Appeal No. EAT/815/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 29th June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR E HAMMOND OBE

	MR J A SCOULLER

M BLANCHARD	APPELLANT

HUSSMANN REFRIGERATION LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T KIBLING
(Of Counsel)
Bradford Law Centre
31 Manor Row
Bradford
West Yorks
BD1 4PS

For the Respondents	MR I TRUSCOTT
(Advocate)
Mackay Simon
7 Albyn Place
Edinburgh
EH2 4NG

	HIS HONOUR JUDGE J HULL QC:  The Appellant, Mr Blanchard, a Refrigeration Service Supervisor, is now aged about 47.  He was first employed by the Respondent Company, Hussmann Refrigeration Limited, on the 15th December 1985.  Unfortunately he has been dogged by ill-health.  In 1987 and 1988, of his possible working days 150 were lost through illness. In 1988 alone 621/2% of his days, according to the Tribunal, were lost through illness; in 1989 13%.  In 1990 50% of his days were lost through illness.  Of course he was a man in a responsible and important position.  The Respondents did not dismiss him.  He was seen by Mr Stuart, a Director of the Company, in September or October 1990 and as a result two or three weeks later he did return, on 18th October 1990, to work after this spell of illness; but again in 1991 he was off ill for a total of 11% of the time and the week before Christmas he went off ill again and he never did return to work after that.  He had, apparently, an intractable condition or conditions, he was suffering from back trouble in the form of a slipped disc, and he also suffered from sciatica, probably the same problem in origin; at any rate this middle aged man was quite clearly not fit, the whole time, to work and much of the time he was totally unfit to work.  I should say that the employers entirely accepted that the ill-health was genuine; it was not a case of malingering or anything of that sort, it was back trouble.  

	Then Mr Cubley, who was a Service Manager, wrote him a letter on 6 February 1992 warning him that it would be necessary to consider his dismissal.  That was said to be a final written warning and was written to him because he could not, apparently, or did not, come in to see them.  On the 5th March Mr Cubley said:  we must discuss this matter, will you come in to us or shall I come to you?  In fact, since he did not come to headquarters, which was in Wakefield, Mr Cubley did visit him at home.  There was a discussion between the two men and Mr Cubley, after that discussion, and without any further warnings, investigations or consultations, dismissed Mr Blanchard there and then.

	 On the 20th March 1992, Mr Blanchard, as of course he was entitled to do, complained to the Industrial Tribunal that he had been unfairly dismissed and the Respondents put in their answer saying that he had been unwell for these very long periods and it did not appear that he would get better.

	The Industrial Tribunal sat to hear the case on the 27th July 1992 in Leeds, very promptly after the complaint had been made.  Mr Worrall was the Chairman and he had his two Industrial Members.  They promulgated their decision on the 16th August 1992.  At that time, apparently, Mr Blanchard was still unwell.  He certainly was at the time he made his application to the Tribunal, he said as much, he said he was still under care for his slipped disc and being treated for that and it appears that he was still drawing sick pay at the time of the Tribunal hearing.  The Tribunal went into the matter, they heard him of course, and their decision is at page 6 of our bundle.  They decided that all was genuine in this case; the illness was genuine and the Respondents had acted quite genuinely and accepted the illness and had dealt with it, in general, in a reasonable way, but they said:
"the question as to whether there was sufficient personal consultation arises.  Our decision is that on 11 March Mr Cubley should have discussed with the applicant the question as to if and when he would be fit for work and as to whether he could find out and give the employers some idea as to when he would be able to come back to work.  This was not done and we think that renders the dismissal unfair.  Had he been consulted he could have discussed when he thought he would be back for work.  He could possibly have contacted the hospital and had some idea how long his illness and indisposition would have lasted and also as to whether he would be fit at all for work and whether there would be the possibility of alternative employment for him which would mean lighter work and less arduous hours which he might be able to cope with even with his disability had that discussion taken place.  So we find that there was lack of personal consultation, lack of opportunity to find out just how long it would be before the applicant could return to work and it is on these grounds we find the dismissal was unfair.  The tribunal have found that the dismissal was unfair because of the failure to carry out a proper consultation on 11 March when the applicant was dismissed but we have come to the decision that even if on that occasion there had been proper and meaningful consultation the reality of the situation is that he would still have been dismissed and it would have resulted only in the applicant being employed for a further two or three weeks."

and they went on to consider the question of compensation and decided that as he had received pay in lieu of notice no compensation should be awarded.

