Appeal No.	 EAT/946/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 February 2000

Before
HIS HONOUR JUDGE COLLINS CBE
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE

MR S HAYAT	APPELLANT

1) RED STAR PARCELS LTD (2) MR S CROWTHER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MS L BROOKS
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme

followed by Mr Iqbal and the Appellant in person	
For the Respondent		

JUDGE COLLINS CBE

1	This is the preliminary hearing of an appeal against a reserved decision of an Employment Tribunal sitting at London North.  After a 5 day hearing the decision was promulgated on 2 July 1999.  

2	Mr  Hayat, the Appellant has appeared in person.  He has been assisted by his father, Mr Iqbal and at the outset of the hearing they had some assistance from Ms Brooks from ELAAS who was kind enough to indicate points of law she had identified as being matters for our consideration.  We explained  to Mr Iqbal and Mr Hayat that this Appeal Tribunal is concerned only with points of law.  They are extremely concerned that the conduct of the proceedings in the Employment Tribunal resulted in decisions which were unfavourable to them and unjustly so, but we have emphasised  that the jurisdiction of this Tribunal is limited to identifying points of law on which the Tribunal fell into error and our function today is to decide whether there is any point of law which is reasonably arguable which we ought to allow to go forward to a full hearing.

3	The Tribunal had two claims before them.  One was a claim dated 17 November 1998  for racial discrimination.  They struck that claim out on the ground that it was out of time.  The second  was  for unfair dismissal which had been presented on 26 November 1997. They held that the applicant was dismissed for ill health involving absence from work for nearly 15 months and that the Respondents acted reasonably in treating that as a sufficient reason for dismissing him.

4	In the Notice of Appeal dated 30 July 1999 and accompanying documents and in the Preliminary Hearing and Directions form Mr Iqbal and Mr Hayat have done their best to set out their criticism of the Tribunal’s decision in considerable detail. They have obviously worked very hard in preparing the documents for us and we appreciate the hard work they have put in.  It has been difficult for them  to identify precise and clear points of law on which they want us to allow the case to go forward for a full hearing.  We shall set out the basic position as we understand it and seek to identify the points which we think Mr Iqbal and Mr Hayat want to bring before us.  Before we do that, we ought to mention that there had been a previous decision of the Employment Tribunal.  On 16 November 1998 it had before it an application to amend the unfair dismissal proceedings which had been issued on 26 November 1997 by adding a claim for racial discrimination.  The Tribunal refused leave to make that amendment. The grounds were that it was unjust to bring in an allegation of racial discrimination in relation to matters which had occurred in 1995, when those allegation had never been previously intimated.  Accordingly they refused the application to amend. There was no appeal against that decision.  The following day, that application having been refused, Mr Hayat presented the claim for racial discrimination and included in that claim the matters which had been refused as the subject of an amendment the day before, namely the 1995 matters,  and also further matters, in particular that the dismissal itself, which was the subject of the unfair dismissal proceedings, was tainted by racial discrimination.  The first part of the Tribunal’s reasons are devoted to dealing with the application to strike out those proceedings.  The Tribunal decided to strike it out and their reasons were substantially the same as those that they had given for refusing the application to amend on  16 November 1998.  Miss Brooks, when she assisted us at the outset of the hearing, suggested that the reasoning of the Tribunal might be defective in that they had not clearly articulated the prejudice to the Respondents  which they took into account in deciding to strike out the proceedings.  The Tribunal devoted a substantial part of their decision to this question, at paragraph 6  they said this:-

“As to the allegation that the dismissal of the Applicant, purportedly oh grounds of ill-health, was an act of racial discrimination, we are quite clear that the Applicant has never raised this for consideration by the Respondent or the Tribunal until the hearing of 5 November 1998; and that his legal advisers, as we set out in our previous decision, have deliberately avoided the issue.  In these circumstances, we can only repeat our view that we consider that it would be neither just nor equitable for the Respondent now to have to meet this claim out of time when the claim has earlier been expressly and consciously put on an entirely different basis.”

They went on to say

“We regard it as a vexatious claim and it ought to be struck out.”

5	Although the Tribunal did not couch its decision in the language of prejudice, it seems clear to us that looking at the previous decision and the words which they used in the instant decision  they took the view that it would simply be unfair to the Respondents, a year after the dismissal and many years after the original matters of complaint, to have to try to deal with a case which had never been made previously. The notion of unfairness and prejudice to the Respondents seems to us to underlie the reasoning of the Tribunal even though the word prejudice was not used. We cannot see that there is any reasonably arguable point of law that arises in relation to their decision to strike out the claim for racial discrimination.

