Gascoines Group v Bolton [1997] UKEAT 585_96_1505

EAT

Gascoines Group v Bolton

[1997] UKEAT 585_96_1505 · 1997-05-15

MR JUSTICE LINDSAY: We have before us an appeal by Gascoines, Chartered Surveyors, against the decision of the Industrial Tribunal under the chairmanship of Mr J H Bellis. The decision was promulgated on 22 April 1996 following a hearing on 4 April 1996. The proceedings concerned Mrs S D Bolton, a former employee of the Gascoines, as Applicant and Gascoines as the Respondent former employers

On 11 November 1995, Mrs Bolton had started proceedings by way of an IT1 form, claiming unfair dismissal against Gascoines; the date of the dismissal was 18 August 1995. The unanimous decision of the Tribunal was that the Applicant was unfairly dismissed and that she was to be awarded compensation of £1,443.35. Gascoines, by notice of appeal, appeal against that decision.

The first reaction of the three of us as the EAT hearing this appeal was that it was a sad case in which the parties should be given at least a modest nudge, perhaps even more, towards seeing if their differences could be consensually resolved. The award was not of a considerable sum, one would think, relative to the means of the Respondent required to pay it and, equally, it seemed at least possible to us that, even if Gascoines were successful on the appeal, the result might only be that the matter would go back to a fresh hearing with further costs, further executive time lost perhaps on the Gascoines side, and the risk of there being no award second time round or not as great an award as previously, so far as Mrs Bolton was concerned. It did seem to us that the parties should be given time to see if they could arrange their affairs and we gave them that time. Unhappily, nothing came of it. Accordingly, we have to proceed with the decision of the EAT in all respects as usual, looking to see whether there is error of law in the decision of the Industrial Tribunal.

We have great difficulty in approaching that question for this reason: 0n 19 November 1996, His Honour Judge Pugsley and the two Members then sitting with him, heard a preliminary hearing ex parte in relation to this appeal and ordered that the matter should go to a full hearing, as it has done, but, more importantly for immediate purposes, the Appeals Tribunal then directed that the Chairman should be asked to produce his notes of evidence. Unhappily, when enquiry was made it was found that Mr Bellis, the Chairman, is on long-term sickness absence and a note has been produced that says, on behalf of the Registrar of the Employment Appeal Tribunal, that the Chairman had had to retire as medically unfit and, even if willing, would be unable to produce his notes. It was suggested that the parties should themselves transcribe their notes and send in their notes to the Industrial Tribunal to assist the compilation of notes of evidence but that was not done and so the position is that we do not have the Chairman's notes of evidence, notwithstanding that the EAT has ruled that we should have them, nor do we have any agreed or even any unagreed forms of evidence as given on that day, 4 April 1996, when the Industrial Tribunal heard the case. That does present us with a difficulty.

The extended reasons are very short, barely a page, and they relate the story which, as we mentioned earlier, is a sad one. The allegation was for unfair dismissal; the date alleged for that unfair dismissal is 18 August 1995. The extended reasons point out that the Respondents, that is Gascoines at that stage, admit dismissing the Applicant but say that they were justified for capability. The sadness in the matter arises out of the facts related in paragraph 3:

"The respondents have a number of offices in the Nottinghamshire area and they are estate agents and chartered surveyors. The applicant worked alone in the respondents' Calverton office. On 26 October 1994 the applicant was attacked and injured during a burglary attempt at the respondents' Calverton office. The applicant was off sick from then on."

So that, as it transpired, the incapability which is later relied upon by Gascoines occurred during a burglary attempt at the Gascoines Calverton office. Continuing with the very short reasons:

"It transpired that the applicant, whilst fit for work, was unable to work at premises where she was alone. The respondents eventually decided that they had no vacancy suitable for the applicant, given her condition, and that she could not return to the Calverton office for obvious reasons."

