![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Scottish Shellfish Marketing Group Ltd v. Connelly [2006] UKEAT 0008_06_0707 (07 July 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0008_06_0707.html Cite as: [2006] UKEAT 8_6_707, [2006] UKEAT 0008_06_0707 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
THE HONOURABLE LADY SMITH
MR J KEENAN MCIPD
MISS G B LENAGHAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MR DAVID D WHYTE Solicitor Messrs Bishops Solicitors 2 Blythswood Square Glasgow G2 4AD |
For the Respondent | MR KENNETH H FOREST Advocate Messrs Trainor Alston Solicitors 18 Academy Street Coatbridge ML5 3AU |
The claimant was dismissed on the basis of a medical report which found that he was unfit to return to work. The tribunal found that the respondents should not have relied on the report as it was prepared on the basis of an erroneous view as to his job content. They concluded that that erroneous view must have come from a communication to its author from the respondents. The EAT held that the decision of the tribunal was perverse; that conclusion was central to their decision but was not open to them. They should, also, have granted the respondents' application for review.
THE HONOURABLE LADY SMITH
Introduction
The Facts
"He works as a logistic supervisor for Scottish Shellfish. This is in the store and despatch area. Although he works in a supervisory capacity in part he is also involved in heavy manual work and is required in the course of his employment to move heavy pallets as well as move between adjacent warehouses which are some distance apart. He is required to climb up and down stairs and also go to the canteen up two flights of stairs."
In the 'Opinion and Prognosis' part of the report, he advised:
"His mobility is reduced…." and
" ….the prognosis for Mr Connelly's overall function is not good . Although his hip weakness may lessen he will still be left with a degenerate and arthritic hip which will perform poorly in stressful situations such as a heavy manual job. Should his pain levels increase it is likely that he will be considered a candidate for a total hip replacement. Although a successful hip replacement is likely to relieve him of his symptoms it is unlikely that it will function satisfactorily such that he will be able to return to moving heavy crates and pallets such as he is required to do in the course of his employment . In summary, I do not believe that Thomas Connelly will be fit to return to his current employment. I would however anticipate that with or without total hip replacement surgery that his hip function will be satisfactory such that he will be able to perform light manual or sedentary type occupations."
The Tribunal's Judgment
11. It was accepted by the tribunal that the claimant's injuries and their sequelae were as stated in Mr Blyth's report. It seems also to have been accepted that they were of such severity as to have incapacitated him from carrying out heavy manual work and to have affected his mobility. What, however, they did not accept was that Mr Blyth's conclusion that the claimant could not carry out his pre accident job was correct. That appears to have been due to a number of factors. They refer to the report being some two months out of date by the time of dismissal and to the claimant having said that he was gradually improving. The reason that appears to have weighed with them was that the claimant said in evidence that he was improving but we are surprised that the tribunal do not address the obvious need to take into account, notwithstanding the claimant's perceptions, that he had (as they accepted) an established degenerative condition which was not going to get better, namely an arthritic hip. They go on, at paragraph 11:
"Moreover, as noted above, the opinion was factually flawed on some material points. There was no attempt to obtain an up-to-date medical report or to carry out full investigation as to the effect of the injury on the ability of the claimant to do what was his true work as detailed in the job description and not what had been his job description and function in his previous job. The Tribunal accepted that the claimant was not required as a condition of his then current employment to carry out heavy manual work, although he had on occasion assisted in this way. It followed therefore that the whole decision to dismiss the claimant was based on an erroneous foundation. That would have made it unfair even apart from the automatic unfair aspect of the matter."
" …the only conclusion to be drawn was that , in some way or another the respondents must have passed this suggestion to the consultant."
"He was now seeking only compensation. The Tribunal therefore decided to make an award of compensation as he requested.
The claimant was aged 52 years at the date of termination and had had three full years service. His gross pay worked out at the rate of £288.00 a week which gave him an average net take home pay of £212.00 a week. He had still not been able to work due to his incapacity up until 1 March 2005 and so he would not be able to claim any compensation for that period. However, from 1 March 2005 onwards he was fit for work and had been seeking alternative employment. He demonstrated that he had applied for many jobs without success. Given his age and the nature of the work; it might be some time yet before he was able to find suitable alternative employment. He had also been paid a Christmas bonus of £300.00 per annum. The Tribunal therefore decided to make a total award of £30,809.00 in compensation made up as follows:-
Basic Award 4½ weeks' pay @ 288.00 per week restricted to statutory maximum of £270.00 |
£1,215.00 |
Compensatory Award (i) loss of earnings prior to conclusion of proceedings - net average wages - £212.00 per week from 1 March to 8 July 2005 - (19 weeks) |
£4,038.00 |
(ii) estimated future loss of earnings - net average wages £212.00 per week for 104 weeks. |
£22,048.00 |
(iii) loss of 2 Christmas bonuses | £600.00 |
(iv) statutory increase of 10% per Section 31, Employment Act 2002 | £2,608.00 £29,344.00 |
Loss of statutory rights | £250.00 £30,809.00" |
Application for Review
- towards the end of paragraph 4 of their judgment, within their findings in fact,
the tribunal stated: "The claimant pointed out that it had not been his fault that he had been seriously injured in the accident and that he did wish to return to work."
- they had, after receiving the tribunal's decision and in the light of hearing that
the claimant was boasting about the likelihood of him receiving damages for the injuries sustained by him in the accident, made enquiries of persons including the other driver involved in the accident in which the claimant was injured with a view to seeing whether he had specified the nature of his job in any claim made
- during these enquiries they had, on 17th August 2005, discovered that the other driver had sued the claimant and liability had been admitted
- further, by letter received on 29th August 2005, they had discovered that the claimant had been prosecuted and convicted of a contravention of section 2 of the Road Traffic Act 1988 after trial, on 21st April 2005
- the likelihood was that the tribunal had been influenced by the fact that the claimant was, supposedly, the innocent victim of a road accident
- further, the claimant's credibility was in issue before the tribunal and the fact of his conviction would have been founded on to attack his credibility, given his assertion that the accident was not his fault .
The Respondents' Case on Appeal
1 The Substantive Appeal (EATS/0082/05/RN)
The Claimant's Case re: the Substantive Appeal
2. Appeal against refusal of Review (EATS/0008/06/RN)
Discussion
1. The Substantive Appeal
"left to evolve by conduct…" .
"The claimant's evidence which the Tribunal accepted was that he did not, as a requirement of his job, do any heavy manual work and was not required as such to move heavy pallets. Prior to his accident he had in practice sometimes assisted in moving pallets, simply to oblige and move things forward. However it was not a requirement of his job and there was no suggestion in his job description that he should be involved in heavy manual work or move heavy pallets."
"of the reasons which have led them to reach the conclusion which they do on those basic facts."
Disposal