Hughes v London Underground Ltd [1996] UKEAT 1224_95_1107

EAT

Hughes v London Underground Ltd

[1996] UKEAT 1224_95_1107 · 1996-07-11

JUDGE ALTMAN :

This is an appeal from the decision of the Industrial Tribunal sitting at London (North) on 7 August 1995. The parties have consented to the allowing of this appeal. Nonetheless and in accordance with the practice direction, it is necessary for the Employment Appeal Tribunal to be satisfied that the appeal should be allowed on the grounds put forward jointly in effect by the parties.

This case before the Tribunal considered dismissal of the Appellant for absence intermittently over a period of time. The Respondents followed a procedure - an "intermittent absence procedure" - which formed part of the basis of the grounds of appeal intended to be advanced by the Appellant before us, and which led in due course to the dismissal of the Appellant. His absences, to some extent, were certified sickness absences and the effect of that upon the way in which the matter was approached was a matter of argument before the Tribunal.

The decision of the Tribunal was encapsulated in paragraph 8 of their decision in the following terms:

"The Applicant had had significant numbers of absences for a number of years, which had resulted in various warnings, which could have been acted upon further but were not. The Applicant received two further warnings in 1994 which resulted in a disciplinary board. We are satisfied that both the disciplinary board and the appeal considered the position fully and, even with an error in the recorded absences, were justified in deciding that the number and frequency of absences was such that, following the warnings, dismissal was a proper sanction."

From that decision the Appellant appealed and the matter came before the Employment Appeal Tribunal by way of a preliminary hearing. The Court at that point considered that the issues raised by the Appellant contained issues of law which merited consideration by the full Tribunal and because the Appellant was acting in person it seemed that it would be of assistance to try to encapsulate the points that he was making. At that stage this Tribunal had certainly formed no view at all about the merits of any of those points nor had they adopted them in any sense. They were simply acting, as it were, as the Appellant's amanuensis in trying to set out what they understood he was seeking to argue and they considered that it was sufficient to merit overall listing for hearing.

At the outset of today's full hearing, however, the Respondents made the following concessions in a document which I will recite in full:

"1. The Respondent concedes that at the disciplinary meeting dated 21st December 1994, Mr Russell Joynes, chairing that meeting did not take into account either (a) The fact that although the Appellant's sickness absence record indicated that the Appellant was absent from 4/9/94 to 11/9/94, this had in fact been recorded in error as the Appellant was not absent during that period

or

(b) The fact that although the Appellant's sickness absence record indicated that the Appellant was absent from 7/5/93 to 25/5/93, this had in fact been recorded in error as the Appellant was only absent from 7/5/93 to 18/5/93.

2. In the premises, the Respondent concedes that a dismissal in ignorance of those facts was unfair within the meaning of the Employment Protection (Consolidation) Act 1978. In the premises, the Respondent submits that there is no need for the appeal to proceed to hear all of the points that the Appellant has raised, as the Respondent concedes that the dismissal was unfair in any event by reason alone of the two matters identified in paragraph 1 hereinabove.

3. In the circumstances, the Respondent suggests that the appropriate course would be for the matter to [be] remitted to the same Industrial Tribunal as originally heard the case, with a substituted finding of unfair dismissal, for that Industrial Tribunal to consider remedies.

4. For the avoidance of doubt, the Respondent would not seek to argue any contributory conduct on the part of the Appellant at the remedies hearing. The Respondent does however reserve its rights to advance any other arguments with regard to the issues of quantum and/or reinstatement or reengagement."

The Appellant, Mr Hughes, obviously goes along with that concession and welcomes it and we find that it is - we say so with respect - properly based on a view of the decision of the Industrial Tribunal.

It appears implicit in those concessions that the Tribunal is recognized to have fallen into error in paragraph 8 of its decision because it treated (as making no difference) those errors which are now recognized as being critical by the Respondents. The argument would have followed that the Industrial Tribunal, in its approach, did not consider whether the result may have been different if those errors had not been before the employers and that the Industrial Tribunal appears, at least arguably on the words of their decision, to have formed a judgment of their own about it. It is, as Mr Thornton has said, implicit in the concessions that the Respondents have made that they recognize that in that respect it appears on the face of the decision that the Tribunal fell into error in that way and in these sort of appeals, all we can go on really is the face of a decision.

The consequence is that it does seem to us that this is a concession not just by way of any technicality but a substantial concession on the issues which leads to the concession that the appeal should be allowed. Therefore it is appropriate for the Employment Appeal Tribunal to recognize the proper stance of the Respondents as one would expect with Respondents of this kind, and to endorse the appeal and to allow it on that ground.

Accordingly, this appeal is allowed and we make consequential directions. First, a finding of unfair dismissal is substituted for the original order of the Industrial Tribunal. Secondly, we remit this matter for the evaluation of the proper remedy and, if appropriate, the calculation of compensation to a differently constituted Tribunal. We note that the Respondents suggested that it should be remitted to the same Tribunal and we recognize that that was done simply as an attempt to achieve the most practical, efficient and time-saving way of resolving the remaining issues.

We recognize the sentiments behind that submission and we would have preferred, all other things being equal, to remit the decision on remedy to the same Tribunal as dealt with the substitutive issue of unfair dismissal. The Respondents are not seeking to argue contributory conduct and we note that dismissal followed the application of a procedure which does not form a view necessarily as to conduct. However, the Respondents wish to reserve their position on what is called the Polkey principle, which is the issue as to whether if the matter had been handled in a way that was within the range of reasonable responses of a reasonable employer, it can be said either that the employee suffered no loss because the result would still have been the same or that there is a measurable risk that the result would have been the same so that that percentage risk can be measured as a factor to reduce the gross amount of compensation. Also there may be issues which can be handled in a number of ways, either before the hearing or during it, as to whether there should be reinstatement or re-engagement or compensation and the outcome may be affected by the tribunal's judgment to be formed of the absences of the Appellant. Because of the way in which the decision is worded by the original Industrial Tribunal very similar judgments on the facts may be raised in relation to compensation. Because that is the very area, in paragraph 8 of the decision, in which it is conceded that the Industrial Tribunal, in fact, fell into error, it seems to us that this case is not one in which it can be said that the same Tribunal should look at the matter. Perhaps we are doing this out of an abundance of caution but, doing the best we can, it does seem to us that if this matter does have to be resolved by an Industrial Tribunal and if the Respondents do take such points as they reserve, it may mean the rehearing of evidence that in some parts has already been given. It does seem to us, in the light of the way in which the concession has very properly been made by the Respondents, that it would be much better in the end for a differently constituted Tribunal to deal with these matters.

Accordingly, we direct that this matter be remitted, to a differently constituted Tribunal to deal with the issue of remedy. We note, for the purpose of this decision that in advance of that hearing the Respondents will take such steps as are necessary to acquaint themselves with such facts as they wish to rely on in relation to the question of reinstatement or re-engagement and any question of practicability, either in whole or in relation to any particular provision which they may wish to advance at that hearing. It must follow that that estimation of the facts may involve a discussion with the Appellant. The Appellant, indeed, and we just mention this, may be well advised to put himself into a position, by a report from his general practitioner or by any other information that the Respondents themselves may seek from him, to reassure the Respondents that he, having been described in one of the meetings as having the right attitude when at work, is somebody upon whom they can rely for consistency of attendance in future. We do not make any direction, but we mention it as some work to be done by the parties in advance of going to the Tribunal so as to save time.