Appeal No. UKEATS/0082/05/RN & UKEATS/0008/06/RN

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 7 July 2006

Before
THE HONOURABLE LADY SMITH
MR J KEENAN MCIPD
MISS G B LENAGHAN

SCOTTISH SHELLFISH MARKETING GROUP LTD	APPELLANT

MR THOMAS CONNELLY	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR DAVID D WHYTE
Solicitor
Messrs Bishops Solicitors 
2 Blythswood Square
Glasgow
G2 4AD
	
For the Respondent	MR KENNETH H FOREST Advocate 
Messrs Trainor Alston Solicitors
18 Academy Street 
Coatbridge 
ML5 3AU

SUMMARY

The claimant was dismissed on the basis of a medical report which found that he was unfit to return to work.  The tribunal found that the respondents should not have relied on the report as it was prepared on the basis of an erroneous view as to his job content.  They concluded that that erroneous view must have come from a communication to its author from the respondents.  The EAT held that the decision of the tribunal was perverse; that conclusion was central to their decision but was not open to them.  They should, also, have granted the respondents’ application for review.

THE HONOURABLE LADY SMITH
Introduction 
1.	This case concerns a claim for unfair dismissal where the claimant was dismissed for medical reasons.  We will refer to the parties as claimant and respondents. 

2.	Following a hearing before an Employment Tribunal sitting at Glasgow, Chairman Mr D R Anderson, the claim was upheld and the claimant was awarded compensation of £30,809.  The claimant represented himself before the tribunal and was represented by Mr Forrest, advocate, before us.  The respondents were represented there by Mr G W Marshall, Personnel Consultant, and by Mr Whyte, solicitor, before us.

The Facts 
3.	The respondents are a shellfish marketing company based in Bellshill.  The claimant was employed by them originally as a stores supervisor but in December 2002, he was promoted to the position of logistics team leader.  He was seriously injured in a road traffic accident on 6 December 2003.  He sustained a highly comminuted fracture of the right acetabulum (hip socket) and a haemopneumothorax with associated rib fractures.  The hip fracture required surgical fixation and left him with pain and mobility problems.  Degenerative changes of an arthritic nature developed in the hip joint.  He was rendered unfit to carry out heavy manual work.  He did not return to work between the date of the accident and 19 November 2004, the date of his dismissal.

4.	One of the issues before the tribunal was the extent to which, if any, the claimant’s job involved him carrying out heavy manual work.  The circumstances in which that became an issue are as follows.  The respondents instructed Mr Mark Blyth, consultant orthopaedic surgeon, to examine the claimant and advise regarding his fitness to return to work.  He examined the claimant on 13 September 2004 and prepared a report thereafter, dated 15 September 2004.  In that report, Mr Blyth referred to the claimant as a ‘consistent and reliable historian’.  Under the ‘current situation’ part of the report, he stated:
“He works as a logistic supervisor for Scottish Shellfish. This is in the store and despatch area. Although he works in a supervisory capacity in part he is also involved in heavy manual work and is required in the course of his employment to move heavy pallets as well as move between adjacent warehouses which are some distance apart. He is required to climb up and down stairs and also go to the canteen up two flights of stairs.” 

In the ‘Opinion and Prognosis’ part of the report, he advised:
“His mobility is reduced….”   and 
“ ….the prognosis for Mr Connelly’s overall function is not good . Although his hip weakness may lessen he will still be left with a degenerate and arthritic hip which will perform poorly in stressful situations such as a heavy manual job. Should his pain levels increase it is likely that he will be considered a candidate for a total hip replacement. Although a successful hip replacement is likely to relieve him of his symptoms it is unlikely that it will function satisfactorily such that he will be able to return to moving heavy crates and pallets such as he is required to do in the course of his employment .  In summary, I do not believe that Thomas Connelly will be fit to return to his current employment. I would however anticipate that with or without total hip replacement surgery that his hip function will be satisfactory such that he will be able to perform light manual or sedentary type occupations.” 

