Appeal No.	 EAT/541/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MR J D DALY
MR J A SCOULLER

NEIL SMITH MOTORS LTD	APPELLANTS

MR A JOSEPH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR STEVEN SPOONER
(Representative)	

	 JUDGE J HICKS QC:          This is the preliminary hearing of an appeal by the employers, Neil Smith Motors Ltd, against the decision of the Industrial Tribunal that the Applicant, Mr Allan Joseph, was unfairly dismissed on 13 August 1996.

	Mr Spooner appears for the Appellants.  Mr Spooner was Mr Joseph’s immediate line manager and the employer’s only witness at the hearing before the Tribunal, and he suffers from the disadvantage that he apparently had not been informed by his superiors or by anybody else, before today, that his function was to present the employer’s case and that the question that this Tribunal would need to be considering was whether the Industrial Tribunal had erred in law.  Mr Spooner has done his best and has been most helpful but really, as he frankly admits, all he can do is point to the letter of the employers, which apparently was written by the managing director, Mr Neil Smith, as setting out their case.

	There is also a later letter seeking to appeal against the decision of the Industrial Tribunal on remedy, but we shall deal with that separately.  At the moment I am addressing what I say to the appeal against the original decision that there had been an unfair dismissal of Mr Joseph.

	The background facts are, for present purposes, very short and simple.  Mr Joseph was a car valet.  He applied for permission to take leave of absence from 5 to 12 August 1996 inclusive.  Mr Spooner gave evidence to the Tribunal, which they accepted, that after consultation with his superior Mr Brown Mr Spooner rejected that application, because that covered the busiest time of the employers’ year.  Mr Joseph nevertheless was absent from 5 to 12 August 1996 and on his return on the 13th he was dismissed.  I say no more for the moment about the detail of the dismissal because that features in the grounds of appeal.

	The letter setting out the grounds of appeal approaches the matter by way of commenting paragraph by paragraph on the Industrial Tribunal’s reasons, but it is nevertheless possible to extract what, as we understand it, are the complaints which the employer makes by reference to those paragraphs of the letter and that is the way in which I shall summarise our reasons for our decision.

	The first paragraph which the letter complains about is one in which, among other things, the Tribunal refers to there being no “right of appeal” against the dismissal.  By that it is quite clear that they do not mean that there was in fact no right of appeal; there plainly was under the employers’ disciplinary procedure.  Their reason, which they develop more fully later, is that Mr Joseph was not given the opportunity of exercising that right of appeal, and in particular was not advised that it existed.

	The complaint made by the employers about that decision of the Industrial Tribunal is that, as they say, Mr Joseph did appeal to the general manager, Mr Brown, who having considered the evidence and taken into consideration his employment history upheld the decision.  As to that, the Tribunal in summarising Mr Spooner’s evidence record him as telling them this, and there is no indication that they rejected that evidence or considered it unreliable.  The passage appears in paragraph 5 of their reasons, where they say:

“When Mr Joseph appeared on 13 August Mr Spooner invited him into his office and asked him where he had been.  Mr Joseph gave no reply.  As it was outside Mr Spooner’s remit to dismiss Mr Joseph, Mr Spooner sought the views of Mr Neil Smith [the managing director] who said that Mr Joseph should be dismissed.  Mr Spooner advised him accordingly.  Mr Joseph asked to speak to Les Brown [Mr Spooner’s immediate superior].  This he did.  Mr Spooner gave him a letter of dismissal which was handed to him [the Tribunal then quotes that letter].”

	Mr Brown was not called to give evidence and Mr Joseph, as far as appears from the Tribunal’s summary, was not cross-examined to suggest that what happened when he met Mr Brown was an appeal.  Indeed, the summary of Mr Joseph’s evidence does not refer to any meeting with Mr Brown after the dismissal meeting with Mr Spooner at all.  It therefore seems to us that this ground of appeal really amounts to a complaint that the Tribunal should have found facts differently, and there is no basis on which we can entertain an appeal on that ground - indeed there does not appear, on the record of the hearing, to have been any evidence on which the Tribunal could have found the facts differently.

