Skelton v Hygena Ltd [1994] UKEAT 107_94_2206

EAT

Skelton v Hygena Ltd

[1994] UKEAT 107_94_2206 · 1994-06-22

JUDGE HULL QC:

The complaints really made are three. First of all that on the face of it there is a difference between the short reasons given by this Tribunal and the full reasons. In full reasons they say:

"... we would hold it inevitable that the applicant would have been dismissed ... "

In the short reasons they have said:

"... on balance of probability she would still have been dismissed had sufficient investigation been made."

Mr Hogarth says very fairly that there is a striking difference there and nothing that he can find which says that short reasons should be preferred to the full reasons. We are against Mr Hogarth on that contention. We think that the Tribunal is asked for its full reasons specially for the purpose of an appeal. That is quite clear from the Rules. The Tribunal must be allowed to say, and must be taken to say, that its full reasons represent its considered view and that the short reasons are only intended to be an informal statement by the Tribunal. We cannot say that because there is an apparent difference there, it is one to which we should pay any attention. What we have to pay attention to, really by definition, is the full reasons.

Then it is said by Mr Hogarth that if there had been a full enquiry, a full and proper medical enquiry, then as the Tribunal say:

"we would hold it inevitable that the Applicant would have been dismissed and perhaps given the chance to return when she was fully recovered if circumstances permitted."

and that she should be compensated for the loss of that which she would have had if the medical view had been obtained.

We think that that submission again is on analysis insupportable. It must always be a possibility that an employee who has been ill will on recovering their health recover the job which they held beforehand. They are not entitled to compensation on the basis suggested. The medical opinion will no doubt indicate in most cases that some recovery or remission in the illness may take place in future, it is a mere matter of possibility and we do not think that the prospect that an employee may obtain their job back in due course should affect the compensation which they recover for unfair dismissal.

That brings us to the last point which Mr Hogarth raises and that is that it is well established that if it is held that the employer should consult, and fails to consult, then the employee is entitled to something in respect of the additional period of employment which that would have given him, during which the consultation would have taken place; and Mr Hogarth says "we think that on probability what would have happened here, if the employers had done what the Tribunal thought they should have done, and taken fuller advice and obtained a proper medical prognosis about the seriousness and likely cause of the illness, that this lady would have remained in her employment for a short period". As she was in consultant care and as (presumably) the employers would be paying for this report, one would not expect a great deal of delay but some delay of a very modest sort, perhaps of the order of 14 days. We consider that that is a matter which the Industrial Tribunal should have considered and failed on the face of it to consider and therefore we should give leave to appeal on that point alone.

In view of the modest amount involved in that consideration we hope of course that it will be possible for the matter to be settled without a hearing, but this appeal should proceed on that point alone. In the matter of directions, the only directions which immediately occur to us are that there should be skeleton arguments 28 days before the date fixed for hearing.