United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G MORTON (of Counsel) Messrs Pattinson & Brewer Solicitors 1 Bridge Street York YO1 1DD


 


JUDGE H J BYRT QC: This is an ex-parte hearing in the course of an appeal against a decision of the Industrial Tribunal sitting at Hull, in February and March 1997 when it held that the Applicant's claim for unfair dismissal had failed.

Quite shortly the facts are that the Appellant was employed by the Respondents as a train driver and had been so employed since 1974. In addition to filling that role, he was also an important local Trade Union official, specialising in Health and Safety matters. The Industrial Tribunal however found that his Trade Union activities had nothing to do with his dismissal.

The rules of service made plain that employees were entitled to have a personal needs break of half an hour at certain specified times of the day. On 9 August 1996 the Appellant left the premises where he worked at about mid-morning and whereas he would be entitled to a personal needs break for something like 30 minutes, he made use of that opportunity to go and arrange an MOT for his motorcycle at a garage in Coniston, a distance of some eight miles away. In addition to that his intention was that he would go to a fish and chip shop on the way back and pick up a meal for himself and another employee.

Unhappily for the Appellant, he had a motor cycle accident while he was engaged on this activity and he was seriously injured and had to be taken to hospital. As a result, his employment was interrupted for some considerable time thereafter. What was apparent was that he had left the premises for a period of time considerably in excess of that permitted for a personal needs break without having leave to do so, contrary to the rules of service. The rules were quite explicit and the Industrial Tribunal found that the Appellant was fully aware that if he left the premises where he was working for a period in excess of the limited period of 30 minutes for a personal needs break, he did need to have permission to do so.

In evidence before the Industrial Tribunal, the Appellant accepted that he would never have been able to get back to his place of work within the 30 minute time limit and therefore a fortiori did need permission. He had gone without and in consequence was in breach of the rules.

The employers however had a further suspicion. They asked themselves why he did not make arrangements for the MOT testing by telephone and secondly, his shift would have ended at 4 o'clock in the afternoon, why did he not go to make the arrangements for the MOT at 4 o'clock, because the garage at Coniston was on his way home?

Putting two and two together, the employers came to the conclusion that the Appellant was in fact intending to go home for the rest of the day and, in due course, doubtless would make a claim for wages or expect his wages to be paid for the whole of that day. In consequence, when they had carried out their investigations and decided that a disciplinary hearing was necessary, they preferred a charge against the Appellant to the effect that not only had he left the premises without permission but also was engaged in making a fraudulent claim for wages for that day. At the disciplinary hearing, the investigating officer decided that both aspects of the charge were proved, that he was guilty of gross misconduct and accordingly merited instant dismissal. That was the sentence which was imposed.

When this matter came before the Industrial Tribunal, they made an express finding that there was no evidence to the effect that the Appellant had intended to make a dishonest claim and yet, notwithstanding, they endorsed the penalty the employers had imposed on the basis that gross misconduct had been made out. Mr Morton, for the Appellant has argued that, whilst the Industrial Tribunal did not accept the employers' contention that there was sufficient evidence of dishonesty. they endorsed the employer's sentence of instant dismissal because it had failed to appreciate the shift in position which resulted from their own findings.

We find that there is an arguable case to go forward to a full hearing on the basis that the offence of which the Appellant was guilty, namely of leaving the premises without permission, may not have amounted to gross misconduct at all and may not therefore have merited instant dismissal.

There were other aspects however referred to in the Notice of Appeal. One is that by reason of the fact that the Appellant was arguably engaged in Trade Union activity on that day and that he was engaged in the process of rostering, that he was pursuing a protected duty. We have listened to what Mr Morton has to say about that. There is an express finding of the Industrial Tribunal that the duties of arranging a rostering was essentially not a Trade Union activity and accordingly, we do not see that there is any arguable case to go forward on the basis that the Appellant was so engaged.

Mr Morton also submitted that there was some ambiguity about the position of an employee leaving to have a personal needs break and whether in any circumstances permission was required when he was doing so. We are however satisfied that the Industrial Tribunal came to the conclusion that the Appellant had taken leave of his place of work to engage in a frolic of his own. When it is accepted and admitted by the Appellant himself that he could not have got back within the 30 minutes, it is our view unarguable that he was not in breach of the rules of service.

Accordingly, we give leave for this appeal to proceed to a full hearing solely on the penalty which was imposed.