That inability to work where she was alone was supported by the production to the Industrial Tribunal of a letter of 10 August 1995 from Mrs Bolton's general practitioner, Dr Stoddart. It is to be remembered that 10 August 1995 was only shortly before the dismissal on 18 August 1995 and was some ten months after the unpleasant events of 26 October 1994. The letter says:

"This patient still suffers from a reactive depression with anxiety features following her unfortunate experience at her work. Although she is making a good recovery I think she is not going to be well enough to work again on her own in similar circumstances and have today given her a further sick note."

So that there was evidence on which the Industrial Tribunal could indeed have held, as they did, that Mrs Bolton was unable to work at premises where she was alone.

Continuing with the reasons given by the Industrial Tribunal:

"At about the time the applicant was dismissed for capability, negotiations were going on for the respondents to acquire the Halifax Building Society office at Calverton. We are satisfied that there would have been no vacancy for the applicant at the new Calverton office. It is accepted that at the time the decision to dismiss the applicant was made negotiations had not been finalised for the merger with the Halifax Building Society, but they were certainly pending and were finalised very shortly after the applicant's dismissal."

Although in those reasons no date is given, it would seem that the finalization referred to was on 1 October 1995. The position, as it seems to us, was this: that in the village of Calverton, in the village square, there were originally two material offices, one at first headed "Gascoines", the other "Halifax". The transfer was such that what had previously been Halifax's business was transferred to Gascoines but that, so far as premises were concerned, instead of the by-then combined business being continued at what had previously been the Gascoines premises, the combined business was run at what had previously been the Halifax premises. So the transferor of business was Halifax, the transferee was Gascoines.

The Industrial Tribunal's reasoning continues:

"Once the merger had been finalised, the applicant's job would have been redundant.

7. We believe the appropriate way to deal with this matter is to say that the applicant was dismissed for capability but that the respondents did not act reasonably, having regard to equity and the substantial merits of the case, in treating that capability as the reason for dismissal. In other words they used capability to avoid paying the applicant the redundancy payment to which she was clearly entitled.

8. We therefore propose to award the applicant a basic award to be the same as her redundancy payment and to award her, in addition, the settled figure for the loss of her statutory industrial rights."

In that way they arrived at the figure of £1,443.00.

At this stage it might be appropriate to refer to the well-known case of Meek v City of Birmingham District Council . It is sufficient for present purposes to cite from it as it is found in Harvey on Industrial Relations and Employment Law at Vol. 4, section T, at paragraph 974:

"When formulating their reasons, industrial tribunals are not required to create 'an elaborate formalistic product of refined legal draftsmanship' ( Meek v City of Birmingham District Council [1987] IRLR 250 at 251, CA, per Bingham LJ). Nor are they obliged to set out their reasons in a form which 'resembles a judgment in a court of law' ( Kearney & v Trecker Marwin Ltd v Varndell [1983] IRLR 335 at 339, CA per Eveleigh LJ). Instead, what is required, as Bingham LJ stated in Meek's case is for the reasons:

'to contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic fasts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an industrial tribunal should give guidance both to the employers and trade unions as to practices which should or should not be accepted.' "

There are difficulties when one seeks to apply the language of Meek to the very short extended reasons given in this case. Why is it that incapability, which seems to have been given as the reason for the dismissal and seems to be found to have been the case and which was, as it seems, supported by medical evidence, was nonetheless not capable of being relied upon by the Employer?. The incapability that seems to be suggested is, first of all, expressed in paragraph 2 where the Applicants, then Gascoines, said they were justified for capability. So that was the reason that they gave for the dismissal. The capability would seem to have been found by the Industrial Tribunal because they hold that Mrs Bolton was required to work alone in the Calverton office and yet was unable to work at premises where she was alone after the accident. Moreover, that seems to be accepted as the reason because the Industrial Tribunal says:

"At about the time the applicant was dismissed for capability ..."

and then they continue. And then there is the rather strange passage in which they say:

