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[View ICLR summary:  WLR(D) 396]
||Neutral Citation Number:  EWCA Civ 1226
||Case No: A2/2012/3009
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Bean J, Mr A. Harris and Mrs R. Chapman
Appeal No: UKEAT/0275/12/RN
||Royal Courts of Justice
Strand, London, WC2A 2LL
||16th October 2013
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE TOMLINSON
LORD JUSTICE McFARLANE
|| JJ FOOD SERVICE LIMITED
||- and -
||ZEKI MEHMEYT ZULHAYIR
(Transcript of the Handed Down Judgment of
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A Merrill Communications Company
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Mr Christopher Milsom (instructed by Neves Solicitors LLP) for the Appellant
Ms Nabila Mallick (instructed by Stephensons Solicitors LLP) for the Respondent
HTML VERSION OF JUDGMENT
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Lord Justice Rimer :
- This appeal, by JJ Food Service Limited ('JJF'), is against an order dated 24 October 2012 of the Employment Appeal Tribunal (Bean J, Mr A. Harris and Mrs R. Chapman, 'the EAT') allowing an appeal by the respondent, Zeki Zulhayir, against the dismissal, following a hearing on 6 and 7 February 2012, by the Watford Employment Tribunal (Employment Judge Smail, Professor Okitikpi and Ms Telfer, 'the ET') of his unfair dismissal and disability discrimination claims against JJF, his former employer. Having allowed the appeal, the EAT remitted both claims to the ET for a remedy hearing.
- Mr Zulhayir's appeal to the EAT against the adverse decision of the ET was on the ground that the ET's decision was perverse. The EAT agreed. JJF's appeal against the EAT's decision is based on the proposition that the ET's decision was entirely permissible in fact and law, in no manner perverse and that the EAT was not entitled to interfere with it. With permission granted by me, JJF asks this court to restore the ET's decision.
- In a case in which Mr Zulhayir's challenge to the ET's decision was on the ground of perversity, it is perhaps an unusual feature that both parties accepted that the ET's primary factual findings were unimpeachable. I shall first summarise the facts found by the ET. Before the ET, Mr Zulhayir was represented by Mr D. Renton of counsel; and JJF by Mr Tom Grady, a representative.
- Mr Zulhayir was employed by JJF on 1 November 2001 as a delivery driver. On 7 January 2005, he was involved in an accident at work that caused serious injuries to his spine as a result of which he became unfit to carry out his job, at any rate without adjustments. He never returned to work. Initially, he submitted medical certificates stating that he was unfit to work, such certificates being dated 11 and 20 January, 7 February, 7 March and 20 June 2005. During this period, he received statutory sick pay. He submitted no certificates after 25 June 2005 and his sick pay ceased in about mid-July 2005.
- In June 2005, he instructed Parker Bird, solicitors, to act for him in a proposed personal injury claim against JJF. JJF instructed Kennedys, solicitors, to act for it; and JJF's insurers appointed Corpore Limited ('Corpore') to act as injury management consultants in relation to the proposed claim. On 18 July 2005, Ms Szasz, a Corpore occupational therapy injury management consultant, produced a report on Mr Zulhayir's problems arising as a result of his accident. The report was passed to his solicitors and he received it at about the time it was prepared.
- The report dealt in part with his return to work options: Corpore had undertaken a workplace assessment with representatives of JJF. The report was to the effect that, given his physical limitations, it was unlikely that he would be able to sustain a return to his previous duties: the numbness he experienced in his left leg and his discomfort at remaining seated for more than ten minutes meant that he was no longer able to meet the physical demands of such duties, which involved driving a 7.5 ton truck and lifting (with the help of a colleague) boxes weighing up to 25kg. Mr Zulhayir did, however, have extensive experience working as a driver and also had computer and communication skills. It was considered that there might be a role for him in JJF's transport management office, which would not put like physical demands on him and in which he could use his existing knowledge.
- A rehabilitation plan was annexed to the report. It provided for six activities scheduled between 19 July and 19 December 2005. They were: (i) to facilitate medical treatment and intervention to assist his recovery; (ii) to assess proposed modified work duties; (iii) to conduct workplace meetings, develop a return to work plan and monitor his progress towards a return to work; (iv) the compilation of progress reports and 'return to work' plans; (v) attendance at employee/employer meetings; and (vi) case management to facilitate activities aimed at assisting a return to work.
- On 23 August 2005, JJF's Mr Larkin e-mailed Corpore stating that JJF could accommodate Mr Zulhyair in an office environment, whilst utilising his distribution skills. He attached a draft of a potential job description. It was that of a transport administrator responsible to the transport manager, the duties being to ensure drivers' tachographs were received, recorded and scanned, to assist with parking ticket appeals and to assist with general office duties. Mr Larkin asked Corpore to inform JJF whether this was of interest to Mr Zulhayir. Corpore replied to Mr Larkin the following day, saying that it would liaise with Mr Zulhayir and his medical team regarding the job proposal. Corpore commented that Mr Zulhayir was awaiting a further medical assessment and that the job description would enable a clearer picture to be obtained as to his ability to return to work.