	That decision is attacked in two ways by Mr Kibling, to whom we are very grateful.  He says first of all that there was no material on which they could reach that finding, or if there was, they did not spell it out.  With respect it appears to us first of all that if there is to be a complaint that there was no material then it is in general necessary to have all the material before this Tribunal, so that that can as a matter of law be investigated.  It might be said in this case that that was unnecessary because the material is all there in the decision.  I have read out the really alarming medical history which shows that this unfortunate man was on the very verge, it seems, of being unemployable.  One does not want to say such a disagreeable thing but the fact is that unless the doctors are able after this long period of apparently chronic illness to do something for him, he can only present himself for any active employment on the basis that a very large part of his time will necessarily be spent off work enduring the pain and disability which is caused by a serious back problem, coupled with the nervous problem of sciatic pain as well as all the other pain.  In those circumstances it might well have been that this Industrial Tribunal might have reached a different view about the unfairness and failure to consult, but they did not.  What they then had to go on to do, in accordance with Polkey v A E Dayton Services Limited [1988] ICR 164 and Sillifant v. Powell Duffryn Timber Limited [1983] IRLR 91 was to consider what difference it would have made.  They had to do their best about that, first of all on the material that was laid before them, and we have mentioned the basic material which was before them.  They may have heard other evidence too; they heard both witnesses.  We do not know exactly what evidence they heard but it does appear to us that there were three possible views open.  One might be described as simply unrealistically optimistic, which is that if consultation had taken place then on balance of probability that would have prevented the dismissal altogether and that Mr Blanchard would have been found some job which he could do and, despite the sad medical situation, could reasonably be expected to do and could reasonably expect to be re-engaged or re-instated, that is the first possibility.  Another possibility, at the other end of the scale, is the one which they reached, namely that in view of his long and unhappy medical history such consultation would, in practice, have made no difference whatever and apart from the delay whilst the consultation and consideration of it was gone into there would have been no question of re-engagement.  Then of course as was envisaged in the Sillifant case and the Polkey case there may be a middle way, it may be that the Tribunal would be left saying, "notwithstanding the evidence we have heard we are left in doubt about this, the fact is that it is impossible to be sure about it, we think it would not have been hopeless at all but at the same time we certainly cannot be sure that reinstatement or re-engagement would have resulted; we feel quite uncertain in our minds and the fairest thing, we think, is to award a percentage".  One must not forget, in discussing what they are entitled to do, that they have their two Industrial Members and can proceed in the way that a court cannot by considering with their experience and wisdom in industrial matters, the local market for jobs and particular jobs of this kind; they may know all about those matters.  So we think they were well entitled to reach the conclusion which they did.  That, it appears to us, was a conclusion that was well open to them on the evidence which they set out in their decision, and because it is set out in the decision we reject the submission made by Mr Kibling that they failed to set out their reasons for it, the reasons are not only self-evident but are set out in the decision itself in the unhappy history to which we have referred.  So in our view that ground must of necessity fail.

	We must now turn to other matters.  Mr Kibling takes a serious and fundamental point, he says that in this case it is quite unclear that the Tribunal carried out their duty under s.68 of the Act.  If one looks at s.68 of the Employment Protection (Consolidation) Act 1978 it says as follows:
"Where on a complaint under section 67 an industrial tribunal finds that the grounds of the complaint are well-founded, it shall explain to the complainant what orders for reinstatement or re-engagement may be made under section 69 and in what circumstances they may be made, and shall ask him whether he wishes the tribunal to make such an

order, and if he does express such a wish the tribunal may make an order under section 69."

We are not prepared for one moment of course to countenance the deliberate disregard of s.68.  Quite clearly if Parliament has said this is to be done, then this is to be done, and the question is not whether it should be done but the effect if there is on any occasion a failure to do it.  But before we get to that it appears to us that there is not a shred of evidence in this case, or any indication, that this was overlooked by the Tribunal.  The Tribunal might have said "in accordance with our duty under s.68 we explained to Mr Blanchard what orders we might make under s.69, and having considered those matters and what Mr Blanchard had to say about it we then decided to award him compensation".  They might have done that, but they did not, and they were not obliged to do so.  Mr Kibling tells us very frankly that although he is responsible for this case and has been for some time, it did not occur to him to take instructions as to whether this statutory requirement was omitted, so we have not only the fact that there is no indication on paper that this important provision was ignored, we have not even got any instructions through Counsel that it was ignored.  Mr Truscott has attempted to help us when we asked him to about this and has told us that at this length of time the only instructions that he can gather are that there was some discussion about remedies; but the precise details he cannot tell us.  

	It would be an essential foundation to such an appeal, where the matter is in doubt, that the Chairman should be asked, with the aid of his Members if necessary, for their best recollection as to whether the irregularity which is alleged against them did in fact occur or not.  It is equivalent, it seems to us, to misconduct, to an allegation of bias or something of that sort, where the Chairman should be given an opportunity to say what the position is.  So we are certainly not satisfied that the basis of this submission is made out.  

	Even if we were satisfied about that, we are far from clear that in this case it would have been necessary for the Tribunal to carry it out, for it seems to us that there must be cases (which were envisaged in argument) where, for example, an applicant has suffered some grievous injury which makes it utterly impossible to think that he could carry on his previous occupation, for example as a musician, or skilled footballer, and for the tribunal to have to go through what is said in s.68 would be not merely embarrassing, but humiliating and degrading, in those circumstances.  The tribunal would have to explain:  "what we are about to say is utterly pointless but we are required by Parliament to say it", which would seem to the person concerned to be an absolute mockery of his condition.  One would expect in those circumstances that the tribunal would, as a matter of commonsense, say "this cannot apply".  We think that it is to be implied:  Parliament, when telling Judges what to do and tribunals what to do, mandatory directions as they undoubtedly are, is to be taken as saying, "unless of course it would be absolutely ridiculous or out of place to do so and could lead to no useful result".  Here, it seems to us that it may very well have been in the minds of the Tribunal, if they did omit this, that there was no useful result to be achieved.  Having found that the consultation which they envisaged should have taken place, but could not have yielded any useful result, why should they - with this unfortunate Applicant still in this very intractable condition - go through an exercise which is very much along the same lines as that required of the employer, if it would have no useful result?  

