At the Tribunal | |
Before
THE HONOURABLE LORD JOHNSTON
MRS R A VICKERS
MR G H WRIGHT MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING - EX PARTE
For the Appellant | MR C HARRISON (Representative) Citizens Advice Bureau The Oasis Centre 10 Market Street Kettering Northamptonshire NN16 0AH |
LORD JOHNSTON: This is the judgment of the tribunal in relation to the preliminary hearing in the case Mrs S Harris against BCC Marketing Services Ltd. The background to this matter is that the appellant was dismissed from her employment with the respondents consequent upon allegations which the tribunal held to be substantiated that she had falsified returns on telephone surveys relating to the respondents' business. The tribunal went into the matter in some depth and determined that while the reason for dismissal was conduct on the part of the appellant, the way in which the matter had been handled particularly with relation to the investigation and hearings on the matter, was so fundamentally flawed that the dismissal could not be categorised as fair and accordingly a finding of unfair dismissal was recorded against a background of what could be categorised as procedural irregularities and inadequacies.
However, the tribunal went on, as it is bound to do in this situation, to assess what the likely consequences might have been in relation to acceptable procedures, and furthermore and more importantly perhaps, whether or not there was contribution on the part of the employee to the dismissal which was effected. Having considered those matters, it determined that contribution should be assessed at 100% and it is against that finding that the appeal is now brought to this tribunal.
Before us Mr Harrison, on behalf of Mrs Harris, submitted firstly that the breakdown in procedures was so fundamental that it was open to this tribunal to find that the tribunal should not have considered the question of contribution at all, but should have left the matter on the basis that there was a finding of unfair dismissal which should have admitted remedies.
With that approach, we are unable to agree, because it is quite clear that in any situation where an unfair dismissal finding is made by a tribunal involving conduct it is incumbent upon the tribunal to have considered the question of contribution. This appeal tribunal will only ever interfere with such a consideration if it is apparent on the face of the record of the tribunal's findings, that they have fundamentally erred in almost absurd or perverse way.
This case reveals quite the opposite, in as much that the tribunal have plainly considered in some depth the credibility issues that obviously arose in the case between particularly the appellant and Mrs Brown who was the lady effectively checking the results of the surveys to lead to the conclusions that were reached. The tribunal have resolved that matter upon the basis that the employer would be bound, looking towards the end of the decision, to have believed or at least entitled to believe Mrs Brown as opposed to Mrs Harris. Against that background they therefore asses, quite understandably and logically, that the contribution should be assessed 100%.
Even if this tribunal were to take a view that that was harsh or excessive in one sense, it certainly cannot be said that it was not based upon facts before the tribunal upon which they were entitled to consider their conclusion and reach one. We therefore consider that this ground of appeal discloses no question of law for appeal.
Thereafter, Mr Harrison secondly submitted that properly understood there was material in the case which would have severely borne upon the adequacy of the investigation which presented, perhaps putting it simply, at least the opportunity for a different conclusion as to its findings in relation to the credibility of the witnesses and the conduct of Mrs Harris.
Here again, this seems to us to be raising questions of fact which were before the tribunal upon the evidence or could have been put in submission before them, some of them which in fact were, and in the circumstances, we consider that this ground of appeal, although cogently argued, reflects an attempt to review the evidence for a different conclusion, rather to raise any issue of law as a matter of appeal. Again, we are therefore unable to accept this ground of appeal.
Finally, Mr Harrison submitted that the evidence that was considered by the tribunal in some aspects in relation to the falsification of results was misapplied by them to the extent of reaching perverse conclusions as to whether or not what Mrs Brown found to be the inadequacies or inaccuracies in Mrs Harris' work to be justified upon the evidence. Again, we regret to have to say that we consider the tribunal were more than entitled to consider the evidence across the board, which they did, and reach the conclusion they did, and here again, we are of the view that what is being attempted here is a review of the evidence rather than raising any question of law.
For the reasons we are of the opinion that this case does not raise any questions of law suitable for consideration by this tribunal, and the appeal will be dismissed.