Post Office v Handley [1992] UKEAT 4_92_2807

EAT
Post Office v Handley
[1992] UKEAT 4_92_2807 · 1992-07-28
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 1991 Mr Handley alleged that he had been unfairly dismissed by his employers, the Post Office. His application was heard over two days, the 4th and 5th November 1991 by an Industrial Tribunal sitting at Southampton, they made the following Order.
"The applicant was unfairly dismissed and the respondents shall reinstate him as from today in his former position of Postman/Driver and pay to him such monies as he would have been entitled to between 5.6.91 and 5.11.91 had he not been dismissed."
The Post Office appeal.The Applicant was employed in his post as a Postman/Driver between the 4th February 1985 and the 5th June 1991. There had been no indication of any failure by him to carry out his duties until the latter part of 1990.His employment was terminated by written notice on the 5th June 1991, the reason being that he had refused to work as directed on Monday, 25th February 1991. The officer in the Post Office who decided on the dismissal was Mr Morley; an appeal was heard by Mr Elliott.The incidents prior to the one which is relevant for this case took place, as we have said, in the latter part of 1990; an official warning was given and three day's suspension in November 1990. The incident on the 25th February 1991 was as follows. At about noon Mr Gowers, the Applicant's superior, saw the Applicant on the sorting office floor, asked him "whether he had completed his deliveries?", he said "he had" he was therefore asked to carry on with some other work. Mr Handley refused. I do not think we need go into greater detail than that. He also had said that he was going to take another day off and was clearly somewhat truculent.On Monday, 4th March 1991, the Applicant, having been away from work intermittently, in the interim, returned to work and agreed to work normally. He was asked to give his side of the incident, statements having been taken from Mr Gowers, and he did so in the form of a statement which is part of the exhibits R2 on page 27; his version is set out in the Decision.He was subsequently interviewed by a Mrs Lee, she recorded the notes of that interview. He gave his explanation and it is material for our present purposes that she indicated that at the conclusion of the interview the Applicant had said that he was tired and that this had affected the way in which he had behaved.Mr Morley first took part in the procedures by writing a letter of the 21st March 1991, that is at page 33 of the documentation. It sets out the complaint; sets out the fact that if a disciplinary charge is substantiated, consideration will have to be given to dismissal; gives him an opportunity to answer and put forward reasons why he should not be dismissed and saying that you can do so by written representations or seeking an interview and indeed saying, you can be accompanied on those occasions. There was no reply. On the 10th April, Mr Morley, who was aware by that time that the Applicant had been on sick leave since the 28th March extended his time for making representations until the 19th April. In that letter he again set out the situation and emphasised the importance of either giving written representation or requesting an interview. The important part of that letter however, is that Mr Morley, the District Manager indicated that he noted that the Applicant had been incurring a period of continuous sick absence since the 28th March 1991.There was no reply to that letter and the next step was the writing of the letter dismissing Mr Handley. However, at the time that Mr Morley wrote that letter he was aware of an internal memorandum from someone in the Personnel Department which noted the outlined facts of the matter and under paragraph 3 is written:

"Reasons for Absence - `Depression'."

