Zulhayir v JJ Food Services Ltd (Practice and Procedure : Perversity) [2012] UKEAT 0275_12_2410

EAT
Zulhayir v JJ Food Services Ltd (Practice and Procedure : Perversity)
[2012] UKEAT 0275_12_2410 · 2012-10-24
[1]The background to this case is the following, as set out by the Employment Tribunal in the findings of fact in their Judgment:
“7. The Claimant was employed by the Respondent on 1 November 2001 as a delivery driver. On 7 January 2005 the Claimant was involved in an accident at work which involved serious injuries to his spine as a result of which he became unfit to carry out his job, certainly without adjustments. 8. Initially, the Claimant supplied medical certificates which were delivered to the Respondent by his son‑in‑law. The medical certificates stated he was unfit to work and were dated 11 and 20 January, 7 February, 7 March and 20 June 2005. During this period the Claimant received statutory sick pay by direct payments into his bank account. After 25 June 2005 no further medical certificates were provided by the Claimant to the Respondent and statutory sick pay ceased to be paid from about mid‑July 2005. 9. The Respondent’s records recorded the Claimant as living at 7 Clydach Road, Enfield, Middlesex EN1 3XL. Shortly after 27 September 2005 Jobcentre Plus sent the Respondent a statutory sick pay and benefit form about the Claimant, recording the above address as the Claimant’s address and requesting information in relation to the payment of statutory sick pay. 10. Part of the employee handbook of the Respondent, which the Claimant accepted he had received, stated that an employee must notify the Respondent of any change of address and telephone number, so they could maintain accurate information on their records and make contact in the case of emergencies. 11. In January 2006 the Claimant was evicted from 7 Clydach Road, Enfield because he had been unable to pay the rent and moved to accommodation at 176A Baker Street, Enfield EN1 3JS. The Claimant did not notify the Respondent of that change of address at any time thereafter. On 28 June 2006, Mr Camrikan of the Respondent sent a letter by recorded delivery to the Claimant at the 7 Clydach Road, Enfield address which stated as follows: ‘It has come to my attention that when you left your job as a driver on 22 July 2005 and since then we did not receive any correspondence regarding your return to work despite the efforts we made to contact you. Am I to assume that you no longer wish to work for J J Foods Service Limited? If so, please confirm your resignation in writing. Please note that if you do not contact me by 5 July 2006 then we would conclude that you no longer wish to work for us and that you terminated your employment by your own volition. If not, please contact me immediately upon receipt of this letter in order that we may arrange a meeting to discuss the situation.’ That letter was duly returned by the Post Office to the Respondent on 6 July 2006 marking that it had not been called for at the distribution centre. The Respondent made no further efforts to send that letter or deliver that letter to the Claimant. 12. On 5 October 2007 a firm called Hamilton Insurance, which is a member of the HSBC Group, wrote to the Respondent requesting details of the Claimant’s alleged disability as they were dealing with an insurance claim for the Claimant. The Claimant’s address on the application form was noted as 7 Clydach Road, Enfield. 13. On 18 July 2005 a report from Ms Szasz, an occupational therapy injury management consultant, had been produced at the request of the Respondent through a company called Corpore Limited. This report set out the problems that had arisen for the Claimant as a result of the accident. The report stated that it seemed unlikely the Claimant would be able to continue working as a driver but that a role working in the transport management area of the company might be a possibility. A further report was produced on 29 October 2005. Ms Collison, another injury management consultant, produced a further report for Corpore Limited on 26 January 2006. 14. In June 2005 the Claimant had instructed solicitors, Parker Bird, to act on his behalf in a personal injury claim against the Respondent company for the injury received in the accident which had taken place at work. In the course of that personal injury case the Claimant was examined by a consultant nominated by the Respondent in 2009. The Respondent’s insurers had instructed solicitors, Kennedys, to act on their behalf in this claim. 15. The letter dated 28 June 2006 referred to above, first came to the attention of the Claimant when he received a letter dated 20 May 2009 from Kennedys. The Claimant presented his claim to the Tribunal on 28 July 2009.”
