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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Genzyme Ltd v. Mulley [2001] UKEAT 1170_00_2202 (22 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1170_00_2202.html Cite as: [2001] UKEAT 1170__2202, [2001] UKEAT 1170_00_2202

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APPEARANCES

 

For the Appellants	MR C HENSON (Representative) Professional Personnel Consultants Ltd Enterprise House Great North Road Little Paxton Cambs PE19 6BP


 


MR JUSTICE CHARLES:

1. This appeal comes before us today by way of a preliminary hearing. Our task is therefore to consider whether it raises any point of law that is reasonably arguable.
2. The appeal is against a decision of an Employment Tribunal sitting at Ashford, the Extended Reasons for that decision were sent to the parties on 10 August 2000. The parties before the Employment Tribunal were a Mrs Mulley who was the Applicant and the Respondent, Genzyme Ltd, her employers who are the Appellants before us.
3. The decision of the Employment Tribunal which is the subject of the appeal is paragraph 1 of their decision which is in the following terms:

"The majority decision of the Tribunal is that the applicant was unfairly dismissed.

4. The grounds of appeal are contained in six paragraphs and are as follows:

"1 The Appellant contends that the Employment Tribunal imposed too high a standard upon them when they applied Section 98(4) of the Employment Rights Act.

2 In reaching their decision they applied a speculative approach, namely a 'what if' proposition by introducing issues which were not germane to the claim against or subsequent actions of the Appellant.

3 They substituted their own decision as to what was 'the right course' that should have been adopted by the Appellant.

4 They misapplied both oral and written evidence given.

5 They have therefore erred in law.

6 Your attention is drawn to the minority members' view (see page 12 paras (1) –(6) which support this appeal and are more reflective of the Appellants' position."

5. The Appellants were represented before the Employment Tribunal by a Consultant and he has appeared before us today. I mean no disrespect to him when I say that the phraseology of those grounds of appeal is not phraseology that would be likely to be used by a lawyer.
6. At the heart of the decision of the majority in the case is subparagraphs (25) and (26) of paragraph 15 of the Extended Reasons. Those should be read, for present purposes, with subparagraphs (10), (16) and (17) of that paragraph of the Extended Reasons and those subparagraphs are in the following terms:

"(10) Particulars of the Job Description of both posts were sent to Mrs Mulley by letter of 4 November (Pages 176 and 177). The letter goes on to say:

'Please consider these two possible alternatives to redundancy and inform me by Tuesday 9 November 1999 if you wish to be considered as we are at the second interview stage for the permanent vacancy. (this referred to the Q.A. post).

Should you wish to be considered for either of these positions, your suitability will be evaluated against the second objective's selection criteria'.

(16) Mrs Mulley was told of the situation on November 11. Having been told that she would not be further considered for the Q.A. job, Mrs Mulley seems to have stated that she did not want to be assessed through an interview or any other process, but it is not clear to us that she was told that the external candidates for the Q.A. job had had an interview.

(17) We find that if Mrs Mulley had known that the other candidates had been interviewed, she would have asked for an interview.

(25) The company takes out a permanent health insurance, which is provided by an organisation called Unum Ltd. Those members of the company who are in the company pension scheme are entitled to the benefit of permanent health insurance, but there is a deferred period before they become eligible for permanent health insurance of 26 continuous weeks of incapacity (Page 149) although paragraph 6.1.2 of the policy document (Page 158) provides:-

'Although the deferred period is normally a period of continuous absence, Unum will link periods of absence of at least two weeks duration through incapacity arising from the same course provided the deferred period is completed within twice the length of the deferred period'.

(26) It is clear that Mrs Mulley asked Mr Hoskin about the possibility of a permanent health insurance (PHI) claim. This was raised in the meeting of 2 November. Mr Hoskin told her what he believed to be true, namely that she would not be eligible because she had not been off work for six months."

7. Nowhere in the Extended Reasons do the Employment Tribunal refer to the test or approach that they are applying to determine the statutory questions posed by Section 98 of the Employment Rights Act. Thus, for example, they do not refer to the range of reasonable responses approach or that they are not to substitute their own views for those of the employer (see, for example, Harvey D 1 paragraphs 972 to 975 and 1685). Also they do not refer to the Polkey v Dayton Ltd [1988] ICR 142 and the issue identified therein concerning the reasonableness stage of the Section 98 test. That case shows that at that stage a Tribunal can ask themselves whether they are able to conclude that the employer itself at the time of the dismissal acted reasonably in taking the view that in the exceptional circumstances of the particular case the procedural steps that would normally be taken and would be appropriate would have been futile, would not have altered the decision to dismiss and could be dispensed with (see the speech of Lord Bridge cited at Harvey D1 paragraph 998).
8. I pause at this stage to add that the second limb of the Polkey case was also not considered by the Employment Tribunal on the Liability hearing. That, of course, does not mean that it could not be considered on the hearing as to compensation which is, as I understand it, at present stayed.
9. Having particular regard to the lack of any reference in the Extended Reasons to the test or approach that the Employment Tribunal were taking and, although the relevant approach is one that is well known, we consider it to be arguable that in this case the Employment Tribunal erred by applying the wrong approach and, in particular, one in which they substituted their own views for those of the employer and further or alternatively did not approach the issue by reference to the band of reasonable responses and further, or alternatively, did not consider the Polkey point referred to earlier.
10. We add that it seems to us that in support of those arguments and, perhaps as a free-standing argument, it is reasonably arguable that by subparagraph (26) they took into account irrelevant considerations or gave those considerations too much weight.
11. Further, we add that it seems to us to be reasonably arguable based on the well known decision in Meek v City of Birmingham District Council [1987] IRLR 250 that the Employment Tribunal have failed to properly perform their duty to provide reasons by not giving a sufficient indication to us or the Court of Appeal as to the test they applied.
12. We will give leave to amend to add that ground. We will also give leave more generally to amend the Notice of Appeal to identify more precisely the grounds I have set out above. Those grounds, it seems to us, are in fact contained in paragraphs 1, 2, 3 and 5 of the existing Notice of Appeal but could be further particularised.
13. In giving that leave we are conscious that the Respondent to the appeal is not present and therefore we give her express liberty to apply to discharge that order. We give that leave to apply on the basis that the application can be made as a preliminary application on the full hearing. It could also be made before that but we would not encourage the Respondent to make an earlier interlocutory application.
14. Paragraph 4 of the Notice of Appeal raises a point that the Employment Tribunal misapplied both oral and written evidence. In the course of his oral submissions the representative of the Appellant drew our attention in respect of this ground to subparagraph (10) of paragraph 15 of the Extended Reasons and made the point that, on its face, that appears to be inconsistent with the end of subparagraph (16) and with subparagraph (17) which I have cited above.
15. We will allow paragraph 4 of the Notice of Appeal to go forward on the basis that it is strictly limited to argument based upon the inconsistency between the letter referred to in subparagraph (10) and the findings referred to in subparagraphs (16) and (17). The argument, as we understand it, is that the conclusion in subparagraph (17) which is based in part on the end of subparagraph (16) is fatally flawed because the letter shows that Mrs Mulley did know that the other applicants were going through an interview.
16. We do not give leave for further arguments that the Tribunal misapplied oral and written evidence. It follows that there is no need for the Chairman's Notes.
17. On that basis we will allow this appeal to go forward. We give it Category C and a time estimate of half a day.