	What the Tribunal relied upon in considering this matter as a breach of procedural fairness was that Mr Joseph was not advised or reminded of his right of appeal.  There is absolutely nothing in the evidence or in the Notice of Appeal to suggest that he ever was, either immediately at the close of the meeting with Mr Spooner or, perhaps more importantly, when the letter of dismissal was handed or sent to him, and we therefore find that there is no error of law in relation to that point on which an appeal could be mounted.  

	The next finding of the Industrial Tribunal which is challenged by the letter of appeal is one concerning a finding by the Tribunal which, again, simply summarised Mr Spooner’s own evidence in which, according to the Tribunal’s reasons, he says that when Mr Spooner absented himself this happened:

“Prior to his return to work a meeting had taken place on an informal basis between Mr Neil Smith [managing director] Paul Smith, Les Brown [who were the two general managers, of whom Mr Brown, as I have said, was the immediate superior of Mr Spooner] and Mr Spooner in which they decided that on Mr Joseph’s return unless he had a very good explanation he should be dismissed.”

	The letter of appeal says no meeting took place between the four members of the company’s management.  That is a simple challenge to the Tribunal’s finding of fact, a finding moreover which, on the face of the reasons, they derived directly from Mr Spooner’s own evidence, and there can be no possible error of law in that point and therefore no ground on which an appeal could succeed.

	The next point of complaint is that Mr Joseph, the letter says, confirmed to the Tribunal that he refused to signed the final written warning of 19 July 1996.  That appears to be a reference to a finding by the Tribunal that that warning was unsigned, although others had been, but it is quite clear, as we read the Tribunal’s reasons, that that was not a point which they held against the employers, or regarded as a ground for their finding of unfairness, and so nothing turns on that.  

	The next matter dealt with in the letter is under head 9, in which the history of Mr Joseph’s previous holiday applications and his awareness that early August was the busiest month is gone into, but on that point, as Mr Spooner very frankly agreed in presenting the matter to us, the Tribunal was actually in favour of the employer and found that they preferred the evidence of Mr Spooner to that of Mr Joseph as to whether he had been given permission to take annual leave, and also plainly accepted that the reason and a proper reason for refusal was that the garage was too busy.  So, that being a point in which the Tribunal was in favour of the employers and found the facts to be as stated by Mr Spooner, there is no ground for appeal there.  

	The next point turns on a ground which the Tribunal did rely on, namely that it was a breach of procedural fairness not to advise Mr Joseph, or remind him, of his right to be accompanied at the disciplinary hearing with Mr Spooner by a fellow employee or a union representative.  The complaint is, that “to the best of our knowledge [the employers say] Mr Joseph is not a union member”.  That may or may not be the case; it does not go to the point that he was plainly entitled under the disciplinary procedure to be accompanied and there is no error in law, in our view, in the Tribunal’s taking into account, as a ground for their decision, the procedural unfairness of failing to give him the opportunity of being so accompanied and to remind him of his rights in that regard.

	The next point taken is a challenge to the Tribunal’s finding that Mr Joseph was only 20% to blame in taking his holiday without leave.  It is said that they should have found that he was 100% to blame.  In our view that cannot possibly be a point of law; how much blameworthiness to attach to Mr Joseph’s taking his holiday despite the absence of permission to do so was entirely a matter for the Industrial Tribunal’s judgment, and we find no error of law in the decision they came to.

	Then the letter complains of a finding by the Tribunal that while Mr Joseph was away no contact was made with him, nor was any attempt made to do so.  The Tribunal found from their own observation of Mr Joseph that he was a person who was limited in his understanding and they say that a reasonable employer, knowing that limitation of understanding on his part, would have tried to ascertain whether he had misunderstood that he was not entitled to his holiday.

