Appeal No.	 EAT/145/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS S M WILSON
MR G H WRIGHT MBE

DREWETTS LTD	APPELLANT

MR D CHARLTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARK R DREWETT
Representative	
For the Respondent	NO APPEARANCE OR REPRESENTATION 
BY OR ON BEHALF 
OF THE RESPONDENT 	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us the full hearing of the appeal of the erstwhile employer, Drewetts Ltd, in the matter Mr D Charlton -v- Drewetts Ltd, and  this morning Mr Mark Drewett has appeared for Drewetts Ltd and Mr Charlton has not attended.  We have a note of a telephone conversation with Mr Charlton today at 10.50; it is now 11.07.  The case was listed to come on at 10.30 and, in the course of this conversation, Mr Charlton was asked whether he was going to attend today, and he had indicated that he had intended to but thought that it would not be worthwhile, as he had received his papers too late to prepare.  But it is plain that he received the Hearing Notice some two weeks ago and the main papers in the case would have been received by him before that, or, at any rate, they were sent to the proper address before that.  If he was away from his proper address, that would have delayed his personal receipt of the papers, but that is not a fault of the Employment Appeal Tribunal or indeed of the Appellant.  If a person leaves the address which they give as their address for service and does not make arrangements for the forwarding of papers or the opening of papers on their behalf, of course, they have only themselves to blame.  We do not see it as appropriate to break off the case in order to afford Mr Charlton more time.  We have to go ahead, in other words, without him.  

2	Mr Charlton was employed by Drewetts, a relatively small firm of caterers that specialise in outside events, and Mr Charlton, in the course of his work, was sometimes required to drive vehicles, although his main duties were described as “front of house” and as a “hands-on manager”.  

3	He claimed that on 27 June 1999 he broke his ankle, but that was a Sunday, and it seems more likely that, as was the employer’s argument, that it was 28 June, the Monday, during which he had broken his ankle.  It seems that he submitted an early medical certificate; we have not actually got a copy of this one, and it might be that there was not one, around about 6 July 1999, and there are two various descriptions of that first certificate, if first certificate it was.  One is that no resumption date was given for when he could resume work and the other was that he was told to refrain for two weeks, but those were not contradictory, and both could be true.  

4	Around about 12 July, he said, he was able to return to work.  In his IT1 he says:
“The Applicant broke his ankle at work on the 27th June 1999.  After two weeks of absence from work, and having had a proper cast fitted, the Applicant’s doctor certified that he was fit to return to work, and the Applicant notified the Respondents accordingly.  The Respondents would not permit the Applicant to return to work.”

So he was saying that around about 12 July he was certified fit to return to work and that he had told Drewetts to that effect, but they would not let him return.  We have not got a certificate as at the 6 July, or as at the 12 July.  

5	Around about 18 July, so says the Applicant below, he drove a vehicle to Drewetts’ premises, whilst in the plaster cast, to demonstrate that he could drive and that he could work.  His IT1 said:
“The Applicant spoke to the Respondents on a weekly basis to keep them informed and also drove out to the Respondents’ principal office only three weeks after the accident to prove that he was fit to drive and the he was able to get to work without difficulty”

6	On 29 July one month’s notice of dismissal was given to him by the employer, to expire at the end of August, and Drewetts said that it was for redundancy.  On 10 August, according to the IT3 that was put in by Drewetts, there was a medical certificate indicating that Mr Charlton was not to work until 1 September.  We do have that certificate; this is the only certificate in our papers, it refers to David Charlton, it says:
“(b) you should refrain from work until 1 September 1999.  
Diagnosis of your disorder causing absence from work.  Left ankle injury
Doctor’s remarks. Continuous disability 26/6/99 onwards”
And it is signed 10 August 1999.
7	On 13 October Mr Charlton presented an IT1 for breach of contract and unlawful deduction of wages.  He was claiming the difference between the statutory sickness pay that he had received and the full wages for which he claimed to be entitled, and also for 4 weeks pay in lieu of notice, less the £238 that he had in fact received.  

8	On 28 October Drewetts put in an IT3 and on 15 December there was a hearing at the Employment Tribunal before a Chairman, Mr J. A. Threlfell, sitting alone, and on 20 December the decision of the Tribunal was sent to the parties.  It was:
“The decision of the Tribunal is that the respondent was in breach of contract with the applicant and is ordered to pay the applicant damages for that breach of £715.92”

9	On 5 January 2000 Drewetts lodged a Notice of Appeal.  On 10 April 2000 at the Employment Appeal Tribunal, at the preliminary hearing, the matter was directed to go to a full hearing and a request was made by the Employment Appeal Tribunal for Chairman’s Notes.  