5.	The evidence of the respondents’ Miss Plunkett, who dismissed the claimant was that she was acting on the basis of Mr Blyth’s report when doing so.  Similarly, Mr Ferguson, to whom the claimant appealed against his dismissal, considered that he  had no alternative but to terminate the claimant’s employment on the grounds of medical capability, given the terms of the consultant’s report.  The tribunal accepted that the reason for the dismissal was the respondents’ belief that the claimant was medically unfit to do his job.

6.	Regarding the question of what was involved in the claimant’s employment, it is evident that the claimant gave evidence to the tribunal, which was accepted, to the effect that he did not require, as part of his job, to do any heavy manual work and was not required as such to move heavy pallets.  The tribunal appear to have been influenced by the content of the claimant’s written job description in reaching that conclusion.  No argument was advanced about this but we would observe, that it is not readily apparent to us that that job description excluded manual work.  The list of tasks is expressed in broad generalities and a number of the descriptions of the tasks for which the claimant was responsible seemed to be wide enough to involve manual work depending on how , in his supervisory role , the claimant decided to fulfil them. 

7.	Prior to the claimant’s accident, he had, according to his evidence, on occasions involved himself in heavy manual work including giving assistance in moving pallets.  Further, the claimant gave evidence that he had not told Mr Blyth that his job required him to carry out the heavy manual work described by him in his report.  He did, apparently, say that he told him that he had, prior to his accident, helped out with manual work when they were under pressure but that it was not in his job description to do so.  The tribunal accepted the claimant’s evidence.  

8.	The tribunal did not accept evidence led from witnesses to the respondents which was to the effect that the claimant’s job involved  a need for him to be mobile and also involved heavy manual work. 

The Tribunal’s Judgment 
9.	The tribunal, in a finding which was not challenged, determined that the respondents had not, in the procedures they adopted fulfilled the requirements of Part 1 of Schedule 2 to the Employment Act 2002.  They, accordingly, held that the dismissal was automatically unfair.  Although they did not refer to the particular provision, they no doubt had in mind the provisions of s.98A(1) of the Employment Rights Act 1996.  Since they also, however, considered the question of whether, on the evidence, the dismissal was otherwise a fair one under and in terms of s.98(4) of the 1996 Act, we take it that they had in mind the provisions of s.98A(2) which enable an employer, in the circumstances there specified, to elide the effect of s.98A(1).  They appear, in effect, to have addressed the question of whether, despite the failure to comply with the procedural requirements of Part I Schedule 2 to the Employment Act 2002, the claimant’s dismissal was fair and fell within s.98A(2).  They did not in fact expressly consider the latter but it seems that that must have been because they found that the dismissal was not a fair one.  

10.	The fairness or otherwise of the dismissal appears to have been the central issue before the tribunal. 

11. 	It was accepted by the tribunal that the claimant’s injuries and their sequelae were as stated in Mr Blyth’s report.  It seems also to have been accepted that they were of such severity as to have incapacitated him from carrying out heavy manual work and to have affected his mobility.  What, however, they did not accept was that Mr Blyth’s conclusion that the claimant could not carry out his pre accident job was correct.  That appears to have been due to a number of factors.  They refer to the report being some two months out of date by the time of dismissal and to the claimant having said that he was gradually improving.  The reason that appears to have weighed with them was that the claimant said in evidence that he was improving but we are surprised that the tribunal do not address the obvious need to take into account, notwithstanding the claimant’s perceptions, that he had (as they accepted) an established degenerative condition which was not going to get better, namely an arthritic hip.  They go on, at paragraph 11:
“Moreover, as noted above, the opinion was factually flawed on some material points.  There was no attempt to obtain an up-to-date medical report or to carry out full investigation as to the effect of the injury on the ability of the claimant to do what was his true work as detailed in the job description and not what had been his job description and function in his previous job.  The Tribunal accepted that the claimant was not required as a condition of his then current employment to carry out heavy manual work, although he had on occasion assisted in this way.  It followed therefore that the whole decision to dismiss the claimant was based on an erroneous foundation.  That would have made it unfair even apart from the automatic unfair aspect of the matter.”

