United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 544_94_2701

Appeal No. EAT/544/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 January 1995

HIS HONOUR JUDGE D M LEVY QC

LORD GLADWIN OF CLEE CBE JP

MR K M YOUNG CBE

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MR M J BOYLE          APPELLANT

KINGSTOWN FURNITURE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised

PRELIMINARY HEARING


 


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APPEARANCES

For the Appellant NO REPRESENTATION BY

OR ON BEHALF OF THE APPELLANT


 


JUDGE LEVY QC: Mr Boyle was an employee of Kingstown Furniture Ltd ("the Company"). A time came when, because of his conduct, the Company took steps to dismiss him. Mr Boyle complained to an Industrial Tribunal and there was, in due course, a hearing for a number of days at Hull on 1 and 2 February 1994, for four days between 21 and 24 March 1994 and on 8 April 1994. At the end of that prolonged hearing the Tribunal unanimously decided that the Applicant was unfairly dismissed, and that he was not entitled to compensation.

From that decision Mr Boyle wished to appeal and accordingly gave a Notice of Appeal dated 4 June 1994. He wrote a courteous letter saying he was not going to attend this morning and we are giving a decision in his absence under the new procedure on his ex-parte application for leave to appeal. The grounds on which he really seeks to appeal is that the finding of facts which resulted in the conclusion that he was not entitled to compensation are perverse. We have all very carefully read the papers which are in our bundle and we find this in the very last paragraph of the Full Reasons. After finding the dismissal was unfair the Tribunal conclude:

"3(l) However, in those circumstances we have to apply those principles set out in the Sillifant case and decide what were the chances of the applicant retaining his employment if the respondents had followed a fair procedure. We are satisfied that, even ignoring the matter of the alleged failure to supply the agency drivers' timesheets to the account departments in time, there was overwhelming evidence (emphasis added by us) on which the respondents would have come to the conclusions they did. This was not a dismissal on the ground of conduct such as theft or fighting on the shop floor. This was conduct of a specific nature, that is conduct which directly affected the working relationship between the transport manager and the production director to whom he was responsible. We are satisfied that the allegations that the applicant had wrongly accused Mr Humphreys of an affair with Lucy Ward, and that Mr Humphreys' affair with Miss Ward caused her to break off her affair with the applicant were well founded, as were the findings that the applicant had uttered threats of an unpleasant nature against Mr Humphreys and other members of the staff".

We would interject that Mr Humphreys was the person to whom Mr Boyle was directly responsible and this passage conveys the issues on conduct which were before the Tribunal. The text continues:

"All these matters were known to substantial members of the workforce. We are satisfied that the working relationship between the applicant and Mr Humphreys had begun to break down, firstly when Mr Humphreys originally discovered that the applicant had lied to him when the applicant had denied that he had had a relationship with Miss Ward and secondly, when the applicant tore up the warning which, in the view of the tribunal, Mr Humphreys had properly given him in relation to his affair with Miss Ward. It was inconceivable that after the further instances of conduct there could be any harmonious working relationship between the two men. These were matters on which the evidence was overwhelming and it was certainly not practicable to transfer the supervision of the applicant's responsibility to another director. In those circumstances we are satisfied that had there been a proper investigation, omitting the defects we have mentioned above, the inevitable result would have been the dismissal of the applicant. We do not consider that this is an appropriate case, in those circumstances, to award any compensation or basic award".

The reference to Sillifant is a reference to the well known decision in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91. Giving a reserved judgment of an Employment Appeal Tribunal Browne-Wilkinson J. said at page 92:

".... it is established law that in deciding whether or not a dismissal is fair for the purposes of s.57 of the Employment Protection (Consolidation) Act 1978 attention has to be concentrated on the reasonableness of the employer's decision to dismiss judged in the light of the facts known to the employer at the time of dismissal and his conduct at that time. There has become engrafted on to that approach the principle that even if, judged in the light of the circumstances known at the time of dismissal, the employer's decision was not reasonable because of some failure to follow a fair procedure yet the dismissal can be held fair if, on the facts proved before the Industrial Tribunal, the Industrial Tribunal comes to the conclusion that the employer could reasonably have decided to dismiss if he had followed a fair procedure. ....".

Having read the preceding paragraphs of the Reasons of the Industrial Tribunal, we are all satisfied that this was a conclusion on the facts which the Tribunal was entitled to come to. They properly applied the Sillifant case and in the circumstances we propose to dismiss this appeal.