Josiah Parkes & Sons Ltd v Smith [1992] UKEAT 259_90_2702

EAT
Josiah Parkes & Sons Ltd v Smith
[1992] UKEAT 259_90_2702 · 1992-02-27
MR JUSTICE PILL : This is an Appeal by Josiah Parkes & Sons Ltd against the decision of an Industrial Tribunal sitting at Birmingham on 12 March 1990 that the Applicant before that Tribunal, Mrs J S Smith had been unfairly dismissed.The Appellants are an old established company of lock makers. They have three factories in the Willenhall area with about 1,500 employees of whom 900 are female. The company is part of a group of companies employing just under 4,000 people. Mrs Smith was employed by the company in December 1978. She did manual work in the factory store. It involved bending and lifting fairly heavy objects.In January 1986 as a result of an accident at work, a pre-existing osteo-arthritic condition in her back was exacerbated. Until then she had a good record for work and attendance. Thereafter her attendance was relatively poor and probably she would eventually have been dismissed for failure to attend her pre-accident work by reason of the state of her back. There was a further aggravation of the back condition in July 1989. On 30 August 1989 she arrived at work with a medical certificate which stated that she was unfit for heavy lifting or frequent bending. She announced that she would be returning to work on 6 September and asked for light work. She was medically examined and the finding was that she was suitable for light work only.On 8 September Mrs Smith reported at the factory at the normal time dressed for work. She was called for a meeting with Mr Sibley who is the Senior Chief Personnel Officer and Mr Elks. What happened at that meeting is set out in the Reasoned Decision of the Tribunal at paragraph 4. There was discussion about possible alternative work. The case turns upon the adequacy of the attempts and enquiries made by the Appellants to find alternative lighter employment and upon the findings of the Industrial Tribunal on that subject.It is accepted that the Tribunal correctly set out in paragraph 5 of their Reasoned Decision the test to be applied under Section 57(1) of the Act in determining whether a dismissal is fair or unfair and that it is for the employer to show what was the reason or at any rate the principal reason for the dismissal. Reference was also made to Section 57(2) and (3).Mrs Smith was dismissed because she was incapable of doing her pre-accident work. She claimed before the Tribunal that the dismissal was unfair; that alternative lighter work should have been offered to her, or at any rate further attempts should have been made to find her a suitable alternative job.We have referred to the meeting on 8 September 1989. It is common ground that there was a further meeting on the following Tuesday, 12 September. The Tribunal found as a fact that the dismissal occurred on 12 September. They did so on the basis apparently, though it is not stated in terms, of the oral evidence of Mr Sibley. It is not central to our decision but we do find it surprising that dismissal was found to have occurred on that date and not on 8 September, or at any rate that there was not further enquiry into that question. The main reason for our surprise is that in a letter dated 12 September 1989 and signed by Mr Sibley, it appears to us that it was stated in terms that the employment was terminated on 8 September. That position appears to us to have been restated by Mr Sibley in a further letter which he wrote to the National Organiser of Mrs Smith's union on 2 October 1989.The Tribunal's finding was, however, more favourable to the Appellants in that it allowed such enquiries as were conducted between 8th and 12th September as having been conducted before the dismissal occurred. There is no cross-appeal against the Tribunal's finding and bearing in mind that the Industrial Tribunal are the Tribunal of fact, we would not consider it right to substitute another view of when the dismissal occurred for that found by the Tribunal. Mr Main Thompson on behalf of the Appellants submits that there was no factual basis for the Tribunal's finding that the dismissal was unfair. The Tribunal's findings are set out in paragraph 6 of the Reasoned Decision. They stated:
"This is a rather unusual case. Had the applicant not announced that she was returning to work on the expiration of her current medical certificate and had she not requested light work, things would probably have gone on as they were and she would not have been sacked. It is said that she accepted on 8th September that there was no light work available so that the sack was inevitable, but we do not accept that. Document 8 goes too far. It is common ground that the applicant was very upset that day. She wanted light work. Some of her suggestions were fanciful. Thus she could hardly hope to be found a clerical post. However this employer has three factories and is part of a group with getting on for 4,000 employees. On Friday 8th, Mr Sibley agreed to check for a job in inspection. By the following Tuesday he was dismissing her. We are not satisfied that any really serious attempt was made to find the applicant suitable alternative lighter employment. She had 10 years service which down to her accident at work in January 1986 was without complaint. At the end of the day it seems to us that the respondent acted with undue haste in giving the applicant notice and in the circumstances was acting unreasonably. It follows from that that her application is well founded."
Document 8 is the letter of 12 September 1989 to which we have referred. The Tribunal did not accept Mr Sibley's assertion, or evidence, that the termination was by consent and it is accepted on the Appellants' behalf that the Tribunal were entitled to reject his evidence. We have referred to that letter in a different context and in that context we would add that there is no reference whatever in the letter, or in the letter of 2 October, to enquiries between 8-12 September which in evidence Mr Sibley said that he made.We have before us the Chairman's note of evidence. Mr Main Thompson relies upon the evidence given as demonstrating that any finding other than that the dismissal was fair was a perverse finding. We need to refer to the note. It is not, of course, a transcript. We see dangers, and this is no criticism of the Chairman's note, in placing too much weight upon particular, short sentences when it is not possible always to know the context in which the statement was made by the witness, or the way in which questions were put to him. In this case Mr Sibley was in the position of being both advocate and witness for his employers.Mr Main Thompson relies particularly upon the following notes. At page 14 of the bundle in relation to 12 September meeting Mr Sibley is recorded as saying:
"I considered alternative employment in the other two factories. None was found."
and at page 15 in the course of cross-examination:

