United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P M KILTY Solicitor Messrs Kilty Goldfarb & Co. 93 London Road Leicester LE2 OPF


 


HIS HONOUR JUDGE H WILSON: This preliminary hearing concerns the dismissal by the Respondent of the Appellant who is being represented today by Mr Kilty who did not represent her before the Employment Tribunal. He has referred in his submissions to the existence of those in the Mahatma Ghandi flat complex who supported the Appellant as opposed to the half dozen who had presented the petition which led to the proceedings brought by the management, which resulted in the Appellant's dismissal.

Mr Kilty submits that it was an error in law for the Tribunal, in considering the appeal procedure and irregularity, to find that it was not unfair. Further, he says that they erred in finding that the dismissal was within the range of reasonable responses and in not finding that some other substantial reason existed for the difficulties which had arisen where there was no clear evidence that relationships had broken down irretrievably within the little community. Finally, he submits that they erred in finding no alternative employment existed.

Mr Kilty recognised that we have to conduct our proceedings in the light of what was before the Tribunal. If there was a total absence of any evidence from those who supported the Appellant, the Tribunal cannot be blamed for not taking it into account and, as Mr Kilty also recognised, any remedy that the Appellant might have lies elsewhere.

So far as we are concerned, we have had close regard to the Extended Reasons given by the Tribunal for its decision. They start at paragraph 5. The Tribunal found that the Respondent clearly approached the matter in what it considered to be the fairest way. It was a situation where relationships between the Warden (if we may call the Appellant that) and a significant number of residents of Mahatma Ghandi house had broken down.

The Extended Reasons go on to state that the Tribunal has noted and considered the fact that the meeting which was arranged was not designated as disciplinary when it was convened, nor was the Applicant warned that her job might be in jeopardy. That was consistent with the Respondent's approach to the matter. To talk about a compromise agreement was a misdescription. In reality, it was a proposal for settlement introduced after the dismissal as an intended mitigation of the Applicant's post-dismissal situation. It was not pre-arranged.

We remind ourselves that a lack of warning or consultation can render a dismissal unfair even when the stated reason is some other substantial reason, but that this is not necessarily always the case. Confronted by the situation before it, we ask ourselves whether it can be said that the Respondent departed from the requirements for fairness and natural justice in this instance. Whilst in the instant case there was no ultimatum from a third party, the fact remains that the Respondent faced the question what, if anything, could it do other than dismiss and it had no alternative answer.

It is the finding of this Tribunal that this is one of the rare cases where any warning or consultation would have made no difference to the outcome and in this connection, we remind ourselves of the guidance to be find in Polkey. It is not for this Tribunal to substitute our view unless the chosen sanction was outside the range of reasonable responses. We find, in the circumstances of this case, it was not. If we are wrong in concluding that any procedural defects did not render the dismissal unfair, we have no doubt that any such defects were rectified by the appeal. Pausing there, we remind ourselves that the appeal was a complete rehearing which clearly involved a lot of agonising as the Tribunal's finding of the evidence demonstrates.

The requirements of natural justice were met. We cannot find grounds to say that there is an arguable case to go forward on any of the grounds which have been advanced and which Mr Kilty agreed could be summarised as the question whether the dismissal was unfair because of procedural defects and because of the Industrial Tribunal's failure to give those procedural defects due weight. It seems to us that they did do so and came a view of them which was clearly open to them. Perhaps the human element in this case illustrates that there are cases for which the rather ponderous legislation is not apt. Nevertheless, we are sure that Mr Kilty has told his client that our powers are very constrained. The application however must be dismissed.