Butler v Kilroe Pipeline Services Ltd [1995] UKEAT 412_94_0505

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 412_94_0505

Case No Appeal No. EAT/412/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Butler

Kilroe Pipeline Services Ltd

Date 5 May 1995

JUDGE SMITH QC :

Mr Butler, the Appellant employee, has not appeared today, and he has given a perfectly understandable reason for not doing so, namely that the cost of the attendance is difficult and too much for him. He still remains unemployed at the moment, and we accept that. We have dealt with the Appeal in his absence, consequently. We have been greatly assisted by Counsel, who has appeared on behalf of the Respondents, the Employers, Kilroe Pipeline Services Ltd. He has argued the matter very persuasively before us, and that despite quite a lot of ammunition being fired in his direction from certainly two of us, if not three of us, from time to time.

This appeal raises a short matter, a short point, but we have not found it altogether an easy one to determine.

It is an appeal, by Mr Butler who is now a man, I expect, of fifty-nine, but who at the material time was fifty-eight years of age. That is to say the material time being April 1993. It is an appeal against the refusal of an Industrial Tribunal sitting in Manchester on 20th January 1994 to award him compensation arising out of what they found to be his unfair dismissal on 30th April 1993 by the Respondents arising out of their failure to consult properly in a redundancy situation. Having so found, they awarded him compensation based only on a period of four weeks, which the Tribunal found to be the appropriate period of consultation, which the Respondents should have engaged in, and which they had failed, for no good reason, so to do.

What happened then was that, even though the Tribunal then went on to assess that there was a 60% chance that, had there been a proper consultation, the Appellant would have been retained in his employment, as a claims manager, nevertheless, they went on, for a reason I will try and explain in a moment or two, to reject his claim for compensation, other than for the four week period, which I have mentioned.

So really what I have done thus far is to summarise the conclusions reached by the Tribunal up to paragraph 8 of the reasons which the Tribunal gave. Including amongst those reasons, by way of inference, we see it as clear that Mr Butler had been occupied full-time in doing the job he was doing. He had been doing it for rather over three years, he was clearly busy in that job, and as far as one could tell, and there is certainly no finding to the contrary, it is was in every way a satisfactory arrangement from his point of view. He was a satisfactory employee, had found job satisfaction obviously, that is obvious from what is said, in our judgment, in paragraph 3. So therefore, the Tribunal proceeded to find, as I have already said, in paragraph 5:

"It is quite clear that there was a total lack of proper consultation between the respondents and the applicant regarding his possible redundancy."

Then they proceed to deal with all the options that were available, potential options available to the Respondents. They deal with those in paragraph 7. Then they go on to say they were of a unanimous view that the dismissal was unfair by reason of lack of consultation, and, as I have already mentioned, they hold that had there been proper consultation, there was a 60% chance, applying the well known Sillifant principle of the Appellant being retained, either in that selfsame job, or in some different capacity at a lower salary, and they assessed that percentage chance at 60%.

Then, in a watershed in their decision, which we are perfectly familiar with, entirely properly, they went on, as they themselves expressly put it in paragraph 9:

"... to consider the question of compensation ..."

and obviously they made enquiries of the Applicant in order to do so. As is apparent, although we have not got the notes of evidence, but it is obvious, they made the kind of enquiries of the Applicant to find out the necessary material which they required, in order to see what the loss was, and whether there were grounds for mitigating it. All the usual enquiries were being made of him, in that respect with regard to their decision as to what the compensation should be.

It then emerged from the mouth of the Appellant, who was of course, unrepresented before the Tribunal, that he very properly, in a straight forward way, as we interpret what happened, told the Tribunal, as is apparent from paragraph 10 of the decision, that he had been on "sickness benefit" since the very date when his employment ceased, namely 30th April 1993, because he was suffering from "depression", a depressive illness. He went on to say that the "depression" was a direct result of the dismissal. That was what he maintained.