- On 29 October 2005, Corpore produced a progress report. The rehabilitation goal was still to facilitate medical referrals and treatment with a view to assisting Mr Zulhayir's safe and productive return to work. The report said that he continued to be supported by his GP but because he was experiencing increased levels of pain and discomfort, he was no longer seeing his physiotherapist. It repeated that it was unlikely that he would return to his former duties, but that there might be a role in JJF's transport management area. The modified work duties in such a role would need to be fully assessed once his pain was at a tolerable level. Mr Zulhayir saw this report at about the time it was produced. On 30 October 2005, Ms Szasz e-mailed JJF that 'Corpore had been supporting [Mr Zulhayir] with receiving medical input and that he was next due to be reviewed in one month's time.'
- In January 2006, Mr Zulhayir was evicted from his address at 7 Clydach Road for non-payment of rent. He moved to accommodation at 176A Baker Street, Enfield. He did not notify JJF of his change of address. In omitting to do so, he failed to comply with the requirement in his JJF handbook that an employee must notify JJF of any change of address and telephone number so that it can maintain accurate information on their records and make contact in the case of emergencies. The only telephone number that JJF had on its records for Mr Zulhayir was a landline number for 7 Clydach Road.
- On 26 January 2006, Corpore (now by Sarah Collison) produced a further report on Mr Zulhayir. She reported that Corpore had lost contact with him after 8 December 2005 and the insurers had requested Corpore to place his rehabilitation on hold pending further instructions. The insurers would review the position in six weeks and close the case if no further instructions were received in the meantime. JJF received no further communication from Corpore. Mr Zulhayir also saw this report at about the time it was produced.
- On 28 June 2006, unaware of Mr Zulhayir's change of address, Mr Camkiran of JJF sent a recorded delivery letter to him at 7 Clydach Road. It said:
'It has come to my attention that you left your job as a driver on 22 July 2005 and since then we did not receive any correspondence regarding your return to work despite the efforts we made to contact you.
Am I to assume that you no longer wish to work for [JJF]? If so, please confirm your resignation in writing. Please note that if you do not contact me by 5 July 2006 then we would conclude that you no longer wish to work for us and that you terminated your employment by your own volition.
If not, please contact me immediately upon receipt of this letter in order that we may arrange a meeting to discuss the situation'.
That letter was not an unusual type of letter for JJF to write: at about the same time it also wrote like letters to five other employees with whom it had not been in contact for a long period.
- The letter to Mr Zulhayir was returned by the Post Office to JJF on 6 July 2006, marked that it had not been called for at the distribution centre. JJF made no further efforts to send it to Mr Zulhayir or otherwise to contact him.
- On 25 November 2008, Mr Zulhayir signed a statement of truth as to the particulars of his claim for damages against JJF in Edmonton County Court. He alleged that he was unable to start any type of work because of his medical condition. He commenced his claim on 18 April 2008. A GP's letter of 21 April 2008 expressed the view that he was not fit for work either then or in the foreseeable future. A joint consultant orthopaedic surgeon's report of December 2009 recorded the view that he was capable of returning to his pre-accident job subject to the adjustment that there was no heavy lifting. That opinion contradicted the view of both Mr Zulhayir and of his GP.
- Kennedys, on behalf of JJF, wrote to Mr Zulhayir on 20 May 2009 notifying him that he had been dismissed from his employment. They attached a copy of JJF's letter of 28 June 2006 (see paragraph 12 above). That was the first time that he became aware of that earlier letter. Kennedys wrote, inter alia:
'[JJF] ceased to pay you with effect from 22 July 2005 when you left your job with them as a driver, although as we understand it, your employment was not formally terminated until 5 July 2006. We attach a copy of [JJF's] letter to you dated 28 June 2006.'
- Mr Zulhayir did not respond to Kennedys' letter by suggesting that JJF's belief that his employment had terminated three years earlier was a mistake, let alone indicating a willingness to return to work for them; and by then he had not worked for JJF for over four and a half years. Instead, on 28 July 2009, he commenced his tribunal proceedings against JJF, including claims for unfair dismissal and disability discrimination. His county court claim for damages was also still pending.
- At an early stage of the tribunal proceedings, Employment Judge Mahoney struck out Mr Zulhayir's unfair dismissal claim, holding that he had not been dismissed at all but had resigned from JJF in January 2006. That decision was, however, reversed on an appeal to the EAT, for reasons given in a judgment delivered by His Honour Judge Clark, who said this:
'17. Having sent the letter of 28 June 2006 by recorded delivery, and that letter having been returned by the Post Office on 6 July, [JJF] then took no further action to communicate its contents to [Mr Zulhayir]. The particular feature of this case is that, at that time, [he] was off sick, he was not entitled to sick pay but he was pursuing a personal injury claim against [JJF] through solicitors, as [JJF] was aware. No attempt was made by [JJF] to communicate with him through these solicitors. In any event, the letter of 28 June 2006 did not amount to [JJF's] acceptance of repudiation or indeed resignation by [Mr Zulhayir], see Hassan v. Odeon Cinemas Ltd  ICR 127.
