United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 206_94_2806

Appeal No. EAT/206/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28th June 1994

THE HONOURABLE MR JUSTICE MORISON

MR S M SPRINGER MBE

MR T C THOMAS CBE

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MR N KHAN          APPELLANT

NATIONAL BANK OF PAKISTAN          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R POWELL

(Free Representation Unit)

Room 140

49-51 Bedford Row

LONDON

WC1R 4LR


 


MR JUSTICE MORISON: This is an appeal against the unanimous decision of an Industrial Tribunal held at London (South) by which the Tribunal dismissed Mr Khan's complaint of unfair dismissal made against his former employers, the National Bank of Pakistan. I shall refer to the parties hereafter as the "employee" and "employers" respectively.

The Industrial Tribunal was held over a period of three days, both parties were represented, the employee and one witness gave evidence for the employee. There were four witnesses called on behalf of the employers.

Our jurisdiction to determine appeals from such decisions is conferred by Statute and we are confined to hearing only those appeals which raise points of law. The purpose of this preliminary hearing is to determine whether there is any arguable point of law. If we are satisfied that there is such a point we shall order the case to be listed for a Full Hearing but if there is not then we shall dismiss the appeal.

The background facts may be briefly stated but at the outset it is worth pointing out that this is a somewhat unusual case. The employee commenced his employment with the employers on the 29th December 1986. After a period of one and a half years he became a cashier. The Bank is relatively small, despite its name, with a "family flavour", as the Industrial Tribunal put it, to its organisation. It has a number of branches and there is a mobility clause in the contract of employment, the terms of which are set out in a letter dated 30th December 1987, to which the Industrial Tribunal referred, and to which we now refer. Paragraph 4 of the letter states:

"You will initially be posted at the Bank's office at 18 Finsbury Circus, London EC2M 7BJ but your services are transferable and the Bank reserves the right to assign you any work at any of its branches in the UK at its discretion. This is an integral condition of your employment and the acceptance of this letter would mean that you will conform with this requirement."

and Paragraph 5 of that letter subjects the employee's service with the Bank to Regulations for its local staff and Regulation 28 of those Regulations under the heading "Place of Employment" provides:

"It is a condition of employment that employees are liable to be called upon to serve the Bank anywhere in Great Britain."

In 1989 he was temporarily transferred to the Branch in Edinburgh. From March 1992 he was working at the Knightsbridge Branch. One of the cashier's responsibilities was to take surplus funds from the Branch, and bank them overnight with the National Westminster Bank. In breach of normal procedure, on the morning of 8th April 1992 the employee made a deposit of £5,000. He did not note the denomination of the notes he was depositing. At the end of the day it emerged that he was £2,000 short in his till, and he said "he must have made an error in the paying in". But for the intervention of the employee's father from Pakistan these events, according to the Industrial Tribunal, would have led to an investigation followed by disciplinary procedure and dismissal of the Applicant. As a result of the intervention from the father, the General Manager was prevailed upon to transfer the employee to a "far flung" branch of the Bank. Accordingly the transfer procedure was invoked and he was ordered to Glasgow where it so happened there was a vacancy for a cashier. Instead of reporting for duty the employee presented a sick note, applied for other employment and claimed unemployment benefit. He failed to answer correspondence. These matters are all referred to in paragraph 14 of the Industrial Tribunal's decision.

On the 22nd June the Bank acknowledged a letter dated 9th June from the Citizens' Advice Bureau asking, on behalf of the employee, for a deferral of the transfer and pointing out the practical difficulties in him making the move. What that letter was asking for in effect was that he should not be transferred at all but that he should be allowed to continue to work in London. On the same day the Bank wrote a letter terminating the employee's employment with immediate effect.

Because the sick note only covered the period until the 13th May and because the employee simply absented himself from work, sought other employment and claimed benefit, it was argued that there had been no dismissal. However, the Industrial Tribunal rejected that argument and found that there was a dismissal and having applied their minds as to what the reason was concluded in paragraph 17 as follows:

"We are in no doubt that the reason for the dismissal was the Applicant's absence from work and his failure to contact the Respondent or respond to the Respondent's legitimate questions. This was a reason relating to conduct within the meaning of section 57(2)(b) of the Employment Protection (Consolidation) Act 1978. We are satisfied that the Respondent genuine believed that the Applicant was proposing to continue an unauthorised absence until such time as he had obtained employment outside."

They then turned to the question which arose under Section 57(3) of the 1978 Act and concluded that the dismissal was fair.

There appear to be three points which the employee would wish to argue on a full appeal. In effect they are three particulars of one general point, namely, that the Industrial Tribunal misdirected itself in the sense that it failed to take into account certain of the facts which they had found elsewhere in their decision.

The first fact which is relied upon, which is said the Tribunal failed to take into account when assessing the fairness of the decision, was the question of the Bank providing removal expenses, such as travel expenses, mortgage loans and the like, which the Industrial Tribunal had described as the normal arrangements which were followed "on the ground". As the Bank did not offer these in relation to the employee's transfer to Glasgow the Industrial Tribunal decision, which did not consider this point in its decision on fairness, was flawed.

Secondly, the Industrial Tribunal failed to consider that the transfer to Glasgow, which was done at the father's suggestion, although not communicated to the employee, was a "subterfuge" in place of a proper disciplinary procedure and hearing. That would have rendered, so it was argued, the dismissal unfair.

Thirdly, the Industrial Tribunal overlooked the letter from the CAB when referring to the lack of contact with the employee when considering the fairness of his dismissal.

These points were all argued before the Industrial Tribunal in closing submissions made on behalf of the employee's representative. I should add that the employee's representative has made these submissions again before us today and we are grateful to him for the clarity with which he expressed himself. It seems to us that there is nothing in any of the points which has been made. Industrial tribunal's decisions will inevitably, not necessarily refer to all the facts or matters on which they rely on reaching judgments under Section 57(3). The Tribunals are required to have regard to justice and equity and all the circumstances of the case and inevitably the test could not be broader and it would be unreasonable for people to expect industrial tribunals to canvass each and every point which has weighed with them in arriving at their overall conclusion as to the fairness of the decision to dismiss. It seems to us therefore, that the proposition that because there is no mention of the three points in the decision on fairness the Tribunal have not considered them is unsustainable. It seems to us that the Industrial Tribunal had well in mind that the reason for the transfer was related to the missing money and was being done to keep the employee out of the way. The use of the word "subterfuge" is inappropriate we think on the facts; the choice was effectively, as we see it, going through the disciplinary process which would, as the Tribunal believed, have led to dismissal, or transfer. Whilst the employee may not have known of what his father had said we think it unrealistic to believe that he would not have realised that he was being asked to go to Glasgow because of the suspicions that had been entertained over his handling of the money at the Knightsbridge Branch. That would explain why the employee sought another job. The point made by the Industrial Tribunal was that the employee did not engage with them, that is with the employers, but went to ground instead. It is, we think, absurd to suggest that the Industrial Tribunal overlooked the letter from the CAB when they referred to it in terms in paragraph 15 of their decision. They dealt with it and the reasonableness of their decision in paragraph 17 and 18. The employers believed that the employee did not intend to continue in their employment on the only basis on which they were prepared to continue his employment, namely, their Glasgow Branch. He was prevaricating and was, perhaps, fortunate that the matter relating to the missing money was not dealt with in an entirely different manner.

Accordingly, we do not think there is any arguable point of law and we would dismiss this appeal.