12.	It seems evident from the use of the word ‘ full’ in that  passage that the tribunal have in mind something more than the level of investigation which would have been  carried out by a reasonable employer.  Further, the tribunal do not address the question of what the respondents would have found out if they had enquired as to the nature of the claimant’s job;  the answer, it seems, is that they would have found what was before the tribunal in evidence, namely that his job description was wide enough to cover involvement in manual work , that  their own employees said that his job did involve heavy manual work, that the claimant accepted that it used to involve manual work on occasions and that although the claimant said it need not do so, he appeared, on the face of the medical report that they had instructed, to have told its author, that it did.  It is difficult to see that they would have been put in any different position than they were when their case was put before the tribunal.  It is not as if this was a case where, if the employer had made further enquiry of those responsible for an employee’s medical treatment, it would have been discovered that the up to date diagnosis was different and not indicative of unfitness; the sort of circumstances that seem to have been envisaged in the case of East Lindsey District Council v Daubney ICR 566, hence the reference to the need for an employer to take reasonable steps to discover the ‘true medical position’.  

13.	The tribunal dealt with the clear statement regarding the nature of the claimant’s job in Mr Blyth’s report by referring to it as erroneous information and at paragraph 5, they state:
“ …the only conclusion to be drawn was that , in some way or another the respondents must have passed this suggestion to the consultant.” 

14.	There was though, we observe, no evidence of there having been any communication between Mr Blyth and the respondents other than their letter instructing him (which did not specify the nature of the claimant’s work) and his report in response thereto.  The report does not, for instance, refer to there having been any other communication with the respondents. 

15.	Also, in the Chairman’s note dated 29 September 2005, it is explained that although there was evidence from the respondents’ witnesses to the effect that the claimant’s job did include manual work, they rejected it.  That was because insofar as it came from Mr Ferguson, it was hearsay, because Miss Plunkett said little about manual work though referred to the mobility that his job required, because two other employees who gave evidence to the effect that the claimant carried out manual work concentrated more on mobility, because none of the witnesses drew any distinction between the claimant’s pre and post December 2002 work and because they accepted the evidence of the claimant which was, as we have noted, to the effect that although he did still do some manual work after December 2002, he was not required to do so and it was on an occasional basis as circumstances required.  We would observe that, as regards the dismissal by the tribunal of the evidence of the respondents’ witnesses on the basis that they did not differentiate between his pre and post promotion work, we have difficulty in seeing how that was a justifiable basis on which to do so.  It seems to us to be indicative simply of those witnesses having the impression that the manual content of his work did not significantly alter. 

16.	Further, it is plain from a reading of the tribunal’s judgment and the Chairman’s note that their assessment of the claimant as a credible witness weighed heavily with them when resolving the discrepancies regarding the extent to which the claimant’s job involved heavy manual work. 

17.	The tribunal, as is evident from the quotation from paragraph 11, took the view that notwithstanding the respondents entertaining a genuine belief, based on the medical report, that the claimant was not fit to return to his pre-accident work, that was a view which they should not have reached because they had not made full investigation as to the effect of his injuries on his ability to do what they refer to “his true work as detailed in the job description” as opposed to what had been his job description and function in his previous job.  It is not entirely clear, unfortunately, but it seems that their reference to his “previous job” is intended to be a reference to the job he was doing prior to his accident. 

18.	In his originating application, the claimant sought reinstatement.  That appears to have remained his position until, as the tribunal record at paragraph 12, “towards the close of proceedings”.  He then indicated that he no longer sought reinstatement.  He wished to seek compensation.  That, it seems, was the first intimation that he gave of his wish to do so.  In paragraph 13 the tribunal state:
“He was now seeking only compensation.  The Tribunal therefore decided to make an award of compensation as he requested.  

