Appeal No.UKEAT/0350/05/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
30 January 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR P PARKER OBE
MS P TATLOW

MR S O’HARA	APPELLANT

JACKSTONE FROSTER LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR FRANK H LEFEVRE
Representative
Quantum Claims – 
Employment Division
70 Carden Place
Queens Cross
Aberdeen AB10 1UB	
For the Respondent	MR JULIAN MILFORD
(of Counsel)
Instructed by:
Messrs Whitehead Monckton
Solicitors
72 King Street
Maidstone
Kent ME14 1BL	

SUMMARY

Unfair Dismissal: Contributory Fault & 
Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke

Quantum of compensation – employee said illness was aggravated in part from dismissal.  Tribunal found dismissal unfair but employee would have been dismissed 13 months later for sickness absence.  Tribunal did not address in its reasons employee’s contention that illness was in part a consequence of dismissal, even after being invited to give further reasons.  Matter remitted to fresh Tribunal (Chairman having retired a year ago).

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	In this case the Respondent conceded that the Claimant had been unfairly dismissed.  The facts giving rise to the dismissal need to be briefly recounted however.  They were understandably not set out in any detail in the Tribunal’s conclusion on remedies because they did not have to be recounted in that particular context, but it is necessary to outline them for the purposes of this appeal.  They have been pieced together from the application and the Notice of Appearance and the submissions of the parties before us today.  

2.	We are grateful to the representatives, Mr Lefevre for the Appellant and Mr Milford for the Respondent, who have also told us the way in which matters developed at the Tribunal below.  

3.	The Appellant was employed as an engineer with the Respondent company.  He was employed from 8 October 2001 until his dismissal on 23 January 2004.  He had been instructed on 13 January 2004 to fly to Holland on 15 January but he says he became ill in the early hours of that day.  His mother phoned the employers on that day and told them that her son was suffering from “a nervous breakdown”.  He was signed off work by his doctor on 16 January as a result of what the doctor described as a depressive illness.  

4.	The employers then terminated his contract for gross misconduct by a letter dated 19 January which was received by the employee on 23 January.  It purported to state that the dismissal took effect on 15 January.  The employers contended that this was the “last straw” of unacceptable conduct by the Claimant.  It was very important that he attended this client in Holland or at least informed them as soon as he knew that he was unable to do so.  They felt that he had been unreliable and inconsiderate and they allege that his actions had caused serious difficulties for the client concerned.  Nevertheless, there had been no consultation, no hearing of any kind and no indication of what was to come and in those circumstances, we are not surprised that unfair dismissal was conceded.  We are told that it was conceded very shortly into the hearing before the Employment Tribunal.

5.	It is common ground that the Appellant had been ill for a significant number of days during his employment.  There were six days in 2002 and in addition, 20 days’ sickness in 2003 and 15 days of compassionate leave.  The employers contended that the Appellant had frequently ignored the relevant procedures and had not provided documentation for his illnesses.  This was not merely a complaint about failing to adhere to formal rules.  As we have indicated, they had come to believe that on these occasions when he was absent, his explanations were not truthful.  His dismissal was not for sickness but for gross misconduct.  

6.	In assessing the compensation, the Tribunal made two findings which were highly relevant to the amount payable.  First, they found that there were certain failings by the Appellant which amounted to blameworthy conduct and justified a reduction of the compensation by 25%.  These included failures to comply with the procedures and being lax generally in attendance and time-keeping.  

7.	The second finding of the Tribunal was although unfairly dismissed, the Appellant would have been dismissed 13 weeks after the date of termination in any event.  It is important to note that this was not a Polkey reduction.  The Tribunal stated in terms in its decision that it was not satisfied that the dismissal would have taken effect at the time it did if a fair procedure had taken place.  Rather, it was a determination that dismissal would occur at a later date, thereby setting a limit to the period during which the compensatory award could be calculated.  