	But apart from that we are not satisfied about the result of omitting this particular exercise.  It may very well be that in particular circumstances it could be said that it is an ignoring of the statute which should lead to that part of the decision which follows the decision as to liability, so to speak, being remitted, perhaps to the same Tribunal, perhaps to a different tribunal, for the matter to be considered.  But we ask ourselves:  with the great delays which are taking place in hearing appeals, and indeed in hearing cases at first instance, quite contrary to the original intentions and belief of Parliament, how can it be said to be a universal rule to do that? - because the situation which the Tribunal are required to explain to the applicant is one which arises at the time.

	Here, as we have said, all this happened almost two years ago.  In those circumstances, if it was sent back and again had to be explained, what possibility of re-instatement or re-engagement realistically could arise?  We would not be asking the tribunal to do something which might have a useful result.  

	We have been referred to the case of Pirelli General Cable Works v. Murray [1979] IRLR 190 in which this Tribunal chaired by Bristow J. declared that s.68 was in mandatory terms; one of the reasons for remitting the case was the fact that its mandatory terms had not been complied with, which they regarded (of course we respectfully agree) as a very serious blemish.

	We have also been referred to the decision of Lord Coulsfield and the two industrial members sitting at this Tribunal, not in Scotland but in London, in the case of Cowley v. Manson Timber Ltd (EAT/115/92).  Mr Kibling was for the appellant in that case.  It was common ground apparently that s.68 had not been observed and this Tribunal chaired, as I say, by Lord Coulsfield dealt with that matter and had to consider, in their view on rather inadequate argument so far as the Respondents were concerned, the question of the view which they took of s.68.  It was submitted to them that to go through the process required by s.68 would have been entirely or almost obviously beside the point in that case, for the applicant was approaching retirement age and had asked for early retirement on previous occasions.  So it was almost inconceivable that he would then say he wanted re-engagement or reinstatement to be ordered.  He only sought compensation.  The submission made to them was that the omission rendered the proceedings null and void and they were referred to Pirelli General Cable Works Ltd  v. Murray.  The Respondents were prepared to say that this was not a point that was taken before the Industrial Tribunal.  Again, we have no basis whatsoever for making any such statement here, we do not know if there was the omission and so a fortiori we do not know whether any points were taken on it in front of the Tribunal.  The Employment Appeal Tribunal had to decide whether they accepted as being of general application what was said by this Tribunal in Pirelli.  They referred to Polkey, to Lord Bridge's speech, and they referred to the Pirelli case. 

	Lord Coulsfield said:  

"If there is indeed a practice of ignoring the requirement [that is of s.68] in Industrial Tribunals, then, plainly, that is a practice which should not continue.  It is, however, a very different matter to conclude that failure to follow this procedural requirement must be treated as, in all cases, rendering the decision a nullity.  It would, in our view, be going too far to hold that, in the present case, in which the complainer was legally represented and in which, for the reasons to which we have referred, it might well be thought that an order for reinstatement or re-engagement was never a real possibility, the failure on the part of the Tribunal should send both parties back for the expense and inconvenience of a further hearing.  We do not think that the purposes and objects of the legislation compel us to hold that every such failure should render the decision invalid.  Considering the matter as thus best we can, therefore, we have come to the conclusion that the failure to comply with s.68(1), in the present case, does not render the decision invalid.  It follows that this appeal should be dismissed."

	We are told that this case is to go to the Court of Appeal and we would not presume to say whether we prefer the ostensible view of this Tribunal chaired by Bristow J in the Pirelli case to that which appealed to this Tribunal chaired by Lord Coulsfield in the case to which we have been referred.  Whether the logical position is that the decision is rendered null and invalid by the omission, or whether in fact the position is that this Employment Appeal Tribunal has a discretion, we are not going to say.  The ground of our decision is that it appears to us in this case that there is no basis for supposing that s.68(1) was flouted and ignored by the Tribunal, but we have added what we have in deference to the arguments addressed to us.  

	It does appear to us that any Court of Appeal, any Employment Appeal Tribunal, must retain a residual discretion on appeals to say that to allow the appeal would be utterly useless.  It seems to us that this is just such a case, if indeed there was the omission, which it is suggested there might have been; it would be entirely useless to allow this appeal now.  The Industrial Tribunal acted, it seems to us, with common sense and in a completely correct way.  If they did omit to observe the provisions of Section 68 then it is not a matter which we should seek to adjust here.  We therefore, on both the grounds which have been argued by Mr Kibling, dismiss the appeal.