United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 187_95_3010

Appeal No. EAT/187/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30th October 1995

HIS HONOUR JUDGE P CLARK

LORD GLADWIN OF CLEE CBE JP

MRS R A VICKERS

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TESCO STORES LTD          APPELLANTS

MR V LOCKIE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MRS J LIDDINGTON

(Solicitor)

Messrs Howes Percival

Solicitors

252 Upper Third Street

Grafton Gate East

Central Milton Keynes

MK9 1DZ


 


JUDGE CLARK: This is an appeal against a decision of the London (North) Industrial Tribunal following a hearing on 14th December 1994, in which the Tribunal decided unanimously that the employee, Mr Lockie, had been unfairly dismissed and that he had contributed to his dismissal to the extent of 50%. The question of remedies was then adjourned.

Mr Lockie had been employed by the appellant or its predecessor for some 4¹/₂ years prior to his dismissal on 19th October 1993. He had been employed as a H.G.V. driver based at the appellant's Harlow depot. On 13th October 1993 he was due to deliver a load of perishable goods and failed to do so. In the words of the Industrial Tribunal "he was cheesed-off" at a traffic jam that he became involved in and the Tribunal found that he decided to "give up on the job".

The Industrial Tribunal say in their reasons that they took into account what happened and in particular that Mr Lockie showed no regret for having given up on the job. He did not really give any adequate explanation as to why he had not made a telephone call to base, nor did he apologise, and on the whole they found he "handled himself rather badly".

His background was that he was perceived to be a good employee and apart from one verbal warning (mis-described in the decision as a written warning) he had a clean record with the company.

Following this incident, he saw his manager on the following day and was then suspended until 19th October 1993 when a disciplinary hearing was held, and he was dismissed. We are told that there then followed two internal appeals and no point was taken by Mr Lockie or on his behalf before the Industrial Tribunal as to the propriety of the procedure used by the appellant.

The Industrial Tribunal correctly in our judgment asked itself the question under Section 57(3) of the 1978 Act, whether dismissal was "within the range of reasonable responses open to a reasonable employer". They concluded that it was not, and that a "reasonable employer" would have taken action short of dismissal arising out of this misconduct.

Mrs Liddington who appeared before us and conducted the case for the appellant below, seeks to appeal on two grounds, both of them perversity grounds.

The first is according to the Notice of Appeal, that it was perverse of the Industrial Tribunal in the light of its findings to hold that a reasonable employer would not have dismissed Mr Lockie. And secondly, they say that the finding of 50% contribution was perverse; that it should have been much greater.

The question therefore before this Tribunal is whether at this stage the appellants show an arguable case to satisfy a full hearing of this Tribunal, that the Industrial Tribunal's decision was irrational or an impermissible option. We are grateful to Mrs Liddington who has advanced her case economically and to the point. However, we are not persuaded that this is a case in which this Tribunal ought to interfere, and in those circumstances the appeal must be dismissed at this stage.