18. The result, in our judgment, is that no effective steps were taken by either party to terminate the contract of employment until the letter from Kennedys, [JJF's] solicitors in the personal injury proceedings dated 20 May 2009, enclosing [JJF's] earlier letter of 28 June 2006, reached [Mr Zulhayir] stating that his employment had been formally terminated on 5 July 2006. That was the first opportunity which [Mr Zuhayir] had to know that [JJF] no longer wished to be bound by the contract. He accepted that state of affairs by commencing these Tribunal proceedings on 28 July 2009, see Gunton v. Richmond-upon-Thames BC  ICR 755.'
- It was perhaps not strictly accurate for Judge Clark to say that Mr Zulhayir was, as at July 2006, 'pursuing a personal injury claim' against JJF, since he did not commence such claim until April 2008, although he had of course earlier indicated an intention to make it. His claim came on for trial in the county court on 28 January 2010 and was dismissed; and the Court of Appeal refused permission to appeal on 16 February 2011. Mr Zulhayir's tribunal claim was tried on 6 and 7 February 2012.
- I come now to the ET's reasons for dismissing both Mr Zulhayir's disability discrimination claim (which was for an alleged failure to make reasonable adjustments) and his unfair dismissal claim.
The ET's reasons in relation to the disability discrimination claim
- In paragraph 2 of its reasons, the ET said that 'the parties have helpfully co-operated to narrow the issues to require fact finding by the Tribunal only.' In paragraph 3, the ET recorded that the 'sole issue' in relation to the disability discrimination claim was 'whether an office job of transport administrator was offered to [Mr Zulhayir], it being accepted that the job amounted to a reasonable adjustment in the form of suitable alternative employment. If it was not offered, [JJF] accepts liability.' It is obvious that that 'sole issue' had been agreed by the parties as referred to in paragraph 2.
- Having recorded that Mr Zulhayir had read all the Corpore reports at about the time they were produced, the ET found that he knew of the possibility of a return to work in an office-based transport administrator role. Whilst there was no direct evidence that Corpore sent him the job description, the ET found on the balance of probabilities that it had and that he had seen it shortly after it was prepared.
- The ET therefore found that JJF made it clear to Mr Zulhayir that it was prepared to have him back in a revised job 'by way of suitable alternative employment as a reasonable adjustment.' It further found that the reason the proposal did not progress was because Mr Zulhayir did not take it up. It said:
'21. [Mr Zulhayir] accepted before us that he had read the Corpore reports as and when they were produced. Accordingly, he knew of the possibility of his returning to work in an office based transport administrator role. Furthermore, whilst there is no direct evidence in the bundle that Corpore sent [Mr Zulhayir] the job description, it is in our judgment very likely, certainly more likely than not, that it did so and that [Mr Zulhayir] saw it at the time or shortly after it was prepared. We reject his evidence that he did not see it at the time.
22. Accordingly, on the issue we are asked to determine as a matter of fact, we find that [JJF] did make it clear that it was prepared to have [Mr Zulhayir] back in a revised job by way of suitable alternative employment as a reasonable adjustment. It seems likely to us that at that time [his] position was that he would not return to work at all, full compensation for which he was seeking in his County Court personal injury claim. Our finding that he was not willing to pursue the idea of a return to work with [JJF] is reinforced by the clear fact that [he] did not get in touch with [JJF] after his eviction from his original address in January 2006 to inform them of his new address.
23. [Mr Zulhayir's] representative's criticism of [JJF] that there was insufficient direct dealing between [JJF] and [Mr Zulhayir] has, we think, limited weight. [Mr Zulhayir] was throughout this relevant time represented by solicitors in an intimated personal injury claim. [JJF] had in effect delegated to Corpore its rehabilitation responsibilities as an intermediary between its own insurers and [his] solicitors. The rehabilitation plan put forward by Corpore was exemplary. [JJF] had co-operated with it by identifying the new job. We do not criticise [JJF] for adopting the approach it did. It was not an unreasonable approach, certainly not such an unreasonable approach entitling us to intervene.'
- The result was that the ET dismissed the disability discrimination claim. The parties had agreed that the only issue for the ET in relation to that claim was whether an office job of transport administrator was offered to Mr Zulhayir, and the ET found that it was. That was the end of the claim.
The ET's reasons in relation to the unfair dismissal claim
- The ET said this about the unfair dismissal claim:
'4. It is conceded that this was a capability dismissal. The factual issues identified by the parties are whether [JJF] reasonably informed itself as to the extent of [Mr Zulhayir's] medical condition and needs and whether he was reasonably consulted. The Tribunal also raised the question whether there was a procedural failure to hold a meeting prior to dismissal and failing to offer an appeal.'
- In expressing its findings and conclusions on this claim, the ET held that JJF had established, to as reasonable extent as it needed, Mr Zulhayir's medical position. It did so by delegating the matter to Corpore, which acted as the intermediary between JJF's insurers and Mr Zulhayir and his solicitors. The ET found that it was reasonable for JJF to do this in the circumstances, and the Corpore reports provided JJF with detailed updates on the medical treatment Mr Zulhayir was undergoing. The reports concluded, as was common ground, that he could not return to his old duties. The tribunal found that, via Corpore, JJF fully consulted Mr Zulhayir, and that, via Corpore, JJF had regular contact with Mr Zulhayir until such time as contact was lost. JJF, via Corpore, did all that a reasonable employer needed to do.
