Appeal No.	 EAT/215/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 May 1999

Before
HIS HONOUR JUDGE H J BYRT QC
LORD  DAVIES OF COITY  CBE
MR J C SHRIGLEY

ROVER GROUP LTD	APPELLANT

MR M SHAZAD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS N JOFFE
(OF COUNSEL)

	JUDGE JOHN BYRT:	The Respondent, Mr Shazad periodically suffered illness as a result of a back injury which he had received in 1993 at work.  The Appellants were aware of the injury and the problems arising from it.  It so happens that on 15th December 1997, Mr Shazad had been given a final written warning by his Employers for a breach of discipline at work.  We understand that he had fallen asleep at work and had received his final written warning for that.  Thereafter, in February and March 1998 Mr Shazad was absent from work doubtless, again, due to his back injury.  Throughout the February there were 15 days of absences and during that time he failed to contact his Employers and notify them that he was not going to be in to work.  In March there were 14 absences.  Contact was made by his wife at the start of that period of absence, but on 3rd April, he was again absent and no contact was made with the Respondents until the matter was taken up on 27th April by a Miss Poulsom, who was employed by the Respondents in some managerial position. She tried to establish contact with Mr Shazad.  She sent letters by recorded delivery and they were returned.  She sent one communication by hand and the person who delivered it was unable to make delivery because there was nobody at the address concerned.  The factual position is that Mr Shazad had moved his home address to one across the road whilst his house was being refurbished but for all that, it meant that his Employers were unable to contact him.  Eventually, his sick pay was stopped and on 21st May a telephone call was received from Mr Shazad enquiring why his sick pay had been stopped.  He was asked to come to a meeting next day, 22nd May.  On 22nd May 1998 there was a meeting and it was put to him that he had failed to make contact.  He made the point that he had tried to contact his employers at the start of his illness on 3rd April and warned them that he was going to be absent but that was refuted by the Respondents.  It was also said that he telephoned the Respondents on 14th May, and again, that was not accepted.  The conclusion however of that hearing was that a letter terminating his employment which had been prepared in advance of the meeting in case he didn’t attend yet again should be given to him and accordingly, he was dismissed.  He was then notified of his rights of appeal.  He appealed on 3rd June and he had a second hearing on 15th June and on both occasions his appeals were dismissed.

	The Tribunal asked themselves whether the Respondents had acted in a fair and reasonable way in dealing with Mr Shazad,  They then recited the various points in favour and against and concluded that his dismissal was unfair.  A number of points, made in the Notice of Appeal, were elaborated in the skeleton argument put before us.  Essentially, it is said that the Tribunal confused themselves as to whether this was a case of incapacity or a case of conduct.  Secondly, it is said that the Tribunal were wrong to discount the written warning which had been given in December 1997 on the basis that it was conduct of a different kind from that of which the Respondents were now complaining.  Thirdly, it is said that the Tribunal’s finding that Mr Shazad was responsible for his own dismissal to the tune of 75% is a finding which is inconsistent with their finding that the Respondents had unfairly dismissed him.  

	The gravamen of the case against Mr Shazad was that he failed to contact his Employers when he was going to be absent from work and that he failed to notify them of his change of address.  These are said to be matters of conduct rather than incapacity.  We think it is arguable that the Tribunal got it wrong in dealing with this case as one of incapacity.  At the end of the day, we think it is also arguable that the Tribunal substituted their own opinion as to what would have been fair and reasonable rather than to consider the reasonableness of the Respondents’ handling of the matter.  Was the dismissal within the broad band of reasonable responses of a reasonable Employer?  The fact that they found Mr Shazad responsible to the tune of 75% for his own dismissal suggests that his dismissal may have been within that broad band of reasonable responses.  

We think that all those points are arguable and should go forward to a full hearing of this Tribunal on the basis of the Notice of Appeal as amplified by the skeleton argument.