United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1100_95_2503

Appeal No. EAT/1100/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 March 1996

HIS HONOUR JUDGE N BUTTER QC

MS S R CORBY

MR J H GALBRAITH CB

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MR M ALVES          APPELLANT

MR M DIFATO T/A PICCOLO BAR          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR DAVID CARTER

(of Counsel)

North Islington Law Centre

161 Hornsey Road

London

N7 6DU


 


JUDGE N BUTTER QC: This is the preliminary hearing of an appeal by Mr Alves against a decision of the Industrial Tribunal at London (South). The hearing lasted some five days, 10 November 1994, 10 and 16 January, 4 April and 10 July 1995. The reasons were sent to the parties on 30 August 1995.

The decision, which was unanimous, of the Tribunal after that lengthy hearing was that, the Applicant had been unfairly dismissed, but that he had contributed to the dismissal and that the extent of the contribution was 100%. There were other issues concerning the Wages Act, which it is unnecessary for me to deal with.

The background to the case is that the Applicant had been employed in general duties in the sandwich bar at the Respondent's premises, the Piccolo Bar. The Respondent became suspicious that over a period of time the Applicant was not taking money from a customer, a Mr Smith, and in the course of the extensive investigation by the Tribunal, the Tribunal accepted that the Respondent was entirely certain that the Applicant had been "fiddling", to use his own term, but had thought that there was not sufficient evidence to prove that in a court of law at that time.

In their conclusions, the Tribunal decided that they were satisfied that the Respondent had proved that the reason for the dismissal related to the Applicant's conduct. He believed that the Applicant had been dishonestly giving away food for his own financial gain. They went on however, to say that they did not think that "the Respondent behaved reasonably in treating that as a sufficient reason for the dismissal. Indeed, the suggestion that he acted reasonably is unsustainable". They found that the approach to the dismissal was fundamentally flawed and that therefore the dismissal was unfair upon procedural grounds.

They then went on to consider what, for the purposes of the appeal today, is the vital issue, namely the question of contribution, and in paragraph 13 they said:

"13. CONTRIBUTORY CONDUCT All the evidence has been heard that relates to the issue of contribution and we understand the parties to be content that the Tribunal deal with it at this stage of the proceedings."

The Tribunal then recited Section 74(6) of the Act. They go on to say, lower down, in paragraph 14:

"14. ... In conclusion, we find that the Respondent's suspicions were amply justified and that the Respondent has shown by evidence that the Applicant had been engaged in a prolonged course of dishonest conduct for his own gain, in that he obtained a free parking place, and at the expense of his employers. The Respondent succeeds in establishing that this is blameworthy conduct that directly caused or contributed to the dismissal. It is our judgement that the appropriate assessment of contribution is 100%; and that such a reduction is equitable."

Today, three points arise in relation to the appeal. First of all, that the Industrial Tribunal did not, or did not expressly address itself to the question of the basic award. Secondly, as to the way they approached the question of the compensatory award. Thirdly, it is said that there is a question mark as to whether the Industrial Tribunal substituted its own decision for that of the employer, and that there was no evidence upon which the Industrial Tribunal could say that, "If the appropriate procedure had been adopted, the position would have been unchanged".

It is undoubtedly desirable that, in giving its reasons on an issue of this sort, an Industrial Tribunal should deal with the question of a basic award and the question of compensatory award separately, and we have been referred to the cases of Rao v Civil Aviation Authority [1994] IRLR 240, and observations in particular of the Master of the Rolls at page 243.

We have further been referred to the case of Charles Robertson Ltd v White and Another [1995] ICR 349 per Holland J at page 357H. Here it is to be recalled, however, that the Tribunal, having considered all the evidence, came to the clear conclusion that the reduction should be 100%.

We have considered in relation to the first two points whether there is, in truth, an arguable point of appeal which carries with it any prospect of success. We have reached the conclusion that there is not.

We are entirely clear in our own minds, and this is a unanimous view, that if the case did proceed to a full hearing, the Employment Appeal Tribunal would dismiss the appeal.

So far as the third point is concerned, we consider that the Tribunal were entitled on the facts which they found to reach the conclusion which they did and, looking at the matter realistically, we are of opinion that the appeal has no genuine prospect of success.

In these circumstances, we would do no service to the Appellant by allowing the matter to proceed to a full hearing and in these circumstances we dismiss the appeal.