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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bridgend County Borough Council v. Stephens [1999] UKEAT 4_99_1012 (10 December 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/4_99_1012.html Cite as: [1999] UKEAT 4_99_1012 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D A C LAMBERT
MISS D WHITTINGHAM
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR P OLDHAM (of Counsel) |
For the Respondent | MR S COTTLE (of Counsel) |
HIS HONOUR JUDGE PETER CLARK
"Due to your continued ill health, it is no longer possible for you to undertake your employment duties with the Council" and continued "consequently, I write now to give you formal notice that your employment with the Council will terminate on 17th August 1997. Provisions were then made or payments to be made to the Applicant including 7 weeks payment in lieu of notice".
That finding has not been the subject of appeal. The case was to be listed for a three day hearing on the merits of the unfair dismissal claim.
The merits hearing took place before a differently constituted Employment Tribunal chaired by Mr Alan James, sitting at Cardiff on 23rd-25th September 1998.
(i) Has the Council shown that it had a potentially fair reason or principal reason for dismissing the Applicant under Section 98(2) or (1)(b)? If not the dismissal was unfair.(ii) If a potentially fair reason is made out, did the Council act reasonably or unreasonably in treating that reason as a sufficient reason for dismissal, applying the words of Section 98(4).
First a factual summary. The discursive style of the reasons requires the reader to extract the outline the facts from various parts of the reasons. They appear to be as follows.
"I had a long chat with the him and basically advised him that whereas I would be prepared to support early retirement on ill-health grounds it may not be appropriate if he is to seek further employment elsewhere. I am sure that his symptoms will resolve in due course, but I am sure he will remain a bitter man. The prevailing conditions are such that management need to know whether or not he intends taking up his new post. I think that he will not".
"I think Mr Stephen's prognosis is good and that in two or three months time his mental health will be back to normal if his employment problems (which are the precipitating factory for this illness) are resolved. If that is the case he should be fully fit to return to work. His past history of chest pain should not affect his future fitness to work"
The Tribunal add that in fact the Applicant had been examined by a consultant cardiologist in September 1996 and was found to have an excellent prognosis
First, what the reason or principal reason for dismissal?. The Tribunal make no clear express finding as to the reason or principal reason. Two potentially fair reasons were advanced by the parties. Ill-health capability by the Council and redundancy by the Applicant. Neither is identified as the reason or principal reason by the Tribunal, neither is rejected. Mr Cottle appearing on behalf of the Applicant before us, submits that on a fair reading the Tribunal concluded that no potentially fair reason was made out by the Council. Accordingly, the dismissal was unfair without proceeding to the question of reasonableness under Section 98(4).
(i) That the reason for dismissal related to the Applicant's capability and(ii) That on the Tribunal's findings that dismissal was fair
We cannot accede to that submission. On the Tribunal's findings of fact we feel quite unable to carry out what will amount to a fact-finding exercise to reach the point of saying that the Tribunal's decision was plainly and unarguably wrong, a necessary pre-requisite for reversing the findings of unfair dismissal.