Mr Morley decided that as there was no explanation he came to the conclusion that the failure to send in written reasons amounted to an admission of guilt and he decided to dismiss. He gave notice which terminated on that date, the 5th June.The action taken by Mr Morley has been criticised by the Tribunal in that he took no steps to interview Mr Handley nor to find out about his sickness. This is the judgment of the Court but may I say that I have been greatly assisted by the comments and advice of the Industrial Members in the practices in situations like this. First of all, it seems to them, and I agree with them, that if a question of sickness or sick absence is involved, and where you have a history of perfectly sound behaviour until the recent past, as there was in this case, there is a danger that unless you investigate that sickness you run the risk of being criticised should that sickness prove a perfectly genuine and perhaps serious illness. It may be that what happened in this case was that Mr Morley did not believe the reason given, but if he did not investigate it he runs the risk of being wrong and of subsequent criticism. It is true, as was submitted by Mr Lee that an employer made find itself "on the horns of a dilemma", if it delays too long it is criticised, if it does not delay and goes ahead with the decision it is likewise criticised. However, it seems to us that every case must depend upon its own facts and that on the whole it is sound that sickness should be regarded as a warning light and that reasonable investigation should take place; it could quite easily have taken place in the present circumstances. By way of collateral comment, the Industrial Members are somewhat surprised that there was no production of certificates of sickness whether self-certificated or not, because that system is generally to be found in large concerns and indeed it would give some indication as to the genuineness of any sickness. Thus the criticism made here, is that Mr Morley proceeded without investigation and without seeking an interview or directing that the Applicant should come and see him was open to criticism and is properly criticised by the Industrial Tribunal. The Industrial Members feel that in the circumstances this employer, acting reasonably in these circumstances would have made some further investigation and not dismissed without it.However, thereafter there was an appeal by Mr Handley and that appeal was heard on the 20th May by Mr Elliott. He was the next man in the line management dealing with this matter. Mr Elliott saw and heard the Applicant. He also had before him a letter from the Applicant's Doctor dated 30th April 1991 in which he expressed the view that he had first seen Mr Handley on the 4th April with
"significant clinical depression which had required treatment by medication since then and which has made it not possible for him to attend work since then. He is now slowly improving but I understand that he missed a disciplinary hearing during a time that he was off work and I feel allowance should be made for his mental fitness at that time to attend such a meeting."
The step which Mr Elliott took, having been made aware of that letter, was to consult Dr Webb, who was the Area Senior Medical Adviser and to ask him what his view was of the situation. Dr Webb indicated that he would like to know whether there had been any abnormal behaviour by Mr Handley and so Mr Elliott asked various supervisors to report back on the situation. The Industrial Tribunal criticised Mr Elliott for not asking Dr Webb to see the Applicant and it seems to us that that is a valid criticism.The report from Dr Kadri indicates a much more serious situation than merely "depression". It was something that had been going on for some time and there was clear indication in that report that it was having an affect on the mental stability of Mr Handley. It seems to us, therefore, that this employer in these circumstances acted unreasonably at that stage in the investigation, it was an obvious step to take and it seems to us that the Tribunal were justified in criticising the lack of investigation at that stage.The situation therefore is this; on those two aspects, the lack of investigation in the circumstances by Mr Morley and Mr Elliott was open to criticism and that the Industrial Tribunal were justified in reaching that conclusion.However, criticisms have been made of the way in which this Tribunal conducted itself on that issue of what is sometimes called "liability" and we confess that some aspects of this criticism appeal to us. First, there is the question of a letter of the 7th June 1991. That is a letter which Mr Lee, for the Post Office, tells us he saw for the first time today, and indeed we accept that of course, but it also appears on the list of exhibits as separate from the bundle of 47 pages which we have also seen. Mr Farrell also indicates that he put it in at some stage but Mr Lee is convinced that he has never seen it and there is nothing on the Notes of Evidence to indicate how that letter could have come before the Tribunal. One thing is quite certain is that if it had it would have been challenged and the Post Office would have sought to call medical evidence and deal with it another way. How that happened it is uncertain but that it did happen seems to us to be quite clear.The second ground of criticism made by Mr Lee for the Post Office is in connection with the Notes of Evidence, he submits that there are omissions, and omissions are understandable because Notes of Evidence are there for the benefit of the learned Chairman and it may very well be, as any of us know, in practice, that your own notes are not necessarily the same as other peoples. However, he also comments that there are inaccuracies and that is quite apparent. We merely say that that is unfortunate but is not fundamental in the criticisms. Mr Lee also comments that the Tribunal relied upon an unreported case of Post Office v. Stones EAT 390/80 in the Decision, first that that Authority was never drawn to the attention of the two advocates. Nor were they asked by correspondence whether they wished to comment and it is utilised by the Tribunal in the following passage:
"Mr Morley made his decision on documentary evidence and without seeing the applicant. That in itself has been held by the Employment Appeal Tribunal in Post Office v. Stones to render a dismissal unfair. Seemingly some respondents never learn."
The facts of the Decision in Post Office v. Stones are very different from the present. There was representation; there was an opportunity to interview and one thing is quite clear, namely, that to suggest that it is an Authority for the proposition that any decision made purely on paper must be unfair is clearly not well founded. It is impossible to say that there are no circumstances whatever in which a decision can be made on paper and without seeing the employee, for instance the employee may have fled the Country, or may be desperately ill, or may have suffered a nervous and mental breakdown, or may indeed, refuse to attend and be interviewed and after due enquiry there may be no explanation for so doing. Each case must depend upon its own facts and we accept Mr Lee's criticism of this matter. However, we have some doubts as to whether those criticisms, collectively or individually, are enough to say that the decision on the issue of liability erred in law. Even if there was an error of law, nevertheless, we must turn to the well known Authority of Dobie v. Burns International Security Services (UK) Ltd [1984] ICR 812 for the guidance given to us by the Court of Appeal to our approach. I refer to that passage in the Judgment of the learned Master of the Rolls, Sir John Donaldson at p.818 between F and G where he says this:
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."
One of the tests in taking that approach is whether there is sufficient findings of fact upon which this Court could rely so that we can say that if there had been no criticism of errors in law that the Decision was plainly and unarguably right.In the present case on the issue of liability we are satisfied, for the reasons which we have given, that in those two areas the failure by Mr Morley to investigate further when there was the clear warning order that sickness was in the background and the failure by Mr Elliott to ask Dr Webb to see the Applicant in the light of that letter of the 30th April were justifiable grounds for finding this dismissal was unfair.However, this case spread over two days and the Tribunal continued to consider the question of remedies. Due to the frank information given to us by Mr Lee and Mr Farrell, the two advocates who were before the Tribunal, as well as appearing before us we are able to gather a clear picture of what occurred. We are grateful to them for the way in which this matter has been presented. At the end of the hearing on the 4th November the judgment on liability was reserved and Mr Lee indicated to the Industrial Tribunal that the Remedies Hearing could not proceed the next day because if the decision went against the Post Office they would wish to call medical evidence on the issue of remedies and in particular of course, reinstatement and re-engagement. The Industrial Tribunal indicated that it did not wish to give an indication on liability because it had not decided liability but that Mr Lee would be released from the next day and that the Tribunal would:

"Look after his instructing Solicitor"

Mr Lee and Mr Farrell then departed from the Tribunal room and discussed the matter outside. Mr Farrell was quite clear, as he has told us, that whichever way the liability issue was decided there would be an appeal. He would want to appeal if he lost and understood, quite rightly, that Mr Lee would want to appeal and therefore it might not be suitable to proceed to remedies until the liability issue had been decided upon appeal. He reached, what he is happy to call, an understanding with Mr Lee that it was not appropriate to continue with the remedies matter. Therefore, information was sent in to the Industrial Tribunal indicating the view of the two advocates. Mr Lee thought that Mr Farrell had left for the day, in fact Mr Farrell had merely gone into another room with his client and as far as Mr Lee was concerned he had gone. A message came from the Tribunal that they would like to see both advocates, there is no indication why. Mr Lee informed them that Mr Farrell had gone, and indeed he so understood it and there the matter ended.The following day Mr Farrell attended before the Industrial Tribunal as did Mr Lee's instructing Solicitor, who was Miss Lobo. We have the advantage of a careful note taken by Miss Lobo and indeed it coincides with the memory of Mr Farrell. On that 5th the Tribunal gave its decision but did not give any reasoning for the decision. It then proceeded to deal with matters as follows, and we turn to the note of Miss Lobo, she says:
"Explained to Mr Handley reinstatement, re-engagement and compensation - suitable case for reinstatement. Mr Handley applies for reinstatement.
I explained to the Tribunal that I am in difficulties without instructions, in view of the agreement, between Mr Lee and Mr Farrell last night that the Remedies Hearing would not be dealt with today.-So no instructions, the Respondent also requires medical evidence of its own.Mr Farrell acknowledges agreement with Mr Lee.Despite the agreement, the Tribunal intends to proceed with the Order for reinstatement although they accept that this would be subject to an application for review."Pausing there for a moment. Looking at the Industrial Tribunal Rules it seems to us that it is only sub-paragraph 10(1)(d) or (e) which could possibly have any relevance. There could not be a claim under the New Evidence Rule, because the evidence was available if they had looked for it, and as to the interests of justice it would be an interesting submission that an Industrial Tribunal had recommended a Review against its Decision because it was not in the interest of justice. But to continue with the note:
"No reasons for the decision given although they will say that Mr Handley was sick since December and it was a case where Mr Elliott should have referred Mr Handley to Dr Webb for a personal examination.
I object to reinstatement but the Tribunal still intend to proceed as they consider the Post Office cannot establish that it is not practicable as Mr Handley was off sick and we would have been entitled to cover.They then wished to resolve recoupment.I do not have details of the sick pay and figures.

Adjourn."

Then she says she goes to ring up various members of her staff, where she gets the figures and then she adds this:
"Whilst I was out making telephone calls, Tribunal spoke to Mr Handley re medical problems!"
and it is added, in my writing, because we were told today, "the IT told her about this". So that what happened on the 5th is that the parties did not have the reasoning of the Industrial Tribunal and the Post Office, the Respondents, wished to call further medical evidence; looked at objectively, this Industrial Tribunal had released Counsel. Secondly, it knew that the parties did not have its reasoning upon which it could argue the remedies. Thirdly, it knew that the Post Office wished to call further evidence. Fourthly, although submissions had been made on the basis of contributory negligence Section 74(6), no submissions had been made on the basis of Section 74(1) for which the case of Slaughter v. Brewer & Sons Limited [1990] ICR 731 was relevant. It had brushed aside submissions based on Section 69; it made a Section 69 Order without giving reasons, so that neither the Post Office, nor ourselves, nor anyone could discover the basis upon which that decision had been made. Add to those criticisms made by Mr Lee the attitude of the Industrial Tribunal to the Respondents as indicated in the earlier passages of the Decision, it is our united judgment here that the Post Office did not have a fair hearing on the remedies. What are we to do?We uphold the unfair dismissal finding and we remit all aspects of the remedies to a fresh tribunal for those to be re-heard. Although the procedure before that fresh tribunal will be for the tribunal to decide, we would respectfully suggest that fresh evidence be allowed to be called and the matter be carefully considered in its broadest sense so that both parties should feel that they have had a fair hearing of the issues which arise between them.It follows therefore, that the Appeal succeeds to a limited extent, the unfair dismissal finding will stand and all aspects of the remedies are remitted to a fresh tribunal.