"We believe the appropriate way to deal with this matter is to say that the applicant was dismissed for capability but that ..."

and they go on. Why that incapability could not be relied upon raises a difficult question that we cannot answer, certainly in the light of the absence of Chairman's notes or any other formulation of the evidence. What is it that disentitles Gascoines from relying on incapability as being a ground that justified dismissal, in other words, a ground which put dismissal within the band of reasonable responses open to a reasonable employer, in these particular circumstances? What was the evidence, if any, that led to the view that incapability was used to avoid paying redundancy? We have been generous in our hearing of both sides here in respect of receiving what, strictly speaking, would, had it been on oath, have been evidence. It is not for us to hear anything equivalent to evidence. This Court deals only with errors of law. But, plainly, there are issues that need to be investigated. Was it the case that Gascoines truly did seek to find suitable employment for Mrs Bolton in premises where she would habitually not be alone? Or is it the case that they made insufficient attempts and that it was unreasonable for them to have dismissed her on that particular ground of incapability? What is the position? In relatively small offices run by estate agents, Mr Wilson, who has argued the matter on behalf of Gascoines, points out that small offices of building societies with only a very small number of employees required to attend, are quite commonly places where, at a given time, only one employee will be attendance, even if habitually there is more than one. Sickness and holidays might reduce the number of people at the premises at any one time. Lunch, again, might leave only one person in the office and, equally, when someone goes out on site visits, as plainly is part of the estate agent business, the number at the office will be reduced. Was it the case that Gascoines truly made a full endeavour to find some premises at which Mrs Bolton could attend and yet could reliably be accompanied at virtually all times or not? These are questions which plainly need to be answered and as to which we have no clue as to what was said and done before the Industrial Tribunal.

Moving on to questions as to the award, can it be right to have settled the amount of the award for unfair dismissal simply by asking what would the redundancy payment have been, as seems to have been the approach of the Industrial Tribunal and, indeed, was it the case that s.81(2)(a) or (b) of the 1978 Act in relation to redundancy, was here truly satisfied? Mr Wilson has taken us to the Act and argues that redundancy did not apply. We have no means of judging what the evidence was at the time in front of the Industrial Tribunal but, plainly, there are serious questions there that need to be answered if the award is to be upheld certainly, if it is to be upheld properly by reference to what a redundancy payment would have been.

A further defect seems to be that paragraph 7 represents what could be a substantial confusion. To revert to the passage, it says that:

"7. We believe the appropriate way to deal with this matter is to say that the applicant was dismissed for capability but that the respondents did not act reasonably, having regard to equity and the substantial merits of case, in treating that capability as the reason for dismissal."

Capability was plainly the reason for dismissal as given and as, apparently, held by the Industrial Tribunal and what the Industrial Tribunal there seems to have been doing is confusing what is the reason for the dismissal with whether dismissal was a reasonable response to that incapability. That seems to be a possible logical confusion that needs to be sorted out.

We have been throughout in the difficulty that we have no Chairman's notes. It is the common experience of all of us that sometimes a decision which seems vulnerable is, on examination of the Chairman's notes, seen to be perfectly proper. Conversely, it is sometimes the case that a decision which at first blush seems strong, is shown to be weak once the Chairman's notes are seen.

We have laboured here under the difficulty that I have explained but if we ask ourselves, going back to that Meek case, whether the parties have here been told enough to understand thoroughly why they have won or lost, the answer must be that they have not. If we ask whether there has been a sufficient account of the facts and the reasoning to enable the EAT to see whether a question of law arises, again, we would have to answer that there has not. So that, unfortunately, having regard to the attempts that we made to encourage the parties to settle and having regard also to the sad fact that it was an accident at work that gave rise to the difficulties in the first place, notwithstanding that unfortunate background, we see it as appropriate to set aside this award to allow the appeal but to remit the matter to a fresh tribunal so that it will start afresh.