Appeal No. EATS/0008/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 24 October 2002

 
Before
THE HONOURABLE LORD JOHNSTON
DR A H BRIDGE
MISS A MARTIN

 

JOHN DILLON 	APPELLANT

 

 
EVEREST LTD	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr A Lafferty, Solicitor
Of-
Lafferty Law
Solicitors
53 Bothwell Street
GLASGOW   G2 6TS
 	
For the Respondents	Mr K Bryant, Counsel
Instructed by-
Messrs Gisby Harrison
Solicitors
Goffs Oak House
Goffs Lane
CHESHUNT  EN7 5HG

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employee against a finding of the Employment Tribunal which declared the appellant to have been unfairly dismissed but declined to make any compensatory award.
 
2.	Their reasons for doing so were as follows:-
 
“At the end of the day the only issue that the Tribunal required to consider was the compensation payable to the applicant.  In the first instance the tribunal had to consider whether or not compensation was payable under the Manager’s Agreement only or under both agreements.  Albeit that the applicant had been dismissed under the Manager’s Agreement there had been an expectation on the part of the respondents that he would work on as a Sales Representative.  This was wholly unrealistic in the Tribunal’s view.  By terminating the applicant’s employment they were effectively demoting him and the applicant would have been expected to be a member of sales team having been an Area Manager for some 16 years and, by all accounts, a very good one at that.  The Tribunal recognised that the applicant was operating under two separate contracts but, as Mr Grant observed, an Area Manager is always a sales agent.  Mr Lafferty submitted that there was no true distinction between the sales and managerial roles in practice and that it would be both artificial and inequitable to proceed to award compensation on the basis of the Manager’s Agreement alone.  Both the applicant and Mr Caldwell had given evidence to the effect in practice the job of an Area Manager not only has a managerial element to it but has a very strong sales element too.  The Tribunal accepted this evidence and concluded that any compensation to be awarded should be based upon losses arising from the two contracts.
 
However, when the Tribunal applied its mind to the assessment of loss and before considering the issue of mitigation, they had to consider whether or not the applicant had been fit to work during the period from termination of his employment until the date of the hearing and whether or not he would be fit to work in the future.  The medical information provided to the Tribunal by the applicant was scant to say the least.  The Tribunal fully expected to receive a medical report on the applicant’s condition standing the fact that he has been in receipt of sickness benefit for a period of 18 months.  As Mr Atack correctly observed in his submission it is not at all clear whether or not the applicant is fit to work at the present time or not.  Prima facie a person in receipt of sickness benefit must be presumed as not being fit for work.  No evidence was led on behalf of the applicant as to what the nature of the applicant’s illness or his underlying medical problem is that has resulted in payment of sickness benefit.  The applicant had suggested that the depression he suffered from following his dismissal had been caused by the fact that he had been unfairly dismissed but beyond this, there is simply no proper evidence to suggest that his current condition has been caused by his dismissal.  The Tribunal noted that the applicant had been applying for work.  It was not, however, his willingness to work that was at issue.  It was more his ability to work, and in particular his future ability to work, against a background of continuing receipt of sickness benefit over a prolonged period.  In the absence of real and compelling medical evidence the Tribunal found itself in a position where they had no alternative but to conclude that the applicant has not been fit to work since the date of termination and no information as to how long this situation might endure.  For all the Tribunal know the situation could last indefinitely.  Accordingly, in the absence of evidence as to the reason for the applicant’s medical problem giving rise to payment of sickness benefit and a prognosis the Tribunal are not in a position to make any assessment of future loss of income.  The Tribunal recognised this as being, to say the least, an unsatisfactory outcome for the applicant but the onus lies squarely on him to demonstrate to the Tribunal as to his capability to work from the date of dismissal to the date of the hearing and onwards.  He has palpably failed to do that.”
 
3.	Mr Lafferty, appearing for the appellant, effectively attacked the basis of the decision in respect of no compensatory award as being perverse in the context of the evidence that was before the Tribunal.  He submitted that, on any view of the matter, at the time of dismissal the appellant was plainly ill, even if the designation or description of the illness was fairly vague.  He pointed to certain medical certificates immediately after the dismissal which categorised the problem as depression.  He submitted that was as far as the appellant needed to go in terms of opening the door to some sort of compensatory award.  The issue was one of causation and it was for the respondent, effectively, to show that such was broken against the presumption of an illness starting for whatever cause during employment and being the cause of what was amounted to an unfair dismissal.
 
4.	Mr Bryant, of Counsel, submitted that upon the evidence that was before the Tribunal, they were more than entitled to conclude, as they had done, that the illness problem was not employment related and that, in any event, was precluding the employee from working quite unconnected with any question of unfair dismissal.  He referred to various authorities but, to our mind, the matter is essentially a question of fact.
 
5.	Without determining the matter finally, we have come to the conclusion that the Tribunal have not gone far enough into the investigation of the causation issue as between the dismissal and the illness.  On the face of it, we consider that the Tribunal should have concluded, at least presumptively, there was a connection and thereafter go on to consider whether the respondent had necessarily satisfied them that, in reality, the employee would not have worked in any capacity subsequent to the dismissal because of his illness.
 
6.	Without stating the matter at any greater length, we therefore have determined that the matter should be remitted back to the same Tribunal to further consider, against the background of further submissions, but no further evidence, whether or not there is some causal connection between the period of unemployment after the dismissal and the illness being at least exacerbated by the dismissal itself.  At the very least, consideration requires to be given to some form of notice payment.
 
7.	In these circumstances the cross-appeal effectively relates to the existence of apparently two contracts but in this respect we are satisfied the Tribunal reached the correct decision, or at least one that it was entitled to reach, at the end of the first paragraph of the decision that we have quoted.
 
8.	In these circumstances and for these reasons we remit the matter back to the same Tribunal to reconsider the issue of compensation, inviting both parties to make further submissions in that respect.