- In relation, therefore, to the only two factual issues that the parties had agreed required decision, the ET found in JJF's favour on both. The only other question for the ET was its own point, namely whether the dismissal was procedurally fair. The ET held that the dismissal in that respect was fair, expressing its reasons as follows:
'27. The tribunal was concerned that in writing the letter of 28 June 2006 [JJF] was in fact regarding [Mr Zulhayir] as dismissed without holding a meeting and without offering an appeal. Accepting that the ACAS code of practice applied by way of analogy here, in that this was a capability and not a disciplinary procedure, the tribunal was concerned nonetheless that there should be some minimal procedural compliance. However, it was fairly pointed out to the tribunal that [JJF] had lost contact with [Mr Zulhayir], that matter being the fault of [Mr Zulhayir]. [He] had been forced to change address. He was under a duty to inform [JJF] of the change. He did not do so. He made no contact with [JJF] until 2009 when the present employment tribunal proceedings were intimated. We agree, in those exceptional circumstances, there would be no need to invite a hearing or confer an appeal. The exceptional circumstances being that [JJF] had lost contact with [Mr Zulhayir] through no fault of its own.
28. It might be said that [JJF] could have written to [Mr Zulhayir's] solicitors. It seems that did not occur to them. However, that does not detract from the employee's obligation to make direct contact with the new address. Furthermore, we infer from the fact that Corpore also failed to maintain contact with [Mr Zulhayir], when they had been dealing with [his] solicitors, that attempted contact through the solicitors was not guaranteed to succeed or result in communication with [Mr Zulhayir].'
The decision of the EAT
- Before the EAT, Mr Zulhayir was represented by Ms Nabila Mallick, instructed by the Bar Pro Bono unit, and JJF was again represented by Mr Grady. The EAT's judgment was delivered by Bean J. He recorded what, before the ET, had been the 'sole issue' in relation to the disability discrimination claim by referring to paragraph 3 of the ET's reasons; and he set out paragraph 4 of the ET's reasons, which identified the issues in relation to the unfair dismissal claim.
- Bean J dealt first with the unfair dismissal claim. In paragraph 6, he summarised the ET's conclusions on the two issues that the parties had identified, and I do not read him as concluding other than that the ET was entitled to find as it did. He went on in paragraph 6 to identify the procedural point that the ET had identified of its own motion; and, at the end of that paragraph, he recorded a concession that Mr Renton, for Mr Zulhayir, had made before the ET, namely that:
a meeting in 2009 could not have been expected, given that [JJF] had assumed that the relationship had terminated in 2006.'
That was a concession that JJF could not reasonably have been expected to convene a meeting with Mr Zulhayir in 2009 prior to his dismissal.
- Bean J referred as follows to the ET's conclusion in relation to its own procedural point in relation to the position in 2006:
'7. As to 2006, the Tribunal accepted the submission of Mr Grady that it was [Mr Zulhayir's] fault that [JJF] had lost contact with him. He was under a duty to inform his employer of the change of address but did not do so and made no contact with them until bringing the present Tribunal proceedings in 2009. In those exceptional circumstances, according to the Tribunal, there would be no need to invite a hearing nor to confer an appeal, the exceptional circumstances being that [JJF] lost contact with [Mr Zulhayir] through no fault of its own'.
Bean J then quoted paragraph 28 of the ET's reasons. I comment that all his references to the paragraphs of the ET's reasons are one number higher than in the version of the reasons with which we were provided, which perhaps suggests that the EAT had a version of the ET's reasons which included an extra paragraph: and our version of those reasons is in fact described as a 'Draft Judgment'. I shall identify the ET paragraphs to which Bean J referred by reference to our paragraph numbering of the ET's reasons. He continued:
'8. Ms Mallick
submits that this conclusion [the ET's conclusion in paragraph 28] was perverse. As Mr Grady has rightly reminded us, the test for perversity laid down in cases such as Yeboah v. Crofton  IRLR 634 is a strict one; we bear that in mind. However, we do not agree that either in June 2006 or in May 2009 [JJF] did all that a reasonable employer needed to do. The letter of 28 June 2006 was sent by recorded delivery and returned undelivered. [JJF] was aware of the personal injury claim. Nevertheless, they did not write to [Mr Zulhayir's] personal injury solicitors asking them to pass on the letter of 28 June 2006 or asking them if they could assist in why the recorded delivery letter had been returned. As the Employment Tribunal found, obviously correctly, that did not occur to them.
9. In our view, it plainly should have done. [JJF] is and was a substantial concern with a human resources department. They may have had other means, such as landline or mobile telephone numbers or possible contact to relatives who had recently worked for the company. There are no clear findings of fact as to these matters, but even if the only possible contact had been [Mr Zulhayir's] solicitors, that was a reliable means of communication that the employer should have used. It is unnecessary to decide what the position would have been if the letter had been sent by ordinary post and simply not replied to or if there had been no other means whatever of contacting [him]. The fact mentioned by the Tribunal
that Corpore in December 2005 and January 2006 had also had difficulties in making contact with [him] does not detract from the criticism that we make of [JJF]; on the contrary, if it was relevant at all, it should merely have reinforced the suspicion that he might have changed addresses.
