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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gabel (t/a Auction International (M/CR)) v Grimshaw [1993] UKEAT 649_92_0203 (2 March 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/649_92_0203.html
Cite as: [1993] UKEAT 649_92_203, [1993] UKEAT 649_92_0203
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I N T E R N A L
At the Tribunal
THE HONOURABLE MR JUSTICE WOOD MC (P)
MRS T MARSLAND
MR J C RAMSAY
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellants MR I GABEL
(The Appellant in Person)
MR JUSTICE WOOD (PRESIDENT): This is an appeal by Mr Gabel who traded as Auction International; his business was to take property from various people and put it up to auction. It was not just furniture, it was a mixture of various property of various kinds and it involved a good deal of lifting and manual work.
The Applicant, a Mr Grimshaw, had been employed by him for some years. Mr Grimshaw was described by the Tribunal as Mr Gabel's right-hand man.
The essence of the business was that large loads would come in from time to time, they had to be unloaded; inspected; catalogued or listed and prepared for sale. Mr Grimshaw was really the main assistant. He helped with the physical sense and also the general business of the work and he, Mr Grimshaw, realised how important his role was to Mr Gabel. The Applicant, Mr Grimshaw, was a good worker and he did work on a full-time basis for a while, then he was away and then came back in February 1987 on a full-time basis. From time to time Mr Grimshaw was away and all that Mr Gabel really insisted on, and we think entirely justifiably, was that Mr Grimshaw should let him know if he was going to be away and how long he would be away and why. Mr Gabel had to arrange his business affairs and this was impossible, as one would imagine, without his right-hand man. This, in fact, was a very small business of only about five people there.
In June 1991 Mr Grimshaw's father-in-law was ill and he was away from time to time during that week. Sometimes he telephoned, sometimes the message got through. He was also away towards the latter part of the week on a Thursday and a Friday and it is quite clear that he did not communicate with Mr Gabel as he should have done. It was reasonable that he should have done. Ultimately, Mr Gabel, who we think had had some problems in the past over this, decided that it was too much and that Mr Grimshaw would have to go. He decided that Mr Grimshaw should go on a Thursday evening and he was convinced in his own mind about that on the Friday so that when the Applicant telephoned on the Sunday he was told by Mr Gabel, I'm sorry, there is an end of it and that's it.
Although this was a very small business the Tribunal decided that first of all there had not been sufficient evidence and warnings earlier but in particular that Mr Grimshaw had not been given an opportunity of explaining what had happened and therefore that the dismissal was unfair; it was based on conduct.
Mr Gabel has told us today that in fact he had evidence, if it was believed, that Mr Grimshaw had been taking some parts of the loads being brought in and selling them himself at "car boot" sales and elsewhere, thus Mr Gabel would be deprived of his commission. That was a clear breach of the implied term of trust and confidence. He also told us that he got this information from vendors who would be able to substantiate it. Indeed, he mentioned that he knew about some of it even before the hearing before the Tribunal. As he did know of it, of course we can not allow any fresh evidence to be introduced and it may be that had Mr Gabel been represented, he would have been advised to bring this matter to the notice of the Tribunal at the time. So that if that be true, and having seen and listened to Mr Gabel, we have no reason to disbelieve him, but if it were true then it would alter the situation radically. The Tribunal themselves found him a satisfactory witness. So that he feels somewhat abashed by the decision with which he is faced. However we are quite unable to find any error in the finding of liability against him, namely the unfair dismissal on the evidence that was before the Tribunal.
The Tribunal then went on to assess compensation and they assess for the period of 32 weeks between the dismissal and the date of hearing and then allowed a very substantial period of 9 months, 39 weeks in which Mr Grimshaw should find other work. In the light of the information we have, other work might have been very readily available and was possibly being conducted in parallel whilst he was in employment. That, however, was not known to the Tribunal. We ourselves, all three of us, if we have been listening to the case, of course we did not see and hear the witnesses, we feel that a 50% reduction was not the one we would have made. Our reduction would have been very substantially higher than that, however, it is not for us to interfere with the Tribunal, it was entirely a matter for them. There is no error of law whatsoever and we must remind ourselves, in particular, we did not see and hear all the witnesses. However, we have seen and heard Mr Gabel today. We intend no criticism whatsoever of the Tribunal in what we have said, but we have said it to give some crumb of comfort to Mr Gabel about the situation. We have explained to him the reasons why we can not help him on this appeal as there is no error of law.
This appeal must therefore be dismissed.