United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P MOONEY Representative Employment Law Advisory Services Ltd Lancaster House Old Wellington Road Manchester M30 9QG
For the Respondent	MR R MILES Solicitor Messrs Moore & Blatch Solicitors 11 The Avenue Southampton SO17 1XF


 


JUDGE D PUGSLEY

1. The Respondent Employee was employed by the firm and was dismissed on 30 April 1999, a decision confirmed by letter dated 4 May. Mr Keeping, whom I am going to call the "Applicant", to avoid the mental gymnastics that otherwise is necessary, had been employed from October 1998. The Tribunal, in its decision, accepted his evidence that his job involved long hours and could at times be stressful. The Tribunal found that his contract of employment was governed by a written contract dated 21 April 1998.
2. The position, which was not really in issue, is that the company were involved in securing the erection of varying structures. It seems that they in fact, did not have a workforce which actually erected the building structures on sites, but they contracted with firms to provide the labour for the construction of these buildings, on the various sites whether in the United Kingdom or abroad.
3. Mr Keeping's job, the Applicant, was that he was a site inspector/supervisor which meant, if one may say so, he was the chap who made it all happen on the ground. We accept - which is implicit in the decision - that he was the fulcrum on which the fortunes on which this company swung, when it actually came to seeing that the work that had been contracted to be done, was done, and that work was carried out on the site effectively and economically.
4. The extended reasons of the Tribunal are brief, compared with some decisions. But in our view this decision is one which fulfils the essential requirement of a judicial decision, which is, in broad terms, to tell the parties why they have won or lost, and to enable an Appellate Court to identify whether there are any errors of law.
5. We have had the opportunity of seeing the full decision of the earlier Tribunal that gave leave, in particular, the reasons that the Tribunal, chaired by His Honour Judge Peter Clark, dealt with various matters in that judgment. It notes in paragraph 7 of the reasons the Employment Tribunal state for the reasons mentioned later in the decision, they preferred the evidence of the Applicant to that of Mr Boyd, but that it was difficult to discern from the paragraphs which followed, precisely why they preferred the Applicant's evidence.
6. What has been submitted by Mr Mooney, an employment consultant, is that the Employment Tribunal, at various stages, failed to give reasons and that what they did was to make a decision on which there was no rational basis. We listened very carefully, to all that Mr Mooney has said, and have read the Skeleton Arguments.
7. However, we are bound to say that implicit in much of that which Mr Mooney said was, if one may say so, a rehearsing and revisiting the Tribunal of first instance. We felt we were having arguments addressed to us, which were proper arguments addressed to a fact finding body but did not take into account that our task is not as a Tribunal of fact, but to see whether or not there is any proper test that we can say that there is a miscarriage of justice in that there is an error of law.
8. We have been fortified in our discomfort at the way in which the Appellant's case has been put, by being referred to those authorities by Mr Miles and in particular the well known judgment of Mr Justice Mummery Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 44 at para 33 in which Mr Justice Mummery, then the President of this Tribunal says this Tribunal must be extremely cautious not to conclude the decision of the Industrial Tribunal is flawed, because the Appeal Tribunal would have reached a different conclusion on the evidence, or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. The judgment continues at Para 33:

"An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunals as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal shall only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is "irrational", "offends reason", "is certainly wrong" or is "very clearly wrong" or "must be wrong" or "is plainly wrong" or is not "a permissible option" or "is fundamentally wrong" or "is outrageous" or "makes absolutely no sense" or "flies in the face of properly informed logic".

9. The real issue is whether the substance of the Tribunal's decision, looked at broadly and fairly, is sufficiently expressed to inform the parties why they won or lost the case, and enable their advisers to identify an error of law that may have occurred in reaching the conclusion. It is so easy to say "This is a misdirection of law", when in fact the real ground of complaint is "I do not like the fact that the Judge did not accept my evidence", (or the Tribunal, as the case may be).
10. Put very simply, we have looked at this decision, and we have looked at that part of it which dealt with compensation, we have looked again in the light of all the matters that we have heard argued before us by Mr Mooney. At the end of the day we bear in mind this Tribunal, had the opportunity of seeing the witnesses and of understanding the chemistry of the case, made certain findings of fact. The findings of fact they made were that they preferred the evidence on certain very specific matters of Mr Keeping as opposed to the evidence of Mr Boyd. It is to be noted that they noticed discrepancies between the evidence of Mr Boyd and the evidence of Mr Fletcher as to the terms of conversations that went between them.
11. They noted in the Tribunal something, which if I may say so, becomes apparent when one sees the documentation that the letter of dismissal quoted the wrong basis upon which the contract was terminated, in the sense in which it put the wrong citation of the letter. It is true that this is a brief decision. We consider that if you read the whole of the decision, it fulfils that essential function set out in UCATT v Brain [1981] ICR 542 of telling the parties, in broad terms, why they lose or why they win the case. We echo the decision of Mr Justice Donaldson, when he said that:

"It would be a thousand pities if reasons began to be subject to a detailed analysis and appeals report based upon such analysis".

12. At the end of the day, if you read the decision through, they made a crucial finding of fact: they found that Mr Keeping's evidence was consistent throughout, they preferred the evidence of Mr Keeping, where there was a conflict between that and Mr Boyd. It is true the Tribunal did not go back to give any global analysis of why they preferred the evidence. If one looks at all four corners of the decision, it is clear that they then go on to give specific accounts as to those incidents that they are making findings about. For example in paragraph 9 they specifically accept Mr Keeping's evidence as to various matters.
13. In all the circumstances, the picture that emerged was that this Tribunal found that the decision to dismiss was outside the ambit of what was fair - that no reasonable employer would have dismissed someone who had been with the company for a long time; about whom there were concerns that the job was having an effect on his health, and about which there was a problem of stress, when there had been no steps to deal with the problems which the job was causing.
14. The dismissal letter wrongly referred to the inappropriate basis for the dismissal; at no time had he ever been disciplined; the Tribunal found that he had not been given any written warning, and they accepted his evidence that prior to April 1999 he had never been advised that his job might be in jeopardy as a result of his behaviour.
15. At the end of the day we consider the Employment Tribunal were entitled to reach the decision they did on the material before them. The appeal is dismissed.