10. As to the argument based on the clause in the contract of employment requiring notification of a change of address
[t]he presence of such a clause in a contract of employment does not exempt an employer, where it is apparent that an important letter to the employee has been returned undelivered, from taking reasonable steps to use an alternative means of communication if such alternative means is readily available, as it was in this case.
11. We have viewed this issue so far through the prism of what [JJF] did and did not do in June 2006. If one looks at it (with the wisdom of hindsight and the benefit of reading the first EAT judgment in this case) through the prism of May 2009, the dismissal was even more obviously unfair. [JJF] took no steps at that time to ascertain whether [Mr Zulhayir], whose personal injury case against them was still proceeding but had not yet come to trial, wished to return to work nor to offer him alternative employment.
12. We therefore allow the appeal and declare that the dismissal in 2009 was unfair.
- Bean J turned to the appeal against the dismissal of the disability discrimination claim. The EAT allowed that appeal too, on the ground that 'in failing in May 2009 to make an offer of alternative employment [JJF] was committing an act of disability discrimination.' Bean J, however, rejected Mr Zulhayir's complaint that there had been a continuing failure by JJF from 2005 to 2009 to make reasonable adjustments. I interpret him as accepting, as the ET had found, that JJF had in the second half of 2005 made clear to Mr Zulhayir, via Corpore, that a transport administrator job was potentially available for him. Bean J said, however, that it was clear from Corpore's reports that Mr Zulhayir was not fit to take that job up nor anywhere near it, and after 2005 direct contact was lost. His point appears to have been not that the ET was wrong to find that an alternative job offer had been made in 2005 but that at that stage Mr Zulhayir was not sufficiently fit to take the offer up. Having cited paragraphs 20 to 22 of the ET's reasons, Bean J said:
'14. The only criticism we make of these three paragraphs is of the first sentence of paragraph . It is correct that [JJF] made it clear to Corpore in August 2005, as the Tribunal found elsewhere in their Judgment, that they had a transport administrator job potentially available to [Mr Zulhayir], the particulars of it at that time being set out in what the Tribunal described as "a rough draft of a potential job description", and (despite Ms Mallick's best efforts) we conclude that the Tribunal were entitled to find that [Mr Zulhayir] saw the rough draft of the potential job description at the time, which we take to mean in the second half of 2005.
15. But it is also apparent from the Corpore reports, the first in July 2005, the second in October 2005 and the third in January 2006, that in late 2005 [Mr Zulhayir] was not fit to take up that job nor anywhere near it. After that direct contact was lost. As the Tribunal point out, as late as November 2008, [Mr Zulhayir] was asserting that he was unable to start any kind of work because of his medical condition, and that assertion was backed up by the opinion of his general practitioner in April 2008 that [Mr Zulhayir] was not fit for work then or in the foreseeable future.
16. So, it is clear to us that if the transport administrator job had been offered at any time from 2005 to the end of 2008, it would have been refused. It may be that it would have been refused in May 2009 as well, but we do not have the material before us to make findings about that. In particular, we do not have, and it appears the Tribunal did not have, any information as to what [Mr Zulhayir] said in his written or oral evidence in the County Court case or what a doctor said about his fitness for work in the first half of 2009. We do know from paragraph  of the Tribunal's Judgment that by the end of 2009 experts were expressing the view that he could return to his pre-accident job with the adjustment of no heavy lifting. But the issue of fitness for work in mid-2009 is for another day, and is not before us.
17. It is plain to us, however, that the Disability Discrimination Act
claim, in so far as it relates to acts or omissions of [JJF] prior to 2009, cannot succeed. The finding of the Tribunal in paragraph  that [Mr Zulhayir's] position was that he would not return to work and that he was not willing to pursue the idea of a return to work is unassailable, and we agree with the Tribunal that it is reinforced by the fact that [Mr Zulhayir] did not get in touch with [JJF] in and after 2006 to see whether they had anything to offer.'
- Before this court, JJF was represented by Mr Milsom, and Mr Zulhayir was again represented by Ms Mallick, who had worked apparent magic for him before the EAT by, on his behalf, surmounting the rarely surmountable hurdle presented by an appeal based on perversity grounds.
