United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1323_95_2205

Appeal No. EAT/1323/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 May 1996

HIS HONOUR JUDGE PETER CLARK

MR D G DAVIES CBE

MR D J HODGKINS CBE

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MR D RAWSON          APPELLANT

SKY PLASTICS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE OR REPRESENTATION BY

OR ON BEHALF OF THE

APPELLANT


 


JUDGE PETER CLARK: After eight years' service with the Respondents, the Appellant was summarily dismissed for gross misconduct on 9 June 1995. He presented an Originating Application to the Industrial Tribunal on 22 June 1995 which is silent as to the complaints which he makes. However, the case heard by the Nottingham Industrial Tribunal on 25 October 1995, proceeded on the basis of complaints (1) that he was unfairly dismissed and (2) that he was entitled to pay in lieu of notice.

The Industrial Tribunal dismissed both complaints. Their reasons for so doing are dated 30 October 1995. It is not clear whether those are summary or extended reasons but we are satisfied that they are sufficiently full to allow us to adjudicate on this appeal.

Mr Rawson has not attended and no discourtesy was intended by him or taken by the Tribunal, but we understand that he wishes us to consider the case on the papers and that we now do.

The point raised by the Appellant in this appeal is that although the Industrial Tribunal found that the Respondents had passed the Burchell test, so far as the complaint of unfair dismissal was concerned, it had failed to make a finding as to whether the Appellant was in fact guilty of misconduct such as to disentitle him to pay in lieu of notice for breach of contract at common law.

We accept that the concepts of unfair dismissal and wrongful dismissal are quite different. A wrongful dismissal may be fair. An unfair dismissal may not be wrongful. Unfair dismissal is a creature of statute; it is usually sufficient in a case of gross misconduct that an employer has formed a genuine belief, based on reasonable grounds following a reasonable investigation that the employee is guilty of that misconduct. The employer does not have to prove the misconduct. In fact that is what this Industrial Tribunal found here in dismissing the Appellant's complaint of unfair dismissal.

In a claim for wrongful dismissal it is necessary for the employer to prove the fact of the misconduct. If he does so, he defeats the claim for damages. No question of reasonableness arises.

It follows that it was necessary for this Industrial Tribunal to consider both issues in this case. Did they ask themselves the correct question in dealing with the claim of wrongful dismissal?

We first look at the Industrial Tribunal's primary findings of fact. These were not in dispute and are set out at paragraphs 2 and 3 of the Reasons. From these findings we deduce that the Appellant made the following admissions:

(1) that he was not on the Respondents' premises on two days in June when he had been clocked in for those two days

(2) that he himself had not clocked in on those two days

(3) that he had not notified anyone in authority that his clocking-in times for those two days were incorrect

(4) that he intended to tell Mr Edwards, the other employee who had admitted clocking him in, not to clock the Appellant in again.

Based on those primary findings of fact, it seems to us that it was open to the Industrial Tribunal to conclude, in paragraph 7 of the reasons, that the Appellant had been found guilty of gross misconduct. That is a separate finding from those on which the conclusion that he was fairly dismissed are based.

In our judgment it is a finding that the Appellant was in fact guilty of gross misconduct; further it is a conclusion the Industrial Tribunal was entitled to reach based on the undisputed primary facts.

It follows that we can see no substance in the ground of appeal before us. This is a preliminary hearing held to determine whether or not there is an arguable point of law to go to a full hearing. We conclude that there is not and thus the appeal must be dismissed at this stage.