United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (Of Counsel) Robert Howard Solicitors 1-3 Lifton Road Plymouth PL4 ONT


 


JUDGE BYRT QC: This is a preliminary hearing relating to an appeal arising from a decision of the Industrial Tribunal sitting at Birmingham on 16 August and 18 October 1995. The issue before us is to whether this case should be allowed to go forward to a full appeal.

The basic facts are as follows: the Appellant is a man aged 51, who was employed by the Respondents for some 27 years, starting off as a Sales Clerk and ending up as the Operational Director. In the course of that job he had to drive 25,000-30,000 miles a year. Unhappily he was convicted in 1994 as a result of being breathalysed and, in consequence, he suffered a disqualification for twelve months, which prevented him making use of the car himself for driving himself about his business. Following the conviction he was invited by the Personnel Director and the Manager to a meeting on 4 May for "a chat". When he arrived he was told that this was going to be a formal disciplinary hearing. He had no opportunity to consider the case against him, nor to call witnesses, nor to recruit any other sort of support for any of the issues that he might wish to raise before a decision to dismiss him was taken.

There was a further meeting on 13 May which was to confirm whether he was going to be dismissed or whether he was going to resign. On 16 May he was dismissed. It was dismissal on the grounds of incapacity by reason of the fact that he was unable to drive and accordingly disabled from fulfilling his full duties.

The case that has been presented to us today covers four points. It is said that in a number of important respects the findings of the Industrial Tribunal was not supported by the evidence which was called at the hearing. Secondly, it is said the evidence that was adduced relating to disparity of treatment, that is the treatment which was handed out to the Appellant in this case as opposed to that of other employees, was not dealt with satisfactorily. It was pointed out to us that the Industrial Tribunal had dismissed the reprieves which had been given to other employees by the old-style management (the company had in fact been taken over) and did so on the basis that that was the old-style management approach which it was inappropriate to take into account. It was submitted that, according to law, what had happened on an earlier occasion in similar circumstances under transferred management should have been taken into account by the Tribunal on this occasion.

There was also criticism of the procedure, in that the Appellant was not given a fair opportunity of knowing the case he had to meet before the commencement of the disciplinary hearing. Fourthly, there is a strong suggestion contained in the Industrial Tribunal's reasons that they had approached the test of reasonableness from the wrong point of view, substituting their own judgment about these matters for that of the employers.

We think those submissions raise issues of law which should go forward to a full hearing and accordingly we give leave. We direct that the Chairman's Notes be produced, covering the evidence of the Appellant himself both in chief and cross-examination and of Mr Wicks (Personnel Manager).