- Mr Milsom submitted that on neither ground of appeal before the EAT was there any justification for the EAT's substitution of its own views for those of the ET. As Mummery LJ said in Yeboah v. Crofton  EWCA Civ 794;  IRLR 634 (paragraph 93):
'Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care"
In like vein in relation to perversity appeals, Mummery J (as he then was) had earlier, when delivering the judgment of the EAT in Stewart v. Cleveland Guest (Engineering) Ltd  ICR 535, said at 542F to 543C:
An appeal should not be allowed on this ground simply because the appeal tribunal disagrees with the industrial tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This tribunal should only interfere with the decision of the industrial tribunal where the conclusion of that tribunal on the evidence before it is "irrational," "offends reason," "is certainly wrong" or "is very clearly wrong" or "must be wrong" or "is plainly wrong" or "is not a permissible option" or "is fundamentally wrong" or "is outrageous" or "makes absolutely no sense" or "flies in the face of properly informed logic." This variety of phraseology is taken from a number of well known cases which describe the circumstances in which this tribunal, and higher courts, have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations
in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no "right answer
. We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the industrial tribunal
- Given the nature of Mr Zulhayir's challenge before the EAT to the decision of the ET, I accept that those statements of principle are directly in point. He was entitled to succeed before the EAT in relation to the two issues in play only if the ET's decision on them could fairly be criticised in one or other of the alternative ways that Mummery J identified. I shall take each issue in turn.
A. Disability discrimination
- I do not, with respect, understand the EAT's reasons for considering that it was entitled to set aside the ET's rejection of this claim. The ET expressly identified in paragraphs 2 and 3 of its reasons that it was agreed by the parties that the 'sole issue' in such claim was 'whether an office job of transport administrator was offered to [Mr Zulhayir]
.' The ET found, in paragraph 22, that it was. The ET explained that it was not taken up because Mr Zulhayir's then intentions were not to return to work at all, since he had ambitions of recovering full financial compensation for the loss of his job by his proposed damages claim against JJF. Once, however, the ET had made its finding that the job was offered, and given the parties' agreement as to the sole issue in the disability discrimination claim, there was nothing left in the claim.
- The EAT did not, as I read Bean J's judgment, conclude that the ET was not entitled to find that an alternative job offer was made. I read paragraph 14 of his judgment as accepting that such an offer was made to Mr Zulhayir in 2005. In paragraph 15, however, Bean J focussed on Mr Zulhayir's fitness in and following 2005 to take it up; and, in paragraph 16, he talked in conditional terms as to what the position would have been 'if' the transport administrator job had been offered at any time 'from 2005 to the end of 2008' and says it is plain that it would have been refused. If I have correctly read paragraph 14 of his judgment as accepting the ET's finding that an offer was made in 2005, it appears that Bean J's 'from 2005' in paragraph 16 must have been intended to have been exclusive of 2005.
- I consider, again with respect, that the EAT went astray in relation to this part of the appeal. I have identified the sole issue at play before the ET and that issue resulted in a finding of fact adverse to Mr Zulhayir. The EAT instead focussed on a question that was not in issue before the ET at all, namely whether an offer made in 2009 would or would not have been accepted. The EAT says that it did not have the material to make findings about that. But it was anyway no part of the EAT's function to make such findings; and the reason the ET had not itself made such findings was that, given the agreed limit of the issues before the ET, it was unnecessary to do so.
- Ms Mallick, in a spirited defence of the EAT's decision, said that the ET's statement in paragraph 3 of its reasons as to the nature of the 'sole issue' before it on the disability discrimination claim misstated the true position. As she was not present at the ET hearing, that was a bold submission, particularly as all she relied upon in support was paragraph 23 of the skeleton argument prepared for that hearing by Mr Zulhayir's counsel, Mr Renton. That read:
'[JJF's] obligation is absolute: if an adjustment would be reasonable, it must be made. Already in 2006, and still more clearly in 2008-9, [Mr Zulhayir] was capable of returning to office work. Given that [he] remained on [JJF's] books until this date, [JJF] should have been considering his ability to return to work.'
- Ms Mallick submitted that that showed that the issues arising under the disability discrimination claim were wider than the ET had identified them in paragraph 3 of its reasons. She said that we should regard Mr Renton's skeleton argument as proving that the ET had there misstated the position.
- That, with respect, is an impossible submission. We are presented with a set of findings by an ET that include an unambiguous statement in paragraphs 2 and 3 as to how the parties had co-operated to narrow the issues and how the 'sole issue' in relation to the disability discrimination claim was whether JJF had ever made the alternative job offer. A more comprehensive consideration of Mr Renton's skeleton argument shows that it was by no means surprising that the parties had so narrowed the issue, since a lead towards such narrowing can be clearly be seen reflected in it. The relevant parts of paragraphs 3 to 5 read:
[JJF] in addition now accepts that [Mr Zulhayir] is a disabled person and therefore had the protection of the duty to make reasonable adjustments; but [JJF] says that (i) it did discover the true medical position, and (ii) made a reasonable adjustment, by offering [Mr Zulhayir] in 2005 an alternative position as Transport Administrator.'
4. [Mr Zulhayir] says that this role was never in fact offered to him.
5. The primary question for the Tribunal will therefore be to determine whether such an offer was ever made.
'. (Emphases supplied).
- The centrality of this issue was made yet clearer in paragraphs 16 and 17 of Mr Renton's skeleton argument. Paragraph 16 recognised that the revised position of a transport administrator conceived in 2005 would, if offered, have amounted to a reasonable adjustment but asserted that 'the real practical dispute between the parties is as to whether this proposal was ever communicated to Mr Zulhayir.' Paragraph 17 recorded JJF's case that it was communicated to him later in 2005, and paragraph 18 advanced reasons as to why the ET should prefer Mr Zulhayir's evidence that it was not. In the event, the ET accepted JJF's evidence as to this 'real practical dispute'.
