United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A HOSSAIN (of Counsel) Messrs E Edwards Son & Niece Solicitors Three Horseshoes House 139 High Street Billericay Essex CM12 9AF


 


MR JUSTICE MAURICE KAY: This is a preliminary hearing of an appeal by Roy Allen Smith from a decision of an Industrial Tribunal following a hearing on 10th February 1997.

Mr Smith worked for M R Data Management Ltd from October 1974. The Company specialised in computer data processing and Mr Smith was a salesman responsible for meeting clients and generating business.

A point came where his sales director, Mr Jahn, received reports that Mr Smith had been passing on confidential customer information to a rival company. Mr Smith denied this. Mr Jahn suspended him, but subsequently concluded that Mr Smith had been guilty of gross misconduct and dismissed him with effect from 10th April 1996.

There was an internal appeal contractually available to Mr Smith within the Company, and he exercised his right under that contract. His appeal was heard by the Chairman and Financial Director on 29th April 1996. The Industrial Tribunal found that his appeal was upheld on the ground that the evidence against him was not sufficiently strong to justify the conclusion that he had been guilty of gross misconduct and it was not reasonable to dismiss such a long-standing employee, with a good record, on such evidence. They directed that Mr Smith be re-instated.

There is in the bundle a letter from the Personnel Manager dated 8th May 1996 communicating that decision to Mr Smith. It is in the following terms:

"Concerning your appeal meeting on the 29 April 1996 and your meeting with David Jahn today, this is to confirm that we wish to reinstate your employment with M-R Data Management Limited with immediate effect.

I understand from David Jahn that you will be contacting him on Friday with your decision on whether or not you will be accepting this reinstatement."

In the event, Mr Smith decided not to return to M R Data Management Ltd. A finding of fact in the Industrial Tribunal was indeed that he had already begun a new job with effect from 29th April 1996 and he had decided that he did not want to return to M R Data Management. The tribunal examined the reasons for that decision, they are set out in paragraph 2(g) of the Industrial Tribunal's decision. In essence, Mr Smith said that he felt hurt and angry at the way he had been treated; that the allegation had been unfounded and should not have been made having regard to his many years of loyal service. He felt his reputation had been damaged, particularly since others in the Company knew that he had been dismissed for misconduct. He asked Mr Jahn on 8th May to send round a memorandum explaining that he been fully exonerated but Mr Jahn had not agreed to do this. He felt that there would be continuing difficulties with Mr Jahn and that he, Mr Smith, was a "marked man".

The tribunal in assessing the reasoning of Mr Smith, came to the conclusion that it had been reasonable of him to decide not to return to M R Data Management.

The first question before the tribunal was whether there had been a dismissal. The decision of the tribunal was that there had not. That decision was founded on authorities referred to in paragraphs 3 and 4 of the decision and, in particular, two unreported decisions of this tribunal namely Cooke v Ministry of Defence decided on 14th May 1984 and Pearce v Eastern Electricity Board in which the judgment of this tribunal was given on 6th February 1986.

The essence of the legal proposition therein contained, is that once an internal appeal has been allowed and reinstatement ordered, the effect is to rescind or cancel the original "dismissal" with retrospective effect.

In making his submissions on behalf of Mr Smith today, Mr Hossain accepts that legal principle in what we may call a straightforward case. He submits however that this is not a straightforward case because here, he says, the reinstatement was a sham. A mere stratagem deployed in order to defeat a claim for unfair dismissal. He points to the fact that in his Originating Application, Mr Smith had stated:

"I believe that M R Data Management Limited knew that I had obtained alternative employment and have made the offer of reinstatement to protect themselves against a claim for unfair dismissal."

Mr Hossain then goes on to submit that the Company was engaged in continuing repudiatory breaches of the contract of employment in devising and implementing this sham, and that the true legal analysis is that Mr Smith was finally dismissed, not on the basis of the decision that had been communicated to him by Mr Jahn on 10th April 1996, but as a result of a constructive dismissal taking place on 29th April 1996 continuing until 8th May 1996. He bases that submission on the factual findings of the Industrial Tribunal in paragraphs 2(f) and (g) which we have already summarised. He says that the tribunal's mistake was to be found in not proceeding to consider constructive dismissal. He accepts the finding so far as the events of 10th April were concerned but seeks to challenge the findings as a point of law in the failure to consider constructive dismissal.

Our task today is to consider whether that is an arguable contention which ought to be permitted to proceed to a full hearing before this appeal tribunal. We have given Mr Hossain's submissions careful consideration, but we regret to say that we have come to the unanimous conclusion that they do not stand any chance of success.

It seems to us that the matters truly in issue between the parties were put before the Industrial Tribunal. They heard the evidence and submissions and clearly did not believe that the employers had behaved with the deviousness which is now sought to be attributed to them. In all the circumstances, it seems to us that the analysis of the evidence and the law contained in the decision of the Industrial Tribunal cannot be faulted. The appeal of Mr Smith is one that is doomed to fail, and it is hereby dismissed.