6	The application for unfair dismissal is at the heart of the submissions which have been made to us by Mr Iqbal and Mr Hayat.  The basic facts of the case which I set out very briefly  because they appear fully  in the decision below are these; Mr Hayat who is now 40 years old was employed as a chargeman at Kings Cross, from 9 June 1980 until 13 December 1997, when his dismissal took effect.  The Respondents’ business was originally part of British Rail and was privatised in September 1995.  Because of a reorganisation in the business the Respondents decided to re-allocate Mr Hayat from Kings Cross to Euston; that was due to take effect on 3 June 1996;  by coincidence on 3 June 1996, he reported sick and never returned to work thereafter.  It is clear from the papers that Mr Hayat thought that he had been  inadequately consulted in relation to the move from Kings Cross to Euston.  Mistrust between Mr Hayat and his employers began from that time and  it is plain that the employers must have thought initially, at any rate, that it was no coincidence that he reported sick on the  day when the unwelcome move was due to take place. I say no more about that aspect of the matter because thereafter Mr Hayat was the subject of many medical examinations which reported that he had a  genuine back problem. At one stage it was recommended that he should have an operation . That recommendation was subsequently withdrawn and he has told us today he is feeling a lot better.

7	As a result of a series of medical reports, investigations, home visits, meetings and so on matters came to a head in June 1997.  On the 10 June Mr Williams, a Consultant Rheumatologist, advised that the Appellant was capable of working provided  he did not have to do any lifting and bending.  It so happens that the Respondents found a part-time job at Liverpool Street which they wanted him to do, it was a counter job and other people could have done the lifting and bending. That would of course involve a tube journey for him, from Kings Cross to Liverpool Street; Mr Hayat lives in Peterborough and it is easy for him to get from Peterborough to Kings Cross.  The tube journey adds to the burden of travelling.  The Respondents were prepared to allow him to do the extra travelling in working time and were also prepared to pay the tube fare.

8	There was a  meeting at Stevenage , which was arranged there for the convenience of Mr Hayat on 12 June. What happened at this meeting is of essential importance to the case.  Mr Hayat was present with his father and  Mr Sansum, the trade union representative and Mr Crowther who is the Personnel Manager was present with Mr Bidwell.  According to the Tribunal, in paragraph 16 of their reasons, what happened was this.  

“…The Liverpool Street offer was put before the Applicant, Mr Sansum required an adjournment for the purpose of discussing this proposal with the Applicant Mr Sansum was called to give evidence by the Tribunal of its own motion, he produced notes which had been typed soon after the meeting .  The evidence from Mr Crowther, Mr Bidwell and Mr Sansum was entirely consistent, namely that the Applicant and his father, after returning from the 20 minutes adjournment refused to consider the Liverpool Street job. We accept Mr Sansum’s evidence as being entirely accurate, he advised acceptance of the Liverpool Street job and he denied any suggestion that he had advised the applicant not to take it’’
and that finding is reiterated at page 13 of their reasons, paragraph 
24 (iv) 
“The Respondent’s approach is illustrated by the offer of the part-time Liverpool Street Job.  As we have found, the Applicant refused this.  It was a proper and reasonable job to offer to the Applicant.”

9	Matters developed very swiftly thereafter. Mr Crowther who was the responsible manager decided to dismiss the Appellant on 23 September and  sent him a letter of dismissal, Mr Hayat appealed against that decision and Mr Higgins the National Operations Manager, heard the Appeal on 16 October 1997. Paragraph 20 of the reasons summarises the detailed consideration to the issues that were given by Mr Higgins.  He confirmed the decision by letter dated 22 October 1997 and the dismissal took effect on 13 December.

10	The day before the dismissal was due to take effect, 12 December 1997, a letter was received from the rheumatologist Mr Williams, saying that there was no reason why the Appellant could not go back to work in his old job.  Mr Crowther, bearing in mind that since June 1997 Mr Hayat had unable to go to work and had rejected an offer of suitable employment,  took the view in the light of the history that it was inevitable that there would be a risk of further absences from work.  The decision to dismiss had already been made and was due to take place on the following day and it does not appear that the question of whether or not the Respondents should have taken any other action as a result of having received that letter played any material part in the proceedings before the Tribunal.  That is the history of the matter as revealed by the reasons of the Tribunal save for one matter which is very important.

11	It had emerged that in 1952, British Rail had entered into a collective agreement. We have a copy of the relevant part of it, and it deals with staff who are certified as fit for light work; it provides as follows so far as is material

“Staff who are certified by the Railway Medical Officer as fit for restricted duties but for whom a suitable position in the Railway Service cannot be found to be dealt with as follows…
The man’s name to be kept on the books for a period of up to 2 years…
If at any time during the period of 2 years, the man refuses to accept any reasonable offer of railway employment the arrangements will be terminated so far as he is concerned forthwith”

12	It needs to be made clear that the Respondents did not seek to justify their dismissal on the ground that  the Appellant  failed to accept the alternative employment under the collective agreement.  They dismissed him on  grounds of ill health and that there was no reasonable prospect of his coming back to work at the time the decision was made to dismiss and the confirmation of that decision.  The Appellant has argued that he is entitled to rely on the 1952 agreement and the question then rises as to whether even under the terms of the 1952 agreement the Respondents would have been entitled to dismiss him.

