Spencer v Paragon Wallpapers Ltd
| Jurisdiction | UK Non-devolved |
| Date | 1976 |
| Court | Employment Appeal Tribunal |
Industrial Relations - Unfair dismissal - Reasonableness of dismissal - Incapacity due to ill-health - Employee likely to be absent for several weeks - Employers' need for work to be done - Discussion of situation with employee - No written warning of likelihood of dismissal - Dismissal - Whether employers acting reasonably -
The employee, who was a reeler at one of the employers' mills, was away from work from September 3, 1975, due to ill-health. A redundancy situation arose, there was a reduction in manpower and, on October 6, it was agreed that, on the employee's recovery, he would be transferred to another of the employers' mills. Shortly thereafter there was an unexpected increase in demand for wallpaper manufactured at the mills and the employers, who were unwilling to increase the work force to the level before the redundancy situation, needed a full work force to cope with that demand. The employers' personnel officer discussed with the employee, who had then been off work for about two months, the employers' need for his services and the possible date of his return to work. With his consent, the personnel officer spoke to the employee's doctor, who told her that the employee would require a further four to six weeks' rest before he would be ready to resume work. The personnel officer then spoke to the employee again and explained that the employers could not wait as long as four to six weeks before he returned to work. By letter dated November 6, the employers dismissed the employee. On the employee's claim for compensation for unfair dismissal, the industrial tribunal held that the employers had dismissed the employee for the reason of incapacity, namely, ill-health, and that they had acted reasonably within the meaning of paragraph 6 (8) of Schedule 1 to the Trade Union and Labour Relations Act 1974.F1 The employee appealed.
On the question whether the employers should have given the employee a prior warning before his dismissal: —
Held, dismissing the appeal, that in the case of a dismissal on the ground of absence due to ill-health, there should be some form of communication between the employer and the employee before the employee was dismissed for incapacity; that usually the communication should be a discussion between the parties so that the situation could be weighed up bearing in mind the employers' need for the work to be done and the employee's need for time in which to recover his health; and, that, on the facts of the present case, the industrial tribunal were entitled to conclude that the employers had acted reasonably within the meaning of paragraph 6 (8) of Schedule 1 to the Act of 1974 in dismissing the employee.
Per curiam. The present case should not be interpreted as laying down any rule, applicable to other cases, that employees may be dismissed when they are absent and are likely to continue to be absent for another four to six weeks. Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer, and if so, how much longer (post, p. 307C–D).
The following cases are referred to in the judgment:
Casey v. Joseph Dawson Ltd. [
Marshall v. Harland & Wolff Ltd. [
Merseyside and North Wales Electricity Board v. Taylor [
Tan v. Berry Bros. & Rudd Ltd. [
Vokes Ltd. v. Bear [
No additional cases were cited in argument.
Appeal from an industrial tribunal sitting at Manchester.
The employee, Kenneth Spencer, a reeler, appealed from a decision of an industrial tribunal sitting at Manchester, given on March 5, 1976, dismissing his claim against the employers, Paragon Wallpapers Ltd., of Primrose Mill, Darwen, Lances., for damages for unfair dismissal. The ground of appeal, inter alia, was that the tribunal erred in law in that it failed to consider the question whether or not a warning should have been given to the employee by the employers before his dismissal.
The facts are stated in the judgment of the court.
T. A. Trickett, Assistant General Secretary, National Union of Wall Covering, Decorative and Allied Trades, for the employee.
G. W. Humphries for the employers.
October 20. Phillips J. read the following judgment of the appeal tribunal. This is an appeal by the employee from the decision of an industrial tribunal sitting in Manchester dated March 5, 1976. He was first employed by the employers on June 3, 1974, as a reeler, and was so employed until he was dismissed on November 6, 1975. He worked at the South End Mill, though under the terms of his contract of employment he could be...
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