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


 


JUDGE CLARK

1. This is an appeal by the employer John Reid & Sons (Strucsteel) Ltd against the decision of an Employment Tribunal sitting at Southampton on 24 August 1999, upholding the Applicant, Mr Keeping's complaint of unfair dismissal and breach of contract (wrongful dismissal). That decision, on liability only, was promulgated with extended reasons on 21 October 1999.
2. The Applicant was employed by the Respondent employer from 17 October 1988 until 30 April 1999 when he was dismissed from his post of Site Manager/Supervisor. The reason for his dismissal was said to be gross misconduct.
3. The Employment Tribunal found that the Applicant had, on occasions, difficulty in controlling his behaviour. Nevertheless he was considered a loyal and hardworking employee, carrying out what the Employment Tribunal found to be a stressful job which involved long working hours.
4. The Employment Tribunal specifically found that there had been no prior written warnings before an incident on 22 September 1998 when Mr Boyd, the Respondent's contracts director, was having a telephone conversation with a customer, Mr Sanders in the presence of the Applicant. It was said by Mr Boyd that during that call the Applicant flew into a rage and that his remarks were overheard by the customer. The Applicant denied saying anything in the hearing of the customer. The Employment Tribunal state that they preferred the evidence of the Applicant where it conflicted with the evidence of Mr Boyd.
5. Matters came to a head as a result of a telephone conversation between Mr Fletcher, one of the Respondent's principal sub-contractors and the Applicant on 22 April 1999. Following that telephone call Mr Boyd decided to take disciplinary action against the Applicant. A meeting between the two took place on 23 April. Mr Boyd said that Mr Fletcher had indicated that he would not work for the Respondent if the Applicant was on site. At the end of the meeting the Applicant was asked to go home. He told the Employment Tribunal that he thought he was to be treated as being on a week's holiday. Mr Boyd said in evidence he was being suspended under the disciplinary procedure.
6. The Employment Tribunal found, accepting the Applicant's evidence that he was unaware he was suspended until he received a letter to that effect dated 26 April. A disciplinary meeting took place on 30 April. The Employment Tribunal found that the Applicant was not given advance notice of the charges against him. Thereafter Mr Boyd wrote to the Applicant on 4 May, dismissing him.
7. The Employment Tribunal found that the reason for dismissal related to the Applicant's conduct, but that is was unfair both procedurally and substantively. At a subsequent remedies hearing held on 3 November 1999 the Employment Tribunal assessed compensation for unfair dismissal at £14,750 and for breach of contract in the sum of £4,170.80. They declined to make any reduction on the grounds of the Applicant's contribution to his own dismissal. There is no appeal against the quantum of those awards; the appeal is directed solely to the original liability decision.
8. Mr Mooney has addressed us in support of the appeal and our conclusion having heard his submission is that there are matters which ought to be considered at a full appeal hearing. We say no more as to the merits of the claim than that at this preliminary hearing.
9. The particular matters which cause us concern may be listed in this way:

(1) Although in paragraph 7 of their reasons the Employment Tribunal state that for reason to be mentioned later in the decision, they prefer the evidence of the Applicant than that of Mr Boyd, it is difficult to discern from the paragraphs which follow precisely why they preferred the Applicant's evidence.

(2) There was in the bundle before the Employment Tribunal a document recording a warning given to the Applicant by Mr Boyd on 22 September 1998. The document records these details. "Told Mr Keeping that he must calm down, he keeps letting himself and the company down by his aggressive and irrational behaviour. This is not the first time I have spoken to him; I told him that if he maintains this bad attitude he would loose his job." That document was a record of verbal warning. Two copies were to be created, one going to the employee's file the other to be kept by the person issuing the warning, in this case Mr Boyd. However the Employment Tribunal make no findings as to whether or not a verbal warning was given to the Appellant in those terms, bearing in mind that they had accepted his evidence that he had received no warning that his job might be in jeopardy as a result of his behaviour, before the final disciplinary meeting held on 30 April 1999.

(3) It is submitted by Mr Mooney that the Employment Tribunal failed to consider the Respondent's principal case, that dismissal for the Applicant's conduct was necessary and justified in the light of the sub-contractor, Fletcher's, threat to withdraw the supply of labour from the Respondent's site.

(4) Finally there is the curious comment in paragraph 13 of the Employment Tribunal's reasons, where they say that

"The dismissal letter referred to the reasons for dismissal as relating to being under the influence of drink or drugs and to conduct inconsistent with the relationship of fidelity between the Appellant and the Respondent. That was incorrect."

We draw attention to that apparent finding. Having read the dismissal letter that we are told was in evidence before the Employment Tribunal, there is absolutely no mention in that document of drink or drugs.

10. In all the circumstances we have a sense of unease about this case and accordingly we shall allow it to proceed to a full inter partes hearing. The case will be listed for ½ day, category C. 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 of those skeleton arguments to be lodged with the Employment Appeal Tribunal. There are no further directions.