The Employment Tribunal Decision Document
This is the text of the Decision Document from the ET; it is one of 3 documents I have and which are genearlly available. I have Danny's permission to post it and have scanned the original in and corrected the spelling; although, there may be the odd error. I have not changed any names, nor fiddled with the formatting nor have I have selectively added or omitted anything. Any erros are simply due to the scanning and OCR process.
The document is large, it runs to more than 17 pages;it will have to be split over 4 or 5 posts, my apologies.
Counsel was Mr Richard Seabrook of Ropewalk Chambers Nottingham; the instructing solicitors were Mr Phillip Hoskin and his assistant, Mr David Seals, of Andrew and Co, St Swithins Square, Lincoln. Representing bmi was Ms Sarah Porter of Kemp Little.
Once you have read the document, please note that I will be on holiday from this Friday, the 9th, and hence unable to answer any questions, or debate any points you may have. Furthermore, please read this and consider the implications for the other thread regarding bmi contracts.
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Case No: 2600427/0 1
RESERVED DECISION
The unanimous decision of the Employment Tribunal is that:
1 The respondent breached its contract of employment with the applicant.
2 The respondent unfairly dismissed the applicant.
3 There will be a hearing to determine what remedies for breach of contract/unfair dismiss& should be ordered in the applicant’s favour at 10.OOam on 26 November 2001 at Lincoln.
EXTENDED REASONS
The ISSUES
1. The issues for the Tribunal to determine in this case are whether the respondent had acted in breach of its contract of employment with the applicant by requiring him to attend for a medical examination before permitting him to return to flying, the principal duty of his employment and in summarily dismissing the applicant. Further, we were to determine whether there had been an unfair dismissal having both regard for the reason for the dismissal and the procedure adopted by the respondent.
THE LAW
2. The contract between employer and employee is to be found in written documentation containing that agreement and also in the agreements made between them from time to time. A party which acts contrary to the express terms of the contract is in breach. Breaches of fundamental terms given the other party the option to treat the contract as repudiated. In such circumstances rights under the contract including the right to notice of termination are lost by the party in breach. In addition are terms and duties to be implied into the contract including the ernployers duty to provide a safe system of work and safe competent colleagues for its employees (Wilsons & Clyde Coal Co_Ltd V English [1938] AC57HL).
3. There is to be implied into contracts of employment a mutual duty of trust and confidence. This requires a party not without reasonable cause to conduct itself in a manner calculated or likely to damage or destroy the relationship of confidence and trust between the contracting parties.
4. Requiring an employee to undergo psychiatric examination when there is no mental or pathological illness, but merely a severe degree of breakdown of
1
Case No: 2600427/01
personal relationships could amount to a fundamental breach of the duty of trust and confidence, a breach constituting repudiation of the contract (Bliss v_South East Thames Regional Health Authority f198fl ICR 700 CA’
5. By section 98(1) Employment Rights act 1996 it is for the employer to show the reason for the dismissal when an employee complains to a Tribunal of unfair dismissal. The employer has to show that the reason is one set out in section 98(2) of the 1996 Act or for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position held by the applicant.
6. Once the employer satisfies this requirement the Tribunal is to determine the fairness of the dismissal taking into account all the circumstances of the case including the reason for ft and the size of the employer’s undertaking. and resources. The Tribunal is to determine whether the employer acted reasonably or unreasonably in treating the reason as a sufficient to dismiss the employee.
7. The requirement for fairness applies both to the reason for the dismissal and the process by which the decision to dismiss is reached. In most cases there will be a range or band of reasonable responses to the conduct of employee available to a reasonable employer.