Kingston Communications (Hull) Plc v Gorman [1997] UKEAT 659_95_1504

EAT

Kingston Communications (Hull) Plc v Gorman

[1997] UKEAT 659_95_1504 · 1997-04-15

MR JUSTICE LINDSAY : We have before us the appeal of Kingston Communications (Hull) Plc, which I shall call "the Company", against the decision of an Industrial Tribunal, under the chairmanship of Mr D.J. Latham, that was promulgated on 3 May 1995. The unanimous decision of that Tribunal was that, so far as material, the Applicant, Mr A.J. Gorman, a night watchman, was unfairly dismissed and the Respondent was ordered to pay £9,227.06 compensation to Mr Gorman.

Mr Gorman was a night watchman. In the week he worked from 4.15 pm to 7.45 am and at the weekend from 7.45 am to 4.15 pm and that was work on a shift basis; he worked for some 37½ hours a week. He was concerned, as night watchman, with three adjoining Company premises in the Hull area and he had to patrol those adjoining sites and was held by the Industrial Tribunal to be mostly on the move.

Mr Gorman had his 60th birthday on 31 May 1994 and on 9 May 1994 the managing director of the Company, Mr Matthews, wrote to Mr Gorman saying that he had decided to retire Mr Gorman "on the grounds of ill health". The retirement date was specified as two months after 31 May 1994, namely 31 July 1994, and two months was the proper notice required by way of contractual notice.

The Industrial Tribunal was satisfied that the reason shown for the dismissal by the employer fell within section 57(1)(b) of the Act of 1978 but they held that it was not a reason, in effect, within section 57(2) but rather that it was "some other substantial reason". By that reference to some other substantial reason we take it that they were referring, from their reference next following to section 57(3), to the language of section 57(1)(b), namely, "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."

The Industrial Tribunal held that the reason shown for dismissal, which they did not, at that point of their reasoning, in fact identify, was a fair reason and they did that before turning on to section 57(3). It may be that the word "fair" was simply being used as a shorthand way of referring to the concluding words of section 57(1)(b), namely, "such as to justify the dismissal of an employee holding the position which that employee held." It is not entirely clear what they were meaning to read into the word "fair" which they used. But, having held as they had, they then moved on to section 57(3). They incorporated that sub-section into their decision and then they went on, after quoting section 57(3):

"Here the Tribunal are not satisfied that the respondents satisfied the obligations imposed upon them by these provisions."

That was their conclusion immediately after reading section 57(3).

A little later on, and it is only a little later on, after reference to three authorities which had been drawn to their attention, they say this:

"The Tribunal are not satisfied that the respondents have satisfied the obligations imposed upon them by section 57(3) as - ..."

Then, after that, there come three reasons, (a), (b) and (c).

A little later, after giving those three reasons (a), (b) and (c) the Tribunal says this:

"Therefore the Tribunal are not satisfied that the respondents have satisfied the obligations upon them and find unanimously that the applicant was unfairly dismissed."

It is no part of our task to examine the language used by an Industrial Tribunal with, as has been said, a fine tooth comb. It is all too easy for an over-close regard to the language used to obscure a proper overall sight of the merits of the case. But where the case is far from one-sided and might reasonably be called fairly balanced, and where the language impugned is repeated and is used in reference to an important part of the case, then it becomes legitimate to subject the language to a more detailed analysis than might otherwise be the case and it is in that regard that we have been taken to the decision of Post Office Counters Ltd v Heavey

[1990] ICR 1

, a decision of the Employment Appeal Tribunal, under the chairmanship of Wood J. There, at page 4, one finds this:

"It is then, thirdly, for the tribunal to consider 'reasonableness', and to carry out the duty cast upon them by section 57(3). The history of this subsection shows that it had its origins in the Industrial Relations Act 1971 and was maintained in force by section 1 of and Schedule 1 to the Trade Union and Labour Relations Act 1974. By paragraph 6(8) of that Schedule the burden of proof was upon the employer; the relevant words were:

'shall depend on whether the employer can satisfy the tribunal that in the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee.'

The present wording was effected by the amendment made by section 6 of the Employment Act 1980. This fresh wording became effective in any case where the effective date of termination was after 1 October 1980. As a result there is no burden of proof. "

And then a little later, on the same page 5 of that decision, the learned

Judge continues:

"As the Court of Appeal has indicated on many occasions, the correct direction for an industrial tribunal to give themselves is to use the actual wording of the statute, and to remind themselves that there is no burden of proof on either party. A 'neutral' issue is indeed strange to those brought up with our adversarial system. It is not for the employer 'to show', nor for the tribunal 'to be satisfied' - each of which expressions indicate the existence of a burden of proof."

And then the Court went on to describe how easy it was to fall into the trap.

