United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr R Giscombe (Representative) Lewisham Law Centre 28 Deptford High Street London SE8 4AF


 


JUDGE PETER CLARK

1. This is an appeal by Mr Howell, the Applicant before the London (South) Employment Tribunal sitting on 13 - 14 December 2000, against that Tribunal's majority Decision, promulgated with Extended Reasons on 15 January 2001, dismissing his complaint of unfair dismissal brought against his former employer, the Lewisham Hospital NHS Trust.
2. The Appellant was a long standing employee, having been employed as a hospital porter by the Respondent, his employment having commenced originally in May 1979. The incident leading to his dismissal occurred on 1 February 2000. When he arrived for work that day, shortly before his start time of 2 pm, he thought he may not have a clean shirt to wear during his shift. He parked his car in a prohibited area, clocked on and went to check in his locker. He had no clean shirt and left the building to return home for another shirt. On returning to his car he was challenged about his parking by two security officials, Messrs Smith and Williams. An altercation ensued during which he was heard to swear at the security men by Miss Millard, a Deputy Director of Support Services, who happened to be passing. He then went home to collect a shirt and returned to work.
3. Later that day the Appellant was suspended on full pay pending disciplinary action. On 29 February 2000 a disciplinary hearing took place. The Appellant was charged with being verbally abusive to a security guard while inciting violence, and secondly, leaving the site after clocking in (he was paid from the time of clocking in), which was said to be fraudulent.
4. The first charge, with the exception of the incitement to violence, was found proved by Mr McGill, the discipline manager; as was the second charge. That was found to be gross misconduct and Mr McGill imposed a penalty of summary dismissal. An internal appeal against that decision was dismissed.
5. The Tribunal found:

(1) that the reason for dismissal related to the Appellant's conduct, a potentially fair reason for dismissal;

(2) the Burchell test of a genuine belief, based on reasonable grounds following a reasonable investigation was satisfied;

(3) by a majority, that dismissal fell within the band of reasonable responses. The majority felt that there was no excuse for the Appellant's behaviour towards the security staff. The minority member took a different view, finding that dismissal was too harsh a penalty bearing in mind the Appellant's twenty years of service.

The majority view prevailed. The complaint was dismissed.

6. In this appeal Mr Giscombe takes the following points. First he relies upon the decision of the Scottish EAT in Taylor v Parsons Peebles Nei Bruce Peeble Ltd [1981] IRLR 119, for the proposition that the Tribunal majority were wrong not to take into account the Appellant's length of service. We accept that Taylor invites the Tribunal to take into account an employee's length of service and previous record. In that case the employer had a policy, an inflexible policy, of dismissing any employee who struck another. The EAT, in setting aside a finding of fair dismissal by the Employment Tribunal, held that the question was not whether or not the employer followed its policy, but what was the reaction of a reasonable employer in the circumstances of the individual case.
7. Reverting to the present case, it seems to us quite clear that this Tribunal took into account the Appellant's length of service, first because it is specifically referred to, at paragraph 5 of their Reasons, and secondly and more importantly, because it was the Appellant's length of service which is the factor particularly identified by the minority member in reaching the conclusion that dismissal was too harsh a penalty. It must follow that the majority also considered the length of service during the debate which led to a split decision by the Tribunal. In these circumstances we do not think that the Taylor case assists the Appellant here.
8. Secondly, it is submitted, that the majority Decision was a perverse one. The difficulty with that submission is that first, the Employment Tribunal has to decide not whether it would have dismissed, but whether dismissal fell within the range of reasonable responses open to the employer. The majority found that it did. In order to disturb that conclusion on appeal, it would be necessary for us to say that no reasonable Tribunal, properly directing itself in law, could arrive at the conclusion which this majority reached. In our judgment that is a bridge too far for the Appellant in this case.
9. Finally, Mr Giscombe returns to the facts of the case and the factual question as to whether or not the Appellant's conduct in leaving the site, having clocked in, can be regarded as fraudulent, and whether he did, indeed, use abusive language to the security officers. Those are not matters for us, any more than they were matters for the Employment Tribunal. the underlying facts are not the important feature in this case, rather the employer's approach to the investigation, in line with the case of Burchell .
10. In these circumstances, we have concluded that this appeal raises no arguable point of law to go forward to a full hearing and accordingly it must be dismissed at this preliminary hearing stage.