What, in effect, happened then was that it was then said by the Tribunal, rather surprisingly in our view, although this is not central to the decision we have to make, that there was some kind of an inconsistency which the Tribunal purported to find between the fact that the Appellant suffered from "depression" on the one hand, as he asserted, and the fact that he had apparently been applying, unsuccessfully, for work.

The Tribunal said that they found it difficult to resolve that inconsistency. However, with respect, we do not see any such inconsistency. In our judgment, it appears to be quite consistent for an applicant to be suffering from "depression" because he had been thrown into unemployment, particularly at the age of fifty-eight, on the one hand, and therefore being entitled to State "Sickness Benefit", and at the same time trying to get himself back into employment so that he could go on earning his livelihood and thus put an end to the "depression".

But what is clear, in our judgment, is that there was no dispute as to the fact, as we understand the Tribunal decision, that the Appellant was suffering from "depression". That, in our judgment, is accepted, and there was before the Tribunal, for example, a reference to a certificate from a doctor, who had recently issued a further certificate, confirming him to be unfit for work, for a further thirteen weeks. So there is no issue as to that, as a primary fact, as we must interpret the decision.

The Tribunal were clearly finding that he was suffering from "depression". Equally, in our judgment, it is quite clear that they were finding, as a primary fact, that he had suffered from that "depression" from the very time that he had been made unemployed, since he had been dismissed, that is to say, on 30th April 1993. So the primary facts, were, as we interpret the Industrial Tribunal's decision as follows:-

That there was no evidence before the Industrial Tribunal that the Appellant had ever been off sick in any significant or substantial way, certainly not for depression, prior to his dismissal. On the contrary, the evidence seems to us to carry the inference that he was a satisfactory and satisfied employee.

That he was suffering from "depression"; that was found as a fact by the Tribunal.

That that "depression" was coincident, completely coincident, with his dismissal, in that it had started with effect from 30th April 1993, the date of his dismissal.

Now what we find happened in reality was that the way in which the applicant responded to the proper questions that were being asked of him, in relation to mitigation on the question of compensation, had the unfortunate effect of setting up a barrier, in the view of Tribunal, which turned out to be destructive of his case in relation to his claim for compensation, beyond the four week consultation period. Because what the Tribunal in effect said, or, must have said because it was clear from their holding in relation to the matter, was that it was for the unrepresented applicant, to establish to their satisfaction, on the balance of probabilities, that his depression has been caused by his dismissal. That since he had not brought along a doctor or any medical evidence to support that contention the Industrial Tribunal held that he had not established that to their satisfaction.

So in consequence his claim for compensation failed, and this appears from paragraph 14 of their decision, but first of all I should read from paragraph 12. In paragraph 12 the Tribunal put it this way:-

"He did not satisfy the Tribunal that the fact of dismissal had directly caused an identifiable illness ..."

Then in paragraph 14 they conclude:-

"In all the circumstances as presented to the Tribunal, it was unable to conclude that the applicant had established any loss of earnings from the date of dismissal to the date of the hearing of his case by reason of the fact that he had throughout that period been unable to work by reason of sickness."

So we interpret that decision, as being a finding, as we understand it, and this is really the way it was put by Mr Jones, that the applicant had failed to discharge the burden upon him of establishing that it was the dismissal which had brought about the depression and thereby caused the loss to him.

Now, it is that finding which we have had to look at with great care. We remind ourselves, and we have been reminded quite rightly by Mr Jones, that we can only upset that finding on point of law, if we are satisfied that no reasonable Tribunal could have arrived, directing itself properly to the evidence, at such a conclusion. In other words, the finding has to be a perverse finding in that legal sense. We have reminded ourselves that it would be only in very rare cases that this Appeal Tribunal would ever be able to reach such a conclusion.

