Appeal No.	EAT/1263/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MR J C SHRIGLEY

MR S RYLANCE	APPELLANT

VENDACLEAN LTD T/A FRESHFAST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - INTER PARTES

Revised

	APPEARANCES

For the Appellant	MR SYMONDS
(Representative)	
For the Respondents	MR N HUNTINGTON
(Representative)	

	JUDGE PETER CLARK:     This is an appeal by the employee, Mr Rylance, against a decision of the Manchester Industrial Tribunal sitting on 11th August 1997 that he was fairly dismissed by the respondents, Vendaclean Ltd T/A Freshfast. A claim of wrongful dismissal succeeded, but there is no cross-appeal against that finding, so that no jurisdictional problem arises here in relation to that aspect of the claim. Extended reasons for the tribunal’s decision are dated 4th September 1997.

	The appellant commenced employment on 11th November 1985. It is material to note that his 65th birthday fell on 9th July 1997.

	In August 1996 he went off sick. He submitted sick notes and received statutory sick pay. After Christmas 1996 he submitted a doctor’s note putting him off work for 26 weeks expiring on his 65th birthday.

	On 14th March his statutory sick pay came to an end and on 24th March 1997 he was handed a brown envelope by a neighbour who did some gardening work for the respondents. It contained a wage slip and a form P.45.

	From this the appellant deduced that he had been dismissed. He subsequently took advice from the Tameside Welfare Rights Unit, who wrote to the managing director, Mr Guss, on 30th April 1997 giving notice that they regarded the appellant as having been dismissed and claiming pay in lieu of notice. Mr Cuss replied, denying that the appellant had been dismissed.

	On 20th May 1997 the appellant presented his complaint of unfair dismissal and wrongful dismissal to the Industrial Tribunal. By a Notice of Appearance the respondents denied dismissal, but advanced no positive case that had there been a dismissal, it was fair.

	The Industrial Tribunal found that there had been a dismissal. Hence the award of damages for wrongful dismissal. Although the appellant had exhausted his statutory sick pay by the time of dismissal in May 1997, the tribunal correctly applied the decision of the Court of Appeal in Notcutt v Universal Equipment Co. (London) Ltd [1986] ICR 414 interpreting what is now s. 89 of the Employment Rights Act 1996.

	As to unfair dismissal, the tribunal first inferred that the reason for dismissal related to the appellant’s incapability for work through illness. Further, it found that despite the fact that the appellant had not been consulted prior to the dismissal as found, nevertheless this was one of those wholly exceptional cases where consultation was unnecessary, as was the usual requirement for the respondents to obtain a medical report. East Lindsay District Council v Daubney [1977] ICR 566.

	In this appeal Mr Symonds first submits that the tribunal erred in law in finding that the reason for dismissal related to capability where no evidence had been led, nor submission made on behalf of the respondents, as to a prescribed reason for dismissal under s. 98(1) or (2) of the Employment Rights Act 1996.

	It is correct to say that no such argument was advanced on behalf of the respondents. However that is not the end of the matter. Where the fact of dismissal is in dispute and that dispute is resolved in favour of the employee, it will then be open to the Industrial Tribunal to look at the facts which caused the employer to act as he did, and to treat those facts as the reason for dismissal. Ely v YKK Fasteners (UK) Ltd [1993] IRLR 500.

	Next reasonableness. Having identified incapability on grounds of ill-health as the reason for dismissal, the tribunal erred in finding that the dismissal was fair in circumstances where the respondents at no time informed the appellant that he had been dismissed; except by presenting him with an unaccompanied form P.45 delivered by his neighbour, nor providing him with any reason for dismissal, nor consulting with him prior to the dismissal.

	In our judgment the tribunal was entitled to look at the facts. The appellant had presented the respondents with a doctor’s note which took him to retirement age. He therefore would not return to work before he could be dismissed by reason of age. His statutory sick pay entitlement had ended. In these circumstances, subject to contractual notice pay, dealt with in the wrongful dismissal claim, it was open to the tribunal to conclude, in accordance not only with Daubney, but also the speeches in the House of Lords in Polkey v A E Dayton Ltd [1988] ICR 142, that consultation would have been a futile exercise. No medical report was necessary in light of the appellant’s doctor’s certificate. In these circumstances it seems to us that the tribunal’s finding that the dismissal was fair was a permissible option.

	During the course of submissions this morning we were concerned that there had been a breach of natural justice in that Mr Symonds on behalf of the appellant had not been given an opportunity to make submissions and lead evidence in relation to the fairness of the dismissal as found. However, we note from the tribunal’s reasons, first, at paragraph 9 that:

“9. ... Mr Symonds submitted that there was a dismissal and that it was both unfair and wrongful.”

and at paragraph 12 he is recorded as having:

“12. ... submitted that because the respondent had argued that the applicant had not been dismissed no reason had been given to the Tribunal as to why such dismissal had taken place.”

and in those circumstances, the dismissal was automatically unfair by virtue of s. 98(4) of the 1996 Act.

	In these circumstances Mr Symonds has very fairly accepted that some opportunity was given to him to make submissions on this aspect of the case.

	Mr Huntington, who appeared below for the respondent, is before us today strictly on an application for an extension of time for the PHD form which was lodged one day late. He has been somewhat equivocal as to whether or not this case raises a point of law which ought to go to a full hearing. 

	We have to control the flow of cases to full appeal hearings. In our judgment, this case raises no arguable point of law which has a prospect of success at a full hearing, and in these circumstances the appeal will be dismissed at this stage.