Old Basket Supply Ltd v Reed [1995] UKEAT 778_95_0610

EAT
Old Basket Supply Ltd v Reed
[1995] UKEAT 778_95_0610 · 1995-10-06
MR JUSTICE MORISON : This is a preliminary hearing to determine whether the employers, The Old Basket Supply Limited have shown any arguable point of law fit for hearing before a full tribunal.The background facts may be shortly stated and we take them from the two decisions of the Industrial Tribunal.Mr Reed the respondent to the appeal, was employed by his employers from October 1991 to January 1994 when he was dismissed. He presented a complaint of unfair dismissal at the end of March 1994 within the relevant time limit period. On behalf of the employers, solicitors entered a lengthy Notice of Appearance dated 23rd May 1994. On 28th July 1994 a Notice of Hearing informed both parties that the hearing was due to take place on 21st October 1994. On the morning of the hearing, the Tribunal received from the employers' solicitors a fax saying that they had received a fax on 18th October 1994 from their clients' managing director saying that he was in China and would not be able to attend the hearing. There was no appearance therefore on the day of the hearing by or on behalf of the employers; the Tribunal merely had the solicitor's fax.Sensibly, as it seems to us, the Industrial Tribunal treated the employers' fax as an application for an adjournment, and they refused it. We are of the view that there was no good reason for such a late application for an adjournment. We are of the view on the material before us, that the employers could and should have told the Tribunal much earlier that the date was not convenient to them.Part of the evidence presented to the Industrial Tribunal at the hearing on 21st October 1994 comprised a letter from the employer to the employee dated 19th May 1994. That letter is written in generous terms to the employee; it makes it plain that the reasons why the dismissal had taken place was because the company felt it necessary to release three people from the spray shop and consequently his position as a warehouse assistant was terminated, all of this being due to a down-turn in what is described as the `hamper business' and in the area of `painted baskets'.The letter continued with an offer of re-instatement, and the letter continues:
"... On mature reflection, I appreciate and accept that I acted improperly in terminating your employment notwithstanding the difficult circumstances that prevailed at the time. Accordingly, to ensure that you end up suffering no loss or inconvenience at all, the company is prepared not only to offer you your job back with immediate effect but also to pay back wages from January 31 to date. You will appreciate of course that on reinstatement your continuity of employment as from 20 October 1991 will be preserved.
Please do give me a call on receipt of this letter, we look forward to seeing you back."As I say, we would all regard that as a generous offer to the employee together with a proper expression of regret for the termination of his employment.However, that offer was rejected by the employee.The Tribunal having considered the evidence before them which comprised in the circumstances only the employee's side of the case, awarded him a total sum of £11,318.60, which included an amount of over £500.00 in respect of a breach which they were satisfied had been proved to them of Section 53 of the 1978 Act as amended, namely, the failure by the employer within 14 days to reply to a letter sent in March 1994 asking for the reasons for his dismissal.The employers asked for a review of the decision which application was granted, but at the further hearing the Industrial Tribunal refused to alter their previous decision for the reasons set out in their written decision entered in the Register on 16th June 1995.The employers seek to appeal from the review decision. Essentially they say that the original Tribunal had been misled by the applicant in certain respects, and because his evidence can be shown to have been wrong, and unreliable, then the application for a review should have succeeded. They contend that the review Tribunal erred on their conclusions on the facts before them, and that the decision is simply incorrect.In our view, there is no arguable point of law, despite the full skeleton argument and tenacious oral argument of Mr Wood of Counsel on the employers' behalf. We are not satisfied that it is reasonably arguable that the employee misled the Industrial Tribunal in such a way as to have made it appropriate for them to have exercised their discretion to order a re-hearing.In the first place we consider that it is going too far to suggest that the employee misled the Industrial Tribunal about the absence of a response to his March 1994 letter requesting reasons for his dismissal. Whilst it is true that the letter of 18th May 1994 gave some reasons for the employee's dismissal, that letter was put before the original Industrial Tribunal, there was therefore no misleading of the Tribunal in that respect. And plainly, as it seems to us, that letter was not compliance with the terms of the statute, as it was well out of time. In our view, the Tribunal was not misled about this evidence, and their decision to award two weeks pay for a breach of that section cannot be faulted.It is also said that the Industrial Tribunal was misled by the applicant as to his medical condition. The Industrial Tribunal found in their first decision that the applicant was fit for work by 3rd January 1994, and they awarded a period of 41 weeks and decided that he should in all be awarded 52 weeks loss of pay.Judgments made by Industrial Tribunals as to the period of loss to be permitted to an employee whose claim for unfair dismissal has been found in his favour, are essentially matters best left to the good judgment of the Industrial Tribunal. A number of factors will have to be taken into account by them. 52 weeks may be the appropriate period, other Tribunals