John- Lewis v PJH Group Ltd (Unfair Dismissal : Procedural fairness/automatically unfair dismissal) [2013] UKEAT 0079_13_1207

EAT
John- Lewis v PJH Group Ltd (Unfair Dismissal : Procedural fairness/automatically unfair dismissal)
[2013] UKEAT 0079_13_1207 · 2013-07-12
[1]This is an appeal by a Claimant, Mr Sylvester John-Lewis, against a decision of the Employment Tribunal sitting at Watford sent to the parties on 5 October 2012 whereby they rejected his claim for unfair dismissal and disability discrimination. The Respondent to the claim and to the appeal, PJH Group Ltd, is not represented here today. They say in their answer that they rely on the decision and reasons of the Employment Tribunal. That unfortunately may have been a rash decision on their part as the Tribunal reasons are not as full or clear as they might have been. The factual background[2]The factual background is as follows. The Claimant was a warehouse operative at the Enfield depot of the Respondents from 2007. He had, the Tribunal found, a poor attendance record. It was his case that he had arthritis in his knee and that he was suffering from a disability within the meaning of the Disability Discrimination Act . The Claimant was off sick from some time in May 2011. He apparently had a sick note which ran to 6 June 2011 which he had handed in to the Respondent.[3]At some stage he was sent an undated letter telling him that if he did not make contact with the Respondents they would assume that he no longer wished to work for them. We have been provided with a copy of that letter today by Mr Bhatti who appears for the Claimant and it says this:
“We are writing to ask you if you will be returning to work in the near future as we have had no contact with yourself since 03/06/2011 and you were due back to work on 06/06/2011. We have tried to contact you on 6/06/2011 with no response. Could you please contact us as soon as possible to confirm if you are returning to work or let us know of any difficulties you may be experiencing. If no contact has been made within 7 days from the date of this letter, 17/06/2011, we will take it that you no longer wish to work for PJH Group Ltd and as such your employment with PJH will terminate. We look forward to hearing from you in the near future.”
Unfortunately the Tribunal makes no findings about when that letter was received.[4]The Claimant was in due course sent another letter addressed to his mother’s address, 35 Napier Road, which is dated 27 June 2011. Again, that letter was not quoted in the Judgment but we have been provided with a copy today by Mr Bhatti. That letter says:
“Dear Sylvester Re: Dismissal As you did not reply to my letter of 17/06/2011 within the 7 days requested I have no alternative but to presume you no longer wish to be employed PJH Group Ltd and hereby terminate your employment. Any holiday payment, if you are due any, will be paid to you in your final wage slip. You have the right to appeal against this decision. If you wish to exercise this right you must do so in writing within five days of receipt of this letter to John Spart clearly stating the grounds on which the disciplinary action should be reviewed and providing any new additional information in support of the appeal which was not discussed at the hearing.”
We note that there had been no such hearing. The Tribunal accepted that that letter was not received by the Claimant until sometime after 18 July 2011, that is more than three weeks after it is dated, because the Claimant was able to demonstrate that it was posted on that date. However, the Claimant’s evidence was that in the meantime he was fit and that he went to work on 11 July 2011 and that when he turned up he was told orally that he was dismissed. It is not clear from the reasons whether the Tribunal accepted his evidence about that though there was no evidence to contradict it called by the Respondents.[5]In any event, on 21 July 2011, by now having received the dismissal letter, the Claimant wrote a letter appealing against the decision to dismiss him. For reasons that the Employment Tribunal did not find the appeal letter did not come to the attention of the Respondents. On 29 July 2011 the Respondents shut down the Enfield depot altogether and dismissed virtually all the staff for redundancy. That process must have begun some time before but the Claimant said that he did not know anything about it until he was told in June.[6]The Claimant’s appeal letter was, as we have said, never received for some reason so solicitors wrote on his behalf on 26 September 2011 reminding the Respondents that he wished to appeal. A Mr Witton of the Respondent’s HR department, who gave evidence at the Tribunal but had no prior involvement, wrote to the Claimant again at his mother’s address on 7 October 2011 informing him that the appeal would be heard on 20 October 2011 at the now empty Enfield depot. For reasons that we are not informed the Claimant never turned up for that appeal hearing although the Employment Tribunal do implicitly make a specific finding that the Claimant did receive the letter notifying him of the appeal date in paragraph 3.7 of the reasons in the last sentence on page 16 where they say it is not credible that he, that is the Claimant, did not receive the letter of 7 October within the normal course of post. Unfair dismissal[7]The Employment Tribunal found that the reason for the Claimant’s dismissal was conduct in that he had taken three weeks unauthorised absence from work. That finding has not been and cannot now be appealed. It was then necessary for the Tribunal to address the question of whether that was a sufficient reason and the overall fairness of the dismissal. They turned to this issue at paragraphs 5.3 and 5.4 of their reasons:
“5.3 Although we have some reservations about the procedure that was followed we do take into account that the company was in a considerable amount of upheaval involved inevitably in closing down a depot and making a large number of redundancies. However, it is clear to us that the respondent reasonably believed that it had notified the claimant by letter that his continuing unauthorised absence could result in dismissal, that he was notified of his dismissal and his continuing absence but reminded of his right of appeal. That appeal, although delayed, would not have made a difference. There was by that point, and indeed even earlier, no possibility of reinstatement as the depot was closed. The relevant managers were no longer with the company and it was they who could have conducted a meaningful appeal. Mr Witton, who would have held the appeal, had very little knowledge of the claimant or his circumstances as he has very honestly admitted to the Tribunal. 5.4 That being the case we find the procedure followed was fair and reasonable in the circumstances and that dismissal was within the band of reasonable responses.”
We are clear that the Tribunal in those paragraphs has unfortunately fallen into error in a rather elementary way. The fact that an appeal would not have been “meaningful” or resulted in re-instatement, even if it was the case, cannot make the process of dismissal fair and cannot turn an otherwise unfair dismissal into a fair one. The finding that the dismissal was fair cannot stand.[8]The Tribunal go on in paragraph 5.4 to say this:
“If we are wrong in that [in other words on the fairness of the dismissal ] we find that a correct procedure would have made no difference and the claimant would have been dismissed for his unauthorised absence. Further, even if the dismissal had been unfair we would have found that the claimant contributed 100% to his dismissal.”
Again, we are clear that the Tribunal have fallen into error there. It is clear that if there had been a fair procedure, it may have been that the Claimant would have established at a hearing of some sort that it was not right that he was absent in an unauthorised way or that it would not be right to dismiss him summarily for what had happened. Although the Claimant may well have lost his job for redundancy, that would have had completely different consequences to those which flow from an instant dismissal for a conduct related matter.[9]That means that the finding rejecting the unfair dismissal claim must be set aside and the matter must be sent back for proper findings to be made in relation to the fairness of the dismissal and the question of compensation, if any. Disability discrimination[10]There was also a claim for disability discrimination which the Tribunal dealt with in this way at paragraph 5.5:
“5.5 Having made these findings there is no need for the tribunal to make a finding about whether or not the claimant was disabled, nor any of his complaints in that respect.”
We are not sure that we follow the reasoning on that but in any event the findings about unfair dismissal having been set aside, the question of the disability discrimination claim must also be resurrected so that we make it clear that in the proceedings which are sent back for re-hearing, the Claimant will be able to present his claim for disability discrimination. Other claims[11]In the ET1 there were a number of other claims suggested by ticks in the appropriate box, but the Tribunal dealt with those in this way in paragraph 5.5:
“Insofar as the claimant has brought complaints for unlawful deduction of wages, breach of contract, notice pay and a failure to pay him lieu of holiday, we find those matters were not sufficiently particularised in the ET1 to be matters now for the tribunal’s attention. They were not identified as issues at CMD and nor were they pursued in evidence today to the extent however that these claims are “live” they are dismissed.”
What the Tribunal says about particularisation and about the CMD is entirely correct. We must accept that the matters were not raised in evidence. We also note that there is no appeal against that finding, indeed there is a paragraph in the Notice of Appeal which records that various claims were dismissed, namely the unlawful deduction of wages, non-payment of holiday pay and breach of contract, and records the ground, namely that they had not been sufficiently particularised; there is then no appeal against that finding set out in the Notice of Appeal and so it is clear that it is not open to the Claimant now to resurrect in any way those claims. Outcome 12. The matter will go back to the Employment Tribunal to be heard by a different Tribunal on the question of unfair dismissal and disability discrimination.