Appeal No.	 EAT/745/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 1999

Before
THE HONOURABLE LORD JOHNSTON
MR L D COWAN
MR D J JENKINS MBE

MR S G CLASBY	APPELLANT

PREMIER PRISON SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR S BEDEAN
(of Counsel)
Instructed by:
Ms D Parker
Messrs Atherton & Godfrey
Solicitors
8 Hall Gate
Doncaster
DN1 3LU	

	LORD JOHNSTON:		This is a preliminary hearing in an appeal in the instance of the employee against a finding of the Employment Tribunal that he was not unfairly dismissed from his employment with the respondents at their prison at Doncaster.

1.	Before the Employment Tribunal the issue, essentially, was one of capacity. There was, at the outset, a claim based on breach of the Disability Discrimination Act 1995 but that was disavowed by Mr Bedeau who appeared at that hearing and also before us today.

2.	The issue, therefore, we have to determine is whether or not upon the findings of the Employment Tribunal there is demonstrated to us to be an error of law entitling the case to go to a full hearing. It is not for us to determine whether that would succeed. On the other hand, it is our duty to determine whether or not, at the end of the day, the appellant would be bound to lose, and that is the way in which we approach the matter.

3.	The substance of Mr Bedeau’s approach before us was that upon the face of the findings the tribunal had failed adequately to give effect to what was, upon the evidence, also admitted but certainly established, the departure by the employer from his own sickness, accident and management procedures. The substantive matter that was raised by Mr Bedeau and founded upon strongly, was that the tribunal had failed to address their minds to the future and to obtain upon adequate evidence a proper view at the time as to what the prognosis of this unfortunate man’s progress was likely to be in relation to his psychological illness.

4.	Upon the view that the doctors seem to think that he was fit to work around the time of his dismissal, a reasonable employer, it was submitted, following its own procedures which it is bound to do, would have addressed the future and on the basis of that, would have given a considerable period of time to elapse enabling, possibly, an improvement on the part of the employee’s health before finally determining that dismissal was justified.

5.	Mr Bedeau therefore categorised these procedure failures as substantive and pointed to the fact that the tribunal had not effectively addressed these issues, nor the issue of alternative employment.

6.	We consider that there is considerable force in the argument that these procedure failures were substantive in the sense that the employer did not at the time properly assess the prognosis during a period leading up to the dismissal. However having said that, we are satisfied that in terms of paragraph 17 of the tribunal’s decision, despite the inelegance of the language, the tribunal were effectively considering whether at the end of the day such procedural failures as had been identified by Mr Bedeau had been cured by the information that the employer had before them when they determined the issue.

7.	We consider that in paragraph 17 of the tribunal’s decision they have in fact determined that the employer did address the future, and did, in those circumstances, decide that the dismissal was inevitable because of the fact upon their view, the appellant was not likely to fit in the future to continue his employment.

8.	We recognise also that there is at least force in the view that insufficient attention was paid by the employer to find a less stress-related job for the appellant within the prison. However the tribunal do find that there were no suitable jobs available, which was part of the decision justifying dismissal.

9.	We have considerable sympathy with the position that the appellant found himself. We are obliged to Mr Bedeau for a very able argument. Having, however, looked at the substance of this decision, we are of the view, at the end of the day, that following the Polkey v Dayton line, that, in fact, is what the tribunal did when they reached their conclusion, namely any procedural deficiencies had no substantive affect on the outcome.

10.	We therefore consider that upon basis, albeit perhaps rather a generous reading of paragraph 17, the tribunal reached the decision that it was entitled to reach upon a basis which is acceptable in law, despite the somewhat inelegant language.

11.	In these circumstances, we consider that this case does not disclose a point of law, which would justify a full hearing and the application, will be dismissed.