"No alternative employment offered. None was available."

He also relies upon the note of the evidence of Mr Elks called on behalf of the employers. He was a toolroom machinist and union convenor, and having stated that the Applicant suggested at the meeting various alternatives to the pre-disability job, he stated:

"on 8 September no alternative was offered"

and a little later in his evidence:"Nothing was available".Mrs Smith herself gave evidence and she said that:
"There was no alternative employment offered. ..I asked for jobs. I was never offered any."
Later she says:

"There were a number of jobs I could have done"

and under cross-examination she said:"Jobs were available".Mr Sibley also gave evidence of what happened shortly before the return to work on 8 September. He referred to a medical examination by Dr Pendlington and his subsequent conversation with Dr Pendlington when:"It was agreed that she should be moved to light work with no lifting".He added that he discussed with the convenor the policy to be adopted when Mrs Smith returned on 8 September.Mr Main Thompson also drew attention to the evidence that on 7 September a notice had been given to employees stating that periods of short time working would occur within the company from 18 September 1989. He also drew attention to the fact that there was evidence that recruitment had stopped, (though it was clear that at least two people were taken on) and that dismissals had occurred.His submission is that on the basis of that evidence the conclusion reached by the Tribunal is unsustainable. "What more" he asked forensically "could the employers have done?." There is no evidence that further enquiries would have enabled them to come up with an alternative lighter job. No specific suggestions were put to the employers' witnesses as to what further enquiries should have been made.It is of course axiomatic that this Tribunal should interfere with findings of an Industrial Tribunal only in limited circumstances. The question when this Tribunal is entitled to interfere was considered in the Court of Appeal PIGGOTT BROTHERS & CO LTD v JACKSON [1991] IRLR 309. It was held that:
"A decision of an Industrial Tribunal can be categorised as "perverse" only if it was not a permissible option. In order to hold that a decision was not a permissible option, the EAT will almost always have to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do that, the EAT should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and was therefore perverse. Reasonableness is to be characterised as a mixed issue of fact and law but the factual element predominates."
At paragraph 29 of the Decision Lord Donaldson M.R. drew attention to his statement in the earlier case of UCATT v BRAIN [1981] IRLR 225 at page 228:
"[The purpose of reasons] is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."
In BRAIN the Court of Appeal held that the Employment Appeal Tribunal had erred in holding that the Industrial Tribunal's decision that the Appellant employees had been unfairly dismissed was certainly wrong and in overturning their decision on the ground of perversity.The position of an employer when an employee is not able to do his existing work because of illness was considered in MERSEYSIDE & NORTH WALES ELECTRICITY BOARD vGA TAYLOR [1975] IRLR 60. Mr

Justice O'Connor stated:

"..it cannot be right that, in such circumstances, an employer can be called upon by the law to create a special job for an employee however long-serving he may have been."