8.	The Appellant lodged an appeal challenging both these conclusions.  He also contended that the Tribunal had failed to give adequate reasons for the determination that he would, in any event, have been dismissed 13 weeks later.  Originally his whole claim was rejected as demonstrating no reasonable prospect of success.  But on a hearing pursuant to Rule 3(10) of the Procedural Rules, Silber J granted permission on the basis that the Tribunal had not given reasons as to why they reached the conclusion that they did in relation to the finding that dismissal would have occurred 13 weeks later in any event.  He made an Order under which the Tribunal were asked for those reasons.  The Chairman in her reply said this:
“The reasons for the conclusion that the Appellant would have been fairly dismissed 13 weeks after 23 January 2004 by reason of his absence from work were based upon the Appellant's sick absence record for 2003 and the fact that the Appellant had been unfit for work between January 2004 and 16 March 2004 (the date of the signing of the Tribunal Application).  In addition, the Appellant states in his Application  that he is still unfit to work.
The Tribunal, therefore, took the view that, with no prospect of a return to work after 7 weeks absence commencing on 23 January 2004, on a balance of probabilities the Appellant would have been unable to return to work after 13 weeks, it would, therefore, have been reasonable for the Respondent to have dismissed him in those circumstances”.

9.	The Appellant continues to advance the two inter-related grounds, namely that the Tribunal did not properly make the assessment that dismissal would occur in any event 13 weeks after the unfair dismissal, and that they had given insufficient reasons for that conclusion.  Initially, the Appellant’s grounds ranged fairly widely.  It was said that the Tribunal had speculated as to the likely outcome and had not relied on evidence.  It was submitted that it could not, in any event, be inferred that a dismissal would have been fairly carried out 13 weeks later because the employers had demonstrated that they would not comply with relevant procedures.  

10.	Most pertinently - and this was the only ground, I think, on which, in the end, Mr Lefevre was pursuing the appeal - it was submitted that the Tribunal had simply not dealt with a fundamental argument advanced by the Appellant at the hearing.  He had submitted that his illness was, in part, contributed to or aggravated by, the very fact that he had been dismissed summarily by the employers in the way that he had.  Mr Lefevre submits that this is potentially a factor which may impinge on the amount of compensatory award that should be payable.  He referred us to the decision of the Inner House of the Court of Session in Dignity Funerals Ltd v Bruce [2005] IRLR 189.  In fairness to the Tribunal, this decision had not been reported when it reached its decision.  In that case, the issue arose as to whether the employee’s absenteeism had been caused in part by the dismissal, just as in this case.  In the course of giving judgment in the Inner House, the Lord Justice Clerk (Lord Gill) said this at paragraphs 12 and 13:
“If the dismissal was not a cause of the respondent's wage loss, no award was due.  If it was the sole cause, the full award would normally be appropriate. But in this case the respondent's depressive state had manifested itself before the dismissal and it appears that there may have been other unrelated causes of his unfitness for work thereafter.  It was therefore possible that after 18 January 2001 the dismissal was merely one of two or more concurrent causes of his wage loss.  It was also possible that the dismissal had been a cause of the unfitness for work for only part of that period.  In such circumstances, a just and equitable award, in our opinion, would in all likelihood be of less than the full amount of the wage loss.
The tribunal therefore had to decide whether the depression in the period after the dismissal was caused to any material extent by the dismissal itself; whether, if so, it had continued to be so caused for all or part of the period up to the hearing; and, if it was still so caused at the date of the hearing, for how long it would continue to be so caused.  It was essential that the tribunal should make clear-cut findings on these questions before any question of a compensatory award could arise”.

11.	It seems to us that if a Tribunal were to come to the conclusion that the employee’s illness (absent any aggravation to that illness caused by the dismissal itself) would have led to a dismissal at some later stage after the unfair dismissal had occurred, then compensation should be limited to the period from the original dismissal until the new dismissal would have taken effect.  If, on the other hand, the Tribunal is satisfied that illness (absent the aggravation caused by the dismissal itself) would not have led to a dismissal at a later stage, then it should not set any limit to the compensatory award by fixing a later date of dismissal.  On that latter premise, there would not have been a later dismissal by reason of ill-health but for the original unfair dismissal.  It may be that if a Tribunal considers it cannot be satisfied of either of these premises, then it would be legitimate for it to assess the extent to which the dismissal had contributed to the depressive state and assess compensation by reference to the relevant percentage.  

12.	In this case, however, the Appellant’s complaint is that the Tribunal do not appear to have taken into account the evidence which he had adduced, both in his own evidence and the evidence of his mother and certain doctor’s certificates which he had provided, that the dismissal had contributed to his illness.  

