Appeal No.	 EAT/967/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 January 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR R JACKSON

MR P FISSLER	APPELLANT

KAY TRANSPORT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MISS JOHNSON
Representative
Plymouth TUC Unemployed Workers' Centre
Beaumont Hall
19 Greenbank Avenue
St Judes
Plymouth PL4 8PS	

	JUDGE PETER CLARK:  The Appellant, Mr Fissler, commenced employment with the Respondent as an HGV driver on 3 July 1987.  In 1990 and again in 1995 he suffered accidents at work which left him with a permanently damaged back.

	After various steps were taken by agreement to lighten his work load he went sick in August 1995 in circumstances which led the Respondent to seek medical advice.  That advice was that the Appellant was permanently incapacitated for work as a driver.  At a meeting held on 31 October the Appellant accepted that prognosis and he was dismissed on eight weeks’ notice which expired on 29 December 1995.

	He brought a complaint of unfair dismissal, together with other complaints with which we are not concerned.  In giving particulars of his unfair dismissal complaint, drafted by solicitors then acting for him, the point was taken that the Respondent had failed to act reasonably in not considering him for an alternative position of traffic controller, which vacancy arose during the eight-week notice period and for which job, it was contended, he was suitable.

	In response, the Respondent contended in its notice of appearance that the Appellant would not have been suitable for the traffic controller job;  it was, they said, extremely stressful, involving working days regularly extending to 12 hours, and required computer literacy, which the Appellant did not possess.

	The matter came before a full industrial tribunal sitting at Plymouth on 3 June 1996.  The complaint of unfair dismissal was dismissed.  There was a factual issue as to whether or not the Appellant was suitable for the alternative job.  The Tribunal accepted the Respondent’s evidence that he was not.  It found that the Respondent’s management had considered him for the job and rejected him on good grounds and that any consultation about the alternative employment would have been useless.

	Now there is an appeal against the Tribunal’s decision.  Today, the Appellant is represented by Miss Johnson, who did not appear below.  This is a preliminary hearing held to determine whether there is an arguable point or points of law to go to a full appeal hearing.

	Miss Johnson takes essentially three points.  The first is in relation to a long-term sickness benefit plan which existed in the employment.  She wishes to argue that the Industrial Tribunal erred in failing to take into account on the issue of reasonableness of the dismissal, the question as to whether the employer had taken steps to ensure that the Applicant was able to avail himself of the sickness benefit plan.  There was a reference in the notice of dismissal which read:

“Can I also remind you that this company still maintains insurance cover which may enable you to make a claim if you can establish that you are unable to work again due to ill-health.”

	We confess that we do not see any force in that point as a jury point before the Industrial Tribunal, let alone an appeal point before this Tribunal.  However, it is really not necessary to decide that question because Miss Johnson concedes that the point was not taken below.  It has been made clear by this Tribunal in Kunchyk v Derby County Council [1978] ICR 1116 that, save in certain exceptional cases and this is not one of them, parties will not be permitted to take a new point before the Appeal Tribunal which was not canvassed below.

	The second point is in relation to the Tribunal’s finding about the alternative post of traffic controller.  Really, it is an attack on the Tribunal’s finding of fact.  There was an issue before the Tribunal.  The Appellant contended that he could match all the skills required for the alternative post.  The Managing Director, Mr Winzer, and the Traffic Manager, Mr Elliot, took a different view.  At the end of the day the Tribunal preferred the evidence of the employer.  It seems to us and we think Miss Johnson accepts this proposition, that that is a finding of fact with which we, as an Appellate Tribunal, cannot interfere.

	Finally, she submits that the Tribunal were wrong in failing to take into account the fact that the Respondent did not pay the correct amount of notice pay at the termination of the employment.  The Tribunal record that, indeed, the Appellant was not paid the full amount and a further £860.00 was awarded to the Appellant, the point having been conceded by the Respondent.  Again, it seems to us, that failure to pay the correct notice pay is not a matter which bears on the issue of reasonableness under what was then s.57(3) of the Employment Protection (Consolidation) Act 1978.

	It follows that having considered the three points which it is sought to argue on behalf of the Appellant at a full appeal hearing, none of them has any prospect of success and in these circumstances we must dismiss this appeal at this stage.