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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lloyd v Shepherd Construction [1995] UKEAT 132_95_1805 (18 May 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/132_95_1805.html Cite as: [1995] UKEAT 132_95_1805

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BAILII case number: [1995] UKEAT 132_95_1805

Appeal No. EAT/132/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 May 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J A SCOULLER

MR N WILLIS

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MR A LLOYD          APPELLANT

SHEPHERD CONSTRUCTION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mr Lloyd against the decision of the Industrial Tribunal held at Cardiff, on 9 December 1994. The Tribunal unanimously decided that Mr Lloyd's application for unfair dismissal failed. He brought the claim against his employers, Shepherd Construction, by an originating application presented on 30 August 1994. The complaint in the application was that Mr Lloyd had been employed as a labourer from the middle of December 1991 until 26 August 1994. He had then been unfairly dismissed. He gives particulars of his complaints in the Application Form. The firm, Shepherd Construction, contested the claim. Their defence was, quite simply, that the reason for dismissal was a medical report to the effect that Mr Lloyd was unsuitable for the work that he was employed to carry out. In the details of their defence, they said that Mr Lloyd was employed as a labourer, a job which involved physical work. The doctor's report stated clearly that Mr Lloyd would be unable to return to that form of employment. They believed that further consultation with Mr Lloyd would not have altered the decision to terminate employment. He had been off sick for some considerable time. The South Wales team was small in number and any manpower reduction causes severe problems.

That was the case the Tribunal had to decide. The Tribunal gave summary reasons why the application failed, in the decision notified to the parties on 16 December 1994. Unfortunately, Mr Lloyd who conducted his own case, did not ask the Tribunal for full reasons, either at the conclusion of the hearing on 9 December, or within the twenty-one days of the written decision being notified to him. He became aware that it was necessary to have full reasons for the purposes of an appeal to this Tribunal. He made an application to the Chairman of the Industrial Tribunal for full reasons. That application was made in a letter of 26 January 1995. He wrote: `having lodged an appeal with the employment appeal tribunal in London and having sent them my reasons plus the tribunals decision, I have been informed by EAT that I need full written reasons. Could you please forward full written reasons as requested'. The request was refused in a letter of 30 January. It was pointed out that he was outside the time limit and no extension of time was granted to him.

We have to decide, on the basis of summary reasons only, whether Mr Lloyd has an arguable point of law. We first look at the reasons for the decision and then look at Mr Lloyd's grounds of appeal, which he has attended in person to argue. The basis of the decision was that there was a reason for the dismissal; it was an injury to the back resulting in Mr Lloyd being absent from work for about seven months and a medical opinion to the effect that he was unable to return to work as a labourer. That was a capability ground, which constitutes a potentially fair reason for dismissal. The Tribunal turned to Section 57 (3), to ask itself whether it was fair and reasonable, in all the circumstances, to dismiss him. The Tribunal referred to the evidence from the Managing Director, Mr Trickey, who said that the reason for Mr Lloyd being transferred to Tredegar was because there was no longer any suitable work for a labourer left at Cwmbran, a Police Training Centre.

Following the suggestion of Mr James, immediate superior of Mr Lloyd at Cwmbran, work was found for him at Tredegar. Mr Trickey said the situation had not changed. There was still, at the time of dismissal, no alternative work for him, either at Tredegar or Cwmbran, which would be of such a light nature as to allow him to continue in employment. The Tribunal noted he was employed as a labourer. Even from his own description of the type of work he was doing at Cwmbran, there would be occasions when, by the very nature of his employment, physical strain to some degree would be necessary. The Tribunal referred to the doctor's opinion about his ability to do certain kinds of work and his unsuitability to return to work of a heavy nature. The Tribunal considered the failure of the employers to discuss the contents of the report with him. That would normally be demanded by a fair procedure and, in such cases, the Tribunal can conclude that there was a procedurally unfair dismissal. However, in this case, which they regarded as wholly exceptional, they thought that there was nothing else that could have been done to offer him employment. Consultation on the contents of the medical report would have been futile. The result could not have been any different, because Mr Trickey indicated, even prior to the receipt of the report, that he could not contemplate Mr Lloyd returning to work at Tredegar.

In all those circumstances the Tribunal found that there was a fair dismissal and a fair procedure followed in arriving at the decision. What is wrong with that decision as a matter of law? We have explained to Mr Lloyd that we can only deal with appeals on points of law. We cannot deal with appeals on evidential points. We cannot disagree with the facts found by the Tribunal. The main point made by Mr Lloyd was that in his case there was an error of law by the Tribunal, because they decided it against him, without hearing his one witness, Mr James. He is the immediate superior at Cwmbran who is mentioned in the Decision. The position about Mr James is that Mr Lloyd applied before the hearing for a Witness Order. He wrote to the Tribunal on 27 September 1994, saying he wished to call Mr James, the Site Engineer, at The Police Training Centre at Cwmbran as a witness. He said he had informed Mr James by letter of his intentions, but had received no reply. He said: `I need to call Mr James to verify what job I was doing before I was transferred and to establish that I could have been offered alternative work. e.g. back at The Police Training Centre, I could also then establish that there are and always have been maintanance men at the training centre'. Following that request, the Tribunal issued a Witness Order on 4 October, for him to hand or post by Recorded Delivery to Mr James. Unfortunately, Mr James did not turn up and the Tribunal did not adjourn the case to another time, to see if Mr James would turn up then.

In those circumstances, Mr Lloyd argues that there has been an error by the Tribunal. The result of the case might have been different, if the Tribunal had heard Mr James evidence. As they did not hear Mr James's evidence, the Tribunal accepted the evidence of Mr Trickey, which was not favourable to Mr Lloyd. Mr Lloyd has, however, accepted in questions we have asked him, that he made submissions to the Tribunal about the work position at Cwmbran. Having heard what Mr Lloyd said and what Mr Trickey said, the Tribunal decided to accept the evidence of Mr Trickey on this point. It is not an error of law for the Tribunal to do that. They have to decide whose evidence they accept. In our view, though it may be unfortunate, it is not an error of law for a Tribunal to continue with a case when a witness who has been ordered to attend has failed to turn up. A witness is ordered to attend when he will not come willingly. If he does not turn up in response to the Order, it is within the discretion of the Tribunal to go on with the hearing and to decide it on the basis of the evidence heard.

Evidence was heard on this important point about the work availability at Cwmbran, not only from Mr Trickey for Shepherd Construction but from Mr Lloyd himself. The fact that the Tribunal accepted Mr Trickey's evidence is a matter that we cannot alter. It is a decision on the evidence, a decision of fact, which cannot be appealed. That really is the point that is made by Mr Lloyd on this appeal. He has given us a little more detail about the people who are working at Cwmbran; two painters and two carpenters, one of the carpenters doing the sort of work that he was doing there. That has helped us to understand the work position, but it is not in itself an error of law in the decision of the Tribunal.

We have, therefore, considered sympathetically the grounds of appeal set out by Mr Lloyd in the Notice of Appeal that he served on 11 January. He sets out in more detail than I have mentioned, his complaint about the non-appearance of Mr James as a witness. I have already explained the reasons why that does not amount to an error of law. Although we are sorry to hear that Mr Lloyd lost his job and has not so far been able to find another, we cannot allow this appeal to continue. There is no point of law which could be argued at the Full Hearing. We are bound to dismiss the appeal today.