United Kingdom Employment Appeal Tribunal

APPEARANCES

 

The Appellant neither present nor represented


 


MR JUSTICE HOLLAND:

1. By an IT1 of the 15 February 1999, Mr Swindells complained of unfair dismissal at the hands of his former employers Sayers the Bakers. That complaint was heard by an Employment Tribunal held at Liverpool on the 4 June 1999.
2. The decision was sent to the parties on the 6 July 1999 accompanied by reasons in extended form. The decision was that the applicant had been fairly dismissed and his application had failed. Against that decision Mr Swindells appeals to this Tribunal.
3. Turning to the circumstances of the case, the facts were succinctly set out in paragraph 7 of the extended reason in these terms:-

"Mr Swindells began working for the Company in November 1990. As its name suggest, the Company is in the bakery business, with some 1,500 employees. Some 400 of those are employed at the bakery where Mr Swindells worked and the balance work at various shops.

Mr Swindells was employed as a bakery operative and it was clear that he had had his difficulties with various members of management during the period of his employment.

The matter that led to his dismissal was an incident that occurred on 1^st December 1998. It was alleged against Mr Swindells that his supervisor, Mr White had asked him to undertake a particular job. According to Mr White, Mr Swindells had indicated that he would go home sick if he was put on that job, the implication being that he was not sick at all but would use that as an excuse for his refusal to undertake the work in question.

He was interviewed on 8^th December in connection with this matter. He claimed that he had been unwell all day and he simply said that it did not matter what work he was requested to do, since he was not feeling well he would be going home. In other words, he claimed that he was genuinely ill and regardless of whatever work he was being requested to do, he would be unable to do it.

He was informed of the contents of two statements, one from Mr White and the other from a Mr Tessyman, who claimed to have overheard the conversation. Mr Swindells claimed that the contents of both statement were lies.

The meeting was reconvened the following day. The conclusion Mr Lennie reached was that Mr Swindells had deliberately refused an instruction from a supervisor. He regarded this as gross misconduct and summarily dismissed Mr Swindells.

Mr Swindells appealed against that decision. That appeal took place on 6 January 1999 but was unsuccessful".

4. Having made those findings of fact the Tribunal then directed itself that the legal position was governed by Section 98 Employment Rights Act 1996. They decided that one of the potentially fair reasons for dismissal provided by that section was appropriate in this case, that is, dismissal on the grounds of the conduct of Mr Swindells. They therefore concluded that the dismissal was potentially fair.
5. Thereafter in the extended reasons the Tribunal applied its mind as to whether the company acted reasonably in treating that conduct as justifying the dismissal. They noted that there were certain aspects of the company's actions that gave cause for concern but in the event they came to the conclusion.

"In short, Mr Lennie was entitled to believe that Mr Swindells had indicated he was refusing to undertake this particular task when he was perfectly able to do so and had indicated that he would claim, falsely, that he was sick.

That was clearly misconduct and the next question for us was whether it was sufficiently serious to merit summary dismissal.

This was clearly a serious dereliction of duty upon which the Company were entitled to look most unfavourably. Furthermore, Mr Swindells confirmed to us that if he had behaved as the Company had believed he had, then dismissal was an appropriate sanction.

We therefore consider that the Company acted reasonably both in believing that Mr Swindells had committed the misconduct alleged against him and in concluding that that conduct amounted to gross misconduct, warranting his dismissal".

6. Before the Tribunal Mr Swindell's essential point was that the two witnesses relied upon by his employers had lied and that therefore the material that supported dismissal was fundamentally flawed. That point is maintained by him in his Notice of Appeal to this Tribunal.
7. His problem is, that it was not for the Tribunal to decide whether or not he should be dismissed. The task for the Tribunal was to review the conduct of the dismissal proceedings by his employers, to ensure that they complied with the law. It was in those circumstances that the Tribunal considering three points raised by Mr Swindells, dealt with it quite simply by concluding that the employers were entitled to act on the disputed evidence. That does not mean to say that the evidence was necessarily correct, merely that it was potentially credible.
8. Essentially there is a finding that the approach of the employers in substantiating this dismissal by reference to that evidence amounts to conduct that was open to a reasonable employer seeking to comply with Section 98.
9. We appreciate that we are having to deal with this in the absence of Mr Swindells, he having indicated to this Tribunal that he did not intend to be present. He wrote in these terms.

"I will not be attending. This is not because of discourtesy, but if I did attend, all I could do is re-iterate the affidavit which I have presented to you containing points of discrimination, and unfair treatment re the total belief of the two Sayers witnesses without question. Thank you for your time and consideration of my appeal".

10. Mr Swindells can be assured that we have read the papers very carefully and that we have discussed the content between ourselves. In the event we cannot find a point of law arising out of the decision of the Employment Tribunal. Without any such point of law there is no basis for an appeal to this Tribunal, given that we are only in empowered to deal with points of law. That being the position, then we have no option but to dismiss this appeal and this we do now.