Appeal No.	 EAT/1104/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR R JACKSON
MISS D WHITTINGHAM

MR G R CRAW	APPELLANT

CARADON EVEREST LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	No appearance by or on behalf of Appellant

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there are arguable points of law in a Notice of Appeal which has been lodged against the unanimous decision of an Industrial Tribunal which concluded that the Applicant had not been unfairly dismissed.  Technically the appeal may be rather against the refusal of the Industrial Tribunal to review their decision on the basis of fresh evidence, but in this judgment we will deal with both matters.

	The Applicant was employed by the Respondent as a technical surveyor.  Both duties required him to go round to people’s premises and measure up the size of their windows, the Respondent being engaged in the double glazing business.  For the purpose of doing his duty the Applicant was provided with a computer.  It was his duty to input into the computer the relevant data which emerged from his visit to the premises, so that his employers could take that information and give detailed instructions to their installation personnel so that the necessary window frames could be manufactured to size.

	There was a problem in the way in which the Applicant inputted the information into his computer.  The company wanted the input to be done on the day of the visit and no later than the day after, yet the Applicant appeared to be unusually slow in complying with that requirement.  As a result of those problems disciplinary proceedings were instituted against him which led to a warning and ultimately led to his dismissal.  The Industrial Tribunal concluded that they were satisfied the dismissing officer believed on reasonable grounds that the Applicant was guilty of misconduct, that the misconduct was fully and properly investigated;  that the Respondent carried out a sufficiently full and reasonable investigation as to the Applicant’s explanation for his conduct, namely, that he was taking medication which caused him to be forgetful.

	They then concluded, on the basis of those findings, that the decision to dismiss was a reasonable response in all the circumstances of the case, and in paragraph 8(e) they set out in some detail how they have arrived at that conclusion.  They also concluded in paragraph 10, which was unnecessary as it turned out for the decision on liability, that even if there had been an unfair dismissal, the Applicant was 100% to blame for his own dismissal, such that they would not have made him any award, either a basic award or a compensatory award.

	The decision was sent to the parties on 22 April 1998.  Subsequently the Applicant’s solicitors put in an application for a review and the review was largely based upon a psychiatrist’s report which linked his failure to fulfil his contractual duties to clinical depression.  The medical evidence showed that in the middle of 1997, the Applicant had been diagnosed as suffering from angina for which he was prescribed Beta-Blockers.  He had also been taking other medication and the consultant psychiatrist was of the view that his state of mind due to depression and possible effects of medication could provide a satisfactory explanation for his breaches of contract.

	The Industrial Tribunal, although the application for a review had been made out of time, considered it nonetheless.  They said that Dr Saleem’s report was new evidence which had become available since the conclusion of the hearing and he was only asked by the Applicant to prepare a report after the hearing had taken place.  The Tribunal said that it did not consider the application fell within Rule 11(1)(d) of the Tribunal Rules and Procedure and in any event, they went on to point out that the Tribunal in an unfair dismissal case, must have regard to what was known, or could reasonably be known by the employer at the time of dismissal.  Accordingly a psychiatrist’s report obtained in June 1998 could have no relevance to what the Respondent knew in October 1997.

	It is significant that the during the course of their decision, the Industrial Tribunal makes express reference to the Applicant’s own evidence as to the circumstances in which he came to fail to record timeously the information into his computer, and noted that he accepted that it was not his medical condition, more the medication that was affecting his performance.

	The appeal which is presented to us is contained in writing, and there are eight points made in the grounds of appeal.  There has been no appearance before us today on this hearing, but the advisers to the Appellant have invited us to consider this appeal on the papers, which we are very willing to do.

	The grounds of appeal which relate, as I say, to the refusal by the Tribunal to carry out a review are that the Applicant had fresh evidence and that the fresh evidence made it plain that the Respondent’s investigation into the Applicant’s medical condition was not a complete one, and that the Applicant had not simply neglected his responsibilities, but had been suffering from a serious psychiatric condition and accordingly there were reasonable grounds for reviewing the Tribunal’s decision.

	We have to say that we do not accept that any of those grounds is reasonably arguable.  The Tribunal has quite rightly pointed out that fresh evidence may be considered at a review stage if it could not reasonably have been known to the party at the main hearing.  It is not possible to have sequential decisions from a Tribunal with a party seeking to improve their case to meet points made in the first decision and accordingly the Tribunal would have been quite entitled in our judgment simply to have refused to accept that Dr Saleem’s report should be considered by them.   But we also agree with their conclusion that the report could have no relevance to what the Respondent knew in October 1997, when the decision to dismiss was taken.  In fact, because the Applicant had raised the question of his angina with his employers, his employers had taken steps to carry out such investigation as they thought was appropriate.  They had consulted their own expert who had provided them with information, which in the Tribunal’s view was sufficient to justify the employers in rejecting ill-health as an explanation for the lack of performance of the contractual obligations.

	In those circumstances, it is not possible to argue as it seems to us, that Dr Saleem’s report determines that the employers had failed, somehow or another to take proper advice themselves.  It seems to us the employer was entitled to act on the basis of the information that he had available, in the light of the Tribunal’s finding that they carried out a fair and proper investigation into the complaints.  The Tribunal said this:

“(c)	we are also satisfied that the Respondent carried out a sufficiently full and reasonably investigation as to the applicant’s explanation for his misconduct.  The Applicant explained that the medication he was taking had caused him to be forgetful.  Having been told this the dismissal officer arranged for the respondent’s doctor to be contacted.  The doctor offered his opinion that this explanation was implausible and thereafter it was rejected by the dismissing officer.  We are satisfied that the dismissing officer acted reasonably in seeking medical advice upon this issue.  We find that it would be a counsel of perfection to have expected the dismissing officer to obtain a written medical report or to have sent the Applicant for an examination.  We have reminded ourselves that the Applicant was dismissed because of his admitted misconduct and not upon the grounds of his ill-health;”

	In those circumstances, we have to say that, although we have given this matter anxious consideration, we are satisfied that there is no arguable point of law raised in the Notice of Appeal from this case, which will accordingly be dismissed.