Appeal No. EAT/0550/03 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 September 2003

Before
HIS HONOUR JUDGE J BURKE QC
MR P GAMMON MBE
MISS G MILLS

WELLBECK STEEL SERVICE CENTRE	APPELLANT

MR T ROWORTH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 5 November 2003

	APPEARANCES

For the Appellant	MR JIM BOWIE
(Representative)
Instructed by:
First Business Support
Unit 10
Newhallhey Business Centre
Newhallhey Road
Rawtenstall
Rossendale
Lancashire BB4 6HL	

HIS HONOUR JUDGE J BURKE QC

1	This is the Preliminary Hearing of the employer’s appeal against the decision of the Employment Tribunal sitting at Stratford, chaired by Ms J M Jones and sent with Extended Reasons to the parties on 20 June 2003.

2	The Tribunal had found that the employee, Mr Roworth, was unfairly dismissed at a liability hearing in October 2002.  The dismissal itself had, it seems, been as long in the past as March 1999.

3	The hearing and decision from which the present appeal is brought were the remedies hearing and decision which followed the finding that Mr Roworth had been unfairly dismissed.  By that decision the Tribunal awarded to Mr Roworth £1,100 as a basic award and £21,713.60 as a compensatory award.  The appeal relates only to the latter figure.

4	That figure was made up of loss of earnings for a period from the date of the dismissal in 1999 to November 2001, calculated at just over £31,000, less £10,800 odd pounds which, during that period, the employee had received from the Department of Social Security as incapacity benefit.  He was receiving incapacity benefit throughout the whole of that period at rates which varied from just under £50 per week to just under £85 per week.

5	The incapacity was not caused by the dismissal.  Mr Roworth had in some form been subject to a test used pursuant to statute by the Department of Social Security called the “all work test”, as a result of which the Department of Social Security decided, quite possibly without any medical examination, that he was entitled to incapacity benefit.

6	The employers’ case as to this period, so far as is relevant for today’s purposes, was very simply that, if Mr Roworth was in receipt of incapacity benefit and his incapacity was not caused by his dismissal, he must be regarded by the Tribunal as unfit for work and could not therefore have suffered any loss of earnings during the relevant period because he could not have been fit to earn.  The Tribunal decided against the employers on that point; and it is that point which Mr Bowie, on behalf of the employers, has made the focus of this appeal.

7	The argument put forward by the employers before the Tribunal is summarised in the way in which we have just put it, and is reproduced more fully in the Tribunal’s decision where the argument appears that Mr Roworth was seeking to say on the one hand that he was capable of light duties and on the other hand that he was not capable of any work and in receipt of incapacity benefit, and could not have it both ways.

8	The argument for the employee was that his being in receipt of incapacity benefit after the application of the Department of Social Security’s “all work test” did not mean, for the purposes of the Tribunal hearing and the evidence before them, that the employee was wholly incapable of any work including the light work which he said he could do.

9	Counsel on behalf of the employee described the “all work test” as a term of art.  By that we have no doubt he meant that it is a term which has a specific definition; and the submission plainly was that the fact that a person has, as a result of the application of the “all work test” specifically defined, been held by the DSS to be entitled to incapacity benefit did not mean that he was in fact incapable of any work and incapable of light duties.  Mr Bowie submits that that conclusion of the Tribunal was wrong in law.

10	There is a strange quirk to this case in that plainly the Tribunal, although Mr Bowie had gone to the hearing thinking that they would understand how incapacity benefit was operated by the DSS, not surprisingly did not have that understanding; and during the course of the hearing the Tribunal Chairman spoke to a benefits consultant at Southwark Law Centre by telephone.  She did this with the consent of both parties and Mr Bowie does not complain about this occurrence or make it any part of his appeal.

11	Somehow or other the Tribunal learned, perhaps from that consultant, that the “all work test” involved a marking of capacity and that the turning point as to the entitlement to incapacity benefit arrived in terms of whether or not the person seeking such benefit scored more or less than 15 points when the test was applied.  It is clear from that that the Tribunal was of the view that the fact that under the “all work test” the DSS has recognised that an applicant for incapacity benefit has qualified for that benefit does not mean that that person is incapable of any work.  The Tribunal, it seems, did not have in front of them any of the statutory provisions which contain or define the “all work test”.  Mr Bowie has accepted that that was so.

