Appeal No.	 EAT/1101/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 January 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR P A L PARKER CBE
MS B SWITZER

MR F GRUNDIE	APPELLANT

MORE O'FERRALL PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR DOUGHTY
(Of Counsel)
ELAAS	

		MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether there is an arguable point of law in relation to Mr Grundie’s proposed appeal against an Industrial Tribunal decision which was sent to the parties on 12 April 1995.  

	Mr Grundie had been employed as the Chairman’s chauffeur by More O’Ferrall Plc.  He performed those duties for a considerable period of time.  In August 1993 his employment was terminated in circumstances which the Tribunal found, on 15 November 1994, to have been unfair.  Accordingly they had to consider the question of remedy.  They did so at the hearing and by the decision to which this appeal relates.

	The Industrial Tribunal at the remedies hearing noted that the Applicant had had periods of absence due to sickness in the calendar year April 1992 - March 1993 of some twenty-nine days, and that between April 1993 until his dismissal on 11 August 1993 he had seventeen days absence due to sickness, all of them being supported by certificates.  They noted in paragraph 6 that his absences had been treated sympathetically in the past, but on 11 August, they said, he was dismissed by the Chairman in circumstances which they found to be unfair.

	The Industrial Tribunal found in paragraph 7 of their decision:
“In deciding whether a dismissal is fair or unfair, where there is absenteeism, caused by ill-health, every case depends upon its circumstances.  These include the nature of the illness, the likely length of absences, and the need of the employer to have the work done, which the employee was engaged to do.”  

That statement of principle is one with which we agree.  Paragraph 8 records:
“We held that the ground for dismissal was capability, namely the ill health of the Applicant, but we held the dismissal to be unfair, because the Chairman, Mr Gore-Andrews, acted prematurely.”

	At paragraph 9 the Tribunal said this:
“Now, in January 1995, we are sitting to consider the remedy.  Evidence has emerged today, that the Applicant has been medically certified as unfit for work, ever since his dismissal, and he has not, as at today’s date, been certified fit for work.  He expresses his hope that he will be fit soon.”

	The Tribunal then concluded that the Respondents could certainly have dismissed the Applicant, fairly, at a date not later than two months after he was in fact dismissed, and that in arriving at that conclusion they had taken into account the matters to which we have referred and which they referred to earlier in their decision.

	In paragraph 12 the Tribunal said this:
“The Applicant has sought reinstatement or re-engagement.  We do not consider it practicable to order reinstatement or re-engagement.  As to reinstatement, the Chairman had to have a chauffeur quickly, and the vacancy was filled within a few weeks of the Applicant being dismissed.  As to re-engagement, the only work possibly available is bill posting, and this is unsuitable for a man of the Applicant’s age and health.  [We should say that the Applicant was born on 26 January 1934.]  In addition, we have seen clear indications of the Applicant’s ill-feeling towards the Respondents.  Even in this remedy hearing, he has sought to make unsubstantiated allegations of insurance fraud, by the management of the Respondents.  It would be disastrous for industrial relations if the Respondents were forced to take him back.”

	The basis upon which the appeal was initially launched, related to the refusal by the Industrial Tribunal at some earlier occasion, to grant witness orders in favour of the Applicant to adduce the evidence of three people, who were employed by his former employers.  The grounds on which it was said to be wrong for the Tribunal to have refused the order for these witness orders was that their evidence would have been relevant to the Applicant’s capability and fitness for work.  

		Today, Mr Doughty instructed by ELAAS, to whom we are extremely grateful for the clarity of his presentation, has indicated that the purpose of their evidence would have been to deal with the issue raised by the Industrial Tribunal as to the way in which the chauffeuring duties were undertaken after the dismissal, so as to show that the statement by the Industrial Tribunal in paragraph 12 to which I have referred, was wrong.  In support of the contention that the Tribunal had erred, Mr Doughty referred to a letter from the Respondents’ Chairman dated October 1996, which said: 
	“...  After you left the company we used the services of various agencies to provide 	drivers as and when necessary, either on a daily or weekly basis.  We also used 	Warwick cars to provide their car and driver services.  This went on for quite a 	while, but I do not remember for how long.”

	It will be noted that the Industrial Tribunal concluded that the vacancy was filled within a few weeks of the Applicant being dismissed.  We do not see any necessary conflict between what the Chairman wrote in the letter of October 1996 and the finding of the Industrial Tribunal.  “A few weeks” is capable of being the same as “quite a while”.

	It is also urged upon us that the Tribunal may have been confused as to the Applicant’s capacity to work.  He has been in receipt of a war disablement pension assessed at 20% for a considerable period of time.  That has not rendered him unfit to carry out work and, indeed, the fact that he worked as a chauffeur in the past, is clear proof of that.  It seems to us that we cannot conclude from the fact that the Tribunal have said that he was medically certified as unfit for work, that the Tribunal had somehow misunderstood the war disablement position.  It is to be noted that the Applicant had effectively been off sick in the usual sense, both in the previous calendar financial year and in the short period between April 1993 and August 1993.  

	It is said to us that paragraph 9 shows that the Industrial Tribunal may have been confused about the position, but we are not persuaded that it is arguable as a matter of law that the Tribunal have gone wrong, when they said that the Applicant had been medically certified as unfit for work ever since his dismissal and he has not as at today’s date been certified fit for work.  He expresses his hope that he will be fit soon.

	Effectively, in order to challenge that finding, it would have been necessary to have persuaded us that there was an arguable ground of law, and the Chairman’s Notes of Evidence would have been required.  In this case it is to be regretted that the file relating to this matter has now been lost and therefore the Chairman’s Notes would not have been available in any event.  It seems to us that it is not sufficient for a prospective appellant simply to assert that a finding of fact was wrong in order to persuade us to consider that the Chairman’s Notes should be called for.  The Chairman’s Notes of Evidence are only available in support of arguable points of law.  They are not to be sought for the purposes of seeing if there is an arguable misdirection by the Industrial Tribunal.

	Accordingly without in any way diminishing the sympathy which we have for the Applicant’s position, we cannot conclude that there is an arguable point of law shown in this matter.  In fact we are quite clear that this was a decision on the facts which the Industrial Tribunal were entitled to take.  It seems to us therefore that we must dismiss this appeal which we now do.