Procedural background[2]At a Pre‑Hearing Review on 6 September 2010 Employment Judge Mahoney, sitting alone, struck out the claim and held that Mr Zulhayir had resigned in January 2006. That decision was reversed on appeal to this Tribunal, where the EAT in a Judgment delivered by HHJ Peter Clark said this:
“17. Having sent the letter of 28 June 2006 by recorded delivery, and that letter having been returned by the Post Office on 6 July, the Respondent then took no further action to communicate its contents to the Claimant. The particular feature of this case is that, at that time, the Claimant was off sick, he was not entitled to sick pay but he was pursuing a personal injury claim against this Respondent through solicitors, as the Respondent was aware. No attempt was made by the Respondent to communicate with him through those solicitors. In any event, the letter of 28 June 2006 did not amount to the Respondent’s acceptance of repudiation or indeed resignation by the Claimant, see Hassan [ v Odeon Cinemas Ltd [1998] ICR 127]. 18. The result, in our judgment, is that no effective steps were taken by either party to terminate the contract of employment until the letter from Kennedys, the Respondent’s solicitors in the personal injury proceedings dated 20 May 2009, enclosing the Respondent’s earlier letter of 28 June 2006, reached the Claimant stating that his employment had been formally terminated on 5 July 2006. That was the first opportunity which the Claimant had to know that the Respondent no longer wished to be bound by the contract. He accepted that state of affairs by commencing these Tribunal proceedings on 28 July 2009, see Gunton v Richmond‑upon-Thames BC [1980] ICR 755.”
[3]The matter was accordingly remitted to the Watford Employment Tribunal for a hearing on the merits, which took place on 6 and 7 February 2012. The Tribunal made an award by consent of a notice payment of £2,143.40; obviously, nothing arises as to that on this appeal. They also ordered the payment of a gross sum of £284 as holiday pay; again, that has not been the subject of an appeal. What is the subject of appeal is their conclusion that Mr Zulhayir’s claims for unfair dismissal and disability discrimination failed and were accordingly dismissed.[4]The decision of the Tribunal, Employment Judge Smail presiding, sets out at the start the issues that were agreed between Mr Renton of counsel, who then represented the Claimant, and Mr Grady, who represented the Respondent below as he had before us. As for unfair dismissal, the Tribunal noted (paragraph 4):
“It is conceded that this was a capability dismissal. The factual issues identified by the parties are whether the Respondent reasonably informed itself as to the extent of the Claimant’s medical condition and needs and whether he was reasonably consulted. The Tribunal has also raised the question of whether there was a procedural failure in failing to hold a meeting prior to dismissal and failing to offer an appeal.”
[5]As to disability discrimination, the Tribunal said (paragraph 3):
“The sole issue is whether an office job of transport administrator was offered to the Claimant, it being accepted that the job amounted to a reasonable adjustment in the form of suitable or alternative employment. If it was not offered, the Respondent accepts liability.”
[6]On unfair dismissal, the Tribunal concluded that the Respondent did establish the Claimant’s medical position to “as reasonable an extent as it needed” and did so through Corpore, the rehabilitation consultants who were acting on its behalf. The Tribunal held that that was reasonable in the circumstances. They described Corpore as having acted as the intermediary between the interests of the employer’s insurers in the personal injury claim that Mr Zulhayir had brought and him and his solicitors on the other. They found that “acting via Corpore, the Respondent did all that a reasonable employer needed to do” (paragraph 27). They went on to express the concern they had raised that in writing the letter of 28 June 2006 the Respondent was in fact regarding the Claimant as dismissed without holding a meeting and without offering an appeal. The ACAS Code of Practice, they suggested, applied there only by way of analogy, in that this was a capability and not a disciplinary procedure. They were nonetheless concerned, in their own words, “that there should be some minimal procedural compliance”. Mr Renton conceded that a meeting in 2009 could not have been expected, given that the Respondent had assumed that the relationship had terminated in 2006.[7]As to 2006, the Tribunal accepted the submission of Mr Grady that it was the Claimant’s fault that the Respondent had lost contact with him. He was under a duty to inform his employer of the change of address but did not do so and made no contact with them until bringing the present Tribunal proceedings in 2009. In those exceptional circumstances, according to the Tribunal, there would be no need to invite a hearing nor to confer an appeal, the exceptional circumstances being that the Respondent lost contact with the Claimant through no fault of its own. They continued at paragraph 29:
“It might be said that the Respondent could have written to the Claimant’s solicitors. It seems that did not occur to them. However, that does not detract from the employee’s obligation to make direct contact with the new address. Furthermore, we infer from the fact that Corpore also failed to maintain contact with the Claimant when they had been dealing with the Claimant’s solicitors, that attempted contact through the solicitors was not guaranteed to succeed of result in communication from the Claimant.”