Mr Justice O'Connor, as he then was, continued:

"On the other hand, each case must depend upon its own facts. The circumstances may well be such that the employer may have available light work of the kind which it is within the capacity of the employee to do, and the circumstances may make it fair to at least encourage him or to offer him the chance of doing that work, even if it be at a reduced rate of pay."
In GARRICK'S CATERERS LTD v NOLAN [1980] IRLR 259, a decision of the Employment Appeal Tribunal, Mr

Justice Slynn, presiding, referred to the statement of Mr Justice O'Connor and added:

"Clearly, employers cannot be expected to go to unreasonable lengths in seeking to accommodate someone who is not able to carry out his job to the full extent. What is reasonable is very largely a question of fact and degree for the Industrial Tribunal. If, here, it had been shown to their satisfaction that this temporary special arrangement could not reasonably be continued for a longer period, then no doubt the Tribunal would have been entitled to come to the conclusion that the company had done all that was reasonable. But, here, the Tribunal looked at the matter in precisely the right way and they were satisfied that not only was there a job available on the day shift, but also that the kind of lifting which was required was such that it could easily have been done by somebody else. They thought, on the evidence which they had, that had the company really looked at the matter in more detail then they ought really, as reasonable employers, to have been satisfied that arrangements could have been made to accommodate Mr Nolan."
The facts of the present case are plainly different from those in the case of NOLAN . However, we attach importance to the approach which should be adopted in cases of this kind as expressed in TAYLOR and NOLAN .Before expressing more general conclusions we deal with Mr Main Thompson's submission that the evidence was all one way. Even if that were so, and we do not fully accept it, there may be cases where an industrial tribunal is entitled to take into account that an applicant is not in a position to suggest what alternative jobs may be available to him or her or even what enquiries ought properly to be made by the employer in deciding that question. Only the employers will know fully their resources and what they could reasonably offer. There may be cases where a tribunal might accept such evidence as is given by the employers but still legitimately form a judgment that insufficient enquiries had in the circumstances been made. They may make a judgment to that effect from their assessment of the situation as it appears in evidence.Mr Main Thompson has submitted that there was insufficient challenge at the Tribunal of the evidence given by the employers' witnesses. The same point is made by Mr McMullen on behalf of the Respondent in that Mrs Smith's evidence that jobs were available was not apparently challenged. There was lay representation before the Tribunal and it would be wrong to take too strict a view of forensic procedures in the circumstances which occurred. However, it is fundamental that it is for the Industrial Tribunal to decide whether the dismissal was fair and that involves in many cases a burden upon the employers, if they are to succeed, to call evidence as to what enquiries they have made and whether they have made serious attempts to find suitable alternative employment. We say in terms that we are not prepared to attach such importance to the three word sentence in the Chairman's notes of the evidence of Mr Elks that:

"Nothing was available."

as to show that a finding that insufficient enquiry was made, and undue haste was shown by the employers, was a perverse finding by the Tribunal.However, we have considered the evidence with care with a view to deciding whether or not the conclusion reached by the Tribunal was perverse and whether, on the evidence in the case, their finding that the dismissal was unfair was a permissible option. We bear in mind the parts of the evidence which Mr Main Thompson has brought to our attention.Within paragraph 6 of the reasoned Decision there are findings of fact. There is the finding of fact that Mr Sibley's evidence that the termination of the employment was consensual was not accepted. There is a finding that Mrs Smith had ten years service. There is a finding that some of her suggestions as to alternative work were fanciful but that involves by implication, a finding that some of them, and it may be that quality control was one in mind, were not fanciful. There was a finding that the Appellants were part of a group with, as the Tribunal put it:

"getting on for 4,000 employees."

There was no specific evidence as to where the employees worked other than the evidence that there were three factories in the Willenhall area.Considerable weight has been put on behalf of the Appellants on the evidence that enquiries were made over the weekend at the other two factories. However, there is no evidence as to precisely what enquiries were made; or what questions were asked in efforts to find an alternative job for Mrs Smith. It is perhaps surprising that the Tribunal have not set out their findings of fact or reasoning more fully but they do make the findings to which we have referred. Our unanimous decision is that, in finding that they were not satisfied that any really serious attempt was made to find the Applicant suitable alternative lighter employment, the Tribunal cannot be said to have acted perversely and it cannot be said that there was no evidence upon the basis of which they were entitled to reach that conclusion. Similarly, knowing as they did, the time scale involved and the evidence that it was contemplated that light work would be considered for Mrs Smith, they were entitled to hold that the Appellants acted with undue haste in the circumstances. They have not spelt out in any more detail the impression which Mr Sibley's evidence made upon them, or any more fully in what respects they were not satisfied by the enquiries which he made. However, on the evidence they were entitled not to be satisfied that he had made sufficient enquiries ormade an attempt to find work for her which was in all the circumstances adequate.For those reasons this Appeal is dismissed.