United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1348_95_0506

Appeal No. EAT/1348/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 June 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR K M HACK JP

MR D J JENKINS MBE

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CARPET WORLD          APPELLANTS

MR W R DELUCE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR ON BEHALF OF THE           APPELLANTS


 


JUDGE PETER CLARK: This is an appeal by the employer, Mr Lucas trading as Carpetworld, against a decision of the London (South) Industrial Tribunal sitting on 10 November 1995 that the Respondent employee, Mr Deluce had been unfairly dismissed. Extended Reasons for that decision are dated 15 November 1995.

The Appellant carried on a carpet selling and fitting business in which the Respondent was continuously employed from August 1992 until his summary dismissal on 21 April 1995. The events leading up to that dismissal fall within a small compass and can be summarised as follows.

On the previous day the Respondent had arranged for a carpet fitter to attend early on the following morning to fit carpets to the value of £2,000 at a public house. The publican expected the fitter to arrive at 7.30 am and to be finished by 11.00 am. No one turned up. The publican telephoned the Appellants' offices. He was not happy. He spoke to Mrs Lucas, wife of Mr Lucas. To make matters worse Mr Deluce, who was supposed to have arranged for the fitter's attendance was late into the office that morning. His usual starting time was 8.30 am; he arrived at 8.50 am, or possibly later. The scene was set for a confrontation between Mrs Lucas and the Respondent.

The precise details of that confrontation were a matter of dispute in the evidence. The Industrial Tribunal preferred the account given by the Respondent to that of Mrs Lucas. At all events the Respondent used some industrial language, sweeping out of her office in a temper and knocking over a detergent bottle in the process.

That incident was followed about an hour later by Mrs Lucas handing to the Respondent a typed "formal warning", signed by Mr Lucas, referring to the Respondent's arrival for work late, complaints about his work, and concluding with these words:

"Added to which we cannot find acceptable your aggressive manner both verbally and physically ; culminating today in you both swearing and throwing items at Janet Lucas."

So there it was, the incident was apparently dealt with by way of a formal warning.

And yet, one hour after that letter was handed to the Respondent, both Mr and Mrs Lucas approached him to say that he was being given a week's notice of dismissal. That was followed by a second letter which read:

"Further to your formal notice and the following events of today's date, we now give you one week's notice. Wages due and your P45 will be forwarded to you within the next two weeks."

In fact, when the letter was handed to Mr Deluce he was asked to leave the premises immediately and the Tribunal found that effectively he was summarily dismissed, rather than dismissed with one week's notice.

On those facts the Tribunal found that the reason for dismissal related to the Respondent's conduct. However, they held that the dismissal was unfair, first because the Respondent was given no opportunity to state his case, secondly, because having initially given him a warning for the same events which led to his dismissal, the Tribunal concluded that dismissal fell outside the range of responses open to a reasonable employer. Finally, the Industrial Tribunal considered the question of the Respondent's own conduct contributing to his dismissal and declined to make any finding against him. The question of remedies was adjourned.

This is a preliminary hearing held to determine whether or not the appeal raises any arguable point of law, our jurisdiction to interfere with Industrial Tribunal decisions being limited to correcting errors of law only.

Mr Lucas has not attended to advance oral submissions in support of his appeal, but we have considered the case on the papers and in particular the grounds attached to his Notice of Appeal.

He takes issue with the Tribunal over various findings of fact made in favour of the Respondent.

Findings of fact are for the Industrial Tribunal, not for us. There was evidence to support those findings and we can see no error of law on this aspect of the appeal.

Secondly it is contended that the Respondent was not in fact summarily dismissed because he received a week's money on termination. First, that is a summary dismissal. Second, it really does not matter for the purposes of this unfair dismissal claim whether the dismissal was summary, or on notice.

Finally, there is a challenge to the Industrial Tribunal's finding that the Respondent had not contributed to his dismissal.

For there to be a finding of contribution such as to result in a diminution or the extinction of the compensatory and basic awards there must first be conduct on the part of the employee which is culpable or blameworthy and that conduct must contribute to the dismissal. If these requirements are met, the Tribunal then has a discretion as to whether it feels that it is just and equitable to reduce his compensation.

On the facts this Tribunal was not satisfied that his conduct did contribute to his dismissal. That was a finding in our judgment which was open to the Tribunal and not one which we can characterise as perverse.

In all the circumstances we have reached the conclusion that this appeal discloses no arguable point of law and it must be dismissed.