United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 834_95_1701

Appeal No. EAT/834/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 January 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR S M SPRINGER MBE

MR K M YOUNG CBE

---

FORCE 3 SECURITY LTD          APPELLANTS

MR M DUGGINS          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants NO APPEARANCE BY OR

ON BEHALF OF THE

APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Force 3 Security Ltd against the decision of the Industrial Tribunal held at Birmingham on 14 June 1995.

The Tribunal decided, for full reasons explained to the parties on 5 July 1995, that they had unanimously decided that the Applicant, Mr M A Duggins, had been unfairly dismissed. They went on to find 50 per cent contributory fault and awarded compensation of £1,352.00.

Force 3 Security Ltd appealed against that decision. The Notice of Appeal was served on 2 August 1995. The matter was set down to be dealt with as a preliminary hearing, because it was not clear from the grounds of appeal and accompanying letter what point of law the appeal raised.

All that was said in the grounds of the Notice of Appeal was this:

"Full particulars of the case were not presented or taken into account on the specified time."

The covering letter which is dated 27 July 1995 said that

" ... the reason we feel that we must appeal is that Mr Duggins [the Applicant] was asked for all relevant paperwork to be sent prior to the case being heard. This was not done and the paperwork which was handed to us on the morning of the tribunal could have made a difference in us bringing a relevant witness.

We advised the usher that we had not seen this document before and requested time to assess what [course] of action we could take.

We were advised to mention this at the beginning of the tribunal, which Mr Hall did, ..."

(Mr Hall was a Director of the Company who conducted the hearing on behalf of the Company and also gave evidence).

"... and was told that they would come back to this.

This was not done and we feel that legally we have not been correctly treated with regards this matter."

Those complaints are repeated in substance in the skeleton argument submitted by Force 3 Security Ltd on 8 January 1996. They make the same complaint as in the letter of 27 July 1995 and submit that, in those circumstances, the hearing should have been adjourned or that they should have been given time to allow them to bring a witness to the hearing who would have disproved some of the facts in the new statement in the document shown to them. They were not allowed to present their case in the right and proper manner and legally the decision should be overruled.

At the hearing this morning, there has been no attendance by anyone, either a Director of or a representative for Force 3 Security Ltd. They notified the Tribunal that nobody would attend.

In those circumstances it is for us to decide on the papers submitted whether or not this appeal raises an arguable legal point. If it does not, the appeal must be dismissed; if it does, it will be allowed to proceed and there will be a full hearing at which both sides can be represented.

The case is straightforward. Mr Duggins submitted his complaint of unfair dismissal on 11 March 1995. He was employed as a Security Officer in the gatehouse of the factory. He set out in box 12 of the IT1 the details of his complaint that he had been unfairly dismissed.

The case was contested by Force 3 Security. They set out in a letter the grounds on which they resisted his claim. The basis of their defence that he had been fairly dismissed was that he had been absent from shifts at which he should have been in attendance; that he had received previous warnings, written and verbal, about his appearance on duty, his attendance and his timekeeping. They said that he had had every opportunity to appeal against the dismissal and he had been fully paid up for the current month, with accrued holiday pay and a month's pay in lieu of notice.

They said that they treated their staff fairly and with respect. Mr Duggins was treated with the same respect as others. The dismissal was not unfair.

It was clear by the date of the hearing on 14 June what were the issues for decision. The Tribunal set out in detail in their decision the findings of fact. They gave the details of Mr Duggins's employment which had begun in August 1987 as a Security Officer; details of the security system were given and, absence figures relating to Mr Duggins which were not disputed by him.

They dealt with the immediate events leading up to the dismissal. Having set out their findings of fact, they stated in paragraph 11, correctly, that the question to be addressed was whether Force 3 Security had established the reason for dismissal and, if so, whether the dismissal for that reason was fair or unfair. They found that the reason for his dismissal was non-attendance. That could be a conduct reason or some other substantial reason for dismissal.

There is no error of law in that. The only error could therefore be in the decision whether or not it was fair and reasonable to dismiss him for that reason. On this part of the case the Tribunal came to these conclusions. Mr Duggins had been dismissed with immediate effect. That was not the response of a reasonable employer. They accepted that regular attendance was essential, but this was the first breach of the new rule. In the view of the Tribunal, a reasonable employer would have called in Mr Duggins to discuss the matter; drawn his attention to the new rule and say that, having regard to his previous attendance record, a formal warning would be issued. That would indicate that, unless he was prepared to improve, dismissal might follow.

In those circumstances, the Tribunal felt the dismissal was unreasonable. They also criticised the dismissal procedure. Mr Hall decided that he had had enough and had failed to call in Mr Duggins to any disciplinary interview. He simply wrote him a letter of dismissal. Even taking into account that the Appellants were a small firm and that regard should be had to administrative resources, they ought to have had a reasonable procedure. There was no procedure. The way in which Mr Hall had handled the matter was unfair. For those reasons there was unfair dismissal.

They considered the question of contributory fault. It is not necessary to examine that, because there has been no appeal by either side on that issue.

Where is the error of law? It is not possible to identify one in the grounds of appeal or in the skeleton argument. The complaint is not about the reasoning of the Tribunal for the decision that this was an unfair dismissal. The complaint in substance is that the Tribunal should have granted an adjournment or given some further opportunity to the Appellants to bring a witness to the hearing, who could give evidence disproving some of the facts in a document which had only been given to the Appellants shortly before the hearing.

The complaint is about the Tribunal's exercise of their discretion to proceed with the hearing, even though the Appellants had objected on the grounds mentioned.

In our view, it is not possible to find an error of law. The Industrial Tribunals have a wide discretion to decide whether or not it is appropriate to grant an adjournment or to proceed with the hearing. It seems to us, from reading the decision and noting the fact that evidence was given to the Tribunal, not only by Mr Duggins (he is conducting his case in person) but also by both Mr Hall, a Director, and Mrs Evans, the Company Secretary. They both had a full opportunity to give their evidence. It appears from the findings of fact in the decision, that the evidence of Mr Hall was crucial to the point on which the case was decided.

In paragraphs 14 and 15 of the decision the Industrial Tribunal explained why the dismissal was unfair. It was unfair because it was not a reasonable response to dismiss him, without a prior formal warning, for the breach of the new rule. It was unfair to dismiss him because there was no proper disciplinary procedure. They were both matters on which Mr Hall would be the appropriate person to give the evidence. He had the opportunity to give that evidence. It does not appear that there was any serious dispute about the facts. The question was whether, on the evidence, there was a fair or unfair dismissal.

In our view, there is no legal error in the reasoning of the Tribunal. There can be no appeal against their findings of the facts. It is not a legal ground of appeal the Tribunal went on to hear the case, instead of acceding to the objection by Mr Hall to the Tribunal proceeding. The Tribunal's exercise of the discretion cannot be faulted.

For all those reasons, there is no arguable legal point on this appeal. It is dismissed.