United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1079_95_0805

Appeal No. EAT/1079/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 May 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR K M HACK JP

MISS A MADDOCKS OBE

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MR PETER GOULDEN          APPELLANT

DALES ENTERPRISE AGENCY LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE PETER CLARK: The Respondent is a company limited by guarantee, set up with funding from the then Department of Employment and the local District and County Councils, with the object of assisting unemployed people in particular to set up their own businesses. Its work included the provision of training seminars for an organisation called North Yorkshire TEC. Payment for these seminars was made by North Yorkshire TEC on claim forms submitted by the Respondent. Such claims were based on documents signed by both trainee and instructor, verifying the provision of training.

The Appellant was employed by the Respondent as its executive director from 4 January 1992 until his dismissal on 26 September 1994.

On 27 March 1994 a claim was submitted to North Yorkshire TEC. It was approved by the Appellant. It transpired that four of the seminars in respect of which payment was claimed had not taken place.

An investigation followed. On 2 June 1994 the Appellant wrote to NY TEC, suggesting that the four seminars in question had been intended for a Mr Norman to take, but he may have been too busy, and that sample forms had been submitted in error.

He told the Respondent that a mistake had been made, but subsequent meetings with Mr Webb, the Chairman of the Board, did not satisfy the Respondent. Enquiries were made of Mr Norman by Mr Webb, and Mr Norman denied any approach by the Appellant.

The Appellant was suspended on 27 June 1994 and immediately thereafter went sick with a stress-related condition. His medical sick notes referred to "debility". The Appellant then attempted to persuade the Board to give him a service contract, at a time when the Respondent wanted him to attend a disciplinary meeting. On 13 September 1994 Mr Webb wrote to the Appellant, advising him that a disciplinary hearing would be held on 26 September. The Appellant replied on 21 September, insisting that no decision was taken on his future without first agreeing a service contract.

The meeting was held in his absence. A sub-committee considered the matter and recommended to the full Board of the Respondent that the Appellant be dismissed. The Board accepted that recommendation and he was dismissed by letter dated 26 September.

He presented a complaint of unfair dismissal and a claim under The Wages Act to the Industrial Tribunal on 6 December 1994. That complaint was heard by the Industrial Tribunal sitting at Leeds on 1 May and 19 July 1995. The Wages Act claim succeeded. The unfair dismissal complaint was dismissed. Against that latter decision the Appellant now appeals.

In their Extended Reasons dated 24 August 1995 the Tribunal find that the reason for dismissal related to the Appellant's conduct, and they put it in this way in paragraph 20 of the Reasons.

"20. ... We find that the reason for dismissal was knowingly making a claim to NYTEC for funding for four business skills seminars in March 1994 which did not, in fact, take place and attempting to place part of the blame on to an innocent third party. ..."

In considering the question of reasonableness under Section 57(3) of the Employment Protection (Consolidation) Act 1978, they deal with a number of specific matters. They found that the Respondent had carried out a reasonable investigation following which they had reasonable grounds for believing that he was guilty of the misconduct alleged. Although he was given no right of appeal the Industrial Tribunal concluded, given the limited size and administrative resources of the Respondent, that since the decision to dismiss had been taken by the full Board, the absence of an appeals procedure did not render the dismissal unfair. Finally, they formed the view that dismissal fell within the range of responses open to a reasonable employer. He was not unfairly dismissed.

In support of his three grounds of appeal the following points are advanced by Mr Goulden. First he says that the dismissal was procedurally unfair due to the employer's failure to comply with the Quality Assurance standard ISO 9000 which was in place, and covered the grievance procedure. The difficulty with that submission is that Mr Goulden did not himself put the grievance procedure into motion, he says, because he was not fit to do so, between June 1994 and December of that year. However, on 9 September he wrote to Mr Webb, after a period of sick absence saying (among other things) this:

" ... At last I am able to report that the enforced break had proved beneficial and I feel able to begin considering the working situation. ..."

With that letter he enclosed a draft form of service which he tells us he had obtained from the Institute of Directors and requested the employer to reach agreement on the proposed service agreement. That led the Tribunal to make this observation at paragraph 22 of their Reasons.

"22. ... The reply that he made sending a draft contract was, in our view, bizarre in the extreme and truly left the respondent with no alternative but to proceed in his absence. ..."

So his complaint about the grievance procedure and indeed, any complaint about his not making representations to the sub-committee which ultimately recommended his dismissal, is in our view bound to fail.

Secondly, he complains that the decision of the Tribunal was against the weight of the evidence. That is not a matter which we are empowered to deal with. Our function is strictly limited to correcting errors of law when they arise.

Finally, he says that Mr Webb, who gave evidence and was cross-examined on the first day of the Industrial Tribunal hearing, did not attend on the second day so that the Appellant, who was then representing himself, was unable to further cross-examine Mr Webb on documents produced by the Respondent on that second day. However, he tells us that he did not apply to the Industrial Tribunal for Mr Webb to be recalled. Again this is not a matter which, it seems to us, falls within our province.

Having considered the grounds of appeal as developed by Mr Goulden in his submissions before us, we cannot discern any arguable point of law to go to a full appeal hearing and accordingly this appeal must be dismissed.