Appeal No.	EAT/1317/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 January 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MR D A C LAMBERT

MS E WILSON	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR T CATO
(Solicitor)
North Lambeth Law Centre
14 Bowden Street
London
SE11 4DS	

	JUDGE PETER CLARK:     This is an appeal by the applicant before the London (North) Industrial Tribunal sitting on 3rd and 4th September 1997, against that tribunal’s decision to dismiss her complaint of unfair dismissal against her former employer, the London Borough of Hackney. Extended reasons for that decision are dated 8th October 1997.

	The material facts were these. The appellant commenced employment with the respondent as a Child Protection Administration Officer on 23rd July 1990. On 1st October 1994 she was involved in a road traffic accident which caused her to suffer a whiplash injury. This led her to experience problems with her neck and between October 1994 and May 1995 she was absent from work on account of ill-health. Thereafter she returned to work on limited duties, but from the end of August to 29th September 1995 she was again absent through sickness.

	The respondent’s medical adviser recommended that she be redeployed for health reasons.

	Following a Sickness Review Meeting held by the Assistant Director, Ms Morley, the appellant was offered and accepted a trial period starting on 29th September in the post of Team Administrator. In that post she reported to a line manager, Mary Warne. The tribunal found that the original trial period was for two weeks, but this was extended to four months, during which time Ms Warne provided support, guidance and supervision.

	The Industrial Tribunal expressly found:

“The Applicant was copied in on the notes which she generated after each supervision.”

We shall call this “Finding A”.

	Following a supervision meeting held between the appellant and Ms Warne on 25th January 1996, Ms Warne prepared a written report dated 29th January which was forwarded to Ms Morley, who set up a further Sickness Review Meeting with the appellant to take place on 31st January 1996. It was the appellant’s evidence before the tribunal that she was provided with a copy of Ms Warne’s report some two hours before that Meeting with Ms Morley took place. The report included Ms Warne’s notes of her meeting with the appellant on 25th January, and it recommended that the appellant was not suitable for the post of Team Administrator.

	The tribunal found that at the meeting on 31st January:

“Ms Morley had the benefit of a short report from the line manager [Ms Warne] which summarised everything that the appellant had been told.”

We shall call that “Finding B”.

	Following a full discussion between Ms Morley and the appellant on 31st January it became clear, so the tribunal found, that the appellant was not meeting the minimum requirements of the Team Administrator job.

	She was then referred to the redeployment procedure. No suitable alternative employment could be found, and by letter dated 9th April she was dismissed with immediate effect. She appealed unsuccessfully against that dismissal.

	Based on those findings of fact, preferring the evidence of the respondent’s witnesses to that of the appellant where a conflict occurred, the tribunal found that the reason for dismissal related to the appellant’s capability, that is her continuing ill-health, and that the decision to dismiss was a reasonable one in accordance with s.98(4) of the Employment Rights Act 1996.

	In this appeal Mr Cato challenges the tribunal’s Findings A and B to which we have referred. It is a potential ground for appeal that an Industrial Tribunal has made a material finding or findings of fact unsupported by any evidence. see British Telecommunications Plc v Sheridan [1990] IRLR 27. 

	As to Finding A, it is accepted that the appellant’s evidence was that the notes taken by Ms Warne of the meeting held on 25th January were not provided to the appellant until two hours before the meeting with Ms Morley on 31st January. It follows that she was copied in on those notes, albeit not until a late stage before the Morley meeting. We think that Mr Cato’s submission depends upon a re-writing of Finding A to the effect that the appellant was copied in on the notes shortly after the relevant meetings. That is not what the tribunal found and that is not a permissible reading of that part of their decision. In our judgment there was evidence to support Finding A, indeed, it was a perfectly accurate finding. It was then a matter for the Industrial Tribunal to judge whether the late provision of the notes relating to the meeting of 25th January unfairly disadvantaged the appellant at the Morley meeting. Plainly, the tribunal found that it did not.

	As to Finding B, Ms Morley did have Ms Warne’s report dated 29th January at the meeting held on 31st January. We have read the report and the various notes of earlier meetings between the appellant and Ms Warne which are attached to that report. 

	The complaint made by Mr Cato here is that the appellant had not been told by Ms Warne that she, Ms Warne, had formed the view that the appellant was unsuitable for the Team Administrator post. That appears to be consistent with the Notes of the meeting attached to Ms Warne’s report. We do not understand the tribunal to be finding that Ms Warne did tell the appellant in terms that she would be recommending her as unsuitable for the new post. Accordingly, we can see nothing inconsistent between Finding B and the evidence before the Industrial Tribunal of the appellant.

	In these circumstances, assuming Findings A and B to be material to the tribunal’s overall conclusion, we find that there is no basis in law for challenging these findings of fact. In the Notice of Appeal that would appear to be an end of this matter because Mr Cato’s grounds of appeal proceed on a basis consequent upon the impermissible Findings A and B, as he has sought to argue they were. 

	However, before us today he has departed from that approach and seeks to argue independently of the challenges to Findings A and B that the Industrial Tribunal ought to have found that the dismissal was unfair because having been redeployed the appellant was not fairly treated by the employer on the basis of one who was suffering from ill-health, but on the basis that she was not capable of doing the new job.

	It seems to us that the Industrial Tribunal was perfectly entitled to hold that the reason for dismissal was related to her capability on grounds of ill-health to do her original job. That when she was redeployed she was given four months with sufficient guidance and supervision from her line manager, Ms Warne, to demonstrate that she was capable of doing the alternative job, but she failed to do so to the satisfaction of the employers and the tribunal found that they reached a reasonable conclusion about her capabilities in the new post. 

	In all these circumstances we can discern no arguable point of law in this appeal and accordingly it must be dismissed at this preliminary hearing stage.