[8]Ms Mallick, who appears for the Claimant through the good offices of the Bar Pro Bono Unit, submits that this conclusion was perverse. As Mr Grady has rightly reminded us, the test for perversity laid down in cases such as Yeboah v Crofton [2002] IRLR 634 is a strict one; we bear that in mind. However, we do not agree that either in June 2006 or in May 2009 the Respondent did all that a reasonable employer needed to do. The letter of 28 June 2006 was sent by recorded delivery and returned undelivered. The Respondent was aware of the personal injury claim. Nevertheless, they did not write to the Claimant’s personal injury solicitors asking them to pass on the letter of 28 June 2006 or asking them if they could assist in why the recorded delivery letter had been returned. As the Employment Tribunal found, obviously correctly, that did not occur to them.[9]In our view, it plainly should have done. The Respondent is and was a substantial concern with a human resources department. They may have had other means, such as landline or mobile telephone numbers or possible contact to relatives who had recently worked for the company. There are no clear findings of fact as to these matters, but even if the only possible contact had been the Claimant’s solicitors, that was a reliable means of communication that the employer should have used. It is unnecessary to decide what the position would have been if the letter had been sent by ordinary post and simply not replied to or if there had been no other means whatever of contacting the Claimant. The fact mentioned by the Tribunal at paragraph 29 that Corpore in December 2005 and January 2006 had also had difficulties in making contact with the Claimant does not detract from the criticism that we make of the Respondent; on the contrary, if it was relevant at all, it should have merely reinforced the suspicion that he might have changed addresses.[10]As to the argument based on the clause in the contract of employment requiring notification of a change of address, we note that the Respondent ran that argument before this Appeal Tribunal on the first appeal and failed. Although that was in the context of whether the contract of employment was or was not impliedly terminated by resignation, we take the same view of the issue in the context of the unfairness of the dismissal. The presence of such a clause in a contract of employment does not exempt an employer, where it is apparent that an important letter to the employee has been returned undelivered, from taking reasonable steps to use an alternative means of communication if such alternative means is readily available, as it was in this case.[11]We have viewed this issue so far through the prism of what the Respondent did and did not do in June 2006. If one looks at it (with the wisdom of hindsight and the benefit of reading the first EAT judgment in this case) through the prism of May 2009, the dismissal was even more obviously unfair. The Respondent took no steps at that time to ascertain whether the Claimant, whose personal injury case against them was still proceeding but had not yet come to trial, wished to return to work nor to offer him alternative employment.[12]We therefore allow the appeal and declare that the dismissal in 2009 was unfair. We also consider that in failing in May 2009 to make an offer of alternative employment the Respondent was committing an act of disability discrimination.[13]However, we reject the submission of Ms Mallick that there was a continuing failure from 2005 until 2009 to make reasonable adjustments. We record the findings of fact on this subject by the Employment Tribunal:
“21. On 25 November 2008 the Claimant signed a statement of truth verifying his particulars of claim issued in the Edmonton County Court. In the claim for general damages he wrote that he was unable to start any type of work because of his medical condition. As at 29 th of December 2009 he was receiving incapacity benefit without the need for submitting regular medical certificates. A GP letter dated 21 April 2008 expressed the view that the Claimant was not fit for work now or in the foreseeable future. Ultimately in the personal injury claim a joint consultant orthopaedic surgeon’s statement dated December 2009 recorded the view that from an orthopaedic point of view the Claimant was capable of returning to his pre‑accident job with the adjustment of no heavy lifting. Ultimately, it would appear, expert medical opinion contradicted the Claimant’s own position and that of his GP. 22. The Claimant accepted before us that he had read the Corpore reports as and when they