12	In the employers’ counter schedule, the point that Mr Roworth should not be entitled to compensation for loss of earnings in a period in which he was in receipt of incapacity benefit was taken by the employers; and if it was to be demonstrated to the Tribunal that, as a result of the “all work test”, Mr Roworth should be regarded as incapable of any work by reason of the nature of that test, it was for Mr Bowie to produce the relevant material which demonstrated that that was so.  He did not do so.

13	As a result of the Tribunal’s decision Mr Bowie sought a review.  With his application for a review he sent part of the Social Security (Incapacity for Work) Act 1994 and drew the Tribunal’s attention in particular to section 171C of that Act which, insofar as relevant, says this:

171C	“(1)	Where in any case the own occupation test is not applicable, or has ceased to apply, the test applicable is the all work test
	(2)	Provision shall be made by regulations —
(a)	defining the all work test by reference to the extent of a person's incapacity by reason of some specific disease or bodily or mental disablement to perform such activities as may be prescribed, and
(b)	as to the manner of assessing whether the all work test is satisfied.”

Sub-section (3) of section 171C provides that further regulations may provide that where the “all work test” applies, the test may be treated as satisfied if the prescribed conditions are met, save in certain circumstances such as misconduct or failing to provide evidence of ability or inability to work, which situations do not apply in this case.

14	It is entirely clear from the parts of section 171C (which we have set out) that section 171C does not itself define or explain what the “all work test” consists of, or what the parameters are by which that test is said to be passed or not passed.  Provision is made for such definition by Regulations; but those Regulations were not before the Tribunal originally, were not before the Tribunal on the hearing of the review and were not before the Tribunal on the hearing of the further application for a review which the Tribunal also rejected (and we should say that there is no appeal against the Tribunal’s first refusal of a review or second refusal of a review); and those Regulations are not before us.

15	All we have seen is section 171C which does not tell us what the “all work test” consists of.  We know that there is this 15-point cut-off; but whether the effect of that cut-off point is that a person is demonstrated for all purposes as being unfit for work we cannot say; and certainly that is not at all clear.

16	The position before the Tribunal was that they did not even have that statutory provision.  What they did have was the advice that they had received from the Consultant whose views they had taken with the consent of the parties.

17	The fact that the DSS, if it be the case that they regard Mr Roworth as being unfit for all work (and we repeat that we do not know that that was so), so regarded Mr Roworth did not mean that the Tribunal were bound to take the same view.  Of course, if the Tribunal had been satisfied that that was the view taken by the DSS, that would have been strong evidence; but they could not even have been satisfied to that extent because they did not know sufficient about the test to be able to reach that conclusion.

18	We have no doubt that, on the very limited material before them the result which the Tribunal reached was one which it was open to them to reach and that there is no arguable ground of appeal against that decision on the basis put forward to us by Mr Bowie today.  Had the Tribunal known more about the test and known what the definition was and whether the “all work test” actually led to the conclusion, or was strongly evidential of the conclusion, that Mr Roworth was unfit for all work, if they had received such information, they might perhaps have reached a different result.  We do not know and need not speculate.  But they were not provided with that information; and on what they had they reached a result which, as we say, was open to them and which we do not think can be the subject of appeal.

19	Mr Bowie mentioned in the course of his submissions today a different argument, namely that if Mr Roworth was able to do light work and light work was not provided by his ex-employers, then he should have gone out and found it elsewhere and failed to mitigate his loss.

20	The Tribunal do not make any reference to that point, although Mr Bowie tells us that it was run before them.  We cannot tell whether that is so or not, but what we can say is that there is no reference at all to that point in the Notice of Appeal.  The Notice of Appeal does say that Mr Roworth, if he was capable of work, should have advised the Benefits Agency; that is, with respect, a wholly different point.  There has been no application to us to amend the Notice of Appeal.

21	In our judgment there is no arguable ground of appeal in this case and the appeal is dismissed.