	The letter does not allege any error of law in that regard, nor does it suggest that the Tribunal was even wrong in fact in finding that no attempt had been made to contact Mr Joseph.  It simply reiterates that no decision regarding his future was taken prior to his reappearance, as the employers submit, so we do not consider that that raises any error of law.  It is true that the Tribunal uses the phrase, “a reasonable employer would have” done what the Tribunal considers appropriate, rather than going through the perhaps more accurate test of whether what this employer did was within the range of possible reasonable responses, but since the Tribunal does not put any weight on that particular finding of fact in the paragraphs where they give the reasons for their findings of unfair dismissal, we do not consider that that would justify an appeal or would point to any error in law on their part.

	The next paragraph of the letter goes back to the question of appeal with which we have dealt, that is to say the internal appeal and whether it was permitted, or whether Mr Joseph was advised about it.  

	The next point goes to a suggestion in the reasons of the Tribunal that the reasonable response would have been to have given a written warning, perhaps accompanied by a suspension of pay.  That, in our understanding, is a peripheral matter in the Tribunal’s reasons.  Taking that paragraph of their reasons as a whole, paragraph 15, it is quite plain - especially from the opening and closing sentences - that they are properly addressing the correct question whether dismissal was within the bounds of reasonable responses to the offences which Mr Joseph had committed and it was, in any event, secondary to their primary and (in our view) unappealable decision that there had been procedural unfairness, and we do not therefore consider that there is any ground on which an appeal could succeed by way of error of law in that respect.  

	Then the letter repeats the point about the extent of Mr Joseph’s responsibility, with which we have already dealt, and that covers all the points made in the letter of appeal.  For the reasons that I have indicated in going through them, we do not consider that any of them has any prospect of showing that the Tribunal fell into any error of law and the appeal against their decision of unfair dismissal must therefore be dismissed.

	Turning to the decision on remedy, the Tribunal applied the 20% decision that they had already reached in their first reasons and, as we read the letter of appeal against that, no complaint is made about their calculations.  The appeal is solely concerned effectively with reiterating the submission made in relation to the first decision that Mr Joseph’s blameworthiness should have been found to be 100% rather than 20%.  

	There are some procedural difficulties about this appeal, because there was only a summary of reasons given by the Tribunal.  The Employment Appeal Tribunal Rules require that any notice of appeal should be accompanied by extended reasons, full reasons, and it is for the Appellant to obtain those reasons by application to the Industrial Tribunal before lodging the appeal.  

	Since the Notice of Appeal does not comply with that rule we consider that it is not properly on foot, and is not in effect properly before us and should be dismissed for that reason. That is a purely procedural reason and in case we are wrong about that we have therefore considered the substance of the appeal and asked ourselves, first of all, whether despite the absence of full reasons we can sufficiently understand the grounds given by the Tribunal to enable us to deal with the appeal on this preliminary question whether any grounds of error in law are shown, and we have come to the conclusion that we can because, as I have said, the substantive point raised by the Notice of Appeal is simply a reiteration of that made on the Notice of Appeal against the finding of unfair dismissal, namely that the blameworthiness of Mr Joseph should have been found to be 100% rather than 20%.  The facts in relation to that are therefore fully set out in the extended reasons for the original decision of unfair dismissal, and for the same reason our approach to the matter is that which I have already stated in dealing with that appeal, namely that the extent of Mr Joseph’s blameworthiness on the facts as found by the Tribunal was essentially a matter for decision by the Industrial Tribunal and does not show any error of law which would justify the interference of this Tribunal.

	That appeal is therefore also dismissed for the reasons which I have given, namely that first of all the Notice of Appeal does not comply with the rules, but that secondly, even if that were an insufficient reason for dismissing it, no error of law is shown in the Industrial Tribunal’s decision, and that is a view which we consider ourselves able to reach despite the absence of extended reasons for the second decision.

Judge J Hicks QC

I have enclosed a second draft of the above in case you wish to make further amendments.

The white copies of judgments are sent to the Clerks of the Court for them to check before the final is printed.

If you wish to receive a final copy of the judgment please let me know.

Iris 
(Typing)

11/9/97