The claimant was aged 52 years at the date of termination and had had three full years service.  His gross pay worked out at the rate of £288.00 a week which gave him an average net take home pay of £212.00 a week.  He had still not been able to work due to his incapacity up until 1 March 2005 and so he would not be able to claim any compensation for that period.  However, from 1 March 2005 onwards he was fit for work and had been seeking alternative employment.  He demonstrated that he had applied for many jobs without success.  Given his age and the nature of the work;  it might be some time yet before he was able to find suitable alternative employment.  He had also been paid a Christmas bonus of £300.00 per annum.  The Tribunal therefore decided to make a total award of £30,809.00 in compensation made up as follows:-

Basic Award

4½ weeks’ pay @ 288.00 per week restricted to statutory maximum of £270.00

£1,215.00	
Compensatory Award

(i)	loss of earnings prior to conclusion of proceedings - net average
wages - £212.00 per week from 1 March to 8 July 2005 - (19 weeks) 	

£4,038.00
	
(ii)	estimated future loss of earnings - net average wages £212.00
per week for 104 weeks.	
£22,048.00
	
(iii)	loss of 2 Christmas bonuses 	£600.00
	
(iv)	statutory increase of 10% per Section 31, Employment Act 2002	£2,608.00           £29,344.00
	
Loss of statutory rights	£250.00
£30,809.00”	

19.	What they do not, unfortunately, explain, is how matters proceeded once the indication of the wish to seek compensation had been made.  We were advised by Mr Whyte that the respondents’ position is that the claimant did not give evidence on oath on the matter but was simply asked questions by the Chairman about it whilst sitting in his seat  and they did not have any opportunity to cross examine him.  Mr Forrest advised that the claimant’s position is that he did give evidence and the respondents did have the chance to cross examine him.  However, he also advised that the claimant had produced and handed over to the Chairman, a number of copy job applications and responses (hence perhaps the reference in the tribunal’s judgment to him having applied for jobs) but these had not been made available to the respondents.  Accordingly, even if they did have the opportunity to cross examine the claimant on the question of likely future employment and efforts to mitigate his loss, they were not able to do so with the benefit of having had sight of the documents on which he was relying. 

Application for Review 
20.	By letter dated 7 September 2005, the respondents sought a review under Rule 34 of Schedule I of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  They sought to lead fresh evidence regarding the cause of the claimant’s road accident.  It was not their first request for a review but it was the first request for the reasons advanced in the letter.

21.	Shortly put, the respondents relied on the following:
- 	towards the end of paragraph 4 of their judgment, within their findings in fact,
the tribunal stated:   “The claimant pointed out that it had not been his fault that he had been seriously injured in the accident and that he did wish to return to work.” 
-	they had, after receiving the tribunal’s decision and in the light of hearing that
the claimant was boasting about the likelihood of him receiving damages for the injuries sustained by him in the accident, made enquiries of persons including the other driver involved in the accident in which the claimant was injured with a view to seeing whether he had specified the nature of his job in any claim made 
-	during these enquiries they had, on 17th August 2005, discovered that the other driver had sued the claimant and liability had been admitted 
-	further, by letter received on 29th August 2005, they had discovered that the claimant had been prosecuted and convicted of a contravention of section 2 of the Road Traffic Act 1988  after trial, on 21st April 2005 
-	the likelihood was that the tribunal had been influenced by the fact that the claimant was, supposedly, the innocent victim of a road accident 
-	further, the claimant’s credibility was in issue before the tribunal and the fact of his conviction would have been founded on to attack his credibility, given his assertion that the accident was not his fault .  

22.	They referred to it now being evident that the claimant had perjured himself on the matter of the cause of the accident and that it was in the interests of justice to allow the application for a review hearing albeit late. 

23.	The application for a review was refused.  Two reasons are given.  The first was that the respondents could have discovered that it was the claimant who was at fault for the accident within the fourteen day period for a timeous application (rule 35(1)); this reason was imported by reference to an earlier decision.  The second was that the cause of the accident did not form any material part of the tribunal’s decision on the merits. 

The Respondents’ Case on Appeal
1	The Substantive Appeal (EATS/0082/05/RN)
24.	Mr Whyte submitted that the tribunal’s decision was perverse.  He founded, in support of that submission, on three separate aspects of the judgment.  The importance of all three was that they related to the tribunal having concluded that the claimant’s job did not involve heavy manual work and therefore it was not fair of the respondents to have dismissed him on the basis of a medical report finding him unfit to return to his job based on the assumption that it did.  

25.	Firstly, he referred to the tribunal having, at paragraph 5, concluded that the information that the claimant’s job involved in heavy manual work must have come from the respondents.  Notwithstanding their assertion, it was plain that that was not the only conclusion that was open to them.  There was no evidence on which they could base such a conclusion.  He referred to Piggot Bros v Jackson [1991] IRLR 309 and BT v Sheridan [1990] IRLR 27.

