United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C DABEZIES Solicitor Kensington CAB 1 Thorpe Close London W10 5XL
For the Respondent


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the London (North) Employment Tribunal sitting on 8 May 1998, Mr Chikhi, against that Tribunal's decision, promulgated with extended reasons on 2 July 1998, to dismiss his complaint of unfair dismissal against his former employers, the Respondent Dovercourt Motors Ltd.

The Appellant commenced employment with the Respondent as a technician on the 20 July 1982. He was dismissed on 12 weeks notice on 24 October 1997. That notice expired on 16 January 1998.

The Respondent had a strict rule that staff must only work on vehicles which have been booked in through the company's system. That rule the Tribunal found was well known to the Appellant and was contained in an operating directive issued on 9 July 1993 to staff.

On the afternoon of 23 October 1997 Mr Robson, the General Manager saw the Appellant leave the workshop, return, and then leave again with a fellow employee, Mr. Polycarpou. He then saw the Appellant close the bonnet of a car parked behind the workshop. He noted the time was then 2.20 pm. He saw the Appellant return to the workshop.

Mr Robson checked the position some ten minutes later when he was told that the Appellant had driven the car off. Mr Robson then saw him holding a conversation on a mobile telephone and subsequently driving the car down the road and parking it further down, the process was noted by Mr Robson to have been completed by 2.50 pm. He believed that the time spent by the Appellant outside the workshop was between fifteen and twenty minutes although the time elapsing between Mr Robson observing the Appellant closing the bonnet of the car and his final return to the workshop was thirty minutes. Mr Robson checked the Appellant's work card. He had been booked into another job at that time. That job was booked in at 1.50 pm and clocked out by him at 3.15 pm. Mr Robson formed the impression that the Appellant had been working on the other car during the time when he had booked to work on the vehicle in the workshop.

Mr Robson called him to an interview which took place at 4.30 pm the same afternoon. The Appellant was accompanied by a colleague, Mr Harris and the interview which was recorded in long hand lasted for some forty minutes. The Tribunal found that during the course of the interview Mr Robson asked the Appellant if he and Mr Polycarpou were working on a car outside the business premises which did not have a job card. The Appellant replied yes. Mr Robson asked who the car belonged to and the Appellant said "to his Aunt". He then asked the Appellant if he had permission to work on the car and he said no. Mr Robson then asked the Appellant if he had admitted that he was clocked on to another car during that time and the Appellant agreed. It was put to the Appellant that he had stolen company time and the Appellant then replied yes.

There was a conflict of evidence before the Tribunal as to whether the Appellant had given an explanation at that interview with Mr Robson. He told the Tribunal he told Mr Robson he had been outside looking at the car but not working on it but he had merely been parking the car and he had taken the time as his tea break. Mr Robson told the Tribunal that the Appellant did not say this and the Tribunal, for reasons given in paragraph 12 of their reasons, preferred the version given by Mr Robson. They therefore rejected the Appellant's case first put before the Tribunal that he had told Mr Robson at the disciplinary interview that he had taken the time as his tea break. The significance of that will emerge later in this judgment.

As a result Mr Robson thought about the matter overnight, discussed it with colleagues the following morning and considered particularly whether the misconduct which he found had taken place, that is without permission the Appellant had been working on his Aunt's car when booked to a vehicle in the work shop, merited dismissal or action short of dismissal in the form of a final warning. Mr Robson concluded that the matter was serious particularly as the Appellant had worked for the company for a long time and knew the rules.

He decided that dismissal was the appropriate penalty but in the light of the Appellant's length of service, instead of awarding summary dismissal, he awarded dismissal on twelve weeks' notice.

Against that decision the Appellant appealed. The appeal was heard by Mr Dryden, the dealer principal on 20 November 1997. The appeal was dismissed.

The Tribunal found that the reason for dismissal was that given by the Respondent, namely conduct. As to the question of reasonableness under section 98(4) of the Employment Rights Act 1996, the Tribunal found that what is colloquially known as the Burchell test was met and that, although on the borderline, dismissal fell within the range of reasonable responses. There had been no procedural unfairness. Overall the dismissal was fair.

In this appeal Mr Dabezies takes four points in support. The first is that the Tribunal was wrong to accept that the Respondent could regard the Appellant's length of service as an aggravating feature, the view taken by Mr Robson. It could only go to mitigation. We reject that submission. It seems to us that the employer was perfectly entitled to take into account the fact that here was a long standing employee who in breach of a rule well known to him, chose to work on a relative's vehicle during time when he was booked to work on a customer's vehicle.

Secondly, he submits that the Tribunal failed to take into account a relevant matter. That is the Appellant's evidence that during the material period of time which could be as little as fifteen minutes on the various versions put forward, was time which he was entitled to take by way of a tea break. We have already referred earlier to the Tribunal's finding rejecting the Appellant's evidence given for the first time at the Tribunal hearing that he had been on a tea break and had indeed mentioned that fact to Mr Robson at the disciplinary interview on 23 October 1997.

The submission made on behalf of the Appellant was recorded at paragraph 22 of the reasons and it seems clear to us that implicitly the Tribunal rejected that submission. It is well established that it is not necessary for a Tribunal to set out each and every conclusion based on evidence and submissions which it has referred to earlier in its extended reasons. We therefore reject the submission that had that matter been taken into account in the way Mr Dabezies submits it ought to have been, that would have pushed this case over the borderline so that the Tribunal would have concluded or might have concluded that dismissal fell outside the range of reasonable responses.

His third point is a straight perversity point as he acknowledges. He sets out seven factors in his skeleton argument which he says lead this Tribunal to the inexorable conclusion that the Employment Tribunal reached a perverse conclusion in finding that dismissal fell within the range of reasonable responses. We have considered those factors, all of which were before the Employment Tribunal and quite simply we are satisfied that the perversity hurdle is not overcome in this case.

The fourth and final point added by way of amendment to the notice of appeal is this. There was before the Employment Tribunal two sets of terms and conditions of employment. The first set issued in 1983 was signed for by the Appellant. The second set issued in 1994 was received by him but apparently not signed for. Mr Dabezies submits that the Employment Tribunal should have made a clear finding of fact as to which of those two sets of conditions applied at the material time. However, he acknowledges that he did not take below any point that it was the first set of terms and conditions that applied and not the second. It has been made abundantly clear in cases going back twenty years and most recently by the Court of Appeal in Jones and Burdett Coutts School 1998 IRLR 521 that new points will not be permitted in this forum save in exceptional circumstances, particularly where the point does not go the Tribunal's jurisdiction and where if the appeal were allowed on that basis, it would inevitably follow that the matter would have to be remitted for further fact finding by the Employment Tribunal. This is not an exceptional case and we shall not allow the point to be taken for the first time here.

Finally, Mr Dabezies submits that on the basis of the second set of terms and conditions and the disciplinary procedure there set out, this case did not fall within the definition of gross misconduct. We disagree. The case was that the Appellant had stolen the employer's time. Time is money, it is covered by the examples of offences which were normally regarded as gross misconduct, namely theft, fraud and deliberate falsification of records. As to the final point, the finding of the Tribunal was that all material times the Appellant was booked to do a job on a customer's vehicle RO45916 and it is clear from the operating directive issued in July 1993 that if the Appellant was to work on his Aunt's vehicle, then he should have booked out the vehicle in which he was working for his employer and booked in her vehicle. There is no suggestion that that was done.

In all the circumstances, having carefully considered the grounds of this appeal, we conclude that no arguable point of law is raised for the purpose of a full appeal hearing and consequently, the appeal must be dismissed at this stage.