Appeal No. UKEAT/0268/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 July 2005

Before
THE HONOURABLE MR JUSTICE BEAN
MS K BILGAN
MR D CHADWICK

CENTREWEST LONDON BUSES LTD	APPELLANT

MR T ARON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID MCILROY
(of Counsel)
Instructed by:
Messrs Moorhead James
Solicitors
Kildare House
3 Dorset Rise
London EC4Y 8EN	
For the Respondent	MR T ARON
(The Respondent in Person)
with an interpreter (MR A GHEBREMESKEL)	

SUMMARY

Unfair Dimissal

Unfair dismissal.  Inadequate reasoning by Tribunal.  No proper findings of fact.

THE HONOURABLE MR JUSTICE BEAN

1.	This is an appeal by the employers, Centrewest London Buses Limited, against a decision of an employment tribunal at London (Central) chaired by Mrs Enid Prevezer, that the dismissal of Mr Aron was unfair.  The Tribunal ordered the Appellants to re-engage the Claimant on certain terms as a bus driver grade DR08 at Willesden Junction Bus Depot.  They made the usual consequential orders for the payment of arrears and the computation of length of service.  

2.	The dispute between the parties is no longer a live one since the employers have made it clear through Counsel, Mr McIlroy, who has appeared on their behalf in this tribunal, that even if the Tribunal’s decision is set aside on appeal, they will continue to treat Mr Aron as re-engaged with continuous employment since he started worked in November 2000.  Their object in bringing the appeal has not been to get rid of Mr Aron, but to seek to set aside what they regard as unsatisfactory findings of the Tribunal which would, if they were correct, have implications for their treatment of employees who go absent without being contactable.  

3.	Mr Aron suffered in the months of March to May 2004 from back pain and was absent throughout that period.  On 1 June 2004, he returned to work.  He did not attend work as he was expected to do on 9 June; he then took pre-booked annual holiday from 12 June to 2 July and should have attended for work on 3 July.  In view of his extended absence, his manager, Mr Hutchinson, asked Mr Aron to report to him on 5 July to explain his absence but he did not turn up.  Letters were sent to his home address but received no reply.  

4.	On 14 July, Mr Aron, who was by then in Eritrea, attended at the Sembel Hospital, Asmara, and was given a medical certificate which appears to have been sent by fax to the employers on 20 July.  This had a heading “Clinical Findings” and the following:
“This is a patient who presented with complaints of low back pain since 8 years.  There is no pertinent finding, no neurological deficit.”

Under the heading “Treatment”, the doctor prescribed pain killers and recommended two weeks’ physiotherapy.  Under the heading “Sick Leave”, it said “sick leave for two weeks” and under the heading “Appointment”, it said “come after one month for check up”.  The medical certificate provided no contact address for Mr Aron.  The employers had no details of his whereabouts beyond the bare fact that he was in Eritrea.  On 29 July, as well as writing to Mr Aron at his home address, his manager sent a letter by fax to the Sembel Hospital at Asmara requiring him to resume work on 11 August or attend an interview with his operating manager to investigate his absence formally under the company’s attendance at work procedure.  The letter warned that if he did not resume work and did not attend the interview, the operating manager may decide to review the matter in his absence
“…and a likely outcome is that he may decide to terminate your employment, meaning that you would no longer be employed by the company”.

There is a confirmation sheet indicating that the fax went through, but no reply was received to it.  This is perhaps not surprising, given that Mr Aron was not an in-patient at the hospital, but it was the best that the company could do since the only contact address or fax number that they had for Mr Aron in Eritrea was that of the hospital.  

5.	A further chasing letter of 13 August to his home produced no response and on 20 August the operating manager, Mr Wykes, wrote as follows.  He enclosed previous letters and went on:

“These required you to make contact, explaining the reasons for your absence.  You have failed to do so and consequently, I must inform you that your name has been removed from the payroll and your employment terminated with effect from today”.

6.	As the employers point out in their Notice of Appeal, even after his dismissal Mr Aron made no contact with his employers until 4 October 2004, nearly four months after he had first gone on holiday.  He explained that his mother had been seriously ill and that he, too, was unwell, and had sought a traditional cure in a village in Eritrea.  The employers are no longer seeking to uphold the dismissal, but at the time of the Employment Tribunal hearing, they were seeking to argue that the dismissal was fair.  The Tribunal however found that it was not.  We should read, in its entirety, the Tribunal’s Decision in so far as it related to liability.  

