United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 519_94_1310

Appeal No. EAT/519/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 October 1994

HIS HONOUR JUDGE HULL QC

MR J R CROSBY

MR R TODD

---

(1) C PLATT

(2) R COOPER          APPELANTS

AVALON FUNERAL SUPPLIES LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MISS R WEDDERSPOON

Messrs. Jack Thornley & Partners

Deansgate Court

244 Deansgate

Manchester M3 4BQ


 


JUDGE HULL QC: This is an appeal to us by two Appellants, two gentlemen who were employed by Avalon Funeral Supplies Ltd. They were employed in coffin making. They had the rather specialist task of fitting the lids to the coffins. They had both been employed between four and five years at the time of their dismissal. There had been previous warnings but those were all more than 12 months before. On this particular occasion they allowed through quite a substantial number of coffins where the lids were grossly out of fitting. They were 1.5 inches too long, or something of that sort. The result was serious for the employers in the sense that a lot of work had to be done until late at night, putting the matter right. It was an urgent order, apparently. That was the background to it.

The employers demanded an explanation, were not satisfied with it and dismissed the two Appellants summarily. They applied to the Tribunal and five points were particularly advanced on their behalf, which are set out in paragraph 10. We are grateful to Miss Wedderspoon for inviting our attention to this.

The details of their complaints against the fairness of their dismissal were that, first, they had been appointed as trainee coffin makers and had never been notified of any change in their status, although they had worked for several years in one of the departments involved in the coffin-making process. One would just comment that that would be more persuasive if they had not been employed for a substantial period, apparently without any complaints latterly. They must have known their job by then. They maintain they were not fully trained coffin makers because they did not work in any of the other departments and might find some difficulty in doing so. A purely hypothetical point. Secondly, both at the times of the disciplinary warnings, I have already referred to those, and on 22 June 1993, which was the occasion of their dismissal, the Applicants were presented with a fait accompli and there was no possibility of responses, if any, made by them being taken into account before decisions were made. Thirdly, on the question of competence or capability to do the job, the Respondent implemented production targets and imposed them without any proper consultation or training. Fourthly, the warnings all occurred before June 1992 and were, therefore, more than 12 months old at the date of the dismissals. Finally, neither of the Applicants was informed of any right of appeal against the decision.

There was, in fact, a right of appeal under the Company's rule book but they were not reminded of it. The relevance of an appeal, of course, arises if it could be shown that there was something unfair about the dismissal and the decision to dismiss and an appeal would probably have put it right. But the vital points which the Tribunal, by statute, are required to concentrate on, are whether there was a dismissal, what was the reason for the dismissal and whether, having regard to that reason, the employers acted reasonably in treating it as a reason for the dismissal.

The Tribunal seem to have directed themselves impeccably as to the questions which they had to answer. No complaint is made about that. In the end they were divided. Two of the Members of the Tribunal were of the opinion that, in spite of these criticisms, the dismissals were shown to be fair and the other Member said otherwise. He said:

"The disciplinary procedure adopted by the respondent and applied to Mr Platt and Mr Cooper was deficient in a number of ways. The presentation to them of a disciplinary warning record, already completed by management representatives prior to any disciplinary interview, was not reasonable and no opportunity was given to them to properly state their case, nor be represented by a colleague or union officer. Further, time limits were not attached to the warnings, leaving them to exist in perpetuity. In my opinion, these deficiencies were sufficient to render the response of dismissal unfair in the context of Section  57(3) of the Act."

On the face of it, all the matters to which I have referred are matters of fact. Such matters as whether it was fair to consider a warning that was more than 12 months old. Whether it was unfair to write out a decision of the management and then listen to what was said and then hand it to the employee; whether that showed that the employers' mind was closed and that there was no fair dealing with the employee.

All those are questions of fact for the Tribunal and not for us. We are only allowed to consider questions of law. The statute prohibits us from embarking on matters of fact. As has been said in the Court of Appeal, Parliament has set up the Industrial Tribunal as the industrial jury, to be the sole judge of facts. Miss Wedderspoon, who has appeared in front of us to further the appeal, urges on us the matters to which I have referred. She complains that :

(i) disciplinary warnings ... were open ended and left to exist in perpetuity;

(ii) the disciplinary warnings given to the Appellants were presented and completed prior to any proper investigation of the facts;

(iii) the outcome of the disciplinary hearings was predetermined such that the Respondents failed to provide the Appellants with an opportunity to state their case and/or answer any charge levied against them."

If the majority of the Tribunal members had decided that any of those matters was established, of course their decision would have been in favour of the Appellants. They might well have concluded that if this had been a matter of, say, punctuality, a warning more than 12 months old should most certainly not have been relied on, certainly not as founding an immediate dismissal. It was for the Tribunal to say whether warnings were given prior to any proper investigation of the facts or whether the Appellants were given no opportunity to state their case. Tribunals are very sensitive to those matters.

Of course, it could be said in this case as in many another case, that the Appellants were unlucky in their Tribunal. It might have been the Respondents. Here one of the Members thought that the dismissals were unfair and it may very well be that a differently constituted Tribunal might have reached a different conclusion. That is the essence of decisions on questions of fact and we cannot interfere in matters of that sort.

This case is in our list under our practice direction to see whether with such assistance as the Appellants can give us, we can discover any point of law. Having thought about it as carefully as we can, as I say with Miss Wedderspoon's assistance, for which we are very grateful, we can none of us find any point of law here and, therefore, it is our duty to dismiss the appeal now and not to allow it to incur the expense which would inevitably be incurred by a defended hearing on notice.