United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 59_93_2810

Appeal No. EAT/59/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 October 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MR T S BATHO

MR R JACKSON

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TENSOR COMPUTERS LTD          APPELLANTS

MR V DUCKWORTH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE

APPELLANTS


 


MR JUSTICE KNOX: This is the Preliminary Hearing in relation to an Appeal by Tensor Computers Ltd which I will call "the Company" from a decision of the Industrial Tribunal sitting at Bedford on 23 November 1992 sent to the parties on 1 December 1992 whereby that Tribunal held that the Applicant before them, Mr Vaughan Duckworth, was unfairly dismissed and awarded him £9,802.68 compensation.

The Grounds of Appeal are two in number. Firstly it is said that the Tribunal erred in law by substituting its own opinion for that of the employer and that the Tribunal did not seek to determine whether the employer had acted reasonably in the light of the circumstances known to it at the time of dismissal but instead substituted the decision the Tribunal would have made. Secondly, it is said the Tribunal erred in law by ignoring the effects of the employee's conduct at the time of dismissal and previous warnings given to the employee in assessing contribution to the employee's own dismissal.

We have received two communications in this Tribunal which account for the fact that no-one appears before us today either on behalf of the Company whether by professional representation or otherwise. The latter of the two letters says:

"It is with regret that I have to inform you that Tensor Computers Ltd. ceased trading on Friday, 15th October, 1993. The company has no assets and is therefore unable to continue with its appeal against Mr. V Duckworth on 28th October, 1993."

Notwithstanding that intimation of a desire, as we understand it, to discontinue the appeal, we did think it right to look at the substance of the appeal and we are quite satisfied that there is nothing in either of the two points that would warrant this appeal in any event going to a Full Hearing.

It is simply not right to say that the Tribunal substituted its own opinion for that of the employer because the finding that the dismissal was unfair was based squarely on the procedural unfairness of the proceedings by which Mr Duckworth was dismissed. That is not a question of substituting the Tribunal's view, that is a question of assessing the fairness or otherwise of the procedure that was used and has no direct correlation with the decision to dismiss. We can see no basis upon which that Ground of Appeal could be upheld.

Secondly, it again simply is not true to say that the Tribunal ignored the effects of the employee's conduct at the time of dismissal and previous warnings because in the course of its decision it did in fact say:

"Mr Smith [who was the managing director who appeared for the Company] made complaints about Mr Duckworth's conduct before dismissal."

and then there are details given about that ground of complaint so the Tribunal did have regard to that. True it is it did not put the same weight on it as the employers would have done but that is a matter for the Tribunal's judgment and therefore we can see no basis upon which either of those two grounds could succeed on a full appeal and, more especially in view of the intimation that there is no desire to proceed with the appeal, we dismiss it at this stage.