PERCY A HUDSON LTD v MR S P CROSLAND [1999] UKEAT 700_99_0710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 700_99_0710Case No Appeal No. EAT/700/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PERCY A HUDSON LTDAPPELLANTMR S P CROSLANDRESPONDENT
Before
Mr Justice LindsayDate 7 October 1999
[1]APPEARANCES For the Appellants MR G PITT Industrial Relations Advisor National Sawmilling Association 76 West Croft Leominster HR6 8HQ MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of Preliminary Hearing the appeal of the employer, Percy A Hudson Ltd, against a decision of the Employment Tribunal at Newcastle upon Tyne promulgated on 27 April of this year. It was a unanimous decision which was as follows:
"1) The Applicant, Mr S P Crosland, was dismissed and the principal ground for dismissal was incapacity within section 98… 2) The dismissal was unfair within 98(4) by reason of lack of reasonable consultation. 3) If reasonable consultation had taken place, the Applicant would have been fairly dismissed three weeks after 30 October and the Employment Tribunal declares that the Applicant is accordingly entitled to sick pay for the period from 23 October to 20 November 1998. 4) If no application is made for a remedies hearing within 28 days of promulgation of this decision, the application is dismissed upon withdrawal."
Notwithstanding that, the Tribunal seems to have anticipated an award not exceeding three weeks sick pay, and indeed, sub (4) rather suggests that they had in mind that the parties would settle the matter. The parties could not agree and there has apparently already been a remedies hearing which has awarded Mr Crosland considerably more than three weeks sick pay. The Tribunal concluded in extended reasons that the decision to dismiss Mr Crosland was taken too hastily. He should have been given further time to consider his position. There is something of a difficulty here because what is or is not undue haste and what is or what is not reasonable consultation is very much a matter of fact for the Employment Tribunal that hears the case. However, it has to be said that a very powerful case can here be made for the argument that the Tribunal's view that there was here too much haste and too little consultation was unfounded.[2]Thus there was before the Tribunal evidence that Mrs Crosland, the Applicant's wife, had told Mrs Hudson of the Company that the Applicant was diagnosed as being deaf and that he should not return to work at least until the medical condition relating to his disease was properly assessed. It was not in dispute that the Applicant was to take advice from the Citizen's Advice Bureau. The evidence of Mrs Hudson's account was accepted by the Tribunal as being substantially accurate. The Tribunal in turn said:
"First, we accept that on 27 October the applicant left intending to take legal advice in the near future and then speak again to his employers. He did in fact obtain such advice the next day and was accordingly in a position to decide what steps to take. This is consistent with Mrs Hudson's account that he said that he was [not] resigning, but wanted other work away from the noise and dangerous machinery."
[3]The findings of the Employment Tribunal include that even as they heard the case Mr Crosland was still unfit for work as a machinist. We can readily see an argument that if an employer is told that the employee should not return to his work as a machinist for medical grounds, if that employee has obtained legal advice and is in a position to decide what steps to take before he is dismissed, if he has remained unfit for a considerable period on medical grounds to be a machinist and if there is no suggestion that he asked for more time or that more time would have served any purpose, then, taking those factors together, one can see an argument that puts difficulty in the way of a conclusion that the dismissal was hasty, or that consultation was inadequate.[4]This is a difficult area because, as we mentioned, such questions are very much a matter for the Tribunal. We do conclude with some difficulty and indeed, upon there being differences between us, that here one cannot say that an argument of perversity is altogether beyond any chance of success. In paragraph 5 of the Tribunal's decision they say:
"He is still unfit for work as a machinist. On the other hand we consider that a reasonable employer would have given the applicant a further 3 weeks to consider his position and make more reasoned proposals, perhaps for a return to work in a non noisy environment part time. Having regard to the size of the employer's undertaking, we conclude that the respondents would not have acceded to such a request, but we do not conclude that that would have been unreasonable."
[5]All in all, we do not feel able to say that an argument that the conclusion in the case was perverse has absolutely no prospect of success. To that extent, we allow the matter to go to a full hearing. It will take one hour - the full hearing - and that there is no request or need for Chairman's notes. Category C.