26.	Secondly, he referred to a passage at paragraph 10 where they refer to conclusions in Dr Blyth’s report being ‘of doubtful provenance’ and submitted that they were, in effect, questioning the doctor’s integrity in a manner which was wholly unjustified.  It had coloured their approach to the respondents and the respondents’ case and affected their view of the credibility and reliability of the claimant. 

27.	Thirdly, he submitted that the tribunal had placed unnecessary emphasis on the claimant’s written job description when assessing what his job entailed.  It was well established that the content of any job is liable to evolve and may extend beyond the parameters of the written description:  Carmichael v National Power plc [2000] IRLR 43.

28.	Mr Whyte then submitted that the tribunal had awarded compensation for future loss of earnings without having had any proper basis for doing so.  The claimant had not given evidence on oath regarding the matter.  The respondents had not had the opportunity to cross examine him.  There had been a breach of natural justice.

29.	Further, the tribunal had erred in failing to give adequate reasons for their decision.  They did not meet the requirements set out in Meek v City of Birmingham Council [1987] IRLR 250.  There was no proper explanation given.  On the evidence, the claimant had worked for the respondents for only some 3½ years prior to his accident, meaning that he had been able to secure a job at the age of 48 ½.  He had only been looking for work since March (the tribunal hearing was in June).  As against his evidence that he was fit for work, there remained the medical diagnosis of him having a degenerative hip condition which was not the respondents’ fault.  The 104 weeks allowance for future loss of earnings was not, however, explained.  In the whole circumstances of the case, it was likely that sympathy for the claimant and distaste for the conduct of the respondents, both irrelevant, had weighed with the tribunal.  The respondents were entitled to know why they were being so heavily penalised. 

The Claimant’s Case re:  the Substantive Appeal 
30.	Mr Forrest submitted that the appeals should be dismissed although he went as far as to concede that regarding compensation, there would need to be a reference back to the tribunal to advise whether or not the claimant gave evidence on oath and was cross examined on the matter.  

31.	In seeking to resist Mr Whyte’s submission that the tribunal’s decision was perverse, he referred to the well trodden ground of Piggot Brothers and Yeboah v Crofton [2002] IRLR 634. 

32.	Dealing with each of the three areas referred to by Mr Whyte, he submitted that there was “at least some” evidence from which the tribunal were entitled to conclude that the respondents must have given the information about the claimant’s job content to Dr Blyth.  He referred to a number of passages in the evidence.  Those passages indicate only three sources, namely the claimant’s own evidence as to what his job entailed, his written job description and the report itself. 

33.	Regarding the tribunal’s use of the desciption “of doubtful provenance”, he submitted that that did not amount to a questioning of the integrity of the doctor who wrote the report.  The reason the tribunal did not accept the report was that it was based on erroneous information, not that they doubted the doctor’s integrity. 

34.	Regarding the matter of the influence of the written job description, he sought to distinguish the circumstances of the present case from those of Carmichael and referred to the tribunal’s finding that the job did not involve manual work. 

35.	As we have already noted, although there was an issue between the parties as to whether or not the claimant gave evidence on oath and was cross examined regarding his compensation claim, it was accepted that the documents he relied on were not made available to the respondents.  Mr Forrest’s general submission remained, however, that there should be a reference back for clarification. 

36.	Further, Mr Forrest submitted that the tribunal had given adequate reasons for their decision on compensation.  They did not require to be legalistic or formalistic about the matter. 

2.	Appeal against refusal of Review (EATS/0008/06/RN) 
37.	Mr Whyte referred to the letter in which the application was contained and the refusal letter.  He submitted that the fact that the claimant had been held responsible for the accident could well have had an influence on the tribunal.  Further, it was a matter that went to his credibility.  The interests of justice required that a review hearing should have been allowed.  Reference was made to Flint v Eastern Electricity Board [1975] IRLR 277, General Council of British Shipping v Deria [1985] ICR 198, and Wileman v Minilec Engineering Ltd [1988] ICR 318, the latter for the reference to the fresh evidence guidelines set out in Ladd v Marshall [1954] 1WLR 1489 which form the basis for the provisions of the Employment Appeal Tribunal practice direction regarding fresh evidence.  Mr Forrest submitted that, for the reasons given by the tribunal, it was right that the review application had been refused.  It came too late and was of doubtful relevance. 

