Appeal No.	 EAT/650/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR I EZEKIEL
MR R JACKSON

STOCKFIELD MANUFACTURING CO LTD	APPELLANT

MR D ALLEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mrs Y J Constance
(Representative)	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing was to determine whether there is an arguable point of law to be made in a Notice of Appeal filed against an unanimous decision of an Industrial Tribunal which concluded that the Applicant, Mr D Allen was unfairly dismissed by his former employers, Stockfield Manufacturing Co Ltd.  Consequent upon that decision, the company were ordered to pay the Applicant the sum of £2,612.77.

	In an admirably constructed decision the Industrial Tribunal gave their reasons for holding that the dismissal was unfair.  They identified in paragraph 1, the nature of the issue before them:

“The applicant claims unfair dismissal in that he was dismissed whilst absent from work suffering from chickenpox when he received a letter dated 12 September 1997, having had no prior verbal or written warning or consultation from the respondent about his continued absence.”

	The Tribunal heard evidence from the Respondent’s director, Mr Russell, from the Applicant himself and from his girlfriend.  The Applicant’s evidence was generally accepted as truthful and he was described as an accurate witness in particular in his evidence about 1 September.  The Tribunal noted that that version was consistent with the tenor of his Originating Application which implied that he had permission to be absent at a time when he was dismissed, and with his earlier action in notifying his reason for absence and thirdly, with the sense of unfairness, that he was articulating at being dismissed having regard to that fact.

	The Tribunal heard no first hand evidence from the Respondent about the 1 September 1997 and did not accept that the telephone log was a full or complete record of calls coming into and out of the factory regarding employees.  They did not accept Mr Russell’s evidence that he had fully consulted with the Applicant’s team leader before reaching his decision to dismiss and they explain why.

	The findings of fact can be shortly summarised.  The Respondent company, the Appellants, employ about 54 people manufacturing aluminium lighting reflectors.  The applicant had been employed there from May 1988, first as a press operator and then as a tool setter.  He commenced his sickness absence on or about 31 July 1997 for backache.  That absence was certified by his doctor by a sick note dated 31 July 1997 covering a two week period, he also notified the Respondent that he was off sick with back ache incurred whilst working on a car engine.

	At the end of that period of absence, he contracted chickenpox and provided the respondents with a sick note dated 15 August, again for two weeks, which stated viral infection.  During that period he was mobile and was seen by employees including Mr Russell to have obvious signs of infectious chickenpox, therefore the employers can have been under no misapprehension that he was genuinely ill.

	The Tribunal find that on 1 September the Applicant whose sick note by then had just expired rang and spoke to his supervisor, Mr Andrew Thacker informing him that he was still off sick with chickenpox.  Mr Thacker, according to the Applicant, told him he should only come back to work when he was better.  Mr Thacker did not notify the Applicant that he should not produce a further sick note.  There was thereafter no communication between the parties until the Respondents sent its letter of dismissal dated 12 September 1997.  In particular, the Applicant failed to notify the Respondent of his continued absence at the start of the week commencing 8 September and sent in no further sick notes.

	On those facts the Industrial Tribunal concluded as follows:

“Even accepting the small administrative resources available to the respondent in that there was no specialist personnel function within the company, the tribunal considers that the respondent acted unreasonably here.  The respondent did have available external personnel advice from sister companies.  The obligation to communicate is a two way obligation between employer and employee.  This employer, despite knowing that the applicant had been seen to be suffering from an infectious disease in late August 1997 and despite the team leader having been further notified of that sickness absence at the start of September 1997, made no further attempt to communicate with the applicant before dismissing him.  Albeit it relied upon his own misconduct, it gave him no prior warning nor any opportunity to explain his position before determining to dismiss even though it knew the absence immediately followed genuine sickness absence.  Dismissal without taking these further steps was not within the range of reasonable responses open to a reasonable employer.”

	Accordingly, they upheld the complaint of unfair dismissal, but nonetheless went on to consider the question of contributory fault.  They considered that he was blameworthy:

“He failed to make contact with the respondent in the week commencing the 8 September 1997 and, moreover, failed to send any doctor’s sick note to the respondent for the whole period from 1 to 13 September 1997, notwithstanding that he had already previously followed the procedure in doing so.  Accordingly, the tribunal considers that he has contributed towards his own dismissal in the proportion of 50%.”

	In support of the appeal, the wages point is as follows.  If one looks at the IT1, the Originating Application, the Applicant had made no reference to a telephone conversation of 1 September between himself and Mr Andrew Thacker.  The first time that that had been mentioned was at the Industrial Tribunal hearing on 11 February 1998.  Had it been mentioned before, the Respondents would have been in a position to have called Mr Thacker to give evidence to deny that there had been any communication on that day.

	During the course of the hearing the case was put back, to enable the company to obtain telephone records.  It was said that the Industrial Tribunal has a more positive role to play than a court normally does when fact-finding and it should have been at the Tribunal’s suggestion if they were going to place reliance on the conversation on 1 September 1997, that Mr Thacker should be called.  They accepted that no application had been made for an adjournment of the proceedings to enable that to be done.  Accordingly, the criticism must be that the Tribunal itself failed to adjourn the proceedings so as to entitle them to call Mr Thacker.  Whilst we understand what is being said in this case, we have to say that we think that the point is empty.  The real basis upon which the Industrial Tribunal has decided this case, was that no reasonable employer could possibly, whether there had been a conversation on 1 September or not, have decided to dismiss an employee in these circumstances without first giving him an opportunity to explain what had happened.

	As the Tribunal rightly noted, communication is a two way process.  Accordingly any reasonably employer was bound to have contacted the employee, rather than just sending him a letter of dismissal.  For all they knew the employee may have been very ill in hospital unable to contact them.  They did not know, yet they treated a long serving employee in a way which fell outside the range of reasonable responses of an employer.  It is to be noted that the contributory fault was assessed on the basis that the Applicant was to be criticised for not providing a medical certificate from 1 September.  It seems to us to be going too far, in any event, to suggest that a Tribunal has a positive role to play, that it should suggest to a director of a company which is representing the company’s interest before it, that he should ask for an adjournment so that evidence could be called by somebody who they had no reason to believe was available to give evidence or would be willing to do so or what the position was.

	In our judgment, that was an unfair criticism to make of the Tribunal.  They do not have such a burden, if an adjournment was needed by the Respondent company, they should certainly have asked for one and I find it difficult to understand how a director of a company could possibly have not appreciated that had he wanted an adjournment, he would have to ask for one.  Accordingly, we are satisfied that this was obviously an unfair dismissal.  The Tribunal has succinctly and clearly set out their reasoning process and we think that there is no arguable point of law in the Notice of Appeal and therefore the appeal will be dismissed.