United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B BATTCOCK (Of Counsel) Instructed by Messrs Shoosmith Solicitors The Lakes Northampton NN4 7SH


 


MR RECORDER BURKE QC

1. In this Appeal the Appellant, Mr Harding, worked as a Golf Professional at the Woburn Golf and Country Club, a limited company who are the Respondents, for 12 years. He had an unblemished record over that period. He divided his time between the Golf Club shop and providing private tuition to members of the club and others. The Tribunal expressly found that he was a popular and good teacher and had done much to enhance and improve the Club throughout those 12 years.
2. As a result of events on 23 March 1999 to which I shall come, he was dismissed. He claimed in the Employment Tribunal that he had been unfairly dismissed. Two issues arose. The first issue was whether he was employed or self employed. That issue the Tribunal resolved in his favour. The second issue, which would not have been relevant had the first not been resolved in his favour, was whether or not he had been unfairly dismissed. The Tribunal resolved that issue against him in a decision which is dated 20 March 2000 and is supported by Extended Reasons.
3. This is the preliminary hearing of Mr Harding's appeal against the decision that he was not unfairly dismissed. The circumstances, very briefly, were that on 23 March, in the evening, Mr Harding drank too much in a pub or pubs in Woburn. Later he was walking past a restaurant in Woburn which was a new venture on the part of Lord Russell, one of the sons of Lord and Lady Tavistock; and as it happened Lord and Lady Tavistock, who are both directors of the Respondents, were that night in the restaurant.
4. The Appellant had believed that he was going to be involved in that venture and had taken a part in its development but was then, to use the words used by the Tribunal in their findings, dropped suddenly by Lord Russell leaving him with a sense of grievance. Whether or not the sense of grievance played any part in his earlier drinking that evening is not clear. But he went into the restaurant not out of his sense of grievance, as it seems from the findings of the Tribunal, but because he had seen some friends inside. He ordered a bottle of wine, according to the findings, and poured himself some wine from the bottle. He ordered a meal but was so inebriated as to be unable to consume it. He slumped across the table, mumbled incoherently and swore in an undesirable and unsavoury manner, so much so that eventually Mr Jones, his friend, removed him from the restaurant, not at the request of the staff or of Lord and Lady Tavistock but at Mr Jones' initiative because the conduct of the Appellant was so inappropriate.
5. Mr Jones took the Applicant home and then went back to the restaurant. The following day the managing director of the Respondents received a telephone call from Lady Tavistock who told him in general terms what had taken place and asked him to do something about it. Various enquiries were carried out and as a result Mr Harding was telephoned and asked to come to the club for a meeting. At that meeting Mr Harding admitted that he had been under the influence of alcohol. He apologised for what he had done and said that he had tried to telephone Lady Tavsistock to apologise to her.
6. Mr Bullock, the managing director, asked Mr Harding to provide a written response to the allegations that were being made as to his behaviour and suspended him. Subsequently, Mr Harding, on advice, wrote asking for details of specific allegations, which the Respondents declined to provide.
7. On 31 March there was a further meeting. Mr Bullock and another were present. Mr Harding again apologised. He repeated that he could not recall exactly what he had said and no doubt that was so because of the condition of inebriation that he had been in. The Respondents decided at that meeting that what had happened was sufficiently serious to justify dismissal and he was dismissed. The Tribunal found that Mr Bullock regarded the behaviour as so serious that he felt it would be wrong for Mr Harding to continue his association with the Club and did not consider there was any alternative, the Club having a certain status and an incident of this type being such as to bring the Club into disrepute.
8. The Tribunal having found the facts set out the arguments that were put before it by solicitors acting for both parties in considerable detail. Having set out those arguments in paragraphs 6 of its decision, the Tribunal says this:

"Having considered the position the Tribunal unanimously, on the facts they had found, preferred the arguments of the Respondents and found:

(1) The Applicant was dismissed.

(2) The reason for dismissal was misconduct.

(3) The Tribunal was satisfied that in all circumstances of this particular case the employer acted reasonably in treating it as a sufficient reason for dismissing the employee and further that the decision to dismiss was in accordance with equity and the substantial merits of the case."

9. Today Mr Battcock on behalf of Mr Harding has put forward 3 grounds of appeal. Firstly, he submits that the failure to give any or any adequate reasons for the decision in itself demonstrates that the Tribunal erred in law. He submits that an Applicant is entitled, as is a Respondent, to know why a Tribunal has reached the decision that it has and that it is not satisfactory for the Tribunal, having set out the rival arguments, simply to say that they prefer one set of arguments to another.
10. It is perhaps undesirable that a Tribunal should approach the matter as this Tribunal did. But in a simple case, and this was a simple and straightforward case, it does not seem to us that it could be said that it was arguably an error of law to approach the matter in that way. The reasons why the Tribunal decided as it did appear clearly and succinctly from their acceptance of the arguments put forward by the Respondents and, in particular, the submission made by the Respondents that overall the dismissal was fair having regard both to matters of substance and matters of procedure. It may be, in a more complicated case, that an argument along the lines put forward on behalf of Mr Harding might find more favour; but in this case at least we do not see that in this area there was an arguable ground of appeal.
11. The next area which we are asked to consider is procedural unfairness. It is quite clear that the Club had no formal disciplinary procedure. It is quite clear that formal procedure or not, Mr Harding had no right of appeal; and it is equally clear that Mr Harding asked for specific details of the allegations against him and was not given them. In all these respects the procedure adopted by the Respondents was deficient.
12. Mr Battcock argues that the Tribunal did not make a specific finding as to whether or not there were defects in the procedure; but the Respondents had accepted in their own submissions that the procedure did not live up to ordinary expectations and therefore deficiencies in the procedure were not a matter of dispute.
13. It would have been open to the Tribunal to have found that this was a procedurally unfair dismissal and then to have gone on to consider the consequences of that. But it was equally open to the Tribunal, it being not in dispute that there were these procedural deficiencies, to have approached the case by asking itself overall was this decision to dismiss fair or unfair and that is plainly, in accepting the arguments for the Respondents which encompass precisely that argument, what this Tribunal did. We do not see any error of law in that respect, either.
14. Thirdly, it is submitted to us that the substantive decision that the dismissal was fair was perverse, having regard to the facts of the case. It is, quite rightly, pointed out that the Appellant had a long and unblemished employment history, that he was a popular and good teacher and had done much to benefit the Club, that he had a sense of grievance, that it was his friend and not a member of the public or the staff who took him out of the restaurant, that this was a single one-off incident for which he apologised at the first opportunity, that the incident occurred not at his place of employment or in the course of his employment and was not directed at anybody connected with his employment (because there is no evidence that he knew that anybody connected with his employment was in the restaurant although, as it happened, Lord and Lady Tavistock were.)
15. These arguments were, as one can see from the decision, no doubt advanced forcefully by the Applicant's advocate. The decision may well have been regarded by Mr Harding as harsh. One can understand why. It may well have been regarded by the Tribunal as harsh. I do not shrink from saying that it is so regarded by all 3 members of this Employment Appeal Tribunal sitting here today. But it is not for us to consider what we would have done had we been sitting in the Tribunal or had we been the employers; nor was it for the Tribunal to consider what the Tribunal would have done if the Tribunal had been the employers
16. The question for the Tribunal was whether the decision to dismiss was, overall, fair and in particular, although they did not quite put it this way, whether the decision of the employer to dismiss fell within the range of reasonable responses. They decided that question in favour of the Respondents. We do not believe there is an arguable case here that that decision fell outside the range of reasonable responses or was perverse.
17. For these reasons this Appeal is dismissed.