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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hussain v Cressal Group Ltd [1991] UKEAT 581_90_0212 (2 December 1991) URL: http://www.bailii.org/uk/cases/UKEAT/1991/581_90_0212.html Cite as: [1991] UKEAT 581_90_0212, [1991] UKEAT 581_90_212 |
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At the Tribunal
THE HONOURABLE MR JUSTICE WOOD MC (P)
MS S R CORBY
MR J A SCOULLER
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR M A SYED
(Of Counsel)
Mort Kirtley & Ogden
Provincial House
Commercial Way
Woking
Surrey
GU21 1EN
MR JUSTICE WOOD (PRESIDENT): Mr Hussain appeals from a Decision given by an Industrial Tribunal sitting at London (South) which rejected his Originating Application by which he had alleged unfair dismissal by the Cressal Group Limited, his employers.
This is a Preliminary Hearing. We are only listening to one side, namely the Appellant and we are looking to see whether there is an error of law in the decision reached by the Industrial Tribunal. The Statute which gives this Court jurisdiction to hear appeals only allows us to hear appeals and to decide those appeals on the basis of an error of law. If there is no error of law then I am afraid we cannot help. Issues of fact are issues for the Industrial Tribunal.
Mr Hussain was employed by the Company from January 1985 until he was dismissed in March 1990. He was working in the mill room, as an operative; it was unskilled work; he originated from Pakistan. He has been in this Country since 1961 but despite that speaks virtually no English and required the services of an interpreter during the Hearing. However, the Tribunal took that into account and they found that he could understand simple phrases; his real problem was in expressing himself.
The Company employed forty, most of whom were Pakistani. There were many colleagues who spoke both languages and therefore in practice there were no problems of communication. A system was operated whereby if one of the members of staff was off work for three days or more they could self-certificate themselves and obtain Statutory sick pay; a doctor's certificate would be shown later. The Applicant had complied with this system during 1986 and 1987, however, on the 5th March 1990 he did not attend for work and did not telephone. A colleague told the Foreman that the Applicant had had trouble with his back and would not be at work and it is true to say that his duty did involve lifting. On the 6th March, the following day, there was a self-certificate which was brought in on his behalf saying that he intended to start work again on the 12th March. However, on the 12th he did not attend and so on the 14th March Mr Pescodd, who was the Works' Director went round to Mr Hussain's home, it was shortly before noon; he rattled the letterbox; banged on the door and got no response. So on the 15th, the next day, in the mid-afternoon he again went round and again there was no response. The Tribunal satisfied themselves on that evidence that Mr Hussain was not at home.
Whilst he was there, on the second visit, someone told Mr Pescodd that the Applicant was at work, but he thought that as it was "Ramadan" he was probably at the Mosque as he was a religious man.
Bearing in mind the size of the business and the type of operation it is not surprising that Mr Hussain's absence caused some problems. Other people had to cover for him, that expression is used in industrial circles as indicating that somebody probably has to do extra time and extra jobs and so on in order to make up the team for the work.
It so happened, although Mr Pescodd did not know about it, and indeed it seems that it was only at the Tribunal that it was produced, that there was a certificate from a Dr Williams who on the 7th March had given a Doctor's Certificate that the Applicant was suffering back pain and was entitled to take one week off work. That was consistent with the self-certificate of the 6th March. Now that certificate had never been shown to Mr Pescodd. In his evidence the Applicant thought that that certificate covered him for four weeks. The position being then that after the 15th March when the second visit took place, there was no appearance and so by a letter of the 27th March 1990 Mr Pescodd wrote to Mr Hussain saying that:
"It is with regret that due to your absence without notification or certification since the 14th March 1990 it must assumed you have either withdrawn your services to this Company or you do not wish to comply with the accepted terms of contract.
For what ever reason, you have chosen to be absent without justification and therefore we must accept this absence as termination of your employment with the Cressal Group with effect from today's date. Any outstanding monies due to you for holidays etc, will be calculated and paid to you in due course."
That letter was given to a colleague, a friend of the Applicant, to be taken to his home. The following day, the 28th March, the colleague appeared again, not having delivered the letter but with a certificate of the 27th March 1990 saying that the Applicant should be off four week's work with Sciatica. That certificate was not signed by Dr Williams but was signed by a Dr Panhwar and the friend said that he had forgotten to give the letter to Mr Hussain when he had obtained the medical certificate.
Mr Pescodd, as the Tribunal found, said to a colleague:
"I think there's a fiddle going on somewhere."
and the Tribunal, having seen and heard all the witnesses and looked at all the documentation, agreed with that. On the 28th March another letter was sent, a further letter, a passage from it is cited in the helpful opinion of Mr Syed and there the dismissal is confirmed.
Those are the relevant factors. The Tribunal, an experienced Tribunal, directed themselves perfectly correctly in law, they looked to see what was the reason; they looked at the investigation and they applied Section 57(3) and found that the dismissal was not unfair.
Mr Syed has addressed us most helpfully; he takes really two main points. The first point he takes is that there was rather too little investigation about this matter. That there was the issue of "Ramadan"; that Mr Pescodd had written two letters one after the other whereas the medical certificate given to him by a colleague on the 28th had not been sufficiently investigated. He has also drawn our attention to a number of dates and he submits that the true explanation of the absences had not been sufficiently investigated nor had the true basis been discovered. It is true to say that the investigation might possibly have been a little more thorough. However, the view taken by Mr Pescodd and accepted by the Tribunal was that this whole matter was so suspicious that he thought there was, "a fiddle going on somewhere", in other words that the facts did not tend to indicate a genuine situation but one which was open to suspicion; indeed he thought, and the Tribunal clearly felt, that he was justified in thinking it was not a genuine situation. That really is a question of fact, the Tribunal had directed themselves correctly, they had to decide the view that they took about this matter; they saw Mr Pescodd; they saw the Applicant who was there with a friend, an interpreter, and they decided that the investigation was sufficient.
The second point taken by Mr Syed is that when one looks at the whole situation and the fact that this man had been working quite satisfactorily for a number of years and had operated the sickness procedures with accuracy in the past, it was not reasonable nor fair to dismiss him in the circumstances. Again, that is essentially a matter for the Tribunal, they looked at it all and they found that in the circumstances there were good grounds for the view taken and the action taken by the employers.
We finish where we started namely, that we are quite unable to help in any way unless we can discern a clear error of law in the Decision. That is what the preliminary hearings are all about and having listened carefully to Mr Syed we find ourselves, after discussion, unable to identify a point of law which discloses an error and in the circumstances this Appeal must be dismissed at this stage.
