United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S ROBERTSON (of Counsel) ELAAS


 


JUDGE PETER CLARK: The appellant, Mr White, was employed by the respondent newspaper/publisher as a reporter on the Kidderminster Shuttle from 1986 until his dismissal on 5th February 1999. Following that dismissal he presented a complaint of unfair dismissal, which was considered by the Birmingham Employment Tribunal sitting on 27th July 1999. By a decision promulgated with extended reasons on 8th September the tribunal dismissed his application. Against that decision he now appeals.

1. The tribunal record that during his employment he had a poor disciplinary record, involving some 10 warnings, unrelated to the specific complaint which led to his eventual dismissal.
2. That complaint, put compendiously, involved his appearance at work.
3. In May 1997 he received a warning about his appearance, and in November 1997 was given a further warning on that subject. That warning was expressed to remain in force for 12 months.
4. In September 1998 he was again taken to task and sent home by his editor, Mr Joyce, due his appearance, but no further action was taken on the November 1997 warning.
5. Some eight weeks after the expiry of the 12-month period, that is after 28th November 1998, complaints were received from staff about the appellant's appearance. He was interviewed again by Mr Joyce together with Mrs Hill of personnel on 13th January 1999. He was then told that he would be required to attend a disciplinary hearing on 1st February following his return from holiday. Mrs Hill, prior to that disciplinary hearing, collected witness statements from some nine members of staff on this matter.
6. The disciplinary hearing took place before Mr Whitham, the new managing director. He decided to dismiss the appellant and did so.
7. The tribunal in their reasons found that there were procedural shortcomings in the procedure followed by the respondent at the dismissal stage. There were two. First, they took the view that the appellant was given late sight of the written evidence collected by Mrs Hill; but secondly, that the final written warning given to him in November 1997 had expired by the time of the fresh complaints. Nevertheless, Mr Whitham had in mind the earlier warnings on this matter when considering the sanctions open to him. The tribunal describe those as procedural lapses but they further find that at an internal appeal, which was heard by Mr Paget, the managing director of the respondents' Worcester and Hereford Division and Mr Smith, the finance director, that those procedural lapses were effectively cured on appeal, that appeal taking the form of a rehearing.
8. The tribunal without making a specific finding under s.98 of the Employment Rights Act 1996 as to the reason for dismissal proceeded straight to considering whether or not dismissal in this case fell within the band of reasonable responses, concluded that it did and dismissed the complaint.
9. In this appeal Ms Robertson, who appears on behalf of the appellant under the ELAAS pro bono scheme, faintly complains that the tribunal did not identify the potentially fair reason for dismissal, which led them to consider the question under s.98(4) of the Act.
10. As to that point, we think that it is implicit in the tribunal's reasons that they were satisfied that the reason for dismissal related to the appellant's conduct.
11. However, it is in relation to the tribunal's finding on the s.98(4) issue that we think that Ms Robertson raises an arguable point of law, which ought to go forward to a full appeal hearing.
12. It is this. The warning given in November 1997 had lapsed before the matters finally complained of. Ms Robertson refers us to paragraph 19 of the ACAS Code of Practice in this respect. She submits that that is a procedural defect which could not be cured on appeal, there being no finding by the tribunal that the two appeal managers had not taken into account, as Mr Whitham had, the earlier lapsed warnings and that in those circumstances, the tribunal failed to pay proper attention to that procedural defect when considering the reasonableness of the dismissal.
13. In support of her submission that the finding under s.98(4) was perverse in these circumstances, she relies upon the decision of this tribunal in Lock v Cardiff Railway Co [1998] IRLR 358, Morison J presiding.
14. In these circumstances, the appeal will be permitted to go forward to a full hearing. It will be listed for two hours, Category C. There is no requirement for Chairman's Notes of Evidence in this case. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing, copies to be lodged with the EAT at the same time.