United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE APPELLANTS NEITHER PRESENT NOR REPRESENTED


 


JUDGE SMITH QC: This is an application for leave to proceed to a full hearing of their appeals by the applicants before the Industrial Tribunal, Mr and Mrs Geddes, against the decision of an Industrial Tribunal held at Leeds on 5th June 1997, when the Industrial Tribunal held that the applicants had not been dismissed unfairly by the respondents, Mansfield Brewery plc. Extended reasons were sent to the parties on 13th June 1997.

We have been notified that the appellants, Mr and Mrs Geddes, although they have sought the advice of Humberside Law Centre, have decided not to attend before us today, either themselves or by any representative from the Humberside Law Centre. We have, accordingly, as we have been asked to do, dealt with the matter on the basis of written representations that have been made to us. So that we have considered the Notice of Appeal, and we have also carefully considered the detailed skeleton argument which has been prepared on behalf of the appellants by the Humberside Law Centre, and which bears the date 10th February 1998.

We have reminded ourselves that the appellants only have to show an arguable ground or grounds of appeal in order to be allowed to proceed to a full hearing of their appeals.

Before we come to consider the arguments addressed to us and our conclusions in relation to them, we must of course refer to the unanimous decision of the Industrial Tribunal held at Leeds. As appears from that decision, which appears to us to be a carefully reasoned decision, we note from the findings of fact by the Industrial Tribunal that the appellants had been employed since 1983 initially for a company which was taken over by Mansfield Brewery, and that they were employed until they were both summarily dismissed for misconduct on 7th November 1996, as the Industrial Tribunal found. At the time of their dismissal, they were the joint-managers and licensees of the Black Prince Public House, Cottingham, Hull, where they had been for a little over a year at the time their dismissal occurred. The Industrial Tribunal noted that the area manager, Mr Eldon, who was responsible for the applicants at the time of their dismissal, features in the events leading up to the decision that the Industrial Tribunal made. The Industrial Tribunal dealt with the narrative of the matter particularly between paragraphs 3 and 11 of their decision. What we say in this judgment is no more than a summary of what the Industrial Tribunal set out in detail in those paragraphs. It appears from those paragraphs that the Industrial Tribunal found that Mr Eldon was dissatisfied with the performance at this particular Public House, for which of course the appellants were responsible; he set targets with a view to an improved performance; and importantly, as the Industrial Tribunal found, at a meeting of 12th August, he stipulated as a contractual requirement that the Public House must be open all day on Monday, Tuesday and Wednesday each week. The Industrial Tribunal noted that although Mr Geddes was not happy with that suggestion, nevertheless it was accepted and understood by the appellants.

The Industrial Tribunal expressed themselves in this way in paragraph 6:

"6. We are satisfied that whatever may have been the arrangement before 12 August, thereafter any derogation or agreement there had been by the respondents that the full hours were not to be operated had been cancelled and from that time the applicants were required by their contract to keep the premises open for the whole of the licensed day. ..."

The Industrial Tribunal went on to note that things did not improve. There was a meeting on 4th November 1997 between the appellants and Mr Eldon at which he made "abundantly plain" that he was still looking for an improvement and that consequences may well follow if things did not improve.

There followed, as is apparent from what the Industrial Tribunal say, a stock check on the fatal day which was 4th November under the auspices of a Mr Leahair. When that was completed, which was about 3 p.m., the Industrial Tribunal found that Mrs Geddes on behalf herself and Mr Geddes told Mr Leahair that they were closing the Public House and they were not going to open it again until the evening session began. It was in those circumstances that the matter was straightaway reported by Mr Leahair to Mr Eldon who was not very far away. Accordingly, Mr Eldon went straight along to the Black Prince Public House, found that it was locked and barred, and when he sought an explanation from the appellants, he was given one that he did not find satisfactory or acceptable. He suspended both the appellants and then a disciplinary hearing followed on 7th November.

The Industrial Tribunal made findings in paragraph 11 relating to the way in which the disciplinary hearing went on 7th November. They put the matter in this way:

"Mr Eldon, having heard what the applicants had to say, took the view that in closing the public house on the afternoon on 4 November, they had been in serious breach of their contractual obligations to the respondents. He was satisfied that both applicants knew that the public house should have been open, he was satisfied that the public house had been closed. He did not accept the explanation of Mr and Mrs Geddes that the closing had been for a brief period. He preferred the evidence that he had from Mr Leahair, namely that the Mr Leahair had been told by Mrs Geddes that the public house was to be closed in effect until the evening session began."

It is against that background that what occurred was that the decision was taken by the employers then and there that the appellants were to be summarily dismissed. It is clear from the way the matter was put before the Industrial Tribunal that the reason for dismissal was gross misconduct, although there is no specific finding by the Industrial Tribunal of gross misconduct. That is the way the matter was being put before them, as is clear, of course, from the answer to the Originating Application.

