United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 856_95_1201

Appeal No. EAT/856/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th January 1996

HIS HONOUR JUDGE P CLARK

MR J R CROSBY

MR P DAWSON OBE

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GARDINER TECHNOLOGY LTD          APPELLANTS

MR P BREAKWELL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR MICHAEL BROOK

(Director)


 


JUDGE CLARK: This is an appeal by the employer against a unanimous finding of the Nottingham Industrial Tribunal that the employee, Mr Breakwell, was unfairly dismissed and that he is entitled to compensation totalling £2,133.70.

At this preliminary hearing the question for us is whether the appeal raises any arguable point of law which should go to a full hearing of this Appeal Tribunal.

In paragraph 3 of their extended reasons the tribunal set out the basis for their finding that the dismissal was unfair in this way:

"a) the Applicant had a good record in his former post as a trade counter assistant although he received one verbal warning as to time-keeping shortly before he was promoted to Branch Manager;

b) he was not given adequate training or support during his 3 month probationary period as Branch Manager at Nottingham, a post which required a daily journey from Birmingham;

c) he was not made sufficiently aware if at all of the possible consequences if he failed to attain the standards required in his probationary appointment and if he was not confirmed in the post;

d) he was not interviewed and he was given no opportunity to state his case before the decision was made to dismiss him and this was a clear breach of natural justice."

In this appeal Mr Brook, a director of the employer company, seeks to attack those findings in the following ways:

First of all the finding in paragraph 3 d) of the reasons that there was no interview and an opportunity to state his case before the decision was made to dismiss him. Mr Brook accepts that a pre-judgment had been made before the respondent employee was dismissed, that an interview was held and then he was given a pre-typed letter of dismissal.

In those circumstances, it seems to us, that the tribunal was entitled to make the finding which it did in paragraph 3 d). We should also add, as to the submission that is made on behalf of the employer, that it is unlikely that the decision would have been changed and therefore this should not have influenced the decision of the tribunal, nor the award made. We refer to the guidance of the House of Lords in the case of Polkey v Dayton [1988] ICR 142 for the proposition that whether or not that would have made any difference to the outcome is not material to the question of whether or not the dismissal was fair.

Secondly, in relation to paragraph 3 b) of the reasons, inadequate training, the argument seems to be that the Industrial Tribunal ought to have found that there was adequate training. These are matters of fact which Parliament has entrusted to Industrial Tribunals and are not, in the absence of any evidence to support the finding, matters which we can interfere with on appeal.

Thirdly, in relation to paragraph 3 c) of the reasons, the complaint raised there appears to be that the employer was disadvantaged because the Regional Manager, Ms Harrison, did not give evidence on it's behalf. This was, unusually, a case where no oral evidence was given by either party. The tribunal had to deal with the matter on the basis of written representations, and it was for the Respondent, as the employer was before the Industrial Tribunal, to lead such evidence as was necessary. Apparently it did not do so, and this has been, in Mr Brook's words, a steep learning curve. I am afraid these lessons must be applied in the next case, if there is one, concerning these employers. So far as this appeal is concerned, we can discern no arguable point of law to go to a full hearing, and in those circumstances, the appeal must be dismissed.