Appeal No. EAT/237/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 February 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR A C BLYGHTON

	MR R H PHIPPS

MR D K MITCHELL	APPELLANT

ARKWOOD PLASTICS (ENGINEERING) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR E JANKOWSKI
	(SOLICITOR)
Newham Rights Centre
285 Romford Road
Forest Gate
LONDON E7 9HJ

For the Respondents	MR R WOODFORD
	(REPRESENTATIVE)
Arkwood Plastics
(Engineering) Ltd
274 Victoria Dock Road
Silvertown
London E16 3BY

	JUDGE HARGROVE:  By a decision of the 22 March 1991 the Industrial Tribunal decided that the Respondents' dismissal of the Appellant in October 1990 was fair.  In May 1990 the Appellant was injured at work and thereafter did not return to work.  The Industrial Tribunal found that between May and October 1990 there was little communication on either side but on 27 September the Respondents wrote to the Appellant enquiring about his condition.  They also sought that there should be some indication from the doctors about his availability for work.  They were not requesting at that stage an actual report but were asking the Respondent to indicate what the doctors were saying.  The reply from the Appellant was a note on the same letter which the general practitioner had stamped and was to the effect that he could not say when he returned to work as he was awaiting a further meeting with the consultant at the hospital.  The Respondents, a small company with only a handful of employees felt that the Appellant could if he wished get back to doing some light work and I will refer to that again later.

	The Tribunal found that the absence of the Appellant caused a degree of disruption which would not have been as great had this been a large company, but owing to the size of the company it was indeed a significant factor.  The Tribunal while marking the lack of communication reached the conclusion that the decision to dismiss was in all the circumstances fair.  We remind ourselves that upon issues of fairness generally speaking, those are matters of fact and therefore not matters for us.

	The Appellant's attack upon the decision rests upon three main grounds.  The first is that the employer failed until 27 September, to make any enquiries concerning the employee's health and prospects of returning to work.  It is indicated in East Lindsey District Council v Daubney  [1977] IRLR 181 that in the absence of exceptional circumstances, such enquiries ought to be made.  The further comment which is made is that that failure by the employers was placed on a par with the employee's failure to give information.  We think the criticism is correct that there is certainly no equivalent duty upon an employee to indicate to the employer his prospects of recovery.  In any event in this case there had been a series of doctors' certificates to the employer setting out the position.

	The second criticism is that there was a failure to provide, or offer light work.  We found this a somewhat more difficult problem.  Looking at the evidence it is difficult to see whether it is being said that there was light work available, or that he would be considered for light work.  We have also had the assistance of Mr Woodford who appeared before us, and he has endeavoured to help us upon that aspect.  We think however that in the event the criticism made of the Tribunal's decision is again well founded and this was a further error in the decision.

	Finally, it is said that there was no discussion between the employer and the employee upon the question either of alternative employment or upon the question of whether the light work would be available.  It may well be that the employer had reached the conclusion that enough was enough but the Tribunal does not seem to have addressed that aspect at all.  We have therefore reached the decision that the decision of the Tribunal cannot stand.  We reach this with very considerable regret.  We have independently and unanimously reached the view not only upon the documents but also having seen Mr Woodford, that he is the very best type of employer in relation to small companies.  It is a tragedy that he will now have to go through this procedure all over again.  We also comment in passing, though this has no binding effect, that we do not consider that the estimate made by the Tribunal of contribution of 100% is very far out.  That of course will be a matter for a new Tribunal to whom we will refer this matter.  This is a unanimous decision of this Court.