The Industrial Tribunal found that the respondents had made out a reason for the dismissal. They approached the matter correctly with regard to the applicable principles of law in paragraphs 12 and 13 of their decision. They approached the matter, in our view, entirely correctly. They then came to consider the crucial matter for their determination at paragraph 14 of their decision and they reminded themselves, correctly in our judgment, that it was not for them to substitute their own views for that of the employers. The question was whether the employers' decision to dismiss was within the band of responses open to a reasonable employer in any given situation. They in fact cited that test in paragraph 14. They then looked at the matter and analysed it in paragraph 14. The Industrial Tribunal concluded that they accepted that it was reasonable for Mr Eldon to take the view that the decision taken by the appellants to break their contractual obligation came within a matter of hours of his in effect having read the Riot Act to them with regard to their performance as managers, and was in effect, as the Industrial Tribunal put it adopting Mr Eldon's views, "putting two fingers up to the brewery", and that it was a quite deliberate decision taken by the appellants.

In our judgment, it is plain that the Industrial Tribunal were characterising the misconduct here as being serious misconduct. They do not, it is true, attach the epithet 'gross' to it, but they clearly dealt with it on the basis that it was reasonable for the employers to treat it as an allegation of serious misconduct. It was in those circumstances that they had to decide whether the ultimate sanction, so to speak, of dismissal was within the band of responses open to a reasonable employer in that situation.

In the skeleton argument, apart from the point of gross misconduct, which we have already dealt with, there is great deal of argument to the effect that the Industrial Tribunal did not properly set out or reason out the reasons why they found that dismissal was within the band of reasonable responses.

But in our judgment, that criticism cannot be levelled at the way the Industrial Tribunal approached the decision. They clearly found that matter to be a very difficult one. They clearly were troubled by it and they expressed themselves in the way that they had thought long and hard about whether the decision did go over the edge. They plainly took into account the fact that the appellants were long-serving employees whose previous track record was acceptable. So they took into account those mitigating factors. At the end of the day, as an industrial jury, having seen and heard the witnesses, and weighed the matter up, in our judgment, properly and correctly, they reached a conclusion which they were entitled to reach, that this employer, although he had imposed a very harsh sanction, had nevertheless responded in a manner that was open to him as a reasonable employer.

In our judgment the Industrial Tribunal's decision, although it may be one with which we may not agree, is not one which can in any way be criticised either by way of their approach to the law on the matter, or in any way as being a perverse decision. Because that really is the essence of the complaint here, apart from the matters that we have already dealt with. The basis of the submission is that this was a perverse decision. In our judgment it is not a perverse decision, it is a decision that the Industrial Tribunal were entitled to reach on the facts which they found and after application of the correct principles that apply to a situation such as this.

For all those reasons, although we, like the Industrial Tribunal, have some sympathy with for the position of appellants, we must conclude that there is no arguable point of law raised on this application. Accordingly, as far as that matter is concerned, the application will be dismissed.

We should add that there is in the skeleton argument a submission made that the Industrial Tribunal failed to deal with the complaint that was before them by way of a complaint that there had been a failure on the part of the Brewery to pay wages and unpaid holiday pay. Now the position with regard to that as we follow it from the papers that are before us, is that Mrs Geddes in her IT1 does indeed seek to claim not only for unfair dismissal but also for unpaid wages and holiday pay. When it comes to the details of her complaint, she claims the same relief as her husband for both the unfair dismissal and for the unpaid wages and holiday pay. But when one looks at Mr Geddes' IT1 we cannot see any details or particulars of any such claim. That is why, no doubt, the Industrial Tribunal dealt with the matter in paragraph 15 in this way:

"The applicants brought other complaints in relation to unpaid wages and unpaid holiday pay, although in the case of Mr Geddes the complaint was not included when the complaint was originally presented but was put forward subsequently. As we, as a tribunal, heard no evidence in relation to those matters, it is not for us to adjudicate upon them and we, therefore, make no finding in relation to those two complaints."

There is complaint made now that the Industrial Tribunal ought to have dealt with them, and the matter ought to be allowed to go forward on appeal on that basis.

In our judgment, the Industrial Tribunal cannot deal with a complaint for unpaid wages and holiday pay unless there is evidence before them which can lead them to conclude that there have been either unpaid wages and/or holiday pay. It appears from the findings of the Industrial Tribunal that there was no such evidence. In those circumstances we do not believe that the Industrial Tribunal can be criticised for dealing with the matter in the way that they did. We believe that if there had been any specific claims in that regard, such would have been set out clearly in the appeal papers, yet there is no reference anywhere in any of those papers to any specific claim that was outstanding. Therefore, on this ground as well, we must conclude that there is no arguable ground of appeal. For all those reasons the applications are dismissed.