13.	Mr Milford, for the Respondent, says that the question of whether dismissal may have occurred in any event by reason of ill-health was firmly before the Tribunal.  It is one of the matters on which he had addressed them.  He submits that it is plainly open to the Tribunal to find, in principle, that dismissal would have occurred 13 weeks later.  Indeed, it is plain that the Appellant was seeking to submit that he would be out of work for some period because of his illness, aggravated, as he claimed it had been, by the unfair dismissal.  In those circumstances, as Mr Milford pointed out, there is authority that it would be unjust and unfair for a Tribunal not to take into consideration the possibility that the employee would have been dismissed by reason of ill-health in any event: see the decision of this Tribunal (Phillips J presiding) in P J Fougere v Phoenix Motor Company Ltd [1976] IRLR 259 at paragraph 16.  

14.	The Respondents provided some evidence about precisely what happened before the Tribunal when the issue of the impact of work on the Appellant’s illness had arisen.  We have a brief witness statement from the assistant solicitor who attended the Tribunal hearing.  He submits that, in the course of cross-examination by Mr Milford, questions were directed towards the causal connection between the Appellant’s breakdown and his job with the Respondents.  In particular, the Appellant was asked whether his breakdown was partly due to the pressure of work and he replied: “yes”.  It is said that the Tribunal Chairman then intervened and said she would make no finding on whether the conduct of the Respondent had contributed to the Appellant’s breakdown at the time of his dismissal without much stronger medical evidence.  The Chairman has commented on this witness statement.  She says she has no note of the hearing but it would have been her practice to inform an employee that no finding could be made to the effect that it was the employer’s treatment that caused the employee’s illness without medical evidence to that effect.  

15.	We are not satisfied that this exchange between Chairman and Counsel in any event meets the argument being made by the Appellant.  He was not saying that it was the conduct prior to the dismissal that caused his illness; he was submitting that it was the dismissal itself that was, at least, a significant cause of the subsequent depressive illness which led him being away from work for such a lengthy period after the termination of his contract.  This may or may not have been a strong argument, but there plainly was the evidence of the Appellant himself about that and there was also some medical evidence as we have indicated, which consisted of two letters from his general practitioner, one dated 12 May 2004 and one 4 August 2004.  The Appellant did adduce that evidence before the Tribunal and it appears not to have been addressed by the Tribunal in its reasons at any point.  

16.	Mr Milford accepted that it was, perhaps, unsatisfactory that the Tribunal had not dealt expressly with this matter.  He says, however, that it is reasonable to infer from the Tribunal’s decision that they felt that there was nothing in this submission by the Appellant and that they were satisfied that the dismissal had not contributed in any way to the illness.  Alternatively, he suggests that the nature of the evidence was such that it would have been perverse for a Tribunal to have concluded that the dismissal contributed to or aggravated the illness that was being suffered by the Appellant.  

17.	We reject those submissions.  There may have been many arguments that might have been advanced before the Employment Tribunal as to the weight that should be given to evidence of that nature and to the fact that as Mr Milford observed, the GP is simply reciting what he is told by the Appellant.  Nevertheless, it is plain from the decision in Dignity Funerals (if one needs authority for the proposition) that this was an argument which the Tribunal had to address and if they were going to reject it, then they had to give some reasons for so doing.  Those reasons did not appear in the original reasons of the Tribunal and nor are they dealt with in the supplementary statement made by the Chairman which we have set out in this judgment.  

18.	We do not accept Mr Milford’s argument that it can be assumed that the Tribunal felt there was nothing in the point or that a Tribunal, properly directing itself in law, could only conclude that there was nothing in the point.  Plainly, it is for the Tribunal to assess the evidence and give it such weight as it thinks proper.  

19.	It follows, with much reluctance, given the delays already in this case, that we consider that the matter has to be remitted.  In the normal way, we would have been inclined to send it  back to the same Tribunal which was seized of this issue, but we are told  – and this has been confirmed - that the Tribunal Chairman has now been retired for a considerable period of time.  In the circumstances, it has to go back to a fresh Tribunal for reconsideration.  Given the sums involved in this case, that is an extremely unsatisfactory outcome but we feel that, in fairness to the Appellant, there is no real alternative.  We can only say that we would have thought from the parties’ point of view, a compromise settlement at this stage would make far more sense than incurring yet further costs in another day’s hearing before an Employment Tribunal.  That, of course, ultimately is for the parties to consider, but the sums involved, even on the Appellant’s case, would not, in truth, appear to be that great. 

20.	It follows that we uphold the appeal and submit the matter to a fresh Tribunal.