United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS R CRASNOW (of Counsel) Harehills & Chapeltown Law Centre 262 Roundhay Road Leeds LS8 4HS


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal from a decision of an Industrial Tribunal sitting in Leeds. The decision was promulgated on 11 June 1997 and by that decision the Tribunal held that the employee, Mr Butler, had not been unfairly dismissed and also dismissed a claim for damages for breach of contract. Mr Butler appeals.

The facts quite shortly are that Mr Butler was employed by the Respondent as a driver of a heavy goods vehicle and had been so for a number of years. No disciplinary problems arose before the happening of the events of 4 November 1996, but on that date he overturned a heavy goods vehicle on a roundabout causing substantial damage to the vehicle. It was accepted at all stages of the proceedings that no other vehicle was involved. It was also accepted that there was no apparent defect in the vehicle which might have accounted for the happening of this accident.

The stark issue before the Tribunal was whether to accept the evidence of Mr Butler himself, or that of the scientific evidence of a tachograph and the evidential effect of skidmarks on the road. Mr Butler's own account is that he came up to the roundabout in question and stopped. Thereafter, he moved on to the roundabout gathering speed as he did so. For some reason, for which he cannot offer an explanation, the vehicle then overturned. The evidence of the tachograph was that he had been driving some 45 to 50 miles an hour prior to the roundabout. As he came up to it, he was doing 24 miles an hour. As he embarked on the roundabout he increased his speed to 27 miles an hour before braking thereby reducing his speed to something like 16 an hour. It was whilst he was doing that speed that his vehicle overturned.

Following the appeal hearing in this matter, a second tachograph report was obtained which showed that the precise speeds the vehicle was doing at various times could not really be verified, but nobody suggested that the second report established the Appellant's case that he had stopped at the roundabout. In fact, the effect of the second tachograph report was that he had not so stopped. In consequence, the stark choice which had to be made by those conducting the disciplinary proceedings, the appeal hearing which followed, and the Industrial Tribunal proceedings, was whether they were to accept the evidence of Mr Butler as to the truth of what happened, or whether they were going to accept the position suggested by the tachograph reports and the skidmarks on the road surface.

Disciplinary proceedings took place and, as a result of those, it was decided by the employers that Mr Butler had been guilty of gross misconduct and, having considered the facts, they came to the conclusion that the only appropriate way to deal with the matter was summarily to dismiss him. The matter then went to appeal and that conclusion was confirmed.

Mr Butler then took the matter to the Industrial Tribunal. They applied the principles of British Home Stores Limited v Burchell [1980] ICR 303 and reviewed the decision of the disciplinary proceedings and the appeal. They considered the investigation which had been carried out by the Respondents prior to dismissing Mr Butler, and concluded there had been a reasonable, indeed, a thorough investigation of the facts and that the decision they had come to was a reasonable one. Furthermore, they took the same view about the sanction which was imposed, namely summary dismissal, was one which was within the broad band of responses of a reasonable employer and they therefore supported the employer's decision.

Miss Crasnow has appeared for Mr Butler today, and she takes a number of points. She says that the disciplinary proceedings and indeed, the appeal, failed to take account of the fact that Mr Butler was still trying to find witnesses who he thought were present at the accident and could say something about how it happened. In fact, there was a witness traced by the police, a Mr Andrew Martin. Further, Miss Crasnow criticises the employers for making no attempt to verify Mr Butler's contention that there were witnesses. No attempts were made to trace them and obtain statements.

Second, she says, that the employers wrongly took into account an assessment made of Mr Butler's driving in the previous January 1996, when he was assessed with a poor performance because he drove too fast. It is apparent from the notes we have seen of the disciplinary hearing and of the appeal, that this was a factor which the employers did take into account. Miss Crasnow says, that bearing in mind that there were no disciplinary proceedings followed upon that assessment, it was wrong that they should have taken that factor into account.

Thirdly, she says that the Respondents attached wholly disproportionate importance to the fact that the employers had suffered serious financial loss as a result of the accident. Indeed, the evidence was that the damage done to the vehicle exceeded £20,000 but whilst the employers were covered by insurance they had had to pay an excess of £10,000. That was a factor which seems to have weighed on the Respondents' minds at the time they were considering what penalty to impose.

Fourthly, Miss Crasnow says that it was wholly wrong that Mr Butler never saw the second tachograph report until some substantial way through the Industrial Tribunal hearing. In fact, the record of the appeal hearing shows that it was agreed the employers would obtain this second report following the appeal hearing. They did so and ultimately gave their decision dismissing the appeal on 27 December, having had sight of that second tachograph report, but Mr Butler had not.

Those were the criticisms Miss Crasnow made about the way in which the employers came to their decisions. She says that the Industrial Tribunal failed to pick up those same points when reviewing those decisions.

Effectively, Miss Crasnow's criticism of the Industrial Tribunal's findings is that their decision was perverse by reason of the fact that they overlooked the points she stressed and attached too much importance to other factors she said, should not have been taken into account.

We have looked at all these criticisms and asked ourselves whether the approach of the Industrial Tribunal at each point of criticism was reasonable.

We think it is wrong to look through the Tribunal's reasons as if with a fine tooth comb to find error and faults. The Industrial Tribunal is there as an industrial jury to look at the matter with broad common-sense, particularly in a case of this sort, which turns on the facts with very little law applicable, except of course for the Burchell test.

We have come to the conclusion that the Industrial Tribunal directed themselves correctly on points of law and that they applied the appropriate tests when reviewing and considering the decisions made by the employers in this case. We have come to the conclusion that there is no arguable point of law which would enable this case to go through for a full hearing.

The purpose of this procedure is to sift out those cases where there is no arguable case and we think that we must, in the circumstances, say that this case stops here and accordingly, we dismiss this appeal.