13	Mr Iqbal and Mr Hayat today have drawn attention to the fact that the hearing before the Tribunal was split between some days in January and some days in June and that the whole tenor and  mood of the proceedings changed between those dates. They believe that something funny must have happened to change the mood which was originally  very supportive and positive in their favour to one which was against them.  But  we have no power to order a re-hearing of the Tribunal proceedings simply because Mr Hayat and Mr Iqbal have a very unfavourable view of the way in which their evidence was handled.  We have  to find a point of law which is reasonably arguable before we can decide  that this case should go on to a full hearing.  

14	We turn to  the 1952 agreement and the offer of alternative employment.  The Tribunal found that it did not apply to the case at all. The reason they gave was that  the relevant parts of the agreement only apply where staff have been certified as fit for light work by the Railway Medical Officer; there never was such a certification in formal terms and therefore the agreement does not apply.  That is to be found in paragraph 17 of their reasons.  We are not sure that we follow the reasoning of the Tribunal in this regard.  The  1952 agreement does not provide  for any certification in any formal sense. By the 12 June meeting, the Respondents were in possession of the letter from a consultant rheumatologist appointed by them, saying  that the Appellant was fit to return for light duties provided  he did not have to do lifting and bending. In those circumstances it seems to us difficult to conclude that the terms of the  1952 agreement did not apply.

15	The next stage in their reasoning was that even if the 1952  agreement did apply the Respondents were justified in departing from it, for financial reasons. Evidence has been give that when Red Star was privatised, it was privatised with very substantial debts and the Tribunal comcluded that the need to save money was a ground for not conforming to the 1952 collective agreement.  We find that a very difficult argument to follow because it amounts to saying  that the Respondents were free to pay commercial creditors and write off its debts to employees. However, the decisive issue, assuming  the 1952 agreement did apply and  that the Respondents were not entitled to ignore it, is whether in accordance with its terms the Appellant had been offered reasonable alternative employment which he refused. In such a case he would not be entitled to its benefit.

17	The meeting of 12 June is dealt with in paragraph 16 of the Tribunal’s reasons. Mr Hayat and Mr Iqbal have both made clear us today their recollection that they made it absolutely clear in their evidence before the Tribunal that Mr Hayat had not refused the alternative employment; they have written:

“When the Applicant and his father were called at Stevenage for a meeting the Applicant was not aware of any kind of meeting, it took us 1 hour to discuss with the Union Rep, he said not to be accepted (the Liverpool Street job) no good at all as it is a part-time job with back ache, it’s no good to go from King’s Cross to Liverpool Street…
On 12 June meeting it was agreed that the Applicant and the Union  Rep will go to Liverpool Street and look at the job.”

What is not apparent from paragraph 16 of  the Tribunal’s reasons is the version of the meeting which was being put forward by the Appellant.  They recount  the version being put forward on the part of the Respondents, namely that Mr Crowther and Mr Bidwell were saying that after a 20 minute adjournment to discuss it with Mr Sansum, Mr Hayat refused to consider the Liverpool Street job. They do not make clear whether the Appellant was saying  ‘I did not refuse the job’  or  ‘I decided to temporise about the job until I have had a chance to go to Liverpool Street and look at it’ or  ‘I refused to take the job’.  The failure of the Tribunal to set out Mr Hayat’s version of the facts has given us cause for concern.  The most likely inference to be drawn from the way in which it is put in paragraph 16 is  that Mr Hayat was refusing the job and doing it on the union representative’s advice. No other reading can satisfactorily explain why the Tribunal called Mr Sansum of their own motion to give evidence. Having given evidence he rebutted the suggestion that he had advised the Appellant not to take the job. It seems to us that the most likely explanation of the Tribunal’s need to call Mr Sansum was that the Appellant had said that he refused the job on Mr Sansum’s advice.  If we were wrong in drawing that inference and Mr Hayat and Mr Iqbal had made it clear to the Tribunal that he had not refused to take the job, it is regrettable in our view, that that version of the facts was not set out clearly in paragraph 16 of the reasons.  But it does seem to us in the end that it would make no difference. Whatever version of the facts was in fact put forward to the Tribunal by Mr Hayat and Mr Iqbal the Tribunal rejected it and accepted the evidence that was called on behalf of the Respondents and the evidence which they called for themselves to the effect that Mr Hayat had refused the Liverpool Street job. In those circumstances it seems to us that even if the 1952 agreement did apply and the Respondents were bound by it, they had offered reasonable alternative employment to the Appellant and that he had refused it. Although Mr Hayat feels that the Tribunal were wrong in coming to that conclusion about the Liverpool Street job, it is not open to us to differ from them on a primary finding of fact. The result is that he is not entitled to benefit under the 1952 agreement.

18	Notwithstanding the reservations we have expressed, we cannot find any reasonable arguable point of law on behalf of Mr Hayat which would justify the case going forward to a full hearing.  We must dismiss this Appeal.