United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 855_95_1112

Appeal No. EAT/855/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 December 1995

HIS HONOUR JUDGE P CLARK

MS S R CORBY

MR R H PHIPPS

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MR J R MANSFIELD          APPELLANT

SANCTUARY HOUSING ASSOCIATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY

OR ON BEHALF OF

APPELLANT


 


JUDGE P CLARK; By Notice of Appeal dated 8 August 1995 Mr Mansfield appeals against the unanimous decision of the Ashford Industrial Tribunal (Chairman,

Mr D E de Saxe) following a hearing on 14 and 15 June 1995, that he was not unfairly dismissed by his former employers, Sanctuary Housing Association.

The facts of the case are fully set out in the Tribunal's extended reasons dated 30 June 1995. Those reasons cover 15 pages and we need only summarise the background.

Mr Mansfield is a qualified Associate of the Royal Institute of Chartered Surveyors who joined the Respondent Housing Association as a clerk of works based in Canterbury in September 1991.

On 11 March 1994 he attended a disciplinary hearing held by his Divisional Director Mr Bunker. The allegation was that Mr Mansfield had falsified six time sheets to show that he had been working for the Association when in fact he had been attending college. Mr Bunker found the charge proved and awarded by way of penalty a final written warning and removal of flexi-time privileges.

Thereafter, the Tribunal found, an agreement was reached between Mr Mansfield and his line manager, Ms Tracey Jones, as to his new working hours to replace the former flexi-time arrangements.

Unfortunately, four further matters of complaint arose. These are summarised in a dismissal letter dated 14 September 1994, following a disciplinary hearing held by Mr Bunker the previous day. That letter is set out at paragraph 30 of the Tribunal's reasons.

Both sides were represented by Counsel before the Industrial Tribunal. Their rival closing submissions are set out at paragraphs 36 and 37 of the reasons. It is clear to us that the points taken on behalf of Mr Mansfield by his Counsel, Mr Johnson were

(1) that two of the four incidents were not really disciplinary matters at all

(2) that dismissal fell outside the range of reasonable responses, and was thus unfair under Section 57(3) of the Employment Protection (Consolidation) Act 1978.

(3) that the Appellant had been denied a right of appeal.

As to those submissions the Tribunal found:

(1) that three of the four incidents were disciplinary matters

(2) that dismissal fell within the range of reasonable responses

(3) that the Appellant was out of time for making an internal appeal against his dismissal.

In these circumstances they concluded that the dismissal was fair.

This is a preliminary hearing to determine whether or not the Notice of Appeal raised an arguable point of law to go to a full hearing of this Appeal Tribunal. Mr Mansfield was notified of this hearing date, first by a telephone message left on his answer phone on 14 November and secondly, by way of a written notice dated 21 November 1995. He has not attended today but we have considered the matter on paper.

Looking at the grounds of appeal they essentially boil down to one real point, namely that the disciplinary hearing of 11 March 1994, leading to the final written warning, was conducted under the Respondent's procedure which did not take effect until 22 March. Thus the whole process was undermined; the final warning was never validly given, and the Tribunal's ultimate conclusion that dismissal fell within the range of reasonable responses cannot stand, based in part as it is on the fact of that previous warning.

Assuming that that point was taken below, we cannot see that it raises an arguable ground of appeal. The Industrial Tribunal found as fact, in paragraph 12 of its reasons that at the disciplinary hearing on 11 March 1994, at which the Appellant was represented by a Solicitor, he agreed that the disciplinary hearing should be conducted according to the procedure about to be introduced in 11 days time. It is for the Industrial Tribunal to make findings of fact. We cannot interfere with those findings. Accordingly we must dismiss this appeal.