were produced. Accordingly he knew of the possibility of his returning to work in an office based transport administrator role. Furthermore, whilst there is no direct evidence in the bundle that Corpore sent the Claimant the job description, it is in our judgement very likely, certainly more likely than not, that it did so and that the Claimant saw it at the time or shortly after it was prepared. We reject this evidence that he did not see it at that time. 23. Accordingly, on the issue we are asked to determine as a matter of fact, we find that the Respondent did make it clear that it was prepared to have the Claimant back in a revised job by way of suitable alternative employment as a reasonable adjustment. The reason the proposal did not advance was that it was not taken up by the Claimant. It seems likely to us that at that time the Claimant’s position was that he would not return to work at all, full compensation for which he would be seeking in his County Court personal injury claim. Our finding that he was not willing to pursue the idea of a return to work with the Respondent is reinforced by the clear fact that the Claimant did not get in touch with the Respondent after the eviction from his original address to inform them of his new address. He knew of the possibility of the new job prior to eviction.”
[14]The only criticism we make of these three paragraphs is of the first sentence of paragraph 23. It is correct that the Respondent made it clear to Corpore in August 2005, as the Tribunal found elsewhere in their Judgment, that they had a transport administrator job potentially available to the Claimant, the particulars of it at that time being set out in what the Tribunal described as “a rough draft of a potential job description”, and (despite Ms Mallick’s best efforts) we conclude that the Tribunal were entitled to find that the Claimant saw the rough draft of the potential job description at the time, which we take to mean in the second half of 2005.[15]But it is also apparent from the Corpore reports, the first in July 2005, the second in October 2005 and the third in January 2006, that in late 2005 the Claimant was not fit to take up that job nor anywhere near it. After that direct contact was lost. As the Tribunal point out, as late as November 2008 the Claimant was asserting that he was unable to start any kind of work because of his medical condition, and that assertion was backed up by the opinion of his general practitioner in April 2008 that the Claimant was not fit for work then or in the foreseeable future.[16]So, it is clear to us that if the transport administrator job had been offered at any time from 2005 to the end of 2008, it would have been refused. It may be that it would have been refused in May 2009 as well, but we do not have the material before us to make findings about that. In particular, we do not have, and it appears the Tribunal did not have, any information as to what the Claimant said in his written or oral evidence in the County Court case or what a doctor said about his fitness for work in the first half of 2009. We do know from paragraph 21 of the Tribunal’s Judgment that by the end of 2009 experts were expressing the view that he could return to his pre‑accident job with the adjustment of no heavy lifting. But the issue of fitness for work in mid‑2009 is for another day, and it is not before us.[17]It is plain to us, however, that the Disability Discrimination Act (DDA) claim, in so far as it relates to acts or omissions of the Respondent prior to 2009, cannot succeed. The finding of the Tribunal in paragraph 23 that the Claimant’s position was that he would not return to work and that he was not willing to pursue the idea of a return to work is unassailable, and we agree with the Tribunal that it is reinforced by the fact that the Claimant did not get in touch with the Respondent in and after 2006 to see whether they had anything to offer. Conclusion[18]For the reasons we have given, we allow the appeal and remit the unfair dismissal and DDA claims to the Tribunal for a hearing on remedy. We have considered whether the remission should be to the same or a different Tribunal; we consider, having regard to the guidelines in Sinclair Roche & Temperley and Ors v Heard and Anor [2004] IRLR 763 that this is an appropriate case for remission to the same Tribunal as heard the case in February 2012, subject of course to the unavailability of any of the three members. We say in conclusion that we are grateful to both counsel for their submissions. Those of Ms Mallick reflect credit not only on her but also on the Bar Pro Bono Unit.