Appeal No.	 EAT/353/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MR D J HODGKINS CB
MRS T A MARSLAND

HEPWORTH BUILDING PRODUCTS LTD	APPELLANTS

MR R FERGUSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G PIPE
(of Counsel)
Messrs Wake Smith
(Solicitors)
68 Clarkhouse Road
Sheffield S10 2LJ	
For the Respondent	MR TOM LINDEN
(of Counsel)
Messrs Pattinson & Brewer
(Solicitors)
30 Great James Street
London WC1N 3HA	

	JUDGE JOHN BYRT QC:  This is an appeal against the decision of an Industrial Tribunal sitting in Manchester.  Its decision was promulgated on 13 January 1997.  By that decision it held that the employee, Mr Ferguson, had been unfairly dismissed and awarded him compensation of some £3,712.00.  The employers appeal.

	Shortly, the facts are as follows:  Mr Ferguson was employed by the Appellants between September 1991 and 4 January 1996 when he was dismissed.  His initial task in this employment was as a press operator.  In July 1993 he began to suffer considerable discomfort in one of his elbows and as a result it was concluded that he was no longer able to continue in the job of press operator.  It had been recognized that that was a physically demanding job.

	After medical examination by a doctor employed by the Appellants Mr Ferguson was put on light duties.  He was again examined in the following December and as a result on 17 February 1994 he was told that the light duties he had been performing would, in fact, remain his duties.  It is not clear as to whether that was to be permanently so or for the foreseeable future but, in any event, he was to lose various pay benefits he had hitherto enjoyed.  Thereafter, Mr Ferguson continued to fulfil those light duties until the date of his dismissal in January 1996.  The light duties given him were, as far as one knows, the same throughout, namely, reclaiming panels under a contract the employers had with Shell.

	During that time the discomfort in his elbow increased and in 1995 Mr Ferguson had a prolonged period off work, namely, between April and September.  On his return to work, he continued with the light duties work - the reclamation work - but in November he was required, by the employers to try again the work that he had originally been employed to do, namely, that of a press operator.  Unhappily, Mr Ferguson was only able to fulfil that role for something like two hours before pain and discomfort made it plain that he was no longer able to continue.  As a result of that failure, he had a further medical examination in the December and following on the medical opinion so obtained, he was told on 4 January 1996 that he had to be dismissed.  The reason given to him in oral discussion was that it had been anticipated his inability to work as a press operator would be for a temporary period only and it was now plain that he would never be able to resume that work again.

	Mr Cassidy, the production manager employed by the Appellants, gave evidence.  He indicated that the work Mr Ferguson had been doing was now to be undertaken by the press operators and that, in any event, the work entailed, the reclamation work under a contract with Shell, was going to come to an end in the August.  That is, in fact, what happened.

	So far as the Industrial Tribunal’s findings are concerned, they accepted that Mr Ferguson had been dismissed by reason of his perceived incapacity.  That finding is contained in the second paragraph of their summary reasons.  

	In their extended reasons they then proceeded to consider the issue of fairness and decided that the dismissal was unfair in that it was unreasonable in December 1995 for the employers to judge Mr Ferguson’s capacity by reference to the job he had not undertaken for two years, that is, as a press operator.  They also found that the employers were not entitled to treat Mr Ferguson’s inability to do the job he had not been doing for over two years, as a justification for dismissing him and they found that this was especially so when there was still light-duty work being undertaken by other employees of the company.
	We think that there may have been an element of confusion in this case because the Industrial Tribunal have failed to spell out expressly what it meant by the phrase “perceived incapacity” when indicating the employers’ reason for dismissal.

	Mr Pipe, for the employers, has argued that the Industrial Tribunal erred in law in judging Mr Ferguson’s capacity to work by his ability or otherwise to carry out the light duties he had been engaged on since September 1993.  He surmised that the Industrial Tribunal had found that the letter dated 17 February 1994 varied the contract so that the contractual duties that Mr Ferguson was expected to undertake were those light duties on which he was at present engaged.  He submitted that in law there was no such variation of the contract and, therefore, the Industrial Tribunal’s conclusion that the employers had applied the wrong yardstick, was invalid.  He summed it up by saying that the Industrial Tribunal had made a mistake in that they merged the assessment of incapacity with the issue of reasonableness for dismissal and he said that the only way this matter could be remedied would be for the matter to be sent back for a rehearing by another Tribunal.

	Mr Linden, for Mr Ferguson, accepted that it was unclear whether the Industrial Tribunal made a finding on the variation of contract issue but he said it was reasonable from their reasons to assume that they found that issue in favour of the employers and that they judged the employers reason for dismissal to be based upon Mr Ferguson’s incapacity to undertake the work of a press operator.  He then he proceeded to state that there was an abundance of findings of fact which enabled and, indeed, justified the Tribunal coming to the conclusion that dismissal, in the circumstances, was unreasonable and unfair.

	The Employment Appeal Tribunal has approached this matter by asking first whether it can be discerned from the reasons what the Industrial Tribunal thought was the employers reason for dismissal.  There were a number of issues before the Industrial Tribunal based upon Mr Ferguson’s case as advanced before that Tribunal.  They had to consider the contention put forward that the real reason for Mr Ferguson’s dismissal was because the employers wished to streamline the operation of reclamation work with the job which was being undertaken by the press operators.  They had to consider the contention being put forward that, in effect, the dismissal had been prompted by the employers’ insurers who were concerned about a possible claim by Mr Ferguson that he had suffered an industrial injury.

	We think it is abundantly clear that the Industrial Tribunal accepted that the reason for dismissal was Mr Ferguson’s incapacity to perform his duties as a press operator and in so concluding they accepted the submissions advanced by the employers.  We think that that is to be inferred quite clearly from the subparagraphs to paragraph 7 in which, as I have already indicated, they thought that the employers had acted unreasonably in judging Mr Ferguson’s capacity of work by the job that he had not done for two years.  They then went on to say that they thought such a decision on such a basis was unfair.  Nowhere do the Industrial Tribunals take up the contention that Mr Ferguson’s duties had been contractually varied.  There is one reference in paragraph 2 of their extended reasons in which they refer to the Applicant being transferred to “permanent” day duties in February 1994 but that is the only suggestion from which it might be inferred they found that there had been a variation of the contract.  Nowhere do they find that the dismissal was for a reason other than incapacity.

	If there is a criticism to be made of the Tribunal’s decision, it is of the fact that they do not spell out expressly and explicitly their acceptance of the employers’ reason for dismissal but, as I have already indicated, we think it is plain from the decision overall that they argue from the basis that they have accepted the employers’ reason for dismissal.

	When they come to consider the issue of fairness, it could only have been on the basis that they had accepted the employers’ claimed reason for dismissal.  On the issue of fairness, they made findings which amply justified their conclusions that the dismissal was unfair.  Those findings were all findings of fact.  We do not see that they have erred in point of law in any way in considering that particular issue.  We also think that the contention they were perverse in coming to the conclusion they did about fairness or otherwise, is not sustainable.  

	In all the circumstances, we are satisfied that the Industrial Tribunal here came to the right decision for the right reasons and that there are no grounds which would enable us to disturb their findings.  Accordingly, the appeal will be dismissed.