It is in the light of that test that we have examined this finding. In our judgment, this finding was not really a primary finding of fact, it was a finding relating to causation, and that involves a conclusion from primary fact. We accept that there must be a burden on the applicant to establish a loss, on the balance of probabilities. But, in our judgment, when one is looking at an Industrial Tribunal's conclusion from primary findings of fact, we are entitled to ask the question whether any Tribunal properly directing itself in relation to its primary findings of facts, could have reached such a conclusion. Looking at the matter in that way, what one has here is an unchallenged statement by the Appellant that the "depression" which he had suffered was caused by the dismissal. One has the apparently accepted evidence that he was suffering from a condition of "depression". It seems to us that the Tribunal also accepted that that "depression" had started with effect from the very date that he was dismissed. And, in our judgment, bearing in mind the fact that the Appellant was fifty-eight years of age at the time, we feel we must be entitled to use, our collective industrial knowledge in relation to this type of situation.

In our judgment, and we have not reached this decision in any way lightly, it was, with great respect, a perverse finding in a legal sense for the Tribunal, in the light of the primary findings of fact which it very properly made, to have then concluded that the Appellant had failed to establish that the "depression" which admittedly suffered from had been caused by the dismissal.

In our judgment, with great respect to the Tribunal the evidence was absolutely overwhelming that the "depression" must have been caused by the dismissal. We also note, in looking at this decision, and this probably arose perhaps from the lack of proper documentary evidence before the Tribunal, that the Tribunal appear to have accepted, in paragraph 13, that the Respondents were under no contractual obligation to pay the applicant during absence through sickness.

Here again, we are somewhat surprised, I speak particularly by reference to the very experienced members who sit alongside me, that this particular matter was accepted in the way it was by the Tribunal without the contractual position, and the position with regard to statutory sick pay, and state sickness benefit being looked at in more considerable detail. And that again is, perhaps, an indication that this Tribunal did not completely get to grips with some of the matters that were before it.

We cannot help observing as well, that it smacks, in our view, of considerable unfairness that an applicant who is unrepresented, in the course of explaining, and properly explaining, in a straight forward way, what had, in fact, happened post dismissal, when being properly asked by the Tribunal, in relation to such matters, (the Tribunal then being concerned with matters post dismissal in order to attempt to assess compensation) should be found to have erected a hurdle, destructive of his case, which has the result that he was unable to recover any compensation between the date of the dismissal and the date of the hearing, before the Tribunal, or by way of future loss. That in consequence of a finding that he has not proved that the "depression" which he suffered was caused by the dismissal.

All that in circumstances where the Respondent employers, made no effort whatsoever, looking at the papers before us, to establish any such thing or to lead any type of evidence or cross-examine the Applicant in relation to such matter. But, at the end of the day, although those are factors which are part of the background to this whole matter, let me repeat that we have reminded ourselves that we are obliged to look at this decision on the basis that we can only upset it if it is a decision that no reasonable Tribunal, properly directing itself, could have arrived at. But for the reasons I have stated, looking simply at the decision on the crucial matter of causation, and accepting, as we do, that there was a burden on the Applicant to establish his loss, nevertheless, we have unaminously concluded that by reason of the primary facts, which I have already outlined, in relation to that decision, that this was a decision which no Tribunal could properly have reached in all the circumstances.

Accordingly, for those reasons, which I have attempted to state, we take the view that the right course here is for this appeal to be allowed, and for the matter to be go back to this Tribunal, the same Tribunal, who should consider it in the light of our direction to the Tribunal, and really this is accepted by Mr Jones, if we were against him, that they should deal with matter of compensation on the footing that the "depression" was brought about and caused by the dismissal. They should then proceed to determine the amount of the compensation in the usual way. It will of course be open to the Respondents to make submissions in that regard. There may be a question as to whether the statutory sickness benefit should be deducted in one way or another from the award. All those questions remain open. We simply enter one qualification to our direction, and that is that if getting the same Tribunal together would cause an unnecessary or unreasonable delay, then there is no reason why this should not be remitted to a fresh Tribunal. So that that Ttribunal could take the matter forward on the basis that we have outlined already earlier in this judgment.