Discussion 
1.	The Substantive Appeal

38.	The starting point for the tribunal’s decision was that they found that the respondents dismissed the claimant because they genuinely believed the claimant to be unfit to return to his pre accident job.  That belief was based on Dr Blyth’s report.  That was not, however, a belief that the respondents should have entertained.  That was because it was based on an erroneous view of what the job entailed and the source of that error must have been the respondents themselves.  They relied on the claimant’s evidence before them as to what the job entailed, evidence which they accepted.  It is plain that had they not found a way of dismissing Dr Blyth’s report on the foregoing grounds, it would have been very difficult for them to accept that evidence since there would have been a clear conflict between what the claimant had told him and what he had told them.  The tribunal reinforced their view that the respondents should not have relied on Dr Blyth’s report by finding that they failed to make full investigations.  In these circumstances, the dismissal was not a fair one. 

39.	We note, accordingly, that it was an essential building block of the tribunal’s reasoning that they held that Dr Blyth’s report was based on an erroneous view as to the claimant’s job content and that the respondents should have realised that that was so.  If they are wrong about that, the whole structure of their reasoning falls and what is left is the finding that the respondents had a genuine belief, based on expert opinion, that the claimant was unfit to carry out his pre accident work.  It is, accordingly, necessary for us to ask whether the tribunal were entitled to make that finding, a finding which was undoubtedly driven by their conclusion that the respondents informed Dr Blyth that the claimant’s job required him to carry out manual work. 

40.	The tribunal, as we have noted, assert that that conclusion was the “only” one to be drawn.  We cannot agree.  On the contrary, we do not see that it is a conclusion which could properly arise from any of the direct evidence at all.  The letter of instruction to Dr Blyth did not mention the job content.  Dr Blyth’s report makes no mention of him drawing on any source of information other than his own involvement as treating surgeon, the claimant’s casenotes, his examination of the claimant and what the claimant himself told him.  It is, of course, normal professional practice for the author of a medical report to specify his sources. There is no indication of it having been put to any of the respondents’ witnesses that they had advised Dr Blyth separately as to the claimant’s job content.  Dr Blyth was not a witness and it could not , accordingly, be put to him whether he had, contrary to proper professional practice, formed his opinion on the basis of information from an unspecified source.  In short, we regret to say that the tribunal’s conclusion seems to us to amount to nothing more than unfounded speculation.

41.	The tribunal further referred to the report being of “doubtful provenance”, a comment which seems tendentious.  We are not persuaded that the comment necessarily casts aspersions on its author’s integrity although it could be interpreted in that way and it certainly seems to suggest that its author and/or the respondents should have realised that it was erroneous.  The comment clearly relates to the earlier conclusion that the respondents must have been the source of the error.  The conclusion being one which the tribunal should not have drawn, it follows that this comment should not have been made. 

42.	Regarding the reliance on the claimant’s written job description, the tribunal should have borne in mind, as was commented by Lord Hoffman in the case of Carmichael, at p.2049, that the content of a person’s job will not necessarily be set out solely within the written job description; it may be 
“left to evolve by conduct…” .

43.	They do appear to have been unduly influenced by the written job description.  In paragraph 5 of their judgment they state:

“The claimant’s evidence which the Tribunal accepted was that he did not, as a requirement of his job, do any heavy manual work and was not required as such to move heavy pallets.  Prior to his accident he had in practice sometimes assisted in moving pallets, simply to oblige and move things forward.  However it was not a requirement of his job and there was no suggestion in his job description that he should be involved in heavy manual work or move heavy pallets.” 

44.	It does, accordingly, appear that they set aside the claimant’s evidence that as a matter of fact, the way he did the job prior to his accident was so as to include some heavy work because it was not written into his job description.  That was, we agree, an erroneous approach.

