DUKEDOM GROUP LTD v MR M WILLETT [2005] UKEAT 0336_05_2608
[1]APPEARANCES For the Appellant MR TATTON-BROWN (of Counsel) Instructed by: Cronor Consulting Litigation Department Wolters Kluwer (UK) Ltd Cronor House Wheatfield Way Hinckley LE10 1YG For the Respondent MR HUMBLE (Solicitor) of Messrs Abbott Bailey Solicitors Vanguard Suite Broadcasting House of Lords Middlesbrough Cleveland TS1 5JA SUMMARY Practice & Procedure: Disposal of Appeal By consent part of the appeal was allowed and remitted to the same Employment Tribunal to determine compensation in accordance with Polkey , and contribution, and an assessment of the Claimant's medical condition. HIS HONOUR JUDGE McMULLEN QC When this case was called on, we of course had formed a provisional view of the strengths of the two parts of the case, that is liability and remedy. With the assistance of Mr Tatton-Brown of Counsel and Mr Humble, solicitor, neither of whom appeared below, we have been able to come to what Mr Humble describes as a sensible solution to today's proceedings. By concession, the Respondent concedes that the appeal will fail and thus the appeal on liability is dismissed.[2]It is, following our general discussion earlier, accepted by the parties, that a remission is necessary on Polkey and on contribution. The remission will take the format of submissions only, since we are clear that there was a submission based on Polkey and the Tribunal was bound to deal with it. It need not hear any evidence on the point.[3]As to contribution, it appears that this issue was not argued and it has been argued in brief by Mr Tatton-Brown that a tribunal which has found that the reason for dismissal is conduct and here, conduct which could be misconduct, is obliged pursuant to section 123(6) of the Employment Rights Act to make a judgment on contribution and it has not done so. Whatever may be the strength of that, we hold that, by consent, in this case it was a requirement for the Tribunal to consider contribution and it will now have an opportunity to consider that issue again by reference to submissions which will be made to it, and we would not have thought by reference to any new evidence.[4]As to third contentious issue, which is the attribution of the Claimant's illness at the end of 2004 to the dismissal seven months earlier, the Tribunal has recorded the Claimant's contention was that it was so attributable. There was no evidence apart from this assertion by the Claimant. That is not to undermine what he says but, on the other hand, there was no medical evidence and there is no finding as to that specific point. In our judgment, the parties are correct when they submit that a finding is required. The Tribunal should be given an opportunity to consider evidence relating to attribution. It may be that the Claimant is medically examined at the instance of the Respondent or it may be that on disclosure of the medical records held by the GP, this will be sufficient for the parties to be able to present that material to the Tribunal and make their arguments. So, we will order accordingly. We will note that there is also a concession by Mr Humble as to the £137 which is broadly known as the Morgans v Alpha point and the appeal on that ground is allowed.[5]The sole issue now is: which tribunal? It is accepted by the Respondent that the same Tribunal sitting in this matter should now give its consideration to the issues and that was the position taken by Mr Humble. So, this will be remitted to the same Employment Tribunal and because it is likely that there will be issues of medical evidence, we would anticipate a hearing where arguments can be made, including written arguments. We will require those arguments to be generated first by the Respondent 14 days from today and the Claimant's in response 14 days thereafter. The Claimant will make himself available to be examined by the Respondent's medical practitioner and we would have thought, although at this stage we will not order, that he should make the records of his GP available to a medical practitioner examining him for the purposes of the hearing. In the spirit of co-operation which has broken out in this tribunal, it may be that parties, once they see the arguments, are able to reach some agreement between themselves and, of course, ACAS is available now that this case is back in the Employment Tribunal to offer its services of conciliation.[6]We would very much like to thank Mr Tatton-Brown and Mr Humble for their pragmatic approach to today's proceedings.