United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR ADRIAN JACK (of Counsel) Instructed by: Mr M I Hodgson Company Solicitor Vaux Group Plc The Brewery Sunderland SR1 3AN


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Vaux Breweries Ltd have an arguable point of law in their Notice of Appeal against the unanimous decision of an Industrial Tribunal which concluded that the applicant, Mr McNaughton, had been unfairly dismissed but was 35% to blame for his dismissal.

The applicant was employed by the Brewery as a joint manager with his wife of a Public House. On 18th September 1997 he was suspended from duty. Following a disciplinary hearing he was dismissed. The grounds for his dismissal are set out in a letter of 1st October 1997. In summary terms, it was because the employers were of the view that he had been guilty of misconduct, namely, indecent behaviour towards female employees. Two such employees had presented complaint to an Industrial Tribunal against the Brewery alleging that they had been the victims of sexual harassment by the applicant in these proceedings.

The Industrial Tribunal's conclusion was that indecency was the reason. They criticised the procedure which was adopted and held the dismissal to be unfair with a 35% reduction.

It seems to us that there are three arguable grounds of appeal which Mr Jack has persuaded us, in an able argument, we should allow to proceed.

Firstly, did the Industrial Tribunal approach the question of fairness and the procedural issue in a way which is in accordance with the legal test. Essentially, he submits that the Industrial Tribunal have sought to substitute their own judgment both on the reason for the dismissal and the procedure for that of the employer.

Secondly, it is submitted that the evidence of Mr Lowe, who was in the Personnel Department of the Brewery, has been somewhat glossed in paragraph 10 of the Industrial Tribunal's decision. It would appear from the tribunal's decision that they thought that Mr Lowe was the decision maker, as opposed to simply giving advice as to whether on the basis of the facts as found, dismissal would be appropriate. That point does not at the present time require us to look at the Notes of Evidence we think, but that issue can be kept open if needs be when the respondent has seen the terms of this decision.

Thirdly, is whether the Industrial Tribunal have applied their minds to the Polkey reduction point. It is submitted that they have not done so, and to that extent there was a significant error of law.

All three points seem to us to be eminently arguable, but I give no indication as to the outcome of the appeal.

This is a Category C case. As I have indicated, no Notes of Evidence at this time will be required. I estimate that the time for arguing this matter will be an hour and a half. No other listing directions at this time.