United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE D M LEVY QC: Like many appeals which we hear, the facts underlying it are sad. Mr Yorke was an employee of Schaefer Instruments Ltd. Indeed, he was a Director of that Company. The Company fell on hard times and it asked Mr Yorke to make further investments in it which he did not want to do. He was owed money by the Company.

Unhappily, a time came when he went on holiday without the leave of the Directors. Under his contract of employment, he was obliged to seek leave in advance. Because of that, he was dismissed by the Company for gross misconduct. He complained about the dismissal and brought proceedings in an Industrial Tribunal. Those proceedings were heard by the Industrial Tribunal in Reading on 11 December 1995.

At the end of the hearing the Tribunal determined that Mr Yorke was not unfairly dismissed. They also held that he was to be paid his salary, bonus, car allowance and pension contributions from 1 April 1995 until 31 May 1995.

The Industrial Tribunal made an error in calculating the amount of the award due to Mr Yorke and that was corrected, but it was from the principal decision that Mr Yorke appealed by a Notice dated 26 May 1996, the Extended Reasons having been sent to the parties on 16 April 1996. He said:

"I believe the decision is perverse. There is no indication in the Extended Reasons that the Tribunal took due account of material facts as summarised overleaf. These facts were included in the form IT1 submitted."

Overleaf he sets out a number of matters not covered by the Extended Reasons which, put summarily, were complaints about non-payment of work and what he called "harassment" by the Company.

It might well have been open to him to have claimed constructive dismissal, but that is not the claim he put forward. He said he was wrongly dismissed in the circumstances and that was investigated by the Tribunal.

We can understand Mr Yorke's dissatisfaction with the judgment not referring to the various complaints which he had made, but the learned Chairman and his colleagues may have thought they were irrelevant to the central decision as to whether the Company had good grounds for dismissing him for taking a holiday without permission at a time when it was in difficulties.

That is something which is addressed in the Extended Reasons. We find that in the following paragraphs of the Extended Reasons.

Paragraph 1 sets out the Applicant's case (the Appellant here). The Applicant claimed he had not been paid monies due to him etc.

Paragraph 2 sets out the Respondent's case, namely that he was dismissed on account of breach of his service agreement, which amounted to gross misconduct.

Paragraph 3 summarises who gave evidence.

Paragraph 4 says what documents were produced.

Paragraph 5 says:

"The facts of this matter as we found them from the evidence we saw and heard are these".

Paragraphs 6 and 7 state:

"6 In 1994/1995, the respondent was hit by the recession. The respondent suffered a cash flow crisis. The applicant had a meeting with Mr Schaefer, the Managing Director in November 1994 in Germany. At that time the applicant was asked to invest money in the respondent company, but the applicant refused. He felt that he would not see his money again. The applicant had been asked to resign as a Company Secretary and Director and he felt that his future with the company was not secure. The applicant decided to pay a visit to America in the hope of finding alternative employment. Under the company rules, the applicant should have given six weeks' notice requesting a holiday, which he failed to do. "

I interpose to say that that may slightly misstate the company's rules, but we have looked at the contract and, it is clear from the contract that he had to take a holiday at a time which was convenient to the Company and its Directors.

The Reasons continue:

" ... Without telling Mr Schaefer, the applicant booked his holiday in February and went to the United States from 3 to 10 March 1995. Mr Schaefer considered the applicant's conduct as gross misconduct clearly within Section 57 of the Employment Protection (Consolidation) Act 1978.

7 The respondent's disciplinary procedure was properly carried out and taking all these circumstances into consideration, the Tribunal finds that the applicant's dismissal was fair."

The Respondent, whom we were told this morning was in liquidation (we have no evidence of that) has not appeared on this appeal. We have listened carefully to all that Mr Yorke has said, but, as we have explained to him, this Court can only interfere if satisfied that there are errors in the decision of the Industrial Tribunal rising either from failure to find proper facts, or if legal principles have been wrongly stated or applied.

Here, there was ample evidence for the Tribunal to consider whether the Applicant's conduct was gross misconduct. As the Company submitted at the hearing, it is not for an Industrial Tribunal to replace the views of the Company if their views are ones which a reasonable employer could have reached.

We cannot fault the decision of the Industrial Tribunal as Mr Yorke wishes us to and in these circumstances, we cannot allow the appeal.

The position is that he did break a contract in a way which the Company thought was a fundamental breach; that was upheld by the Tribunal. It took into account the matters which he mention (as we say) in paragraph 6, although the Extended Reasons could have been fuller.

In the circumstances, we have no alternative other than to dismiss this appeal.