“The Facts
1.	The facts in this case were basically agreed between the parties.
2.	However, we find that Respondent acted without any proper procedures in dealing with Mr Aron in the way they did.  He was in Eritrea, where it was difficult to contact him, but Mr Hutchinson, his manager, continued to send letters to his London address.  Mr Hutchinson must have known that Mr Aron was not at home and he appeared not to have made any enquiries of any of the other Eritreans working in the garage regarding whether they knew where he was or what his address was or how they could communicate with him at that time.  When Mr Aron failed to respond to the letters, the Respondent proceeded to dismiss him.  
3.	It is noted that, six weeks later, procedures were put into place for dealing with people in this position.  Mr Wykes must have been aware of the procedures that should have been followed and he informed us that these procedures were put into force on 1 October 2004.  Of course, with good industrial practice, those procedures should have been in force before 1 October.  Although the Respondent now has full disciplinary procedures, at the time of the meeting on 4 October 2004 when the Claimant came in to see the Respondent they were not followed.  He was not given an opportunity to appeal against the dismissal and his explanation of the delay was not heard.  For those reasons we find that this dismissal was unfair”.  

7.	We regret to say that we have considerable difficulty with these three paragraphs.  Firstly, although there can be no dispute as to what letters were sent by whom and on what day, since they appear in the bundle, it is not helpful to say “the facts in this case were basically agreed between the parties” without saying what the facts were.  In particular, we do not know whether it is accepted that Mr Aron received the fax sent by the employers to the Sembel Hospital, Asmara on 29 July, nor whether he made any attempt other than represented by the faxed medical certificate sent on 20 July to communicate with the employers and if not, why not; nor whether the decision maker, Mr Wykes, when writing the letter of 20 August which terminated Mr Aron’s employment, had any information available to him beyond the factual narrative as we have so far set it out.  

8.	Secondly, paragraph 2 records a finding by the Tribunal that the Respondent acted without any proper procedures in dealing with Mr Aron in the way they did.  Although we are well aware that findings of fact are for the Tribunal at first instance and not for us, we would, with respect, in a decision on liability in an unfair dismissal case, expect to find an answer to the following question: on the facts as they were known or should have been known to the decision maker at the time of dismissal (that is to say 20 August), was the decision to dismiss within the band of reasonable responses?  We do not find an answer to that question.  

9.	As to procedures, Mr McIlroy has told us that the Respondents do have and did have in August 2004, a procedure for writing off from the books employees who have been absent on long term sickness, but we find no exploration of that procedure nor any finding as to whether any failure to comply with it was significant.  As to the criticisms which were made by the Tribunal at paragraph 2, we do not consider that an employer can be criticised for not making enquiries of the other people of the same nationality as a missing employee to see whether they know where he might be.  One can envisage cases where an employer could reasonably be expected to make such enquiries: for example, where two siblings are employed at the same workplace and one has gone missing, it is obviously sensible to ask the remaining one what has happened to his or her brother or sister.  But simply to assume that people of the same nationality will know how to get into contact with their fellow Eritreans seems to us a peculiar concept. 

10.	Next, as to paragraph 3, it is correct to say that the provisions of Schedule 2 to the Employment Act 2000 dealing with dismissal and disciplinary procedures came into effect on 1 October 2004 and Mr McIlroy has told us of certain amendments made to this employer’s procedures to take account of that.  But what difference such changes made to the procedures is not recorded and it is not clear to us either that there was any difference of substance in the treatment of persons who go absent without leaving a forwarding address.  Accordingly, it seems to us, quite apart from any considerations of substance, that the finding of unfair dismissal cannot stand, simply on the basis of the requirement most recently laid down in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2429 by the Court of Appeal that the loser must know why he, she or it has lost. 
11.	If the dispute between the parties were continuing, we would have allowed the appeal and remitted the case for a re-hearing by a freshly constituted tribunal.  Since, however, the parties are no longer substantively in dispute, we will simply allow the appeal on the employer’s undertaking that Mr Aron will be treated as a bus driver grade DR08 at Willesden Junction Depot, will be paid at the appropriate rate, will be paid arrears from 4 October 2004 to 14 March 2005 of £2,517.50, will be treated as having continuous service from 1 December 2000 and will receive all concessions and privileges as appropriate for a driver grade DR08 (this being wording taken from the Tribunal’s order for re-engagement).  We shall make no order remitting the case to the Employment Tribunal.  The litigation will therefore, as we understand it, come to an end with the appeal being allowed on those undertakings.