United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M JOHNSTONE (Representative) The Employment Law Service Wembley Law Chambers 38 Napier Road Wembley HA0 4UA


 


JUDGE C SMITH: This is an application for leave to proceed to a full hearing of an appeal by Mr Ballinger, the Applicant before the Industrial Tribunal held at London North on 1 September 1998, of which extended reasons were sent to the parties on 17 September 1998, when the Industrial Tribunal held unanimously that the Applicant had not been dismissed for asserting a statutory right. We have had an argument this morning addressed to us by Mr Johnstone, the consultant acting on behalf of the Appellant, and we remind ourselves that he only has to show an arguable ground of appeal in order to be entitled to proceed to a full hearing of the appeal.

It is necessary to summarise briefly the Industrial Tribunal's decision. The Industrial Tribunal found as a fact that the Appellant had not received the shift allowance to which he was entitled at the end of February 1998 for working nights. There followed an interchange of e-mails, set out in the decision in paragraphs 4 and 5, which had the result that on 18 March 1998 the Appellant was dismissed. As is clear from the Industrial Tribunal's decision the Respondent employers, Viatel UK Ltd, maintained that he was dismissed for abusing the electronic mail system. Whereas the Appellant's case was that he had been dismissed for asserting a statutory right, namely his right to the unpaid shift allowance.

The Industrial Tribunal set out the circumstances of the dismissal at paragraph 5 of their decision. The reason given, by the employers, according to the findings of the Industrial Tribunal, was that he had "abused the e-mail policy and the system by using offensive language within the e-mails and by 'copying-in' senior managers". He was paid the outstanding shift allowance and all outstanding notice and holiday pay. So that was the reason given by the employers at the time, according to the findings of the Industrial Tribunal.

The Industrial Tribunal then set out the parties' submissions in paragraph 6, carefully setting out the submissions on each side: in the course of which the Applicant had submitted that the real reason he had been dismissed was because he had asserted his statutory right to have his wages paid. The Industrial Tribunal then set out the applicable law correctly at paragraph 7. It is clear from section 104 that the issue which the Industrial Tribunal had to determine was what was the true reason for the dismissal? In other words, was the reason put forward by the employer a genuine reason or not? Was the true reason that Mr Ballinger had been dismissed because he was asserting a statutory right in the terms of section 104? The Industrial Tribunal undoubtedly correctly analysed the issue which they had to decide.

The Industrial Tribunal then made their evaluation of the Respondents' evidence, particularly that of Danielle Lagarde, in paragraphs 9 and 10 of the decision. They clearly concluded in those paragraphs that they accepted the Respondents' account of the matter: that is what it came to. The Industrial Tribunal found on the evidence they had heard that the Respondents' had no problem as far as the Applicant's assertion of his statutory right was concerned. The Industrial Tribunal found that the assertion of the statutory right by the Applicant was not the reason for his dismissal. At the end of paragraph 10 the Industrial Tribunal found in terms that:

"It was the way in which the Applicant asserted it and the gratuitous rudeness used, that the Respondents found unacceptable and therefore dismissed the Applicant."

That was, in our judgment, a perfectly clear finding which the Industrial Tribunal was entitled to make.

Objection is taken to the decision on the basis that, in paragraph 8, the Industrial Tribunal made an assessment of the demeanour and manner in which the Applicant had given evidence before them. They concluded that the Applicant appeared to have "no feeling", because of certain remarks he made during the Tribunal, "for how his phraseology might be received, whether used in writing or orally".

In our judgment the Industrial Tribunal were entitled to make that finding. Contrary to the submission made to us there is in no rule of law, as there is in the differing circumstances in Devis Ltd v Atkins, in any way prohibiting the Industrial Tribunal from making that observation which, we consider, was peripheral in the extreme to the decision they made in any event. We do not criticise the Industrial Tribunal for that finding and nor do we consider it gives rise to any arguable ground of law. Nor, in our judgment, were the Industrial Tribunal acting in any way wrongly or improperly in making the findings they did in paragraph 11 relating to some correspondence which they had seen concerned with the Applicant's application for a Job Seeker's Allowance where, it transpires, from the reasoning of the Industrial Tribunal, that the Respondents' had relied upon the same reason in that correspondence as the reason they relied upon before the Tribunal for the dismissal of the Applicant, namely, abuse of the e-mail policy.

Once again, in our judgment, there is no rule of law or any prohibition against the Industrial Tribunal receiving such evidence. It was self-serving evidence given by the Respondents, which would normally be regarded as hearsay and inadmissible in a civil court, but an Industrial Tribunal is not bound by the strict rules of evidence and they were, in our judgment, entitled to pay some regard to it. Here again, in our judgment, it is very much a subsidiary basis for their conclusion. Their main conclusion was reached in the light of their evaluation and assessment of the Respondents' evidence as set out in paragraphs 9 and 10, to which we have already referred, together with the fact, no doubt, that the Industrial Tribunal took into account that the Respondents knew had already administered a formal written warning to the Applicant arising from similar kind of behaviour on his part in July 1997.

For all those reasons we are quite satisfied here that there is no arguable ground of appeal and this application will have to be dismissed.