond, IPC’s representative a schedule of loss which claimed about £30,000, including a basic award of about £3,000.  Of that sum a large slice was claimed as compensation for injury to feelings;  for, as we have said, there was a discrimination claim;  but just under £20,000 of the total was claimed as loss of earnings, including loss of use of the company car and loss of pension or pension rights.

8	Mr Diamond sent back a letter to Ms Milton-Tomkins’ solicitors which acted as a counter-schedule.  However neither the schedule nor the counter-schedule was ever put before the Tribunal at the hearing.  The reason for that appears to have been that, as Mr Diamond has very fairly and candidly told us, both sides assumed that the question of compensation would be dealt with at a subsequent remedies hearing, should it arise.  Thus, the Tribunal did not have before them any details as to Ms Milton-Tomkins’ compensation claim;  and it is clear that the question of compensation was not addressed by the evidence.

9	In his closing submissions Mr Diamond, who had, of course, concentrated his arguments on his case that there was no unfair dismissal, no breach of contract and no discrimination, raised by one sentence what is in employment law circles commonly known as a Polkey argument, that is to say an argument based on the decision of the House of Lords in Polkey v A E Dayton Services [1988] ICR 142 that, even if there was unfair dismissal, Ms Milton-Tomkins had not suffered any loss as a result of it, or loss of earnings as a result of it, because she would not have been able to return to work even if she had not been dismissed as she had been.  That argument had not been foreshadowed by any suggestion to or by the Tribunal that it would be put forward or considered.  

10	A Polkey argument is sometimes considered at a liability hearing.  It is sometimes considered at a separate remedies hearing.  It is important that, if a Polkey argument is going to be raised, the Tribunal and the parties should ensure that they establish and understand, if it is to be raised, at which hearing it is to be dealt with.  This did not happen in this case.  Whether Ms Milton-Tomkins’ solicitor appreciated the impact of that one sentence in Mr Diamond’s closing submissions we do not know;  and we cannot speculate about it.  Ms Milton-Tomkins’ solicitor would, of course, by that stage have finished his submissions because, dismissal being admitted, IPC had opened the case and gone first;  and so the solicitors’ final submissions preceded those of Mr Diamond and were over by the time the Polkey issue was raised in the manner which we have described.  

11	In paragraph 35 of their decision the Tribunal expressed their conclusion as to unfair dismissal in these terms:

“Having considered all of the circumstances, on balance, we find the Respondent’s decision not to obtain a further medical report before the decision to dismiss the Applicant rendered the dismissal unfair.  We consider that every employer must as a minimum requirement have up to date medical information before the decision is taken even with an uncommunicative employee.”

12	The Tribunal then went on to accept the Polkey submission which had been made to them by Mr Diamond in the one sentence we have described.  They said (again in paragraph 35):
“However, we find that had the Respondent obtained a medical report, it would not have made any difference to the outcome of this case.  The Applicant continued to be too unwell to return to work.”

They did not set out on what evidence they reached that conclusion.  Ms Milton-Tomkins’ witness statement said that the employers had been told that, subject to medical advice, she hoped to be able to return to work at around 23 July.  There is no suggestion that that evidence was challenged or indeed that she was cross-examined about how long it would have been or might have been, had there not been a dismissal, before she would have felt able to return to work.

13	Ms Milton-Tomkins’ appeal is put on the basis that the conclusion of the Tribunal that, even if the Respondents had obtained a medical report, it would not have made any difference to the outcome of this case was not supported by evidence.  Mr Diamond submits (with commendable conciseness) that it was for Ms Milton-Tomkins to adduce evidence of loss and there was none.  

14	In our judgment the Tribunal was in error in coming to the conclusion they did that the obtaining of a further medical report would not have made any difference to the outcome of the case, for four reasons.  

15	First, there was some evidence, to which we have referred, that Ms Milton-Tomkins at least might have been able to return to work towards the end of July; the dismissal was to take effect from 15 June.  

16	Secondly, it is not perhaps surprising that that is the only evidence that there was about the possibility of return to work, because compensation was not in issue;  but in any event the lack of evidence from Ms Milton-Tomkins should not have determined the Polkey issue.  It was Mr Diamond’s Polkey point.  He accepts, before us, that the burden of proof was on him in relation to that point and no evidence was adduced by him as to it;  nor was there any attempt to explore in evidence what the parties might be able to say as to whether, had there been even a postponement of the dismissal while a further medical report was obtained, the situation would have changed or continued to have been the same.

17	Thirdly, it is undisputed that neither party believed that compensation was in issue.  That is why no question was asked of Ms Milton-Tomkins in her oral evidence as to whether she would have been able to return to work and, if so, when?  The Polkey point came by surprise;  and Ms Milton-Tomkins and her solicitor had not had a proper opportunity to respond to it.

18	Lastly, in any event, at the very least had IPC acted fairly, as opposed to unfairly, they would have had to obtain a further medical report.  Let us assume that, taking the position, at its highest for IPC, such a medical report when obtained would have been extremely pessimistic about the prospect of Ms Milton-Tomkins returning to work.  Nonetheless, some time would have had to be taken in obtaining that report;  and the dismissal would have taken place, if it was going to follow such a report, later than it did.  Had the dismissal occurred later, then during the period between the date of the actual unfair dismissal and the date of any later dismissal, Ms Milton-Tomkins would have received, at the very least, sick pay or would have been entitled to sick pay, because there was a provision for 52 weeks’ sick pay and she had not exhausted that provision at the time of dismissal;  and she would have been entitled to continue to use her company car and to whatever small pension contribution would have been appropriate to the relevant period.  So that for the Tribunal to say that, even if IPC had obtained a medical report, it would not have made any difference, appears to have been wrong even on the very limited information that the Tribunal had.  Some loss there must have been, unless we suppose that a report could have been obtained so quickly that the date for the axe to fall would have been the same date, which appears to us to have been extremely unlikely.

19	We are not suggesting on the one hand that that is all the loss that, properly examined, Ms Milton-Tomkins would have received;  nor are we suggesting that, had the issue been properly examined, there would have been a crock of gold available to her.  All we are saying is that the issue of compensation and the issue raised by the Polkey argument were not properly explored in the evidence;  and the decision which the Tribunal reached upon those issues at paragraph 35 cannot stand.  

20	Thus, Ms Milton-Tomkins’ appeal must succeed and is allowed.  It is allowed to this extent;  that we direct that there should be a remission to a differently constituted Tribunal of her case;  that Tribunal is to decide upon the amount of compensation to be awarded to her for unfair dismissal over and above the £250 already awarded to her for loss of statutory rights.  Such remission will also include any case put forward by IPC based on the decision of the House of Lords in Polkey v Dayton Services.

21	It is clear to us that the parties will have to adduce evidence on those issues.  It will be for the parties to decide what evidence will be required.  If there is any dispute about it, it will, of course, be for the Tribunal to resolve.