United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: This is an appeal by Mr Borland, the applicant before the Leicester Employment Tribunal, against that tribunal's decision, promulgated with extended reasons on 14th August 1998, following a hearing held on 6th August, to dismiss his various complaints contained in an Originating Application presented on 1st June 1998.

The appeal was listed for preliminary hearing before us today. The appellant did not attend. He was contacted by telephone and informed a member of the EAT staff that he would not be attending in person and asked the Appeal Tribunal to consider the case on the papers. That we have done.

The factual background, as found by the tribunal below, is as follows. The appellant commenced employment with the respondent on 3rd November 1997 on a six month probationary period as a mini-bus driver. He underwent training and on 14th November 1997 passed the PSV driving test. He signed a written agreement to the effect that if he left the employment within one year he would repay part of those training costs, which costs could be deducted from his wages.

During his employment the appellant was involved in a number of road traffic accidents. Specifically, he was involved in eight accidents between 22nd December 1997 and 1st March 1998, of which five were thought by the respondent to involve some blame on his part. His driving record was substantially worse than any other driver's.

The respondent went through their warning procedures and, at a hearing held on 6th March 1998, the appellant was dismissed. It was the respondent's intention to pay him one week's pay in lieu of notice, but no such payment was made prior to the tribunal hearing. The balance of his training costs extinguished his last worked week's pay.

Turning to the various complaints raised by the appellant, the tribunal first rejected his complaints of discrimination on grounds of his race, sex and trade union membership. They found that his dismissal was related solely to his appalling record of accidents in the employment. Anyone else with such a record would have been similarly treated.

As to his complaint of unfair dismissal, the tribunal found that he did not have the necessary qualifying two year's service to bring such a complaint. However, even if he had completed two year's service they would have found that the dismissal was fair. His driving fell below the respondent's necessary standards. A fair procedure was followed.

The only breach of contract on the part of the respondent found by the tribunal related to the respondent's failure to pay one week's pay in lieu of notice. The tribunal assessed his net loss under this head at £200 and ordered the respondent to pay that sum to him.

Finally they rejected his claim for unauthorised deductions from wages in respect of the training costs. He had given his consent to such deductions for the purposes of s.13(1)(b) of the Employment Rights Act 1996.

By his Notice of Appeal the appellant raises the following contentions:

(1) that the probationary period of employment amounted to a fixed-term contract of six months, entitling him to damages for premature termination of that contract.

(2) he challenges the tribunal's findings of fact based on oral evidence as opposed to notes made soon after the events.

(3) he complains that he should not receive damages net of tax and National Insurance, as opposed to being based on gross pay.

(4) the tribunal failed to call for documentary evidence such as bus report cards, identifying defects in buses driven by the appellant.

We can deal with those contentions quite shortly.

(1) A probationary period does not create a fixed-term contract. It indicates to the new employee that his performance will be reviewed at the end of that period. If in the meantime he proves to be a thoroughly unsatisfactory employee, it will be open to the employer to dismiss him on notice or by payment in lieu of notice. In the absence of any express terms as to notice, the statutory minimum period of notice under s.96(1)(a) of the 1996 Act, in this case, one week.

(2) It is a matter for the tribunal of fact to determine questions of fact on the evidence presented to them. It may prefer oral evidence given by one witness to that of another, even where the latter relies on notes made shortly after the event.

(3) The appellant contends that it is unjustly advantageous to the employer to pay damages by way of pay in lieu of notice net of statutory deductions. However that is the position at Common Law. British Transport Commission v Gourley [1956] AC 185. Since the award of damages in this case is tax-free in the appellant's hands, he is entitled only to the equivalent of one week's net wages payable.

(4) It is not for the tribunal to call for documentary evidence but for the parties to lead all evidence necessary for their respective cases. If the appellant wished to adduce in evidence the respondent's records it was for him to obtain that material, if necessary by an application for discovery.

For completeness, we observe that in his PHD Form the appellant adds that the respondent was in breach of its own disciplinary procedures. That was not the tribunal's finding of fact. We cannot revisit that factual issue.

It follows that in these circumstances this appeal raises no arguable point of law which ought to proceed to a full appeal hearing. Accordingly the appeal is dismissed.