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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Everest Ltd v. Dillon [2003] UKEAT 0052_03_1712 (17 December 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0052_03_1712.html Cite as: [2003] UKEAT 0052_03_1712, [2003] UKEAT 52_3_1712

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APPEARANCES

 

 

For the Appellants	Mr B Erroch, Advocate Instructed by- Messrs Kidstons Solicitors 1 Royal Bank Place Buchanan Street GLASGOW G1 3AA
For the Respondent	Mr A Lafferty, Solicitor Of- Messrs Lafferty Law Solicitors 53 Bothwell Street GLASGOW G2 6TS


 


LORD JOHNSTON:

1. This appeal, at the instance of the employer, arises in a somewhat unusual way, and, to some extent, by reason of a decision of this Tribunal in the same case dated 24 October 2002.
2. At the original hearing of the Employment Tribunal, the now respondent succeeded in establishing that he had been unfairly dismissed from his employment with the appellants but the Tribunal declined to make any compensatory award. His remedy was limited to his basic award. Also they declined to order any payment in respect of notice entitlement.
3. When the matter came before this Tribunal the last time, this Tribunal was concerned that the Tribunal below had not properly considered a medical question, namely, the possible connection between the depressive illness from which the respondent suffered at the time of his dismissal and any connection thereanent. In other words, this Tribunal was of the view that the initial Tribunal had not explored the issue sufficiently, nor, it has to be said, did they go on to consider the cause for the lengthy period of unemployment that has in fact elapsed since the date of dismissal, or, at least, since 15 January 2001, which was the expiry of the notice period. It was not the intention of this Tribunal to direct the Employment Tribunal at the second hearing, which it ordered, to make any specific findings in fact or any specific issues.
4. However, at the second hearing before the Employment Tribunal, they, first of all, ordered a notice payment which is now not in dispute and thereafter went on to reconsider the medical position, but, also more importantly, the reasons for the period of unemployment to which we have referred.
5. The medical issues which this Tribunal endeavoured to focus at the previous hearing, were, firstly, whether there was any connection between, at least partly between, the depressive illness and the actual dismissal on the basis of cause and effect. And, secondly, whether or not the depressive illness was the real or substantial cause for the long period of unemployment, which would negative any claim for compensation in that respect unless the illness was wholly or in part continuing by reason or by reference to the original dismissal.
6. Before us, Mr Erroch, Advocate, under reference particularly to Devine v Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517, submitted it was always for an applicant to establish a claim for compensation, and, that to some extent, misunderstanding the position of this Tribunal at the previous hearing, the Employment Tribunal had, in that respect, inverted the onus. They had thus made an error of law. They had further made an error of law by making the award they did, namely, for a period of 13 months apparently based upon medical causative evidence which was not, he submitted, sufficient notwithstanding that it did raise a question as to whether there was a cause and effect connection between it and the dismissal. He also referred us for completeness to Leonard & Ors v Strathclyde Buses Ltd [1998] IRLR 693 and Edwards v Governors of Hanson School [2001] IRLR 733.
7. Mr Lafferty, who appeared for the respondent, submitted that having been re-allocated the task of assessing compensation by this Tribunal, the Employment Tribunal, at the second hearing, had properly directed itself to a result it was entitled to reach and the matter should not be reviewed by this Tribunal on any other basis. He submitted that there was no error of law on the face of the Tribunal's decision at the second hearing.
8. With this last proposition we agree.
9. As we have indicated, in certain cases, a period of unemployment which is triggered by an unfair dismissal may deny a claim for compensation if it is, in fact, caused by incapacity not related to the actual dismissal itself and such was an issue which we required the Tribunal further to consider. However, what they have, in fact, done, is simply to look at it on the basis that it has been a period of unemployment during which, on their findings, the respondent was endeavouring to seek employment and was unable to obtain it for non-medical reasons.
10. On this basis, it seems to us the Tribunal has done no more than make an award on a jury basis to reflect a period of unemployment directly attributable to the dismissal which is not overtaken or superseded by unconnected illness.
11. Upon this basis we consider that the Tribunal below has properly applied its mind to the issues which we raised and has reached a conclusion on the question of compensation with which this Tribunal should not interfere upon the basis that they were entitled so to achieve that result.
12.              In these circumstances, having regard to the concession made in relation to the notice payment, this appeal will be refused and the award of the Tribunal below will be confirmed in both respects.