United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P GREATOREX (of Counsel) Instructed by: Messrs Richard C Hall & Partners Crown Buildings 121a Saughall Road Blacon Chester CH1 5ET
For the Respondent	MR D MASSARELLA (of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors St Peter's House Hartshead Sheffield S1 2EL


 


HIS HONOUR JUDGE PROPHET

1. This is the full hearing of an appeal by the employers against the decision of an Employment Tribunal sitting at Sheffield on 5 February 2002 under the chairmanship of Mrs Branchflower, by which the Tribunal decided that the Applicant was unfairly dismissed. A subsequent hearing quantified the award of compensation consequent upon that finding.
2. Today at the Employment Appeal Tribunal the Appellant has been represented by Mr Greatorex of Counsel and the Respondent to the appeal by Mr Massarella, also of Counsel. We are indebted to both for their clear submissions to us.
3. It is not difficult to infer from the Employment Tribunal's Extended Reasons what the Tribunal's approach was to the facts of the case before them and why they decided that this was an unfair dismissal. However, as Mr Greatorex has set out in his submissions to us, the problem here arises from the way the reasons are set out. He argues that the Tribunal did not approach the composition of those reasons in a way which might normally have been expected in what is, in essence, a straightforward case of dismissal for misconduct where that misconduct was a refusal to obey an instruction.
4. Mr Greatorex submits that it would have been much better for the Tribunal to have given some indication, at least of the content of section 98 (4) of the Employment Rights Act 1996, and to have set out the factors which are usually regarded in misconduct cases as relevant for consideration by the Tribunal, before indicating its conclusions and how they might be arrived at.
5. He has pointed out that the only factors specifically mentioned as such in the Employment Tribunal's judgment, in respect of fairness, are two. First a breach of the implied term of trust and confidence with a reference to the case of Morrow v Safeway Stores Plc [2002] IRLR 9. On the face of it that might suggest that the matters which were in the minds of the Tribunal were those relating to consideration of whether or not there was a constructive dismissal – a situation of course which did not arise in this case where there was a clear express dismissal by the employer. The second factor was a procedural one, i.e. that Mr Gareth Williams was involved in the disciplinary hearing. However, nothing is said by the Tribunal, except by inference, as to whether that necessarily made the dismissal unfair and whether for later consideration in respect of remedy the Polkey factor might be taken into account.
6. We are bound to say that the Tribunal did not set out clearly what can be inferred from the totality of their reasons; i.e. essentially, that they were seeing the manner in which the employer acted in dismissing the Applicant as being unfair in the particular circumstances. That, we are all satisfied, is what they were finding, although we emphasise that the presentation of those conclusions in the written reasons could have been very considerably improved. There could, however, have been little doubt in the employer's mind, even so, as to why the Tribunal thought it appropriate to find an unfair dismissal in this case and to award what they considered to be appropriate compensation as a consequence.
7. Accordingly we unanimously dismiss this appeal on the basis that there was no error of law. In view, however, of there being some matters which the Chairman of the Employment Tribunal may wish to reflect upon in the presentation of the Tribunal's reasons in a misconduct dismissal case, a transcript of this judgment will be produced. No doubt she, with the assistance of the Regional Chairman, may benefit there from.