- It is therefore easy to see how it came about that the ET recorded the issues as having been narrowed as it explained, and there is no basis for any conclusion that it had misstated the position. Once they had been so narrowed, the ET's finding of fact on the sole issue in play was fatal to Mr Zulhayir's claim and it rightly dismissed it. The EAT was, in my judgment, wrong to interfere with that decision: it did so by addressing issues not in play before the ET and, apparently, by ignoring the finding on the only issue that was. I would allow JJF's appeal against the EAT's order in relation to that claim.
The unfair dismissal claim
- Here too the ET identified the parties' agreement as to the relevant issues. Paragraph 4 of its reasons noted their agreement that Mr Zulhayir's dismissal was on capability grounds and that the only factual issues were (i) whether JJF reasonably informed itself as to Mr Zulhayir's medical condition and needs; and (ii) whether he was reasonably consulted. In addition, the ET raised of its motion the question of whether there was a procedural failing in that JJF held no meeting with Mr Zulhayir prior to his dismissal and did not offer him a right of appeal against his dismissal.
- As for issue (i), the ET found in paragraph 24 that JJF did establish, to as reasonable extent as it needed, what Mr Zulhayir's medical position was. It did so via Corpore, to which it had delegated the matter, which the ET found to be reasonable in the circumstances. Corpore provided its reports to JJF and the reports concluded:
as is common ground in this case, that [Mr Zulhayir] was disabled to the extent that he should [sic: could?] not return to his old duties and that new duties were required. That medical position does amount to common ground between the parties: there is no medical dispute as to that.'
- As to issue (ii), whether Mr Zulhayir was reasonably consulted, the ET found in paragraphs 25 and 26 that, acting by Corpore, JJF did 'all that a reasonable employer needed to do.'
- The ET therefore found for JJF on the facts on both of issues (i) and (ii). There was no scope for argument before the EAT that its findings were perverse. Nor, I understand, was any such case sought to be made. The EAT recorded the ET's findings in paragraph 6 of Bean J's judgment and did not suggest that there was anything wrong with them.
- The sole ground of the perversity challenge before the EAT was as to the ET's disposition of its own point, namely that the dismissal should have been preceded by the holding of a pre-dismissal meeting and the offering of a right of appeal. The ET had dealt with this in paragraphs 27 and 28 of its reasons, quoted in paragraph 26 above. Its consideration of the point related exclusively to what JJF should have done in 2006.
- With respect, I find the ET's reasoning in those paragraphs obscure. As explained in the opening sentence of paragraph 27, the ET appears to have proceeded on the basis that JJF was, by its letter of 28 June 2006 'regarding [Mr Zulhayir] as dismissed without holding a meeting and without offering an appeal.' That is, however, a wholly unreal interpretation of what JJF was either saying or doing by its letter.
- Mr Zulhayir's case was, as the ET found, one of several like cases in which JJF employees had simply disappeared off its radar: the employees had for months ceased all contact with JJF. By June 2006, Mr Zulhayir had done not a day's work for JJF for over 18 months. JJF had stopped paying him in July 2005, and since January 2005 he had rendered JJF nothing in the way of services, nor had he indicated any willingness to do so ever again. He had not responded to the alternative employment proposal; he had ceased all contact with JJF in relation to his employment relationship with it; and Corpore had, by early 2006, also lost contact with him.
- It is entirely unsurprising that JJF would, against a background such as that, want to know whether it needed to regard Mr Zulhayir as still one of its employees. Contrary to the ET's apparent understanding in the first sentence of its paragraph 27, the letter of 28 June 2006 was not, however, 'regarding [Mr Zuhayir] as dismissed
'. It was doing no more than it purported to do, namely to ask whether his long period of silence entitled JJF to assume that he no longer wished to work for it; and, if so, JJF asked him to confirm that in writing. It was not, however, a letter of dismissal. Its writing and sending did not therefore need to be preceded by a meeting; and I do not understand against what decision the ET considered that JJF ought to have been offering Mr Zulhayir 'an appeal'. Insofar, therefore, as the ET was (if it was) suggesting that the sending of the letter might need to be preceded by a meeting, I disagree. It did not.
- If the letter, once sent, had been received and answered, the outcome of Mr Zulhayir's status vis-ΰ-vis JJF would have depended on his answer. If, as is likely, he had denied any suggestion that he had resigned or wished to resign, JJF would have had to accept what he said and his future status would depend on what thereafter happened.
- If, by contrast, the letter, had been received but not answered, it would appear to me that if, come 5 July 2006, JJF had then removed him from its books on the footing that he was deemed to have resigned, it might perhaps have sailed into potentially dangerous water. An employer cannot unilaterally deem an employee to have resigned when he has not; and a removal of the employee from the employer's books by a process of such deeming following a notice to the employee of an intention to do so would arguably amount to a dismissal. The letter would, upon such a turn of events, arguably therefore have taken effect as if it had said to the employee: 'unless we hear from you by 5 July 2006 that you wish to remain an employee, we shall on that day dismiss you.' An employee so treated would, I consider, have a prima facie case for unfair dismissal. As to whether JJF understood that this might be the consequence of their letter, the ET made no finding. It may not have occurred to JJF.
