Appeal No.	 EAT/745/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS E HART
MR R N STRAKER

DAIRY CREST TRANSPORT	APPELLANTS

MR E FAWKES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE APPELLANTS	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law to be raised by Diary Crest Plc trading as Dairy Crest Transport, against a unanimous decision of an Industrial Tribunal on the question of compensation that Mr Fawkes was to be entitled to following his unfair dismissal.  The Appellants have not appeared, as is their entitlement, but have submitted to us a helpful Skeleton Argument.

	The brief facts may be taken from the Extended Reasons which were set out in writing and sent to the parties on 19 May 1997.  The Tribunal noted that on 25 February 1997 they had adjudicated on the Applicant’s claim of unfair dismissal and concluded that he had been unfairly dismissed and adjourned the question of remedy.

	The Tribunal made it plain in their earlier decision that they had not resolved what is sometimes known as “the second limb” in Polkey v A E Dayton Services Ltd [1987] IRLR 503, namely whether, if a different procedure had been followed, the result would have been the same.  The reason for the Applicant’s dismissal was incapability due to golfer’s elbow, which meant that he was incapable of manual handling of loads in excess of 25 kgs.  That meant that he was incapable of doing the job which he was employed to do, but the Industrial Tribunal identified three potential jobs and asked themselves the question, “Could he have been offered one of those?”.  The reason why they had concluded that he was unfairly dismissed was because the employers had failed to consult with the Applicant adequately about alternative employment and had not fully considered the possibility of alternative employment.

	One of the three jobs was that of farm tanker driver.  They noted, on the evidence, that there was a significant number of agency and temporary drivers doing that work.  They were of the view that the Appellants had exaggerated in their evidence the amount of heavy work involved in the job and they reached these conclusions:

“The applicant who was perfectly mobile and would not have put excessive pressure on his elbows.  The clear conclusion which we have drawn is, that was a job which could have been offered to the applicant and we have no reason to think that he would have turned it down.”

	They considered the other two possible jobs and rejected those, and they continued:

“Nevertheless, our conclusion is that the farm tanker job could and should have been offered to the applicant and that if it had been offered to him he probably would have taken it.  Therefore, it would not be appropriate for us to make any reduction on the basis that a different procedure would have produced the same result.”

	On the basis of those findings they made their award.  

	The Skeleton Argument in support of this appeal raises two points and the first is that the Industrial Tribunal failed to have proper regard to the evidence.  It seems to us that that is not a competent ground of appeal because we have jurisdiction only to deal with points of law.  We do not recognise that contention as being a point of law, but we do understand the employers to be arguing that the Industrial Tribunal’s conclusion was effectively perverse in relation to the farm tanker driver position.  They say that the Industrial Tribunal reached a decision which ran counter to the evidence given in respect of the farm tanker driver position, and then they also say in the same document, “There was no evidence to support the Industrial Tribunal’s conclusion, and a finding in a vacuum so far as evidence is concerned amounts to an error of law”.

	We have no reason to believe that the Industrial Tribunal have failed to look at the evidence properly.  It is true that there was evidence given by the employers, which was not accepted by the Industrial Tribunal, who are quite well able to bring into account in arriving at their decision, their own experiences including, where relevant, their experiences of what is involved in the duties of a farm tanker driver who has to go around, as we understand it, collecting milk from various farms.  

	It seems to us not correct to say that there was no evidence to support the Industrial Tribunal’s conclusion.  It was a decision which they were quite well able to make for themselves as an industrial jury.

	Secondly, it is sought to be argued that there is an inconsistency in the finding in paragraph 6 to which we have referred, and the proper application of the test in Polkey.  The argument is that because the Tribunal said that the employee “probably” would have taken the job of tanker driver if offered to him, there must have been a chance that he would not have taken it and accordingly, they should have reduced the award that they made based on that chance.  Again, it seems to us that that point is not sensibly arguable or fit for argument at a full hearing.  The Tribunal had directed their minds to the question of Polkey.  They had asked themselves the correct question.  It is, we think, searching around for a point to make much of the word “probably” in this context.  What the Tribunal are indicating is that, in their judgment, that job was one which the employee was so likely to take that it was not sensible for them to make any Polkey reduction.  If that was their view, as it appears to have been, we do not think that the language which they have used in any way supports the proposition which is being advanced by the Appellants in their Skeleton Argument.

	Accordingly, we take the view that this was a decision taken by an Industrial Tribunal, after seeing and hearing the evidence and after applying their good common-sense to the questions at issue.  It seems to us that there are no grounds for suggesting that they have erred in law.  We can only interfere with decisions if there is an error of law.  We can detect none in this case which is reasonably arguable.

	Accordingly, we dismiss this appeal.