10	On 11 August an “Unless” Order was made that unless Mr Charlton’s answer, the Respondent’s answer, was lodged by 18 August he would be barred from defending. He did not lodge a Respondent’s answer by 18 August, and that is a consideration which we are properly able to take into account in going ahead in his absence.  But he did, on 6 September, well out of time, put in an answer.  

11	Now it cannot be denied, but that the Tribunal is the master of facts - that is their exclusive province.  The Employment Appeal Tribunal cannot interfere on the ground that it would or might have held facts otherwise than the Tribunal has held them.  But if the Tribunal finds as a matter of fact a matter for which there was no supporting evidence, then that is recognised as an error of law and at that level the Employment Appeal Tribunal can interfere.  

12	Here there are some findings which are argued to fall within such an area.  Thus in paragraph 6 of the extended reasons the Tribunal says:
“6     The issue in this case is whether the respondent was in breach of contract by not permitting the applicant to work in view of his injury.  On one side is the respondent’s broker”
that is a reference to the insurance broker 
“saying that the applicant was not fit to work and on the other the applicant’s doctor saying that he was fit”.

13	The Applicant’s doctor had at no time directly indicated that Mr Charlton was fit.  What the doctor might have said to Mr Charlton may have been reported on as hearsay from Mr Charlton to the Tribunal, and might or might not have been correctly reported by Mr Charlton to the Tribunal.  But there was no direct indication from any doctor that Mr Charlton was fit to work and his certificate, as we have indicated, was that he was not fit until 1 September 1999.  The certificate indicated a continuous disability from 26 June onwards, and that he was to refrain from work until 1 September 1999.  There was no certified fitness to return to work.  Moreover, as it transpires, the doctor who certified, in the way that we have referred to, was not the Applicant’s doctor in the ordinary sense, in which “ordinary” refers to a man or woman’s general practitioner, but was the hospital doctor.  Here, it does seem to us that there was an error of law; there was no direct evidence that the Applicant’s doctor said that he was fit to return to work.  If there was any indirect evidence, by way of hearsay, well then, the Tribunal needed to explain that that was the case, and needed to explain it in sufficient detail to satisfy the well-known case of Meek -v- City of Birmingham.  There is no explanation of any kind at all of why the Tribunal should have preferred hearsay evidence (if given) to the evidence of the doctor’s certificate.  So there is one error of law.  

14	Next, still in paragraph 6, the Tribunal said this:
“I consider that in failing to investigate further, particularly by not obtaining medical evidence when the applicant said that he was fit to work, means that the respondent was in breach of its contract with the applicant in refusing to let him work”.
But it is, in our view, hard to criticise Drewetts for failing to obtain medical evidence “when the applicant said that he was fit to work”, in other words around about 10 August, when the medical certificate, which the Applicant himself produced, indicated that he was not fit to work, but was to refrain from work until 1 September.  

15	Then in paragraph 7, the Tribunal says:
“I am satisfied on the evidence put before me that the applicant would have been able to carry out his normal work under the contract with minimal adjustment and should have been permitted to do so, so that he would have earned his normal monthly pay”.  

But the Chairman gives no reason why he felt able to ignore or override the medical certificate which indicated that there was no fitness to return to work until 1 September 1999, or at any rate, that the Applicant, Mr Charlton, was to refrain from work until that date.  We have the Chairman’s Notes.  There was no record of any direct indication of any medical view other than the medical certificates which we have referred to.  

16	If the Tribunal wished to depart from those, well, of course, it could do so, but it would need to explain, at any rate in outline, why it was departing from them - see Meek -v- City of Birmingham - and one only has to imagine what the position would have been had there been an accident, if Mr Charlton had been permitted to drive whilst in a plaster cast.  It would be easy to imagine a cross-examination which would have made the company, Drewetts, extremely vulnerable and a common-sense view suggests that the company could not have been all that wrong in acting as they did, given the medical certificate and given the vision of Mr Charlton attending for work in a plaster cast and with crutches.  

17	It seems to us appropriate, given the error of law which we have mentioned, that this matter should be remitted and heard afresh by a full panel of three, that is to say one Chairman and two lay members, and that it should be with a Chairman other than Mr Threlfell who heard it the first time round.  There is no further direction that we need to give.  The Tribunal will be able to start afresh, with a clean slate, and judge for itself the position, as it transpires to be, on the full evidence.