Here there is a three-fold statement, as we have just seen, that the Industrial Tribunal was not satisfied that the Respondent employer had not satisfied obligations cast upon it and, it seems to us, ineluctably, that that indicates a want of that neutrality which section 57(3) now deliberately requires.

Mr Vulliamy, who has addressed us on behalf of Mr Gorman, says that that is not the case, that the references that we have cited can be explained by indicating that there are different provisions relative to different burdens of proof, namely as between an evidential burden of proof and a substantive burden of proof.

However, the language used in the passages we have cited seems clearly to us to indicate that the Industrial Tribunal here was approaching the matter as if there was indeed a substantive burden imposed upon the employer rather than approaching the matter with the neutrality that the Post Office case and, indeed, later cases indicate is correct.

There is here, it seems to us, an important error of law on the Industrial Tribunal's part, an error that goes to the root of the decision and an error which requires a remission to a Tribunal. We do not for the moment stop at that. There are other areas which were explored below and which are brought into focus by the appeal of the Company. For example, the Company argues that it was wrong in law for the Industrial Tribunal to hold that there was a contractual right in Mr Gorman to continue in employment after 60, subject only to caveats as to his health and as to redundancy. There is a question even as to whether that point was adequately raised before the Tribunal at all, let alone whether the conclusion upon it was correct. That is a contentious area which will, no doubt, be more fully explained and gone into if, and when the matter is remitted, as we have indicated.

There are other issues, too, that seem to us (although, of course, we are not giving any form of directions to the next Industrial Tribunal that considers the matter) to require a more full study than it would seem, on this first occasion, was accorded to them. Merely as examples, it is said, in paragraph 5(b) of the Industrial Tribunal's Reasons, that, a doctor's report, which was plainly a matter of some importance on the question of whether Mr Gorman, on health grounds, should or should not continue in employment, was not properly taken into consideration by the Respondents. As against that, the letter from the managing director said:

"I have given careful and sympathetic consideration to your medical history and I regret to inform you that I have decided to retire you on the grounds of ill health."

That letter from Mr Matthews could not, perhaps as fully as might be appropriate, be gone into because Mr Matthews himself was not giving evidence before the Tribunal. We recognise that in a Company of the size of this employer it would be unreasonable to expect the managing director to have in mind the health of every employee and it could be that his evidence on the point would not be substantial but, for all that, a matter that the next Tribunal will need to have in mind is how far, if at all, it will be necessary to look at what the actual dismissing officer had in mind at the time of dismissal. We say no more than that on that subject.

Another subject which was covered in the present reasoning of the Industrial Tribunal (it was covered in their paragraph 5(c)) was the want of discussion between Mr Gorman and the Company in relation to his health and its consequences in relation to his future employment. In the course of today's hearing the point was raised with Mr Vulliamy that it was hard to see what function a discussion would here have served but Mr Vulliamy made an excellent answer by saying that there was a particular indication, actually spoken to before the Industrial Tribunal, that showed how important discussion might be. Mr Vulliamy says (although I am bound to say that there is no trace of this in the reasoning of the Industrial Tribunal although I do not mean, by saying that, to doubt that it is correct) that it came out in cross-examination that Mr Green, who the Industrial Tribunal regarded as Mr Gorman's line manager, had not realised that Mr Gorman had a mobile telephone or some other form of ready communication with him and that he was required to report in at frequent intervals. That indication does detract from the weight that otherwise might have been attached to Mr Green's genuine fears that he was dealing with an employee who was aged 60, had a bad heart record and was alone in Company premises. Mr Green might readily have thought that he was therefore viewing the position of a man who could be overtaken by immediate illness without any recourse to help, whereas discussion with him, as Mr Vulliamy pointed out, would have disclosed that perhaps at the press of a button he would have been able to be in touch with others and to call upon help. In such a way, it seems to us, there needs to be a fuller investigation, the second time around (so to speak) of what good might or might not have come of discussion.

It is not necessary, in our view, and, indeed, not even desirable in our view, that every point that has been taken in the Notice of Appeal should be ruled upon by us. It will be appropriate for the Industrial Tribunal that hears the matter afresh, of course, to respond to whatever argument and whatever facts are put in front of it and we see no propriety in our seeking to colour their minds by indicating what our decision would have been. Plainly there is a doubt as to exactly what the terms of Mr Gorman's contract were in relation to retirement but that will need to be ventilated the second time around in the context that this time, at any rate, there should be no doubt that it is a point to be raised and a point on which evidence will be needed.

Reverting to the only ground on which we feel we need to come to a decision, it is the "onus" ground which we have explained earlier. It seems to us that if we are right in deciding that in the Appellants' favour the only proper consequence is that the matter should be remitted to a Tribunal and we think it appropriate in this case that there should be a remission to a fresh Tribunal.