- In the event, neither of these alternative circumstances happened. What did happen is that the letter of 28 June 2006 was returned undelivered. Its abortive sending was therefore a thing writ in water signifying nothing. In particular, as the EAT held in the first appeal, the letter did not amount to (i) JJF's acceptance of any repudiation of the employment contract by Mr Zulhayir, or (ii) a deemed resignation by Mr Zulhayir, or (iii) his dismissal. His dismissal was achieved only by Kennedys' letter of 20 May 2009 written three years later, which, for the first time, informed Mr Zulhayir that JJF no longer wished to be bound by the employment contract. That amounted to a repudiation of the employment contract that Mr Zulhayir accepted. No tribunal identified the effective date of the termination of his employment, but the view expressed to us is that it was probably the receipt of Kennedys' letter.
- Against this background, I do not understand why both the EAT and this court were belaboured with submissions to the effect that it was perverse for the ET not to find that, following the return of the letter of 28 June 2006, JJF ought to have done more to make contact with Mr Zulhayir, in particular by getting in touch with his solicitors and asking them how to make contact with him. If what was happening in June 2006 was a proposal by JJF to dismiss Mr Zulhayir on capability grounds, there might be much to be said for the view that JJF should have gone to further lengths to make contact with him. But they were not proposing to dismiss him or at any rate, there is no finding that that is what they had in mind. Taking their letter of 28 June 2006 at face value, JJF simply wanted to know whether it could take it that he had resigned.
- The supposed relevance of achieving contact with Mr Zulhayir in 2006 was, according to both the ET and the EAT, that it went to the fairness of his dismissal. But he was not dismissed in 2006, nor was any attempt then made to dismiss him. He was only dismissed in May 2009. I do not understand, and Ms Mallick did not explain, how the fairness of a dismissal in May 2009 is to be judged by whether or not JJF had taken all steps open to it to achieve a meeting with Mr Zulhayir in 2006 at a time when it had no thought of dismissing him. In my judgment, the inquiry by both tribunals below as to this was irrelevant. As the dismissal only happened in May 2009, the relevant question is whether or not, when it did happen, it was fair.
- As to that, it was no part of Mr Renton's case for Mr Zulhayir, as set out in his skeleton argument, that the fact that there was no meeting with Mr Zuhayir in in 2006 made his eventual dismissal procedurally unfair. The skeleton argument admittedly referred (in the eighth bullet point to paragraph 27) to JJF's untaken opportunity upon the return of the letter of 28 June 2006 to make contact with Mr Zulhayir's solicitors; but the point so made was merely one of several in support of the assertion that JJF cannot be said to have consulted with Mr Zulhayir, and to have discovered the true medical position, whereas in the event the ET made clear findings that it had done so.
- In fact, it appears that as from some date in 2006 JJF was proceeding on the basis that Mr Zulhayir had resigned. Again, the ET does not say so in terms, but the EAT recorded Mr Renton's concession before the ET 'that a meeting in 2009 could not have been expected, given that [JJF] had assumed that the relationship had terminated in 2006.' That concession plainly recognised that the assumption, albeit mistaken, was a genuine one.
- The inquiry by both tribunals below as to the need for a meeting in 2006 was therefore misdirected. The only reason the ET engaged in it was because it had decided of its own motion to do so. Points so raised by courts and tribunals are quite often suspect and the result in this case was the inclusion in the ET's reasons of the two irrelevant paragraphs 27 and 28. The dismissal was in May 2009, in respect of which Mr Zulhayir, by his counsel, conceded that JJF could not have been expected to call a meeting. In paragraph 11 of its judgment, however, the EAT assessed the fairness of the 2009 dismissal by reference to (i) the irrelevant consideration of whether or not steps had been taken to convene a meeting in 2006, and (ii) despite counsel's concession to the ET (to which the EAT had expressly referred but three paragraphs before), the fact that JJF took no steps to convene a meeting with Mr Zulhayir in 2009. It is, I consider, a proper inference that the ET took due account of this concession in its disposition of the case it made no mention of the need to convene a meeting in 2009 -- and I fail to understand upon what basis the EAT decided that it was a concession that it could simply ignore. It was not an error of law for the ET to accept the concession.
- In my judgment, the EAT was therefore in error in interfering with the ET's judgment on the unfair dismissal issue. It made the error of regarding the irrelevant considerations raised by the ET in paragraphs 27 and 28 as relevant to the fairness of the dismissal, whereas it was not; it further decided that the ET had gone astray in its disposition of those irrelevant considerations; and it concluded wrongly that the consequence was fatally to infect the overall decision on the unfair dismissal claim. I would also allow JJF's appeal against that part of the EAT's order relating to the unfair dismissal claim.
- I would allow the appeal against the EAT's order of 24 October 2013, set aside paragraphs 1 and 2 of that order and restore paragraph 3 of the ET's judgment.
Lord Justice Tomlinson :
- I agree.
Lord Justice McFarlane :
- I also agree.
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