United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS CLARK (Appellant's sister)


 


JUDGE N BUTTER QC: This is a preliminary hearing of an appeal by Mr Freeman in respect of a decision of the Industrial Tribunal at Stratford on 21 June 1996. The Tribunal gave its Extended Reasons for their decision and these were sent to the parties on 20 September 1996. The unanimous decision of that Tribunal was that the Applicant was fairly dismissed.

The Applicant's case was that, although he was dismissed for smoking in an area prohibited by company rules, that dismissal was unfair because it was not clear, as a result of the take over of the undertaking by Unisys, that the rule continued to apply and that the company failed to follow a fair procedure. In particular, it had been inconsistent in its approach to employees caught smoking. It was further argued that it was, in any event, not really a case of gross misconduct.

The Tribunal set out their findings of fact clearly. Mr Freeman had been employed since December 1984 by the Co-operative Bank as a Senior Clerk in the London Clearing Service and that operation was transferred to Unisys on 23 September 1995.

On 21 September 1995 Mr Freeman was found smoking in the ground floor messengers area and there was evidence that when spoken to he became aggressive. The Tribunal considered the company's disciplinary code which included a definition of gross misconduct as:

"Failure to comply with Health and Safety Rules and Procedures, particularly smoking in a prohibited area because of the danger of fire or explosion."

The Tribunal accordingly said that there was a clear rule saying that smoking would be treated as gross misconduct and they were satisfied that the Applicant was aware of that rule. He had maintained that, because of the proposed take-over by Unisys, it was not clear to him that the rule in fact had applied, but the Tribunal accepted the evidence of the Line Manager, Mr Voller, that Mr Freeman was unhappy with the rule and had made it clear on a number of occasions. He was, in fact, aware that the rule was there and not changing when Unisys came to take control. The Tribunal accepted Mr Voller's evidence.

The Tribunal referred to an incident concerning another employee. They say that he was a more junior member of staff, who had been found in the toilets smoking, and he had apologised and received a final written warning.

Today, Mrs Clark has said that she no longer, in the light of advice received this morning, wishes to pursue the original ground set out in the Notice of Appeal, but does want to draw attention to the fact that the Tribunal described this person as "a more junior member of the staff". According to what we have been told, he had been employed longer than Mr Freeman and apparently, at times in the same grade.

Further, the Tribunal went on to deal with the disciplinary meeting which was heard on 16 October. The Tribunal deal with what happened at that meeting. Today, Mrs Clark wishes to raise a further point, namely that on 17 October a letter, or more accurately, a document, was circulated, a notice was put up advising staff that Mr Freeman had been dismissed on the grounds of gross misconduct; that dismissal was to take place immediately.

Mrs Clark has referred to the procedure in relation to disciplinary appeals which says:

"Disciplinary action will not be taken pending the appeal, although the employee may be suspended on full basic pay, pending outcome of the appeal."

She says that the fact that this notice was put up, shows not only that procedures were not complied with, but indicates that the decision had already been made against Mr Freeman, so that, in effect, there was no prospect of the appeal succeeding.

The Tribunal dealt with the appeal hearing which was on 7 November. One point to which they refer is that Mr Lyons, who had held the disciplinary meeting, was present and stayed in the room while those considering the appeal were reaching their decision.

The Tribunal go on in their Extended Reasons to consider the application of Section 57(3) of the 1978 Act. They dealt with the question of the procedure which had been adopted. They say:

"6 ... Although an employer is required to carry out a reasonable and proper procedure at each stage of the dismissal process, including the appeal, not every procedural defect will have the effect of rendering a dismissal unfair: in the end the only thing that matters is whether the disciplinary tribunal acted fairly and justly and we find that it did on this occasion. We are convinced by the evidence that Mr Lyons played no part in the discussions and had we not been convinced the result may well have been different."

Finally, they concluded by saying:

"7 It is the opinion of the Tribunal that Mr Freeman was somewhat harshly treated, but in view of the clear rule, we cannot say that the treatment he received fell outside the band of reasonable responses of a reasonable employer and the dismissal is therefore fair."

For this appeal to proceed it will be necessary for there to be a reasonably arguable point of law. We have considered the representations that Mrs Clark has made to us. We have considered the Extended Reasons. In the end we come to the clear conclusion that there is, in reality, no reasonably arguable point of law.

In these circumstances, we would do no service to Mr Freeman or to Mrs Clark in permitting the appeal to go forward to a full hearing. It follows in these circumstances and for these reasons the appeal fails and must be dismissed.