United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 178_92_2707

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BAILII case number: [1992] UKEAT 178_92_2707

Appeal No. EAT/178/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th July 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR A D SCOTT

MR G H WRIGHT MBE

ANDERSON MARRIOTT & CO APPELLANTS

D EASTWOOD RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellants MR G SWAIN

(Solicitor)

Whitfield Hallam Goodall

27 Union Street

Dewsbury

WF13 1AY

MR JUSTICE WOOD (PRESIDENT): This is an appeal by Anderson Marriott & Co Ltd, a firm of decorators, against a decision of an Industrial Tribunal sitting at Leeds on the 13th January 1992, at which hearing Mr Derek Eastwood succeeded in his allegation that he had been unfairly dismissed and he was awarded £3,810 by way of compensation. Before the Industrial Tribunal the Applicant was represented by a member of the Citizens' Advice Bureau and the Company were represented by its Managing Director, Mr Anderson.

Mr Eastwood had been employed since April 1983 as a painter and decorator and after a year was promoted to a chargehand. He was in fact ultimately dismissed on the 8th July 1991, with one week's notice, and thus the effective date of termination was found to be Friday 12th July 1991.

Mr Anderson gave evidence before the Tribunal for some 2 hours. The Tribunal set out his evidence in a long paragraph 2 of the Decision. The way in which Mr Anderson managed his work was to take on what might be called "bulk" decorating of a development; in one case it was said to be 800 houses, he would estimate how many hours would be needed, he would quote and of course he would give bonuses to his workmen if they succeeded in completing the work within the time for which he had estimated it. There had been some problems over that system of working and in 1989 at the end of a contract involving 800 houses it was discovered that some 20 of those 800 had not been touched. This was said by Mr Anderson to be the fault of his operatives. He cancelled some of the bonuses and maintained that this established a precedent that he could cancel bonuses if he wished so to do.

Towards the end of 1990 he thought that some of his staff were "fiddling", in other words the bonus system was being wrongly marked up and it was not an honest basis for claiming the bonus. Mr Eastwood, as admitted by Mr Anderson, had not played any great part in that matter, and on that occasion at the end of 1990 the bonuses had been adjusted. He had issued a warning to certain members of the staff and he said because the Applicant had had a smirk on his face he gave him a further and more emphatic warning than the others. The final straw had taken place over a small job in Halifax and that was clearly because of the date of the dismissal, in the June or July of 1991. He had inspected the work and found that the claimed hours of work had been exceeded by some 26 hours. On the 8th July he called in to his office a Mr Howland and the Applicant and told them that their bonuses were going to be cut.

Mr Marriott gave evidence and indicated that he had not heard that the Applicant had been a very difficult customer, although Mr Anderson felt that he was a barrack room lawyer. But Mr Eastwood gave evidence, in particular, about that last incident, and he said that in fact the job at Halifax had been a difficult one because the plastering work had not been completed and it could not be done on a straight "carry through", a straight line basis, so that the various trades would succeed one after the other throughout the job. Therefore when he protested that his bonus was being deducted, Mr Anderson had lost his temper, sworn at him and dismissed him.

Those were the two versions and the Tribunal preferred the version of the Applicant to Mr Marriott and found a very simple set of facts. They found against the suggestion that there had been a break in the employment in 1988 and they also found that the Applicant had not received any warnings. Then they dealt with the last incident in five lines in this way:

"The work on the house at Halifax took 26 hours longer than estimated by Mr Anderson but this did not justify Mr Anderson's decision to cancel future bonuses to be earned by the applicant to make up for 13 hours allocated to him. Even if Mr Anderson had been justified in taking this decision, the attitude of the applicant to such decision did not justify his dismissal."

Mr Swain, who did not appear before the Tribunal, has been instructed (he is a Solicitor practising in Leeds) he has appeared before us today, and if we may say so has said everything that could possibly be said in support of this appeal on this ex-parte hearing. We are looking to see whether there is an arguable point of law, a point of law which merits argument inter-partes at a full hearing.

Mr Swain takes two main points, first of all he submits, that the Tribunal misunderstood the evidence and that when they indicated that the fault in 1989, that the 20 houses had not been touched, was not the fault of the operatives, that was said by Mr Anderson to be quite wrong because he had maintained that it was. It may be that the Tribunal misunderstood his evidence but that is an early part of the history and in our view does not undermine the remainder of the findings.

The second point that is taken is that it is wrong to say that there were no warnings received by Mr Eastwood because although Mr Eastwood denied earlier warnings, and indeed the Tribunal upheld him, nevertheless there was a notice which has been shown to us. The two industrial Members sitting with me want to make it quite plain that in their experience of industrial practice, notices put on the board do not constitute warnings within any disciplinary procedure. Warnings are warnings to individuals and the notice we have seen certainly does not, in their view, constitute a warning. Therefore, the Tribunal by not referring to that particular document of the 28th February 1991 did not err in their view in not treating it as a warning.

However, even if one assumes that there is any ground for complaint about the earlier findings of the Tribunal it is abundantly clear, and indeed Mr Swain accepts that it must be so, that there is a damning criticism of the procedure utilised by Mr Anderson on this occasion. In paragraph 7 when criticising that procedure the Tribunal said:

"there was no discussion, the applicant's explanation was not investigated, there was no proper disciplinary hearing or time for thought, the applicant was not accompanied by a friend or representative"

all those matters are fundamental and even if Mr Anderson and his Company had succeeded earlier they would have been bound to fail on that score and the dismissal was bound to be found to be unfair.

After the Tribunal announced its decision on liability Mr Anderson, as is cited in paragraph 8 was abusive to the Tribunal and left before the Tribunal continued the question of compensation.

We can see nothing wrong in the calculation of compensation and despite the able efforts of Mr Swain there is no point at all that is worthy of argument in this case on a point of law. This appeal is dismissed at this stage.