Pendenque v Nottingham City Council [1999] UKEAT 733_98_0104

EAT
Pendenque v Nottingham City Council
[1999] UKEAT 733_98_0104 · 1999-04-01
THE HONOURABLE MR JUSTICE LINDSAY: We have before us as a preliminary appeal, the appeal of Mr T S Pendenque in the matter Pendenque -v- Nottingham City Council . There was a hearing on 12 March 1998 at Nottingham Industrial Tribunal under the Chairmanship of Mr D M Richards and the decision was promulgated on 14 April 1998. Mr Pendenque had been in person at that hearing as, indeed, he is today. The unanimous decision of the Tribunal was that Mr Pendenque had not been unfairly dismissed and that the Respondents, the City Council, were not in breach of contract.So far as concerns the facts found by the Industrial Tribunal, Mr Pendenque had been a glazier for the Council but unfortunately had had a car accident in December 1993. He returned to work, only for a short period, but they found that he was thereafter continually certified sick from 17 May 1994 and did not work again until he was dismissed on 2 August 1996.The Employment Tribunal say in their paragraph 3:
"Indeed it is conceded by his representative, that capability was a valid reason for the Respondents to decide to dismiss him."
I think that could only have been a concession by Mr Pendenque himself. What the Tribunal held was as follows. They heard an assertion from Mr Pendenque that the dismissal was, under the circumstances, not reasonable, and he had argued that the Respondents were under a duty to find other and lighter work for him and that they had failed in that duty. That was gone into and what the Tribunal held was this:
"The evidence from the Respondents,which we accept,is that they took considerable steps to find work and sent to the Applicant details of posts that were available for him as well as circulating other departments in the Council. The Tribunal finds that the Respondents did all that was required of them to find alternative work and could not be thought unreasonable in deciding to dismiss in view of the Applicant's lack of effort in trying to find or to consider other jobs which were on offer and because of his absence from work for over 2 years, we do not accept that there was a duty on the Respondents to find other work. There is no contractual or statutory obligation and therefore no breach of contract."
If, by saying that there was no duty to find other and lighter work and to rely upon that, the Tribunal meant only that there was no contractual duty, we see that not to be an error of law. If, alternatively, they were merely recognising that an employer who dismisses for capability, without having looked into the possibilities of alternative more suitable work before dismissing him, may find that the dismissal is held to be unreasonable, then, in any event, the finding of the Tribunal was sufficient to overcome any consideration of that kind because, as I have cited, they accepted that the Respondents did all that was required of them to find alternative work.Mr Pendenque today has urged us that the Employment Tribunal should have paid greater regard to difficulties that he encountered with an individual in the personnel department of the Council and should have paid greater regard to his genuine efforts to find other suitable work within the Council, work which he could accept and which they could offer to him. That though, is essentially a matter of fact for the finding of the Tribunal. Mr Pendenque read to them a statement on such subjects as that but plainly they preferred the evidence from the Respondents , namely that the Respondents had done all that was required of them.The truth of the evidence that the Council put forward is also challenged today by Mr Pendenque but it is essentially within the province of the Employment Tribunal to determine which evidence it is to prefer, if there is a conflict, and plainly here, if there was a conflict, then it was resolved in favour of the Council. Mr Pendenque argues before us today that there was a crucial witness whose views seemed to be relied upon by the Council in the course of their case but who was not there present for cross-examination. That is a possibility which can, of course, occur, but the way it is to be dealt with is that an application should be made to the Tribunal for the attendance of that witness and there is no indication that was done here. It is difficult thereafter to challenge a finding of fact when no contemporary challenge of that kind is made.We have sympathy for Mr Pendenque's position. He has addressed us this morning with some skill and certainly in a most moderate way. His difficulty, he appreciates, is that it is not our business to offer a rehearing on the facts but rather to see if there is any error of law, properly- so-called, which justifies the matter going further forward on the ground that it has some reasonable prospect of success. Doing the best we can, we have not been able to find such a point of law and accordingly we must dismiss Mr Pendenque's appeal even at this stage.