United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K A CURL (Industrial Law Consultant) PPCL Godwin House George Street Huntingdon Cambridgeshire PE18 8BU


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal against the decision of the Industrial Tribunal sitting at Bury St Edmunds when it held that the employee in question, the Applicant, had been unfairly dismissed and ordered her to be paid compensation amounting to the sum of £2,488.66.

The employers now appeal. They are a large international company dealing in the flavouring and fragrances market and the employee, Miss Lawrence, was employed by them as head of the samples laboratory of their flavours division. Although she was comparatively poorly paid, it is clear that she had a fairly important and influential position and on the evidence to which we have been directed, it seems that she had access to the company's formulae which were the basis of a number of their flavourings and fragrances. Mr Curl, for the employers, told us the value of such formulae in terms of pounds, shillings and pence, is very considerable.

What happened was that in September 1996 Miss Lawrence's partner, a Mr Hunt, who was also employed by the Appellants resigned. He went and took up employment with a competitor in the market. The employers took the view that it made Miss Lawrence's position in the company untenable and they decided to dismiss her.

When considering the basis upon which the employers had dismissed Miss Lawrence, the Industrial Tribunal came to the conclusion that their decision was just about within the broad bands of reasonable responses. That conclusion is set out in paragraph 3 of their decision.

In paragraph 4, the Tribunal then goes on to consider the procedures leading up to that dismissal and they came to the conclusion that the dismissal was unfair because there had been no proper investigation by the employers as to whether there was some suitable alternative employment which might have been available to Miss Lawrence outside the area of work in which she would have had access to these highly valuable and confidential formulae.

Mr Curl has addressed us on the evidence that was available to the Tribunal and, in our view, there is an arguable case that the Tribunal might have overlooked certain features of that argument. There were further and better particulars provided by the employers set out at bundle A1, page 12, which showed all the jobs vacancies which had occurred over the relevant time, both at their Hammersmith depot and at their Haverhill depot. It is conceded that none of those jobs would have been suitable alternative employments for Miss Lawrence. In addition, we have had our attention drawn to certain correspondence conducted by the Personnel Manager of the employers with the Applicant at A1, page 30, in which it would seem to have been suggested by Miss Lawrence and her advisers that somebody else within the Company should have been dismissed, so as to enable her to be found an alternative position elsewhere. It looks as if the Personnel Manager in that letter is turning down that suggestion on the basis that she had information that Miss Lawrence was in any event thinking of terminating her employment at the end of the year at Christmas.

Without going further into the merits of the matter, it is our view that Mr Curl has an arguable point on the issue of the employers' inquiry into the availability of alternative employment, and it should go forward to a full hearing.

There is a second point raised by Mr Curl. The Industrial Tribunal came to the conclusion that it would have taken the employers something like eight weeks to have followed through the proper procedures had they intended to comply with them and, as a result, they based their compensation award on that computation of time. In doing so, they stated that they had in mind that the employers had taken six weeks to set up the Applicant's appeal. Mr Curl says that this was an unreasonable finding in view of the fact that the Tribunal's decision was given only on 17 September. There was correspondence on 25 September from the employer's Personnel Director, offering an appeal to Miss Lawrence and Miss Lawrence replies on 7 October selecting the date for herself, namely 1 November. Mr Curl says the Industrial Tribunal were not justified in blaming the employers for the six week delay in setting up the appeal and they were wrong to use that delay as the yardstick of the relaxed and leisurely way in which these employers would have followed through the correct procedures. Accordingly he says the Tribunal was wrong to use those facts as the basis of their assessment of compensation. We think that that point is arguable and should be considered at the full hearing.

So on those two points we think that this matter should go forward to a full hearing.