might have taken less, some Tribunals might have taken a longer period.It is said that the Tribunal was misled by the employee as to his fitness for work as a result of further communications which took place between the employer and ACAS in July 1994 as to the medical position of the employee. In particular reliance is placed on a letter from the General Practitioner of the employee which would show that there was a period, I think, of a fortnight during which he apparently would not have been fit for work if he had been otherwise fit for work. That leaves open the question as to whether indeed the finding by the Industrial Tribunal originally that he was fit for work, was procured by the fraud of the employee.We have to say that we are not persuaded that there is any argument fit to go before a full tribunal as to the conclusion arrived at by the review Tribunal. They had the material which has just been referred to before them, and they did not regard it as being grounds for re-opening the matter. We consider that they were right to take that view. The sort of questions that would have needed to have been answered is whether the employee was indeed off work or not, the fact that the doctor has said that he apparently was, and would have been unfit does not answer the real question at issue, and in any event, the Tribunal would have needed to have been informed as to the arrangements for the payment of sick pay, because it does not follow that the pay to which he would have been entitled was to be reduced merely because he was unfit for work. In any event, the Industrial Tribunal may well have taken the view in refusing the review of this decision, that if they had been told what had happened as demonstrated by the medical certificate, it would have made no difference whatever to their assessment of the loss, which as I have already indicated is a matter of fine judgment rather than statistical analysis. Accordingly we are not of the view that it can be said against this employee that he has deliberately misled the Industrial Tribunal.The appellants also say that the employee misled the original Tribunal into thinking that the offer of settlement made by the employers by their letter of 18th May 1994 was rejected. The true facts are that the employee was made an offer of settlement through ACAS. It is also clear from the evidence that he rejected it. It is unclear, but there is a possibility, that he may have changed his mind between 6th June and 17th June 1994, but in all events it appears that by 18th July 1994, at any rate, the employers cannot have been under the impression that the case had been settled.The relevance of the question of settlement was that if the Tribunal had concluded that the employee had unreasonably refused to accept an offer of settlement which had been made then from that moment on compensation should cease. It seems to us when we looked at the original decision of the Tribunal, that the Tribunal have properly directed themselves on that question, and that no further material of the sort referred to in our papers could have led in the circumstances to any different decision. Their conclusion was that the applicant did not behave unreasonably in rejecting the offer to return to their employment. That is a finding of fact, and it seems to us that nothing that has happened since the original hearing causes us any concern as to the conclusion which the Tribunal reached. We do not think that any of the further material could possibly have assisted them in reaching an alternative and different conclusion.It was being suggested, but later abandoned, that the further consideration by ACAS of the offer of settlement in some way excused the company for their late notification to the Industrial Tribunal. Very correctly, in our view, Mr Wood did not rely on that. It seems to us, that the absence of anything passing between the employers and ACAS, or the employers and the employee after July 1994 is a strong indication that the employers cannot have believed that the case was not going to take place, and in those circumstances it was regrettable that they did not seek an adjournment which we feel sure would have been granted had they applied for one in good time. Tribunals, and we ourselves, are sympathetic to small businesses and the problems that export business may have for personnel who are required to give evidence, and we have no doubt, that if timeous application had been made for an adjournment, the Industrial Tribunal would have granted it, and if unreasonably refused, this Tribunal would have put that right.Accordingly, we have come to the conclusion that the employers have not shown a case which is fit for argument before a full body of the Employment Appeal Tribunal.There are, I think, a number lessons to be drawn from this. Firstly, the employers may have mis-judged the nature of the Tribunal procedure and what was involved; they may not have fully appreciated the risks of the financial consequences of not appearing before the Industrial Tribunal, and may not have appreciated the powers of the Industrial Tribunal and the amount of compensation that could have been awarded. I think it also shows that it is advisable for them to take early advice about the position and to maintain close contact with the Tribunal proceedings so as to be absolutely sure, whether directly or through their solicitors, that they are going to be able to meet deadlines which the Tribunal is setting. I am quite sure that the managing director, bearing in mind the generous tone of the letter which was written, would have wished to have sought an adjournment rather more promptly than he did. Given his life over again I have no doubt that an earlier application would have been made which would have avoided a consequence which I am sure and accept is quite unpalatable. But we can only deal with points of law here; we cannot reassess the facts ourselves. I am afraid that in the circumstances we are not able to accede to this appeal.