United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Anthony Korn (of Counsel) Messrs Dibb Lupton Alsop Solicitors 101 Barbirolli Square Manchester M2 3DL


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Manchester whose extended reasons were promulgated on 16 November 1999. As Mr Korn in his attractive argument has properly reminded us, if we find there is a reasonably arguable point of law it is our obligation to allow the matter to proceed to a full hearing. The majority decision of the tribunal was that the applicant Mr Eccles was unfairly dismissed but that he was 25% to blame for his own dismissal and on that basis they awarded him compensation in a total of £13,573.
2. Mr Eccles had been a technician employed by the appellant college in their Creative Arts Department from 24 August 1992 until 28 January 1999. He is now some 57 years old and apart from the matters which were the subject of his dismissal he was regarded as an excellent employee who had the support of other members of the staff, who had the support of students and who was recorded as being a person who some years previously had given up his own summer holiday entitlement to assist students in completing a project.
3. What happened over Christmas 1998 was extremely unfortunate. Mr and Mrs Eccles have a daughter in New Zealand. Mrs Eccles, either or without consulting Mr Eccles in advance, had booked a holiday in New Zealand which meant Mr Eccles being absent for a couple of weeks at the end of the Christmas term and the very beginning of the January term. The respondent made a number of representations to his employers as to why he should be allowed to take his leave in term time. His request was considered and particularly bearing in mind that he had a total of 14 weeks holiday each year and there was a possible risk of disruption, notwithstanding the fact that he had arranged cover for himself, they decided to refuse his request. Mr Eccles went on holiday anyway. Term was due to start on 4 January 1999. He in fact came back to start work on 7 January because there were travel problems. He was suspended on full pay. A disciplinary procedure was undertaken on 27 January 1999 he was dismissed and an appeal process confirmed that dismissal.
4. Mr Korn has rightly pointed out that a reading of the tribunal's decision shows that they spent a good deal of time concentrating on the issue of the original instruction given to Mr Eccles not to take his holiday during term time. They expressed the view in paragraph 19 of their decision that there was an implied term that the employers would exercise their discretion and judgment in a reasonable way in response to the employee's request. In paragraph 20 they said that employees are not bound to obey unreasonable instructions. In paragraph 23 where they set out their conclusions they deal with it in these terms: -

"Having regard to the criteria contained in section 98(4) ERA the majority of the Tribunal consider that the decision to dismiss the applicant was unfair for these reasons. Although the Respondent was entitled to require the applicant to obtain permission to take a holiday during term time in December 1998, it was an implied term that any such request would be considered and determined in a reasonable manner. In the view of the majority of the Tribunal the respondent's refusal to accede to the applicant's request to take the holiday was unreasonable having regard to all of the following aspects: -"

And then they list five separate facts. Then they conclude:

."In all of these circumstances the decision to dismiss the applicant was not a decision a reasonable employer confronted with this situation would have taken."

5. Now essentially, Mr Korn's submission is that the tribunal was wrong in coming to the conclusion as a matter of law that there was an implied term that the employers would act reasonably. He cited a number of authorities and the point is one which at a preliminary hearing we have been unable to investigate in any depth. On the assumption that Mr Korn would be able to make that submission good, he argues that that misdirection of the tribunal vitiated the rest of their reasoning because they based their decision that the appellants acted unfairly on the erroneous conclusion that their decision not to allow him to go on holiday was unreasonable and in breach of contract. By that process of reasoning, he argues that the decision is plainly wrong and that the matter should be remitted to a fresh tribunal for a rehearing.
6. We disagree with Mr Korn's submissions. It seems to us that we ought not to approach the reasoning of the tribunal as if it were a technical document to be construed in a technical way. We need to ascertain whether or not the reasons of the tribunal set out an adequate and understandable basis for the conclusions to which they came, or to put it another way, whether there is a reasonably arguable point of law that they did not. And in our judgment the reasons which the tribunal gave for finding the employers' original decision unreasonable are exactly the same reasons that the tribunal relied upon for deciding that the dismissal was unfair and unreasonable.
7. Mr Korn has conceded during the course of his argument that a dismissal for failure to obey a lawful instruction is not a necessarily a fair dismissal. It all depends on the circumstances of the case. The tribunal accepted that the employee in this case went on holiday knowing that his request for that privilege had been rejected. In paragraph 23 of their reasons the five sets of facts relied upon were just as applicable in the reasoning process as to fairness of the dismissal as they were in relation to the reasonableness of the consideration of the request to go on holiday. Indeed the matter goes further because the tribunal found that the employers were unreasonable because they had made no effective enquiries to justify their belief that his absence during the relevant period would cause disruption to their activities or disadvantage any of the students. There is not the slightest indication in any of the papers in the case that by the time the employers got round to considering whether they would dismiss Mr Eccles there was any evidence whatsoever that his absence had in fact caused any disruption. Mr Korn has suggested to us that that there was some such evidence. There is nothing in any of the papers to suggest that there was. The tribunal on three separate occasions during the course of their reasons mentioned the question of anticipated disruption when they were considering the reasonableness of the employers' original decision and in our judgment it is inconceivable that if there had been evidence of actual disruption the tribunal would not have mentioned it.
8. So it seems to us that there was abundant material for the tribunal to decide, if they thought it right to do so, that the dismissal was unfair. They looked at the merits very carefully. In our judgment although the reasons might have been expressed in a way which was more closely focused on the dismissal rather than the original refusal of leave to go on holiday, there is no arguable point of law that arises on this appeal. We dismiss the appeal.
9. We refuse permission to appeal on the ground that although we accept that there was an arguable point as to whether or not the tribunal were correct in identifying an implied term of reasonableness, we take the view that the outcome of the case would not have been affected in any way by any such misdirection.