45.	We turn to the question of whether, in the foregoing circumstances, the tribunal’s decision should be set aside as having been perverse.  The test for perversity is well known, as is the fact that the high hurdle it presents is not often overcome.  One reason for that is the common failure to particularise the perversity allegations but the respondents have not failed to do so in this case.  The allegation has been carefully specified in some detail.  Adequate specification is not, of course, by itself enough.  To uphold the appeal on this ground, we have to be satisfied that the decision is one which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached (Yeboah v Crofton) such as, for instance, provokes the reaction “my goodness, that must be wrong “(Neale v Hereford and Worcester County Council [1986] ICR 471 at p.483, as referred to in Piggott Brothers and Co Ltd v Jackson).

46.	Having given careful consideration to the matter, we have reached the view that the tribunal’s decision was a perverse one.  The fundamental problem is their conclusion that the respondents must have advised Dr Blyth about the claimant’s job content.  They had no basis for it and, as we have explained, without it they could not have reached the decision that they did . Further, it does appear to have coloured their attitude to the case thereafter and to have produced an unduly favourable response to the claimant’s case.   

47.	Separately, we are satisfied that the appeal should be upheld insofar as directed to seeking to have the award of compensation in respect of future loss of earnings set aside.  If the respondents are correct that the claimant did not give evidence on oath on the matter, that would give us considerable concern since the tribunal would have had before them no evidence whatsoever to make the findings that it did.  However, we recognise that there is an issue between the parties as to whether he did or not and we will, accordingly, say no more about it.  

48.	However, what was not at issue was that the respondents had no sight of the documents founded on by the claimant in support of his case that he had made reasonable attempts to find alternative work and it was not likely that he would find such work in the near future.  It is fundamental in the interests of justice that each party has sight of and time to consider any documents founded on by his opponent.  There can be no fair trial if that does not happen.  For this reason alone, the award in respect of future loss of earnings cannot stand. 

49.	We would, however, add that we agree that the tribunal have not provided sufficient reasoning in support of it.  They have made a substantial award on the basis of a general view that “it might be some time yet before he was able to find suitable employment.”  The impression is of but of cursory attention being given to the need to justify the award of 104 weeks loss of earnings and does not, in our view , meet the basic explanatory requirements. It is not enough to say that a tribunal’s decision is not expected to be rigorously formalistic, as was the claimant’s approach in submission.  As Lord Bingham said in Meek, at p.251, it is necessary that they give a statement:
“of the reasons which have led them to reach the conclusion which they do on those basic facts.” 

50.	An award in respect of 104 weeks of loss of earnings calls for a clear explanation.  Why is it, in all the circumstances, considered that the claimant will not have a job until after that?  What is it about the particular facts of the case that leads to that conclusion?  The respondents are entitled to know why they have to bear such a heavy burden of compensation.  The tribunal do not, in this judgment, tell them. 

2.	The Review Appeal
51.	Turning to the respondents’ review application, since we are upholding the substantive appeal, the appeal against its refusal becomes redundant.  However, we would wish to add that had we had to consider and determine it, we would have upheld it.  It seems to us unreasonable for the chairman to have taken the view, as he did, that the information on which the respondents sought to rely could have been obtained sooner.  There is no indication at all that they had any reason to know about the conviction at any earlier stage.  Further and more importantly, the chairman has simply not dealt with the principal reason for the respondents seeking to rely on it.  The point was not, as he seemed to think, that their focus was to be on proof of the cause of the accident.  It was, plainly, that they sought to rely on the evidence of the conviction to attack the credibility of the claimant, given what he had said in evidence before the tribunal.  The claimant’s credibility was critical in this case, given the approach adopted by the tribunal on the matter of his job content and to seek to attack credibility by reference to a collateral matter is a standard and proper advocacy technique.  We consider that, in the circumstances, no reasonable chairman would have refused the application and it is unfortunate that it happened in this case.  The need for the substantive appeal might well have been obviated had it gone ahead. 

Disposal 
52.	We will, accordingly, uphold the substantive appeal (EATS/0082/05/RN), set aside the tribunal’s award and remit to a freshly constituted tribunal for a rehearing.