United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN SCOTT (of Counsel) London Borough of Hillingdon Civic Centre Uxbridge Middlesex UB8 1UW


 


MISS RECORDER E SLADE QC

1. This is the Preliminary Hearing of an appeal by the London Borough of Hillingdon against a finding of unfair dismissal made in a claim brought against it by Mr Thomas. Mr Thomas was a Personnel Officer at the London Borough of Hillingdon who was dismissed for viewing pornography on the Internet at work. There is also an appeal against the percentage deduction for contributory fault made by the Tribunal. The Tribunal found that Mr Thomas had made a considerable contribution to his own dismissal. The Tribunal made a deduction of thirty percent.
2. In very succinct and able submissions to us, Mr Ian Scott, on behalf of Hillingdon, makes the simple point that whilst the Employment Tribunal gave itself a correct self direction as to the appropriate approach to considering whether the dismissal was fair or unfair, when it came to applying that approach to the facts of the case, the Tribunal substituted its own views as to the gravity of Mr Thomas' conduct rather than considering whether the employers were reasonable in considering that his conduct had been gross misconduct and dismissing in all the circumstances. The Employment Tribunal failed to consider whether the employer's reaction to his conduct was within the band of reasonable responses. Mr Scott draws our attention to various passages in paragraph 25 of the Tribunal's reasons which, in our judgment, do lend some support to his contention. Accordingly, we permit that ground of appeal to proceed to a Full Hearing.
3. The point on contribution is a very short point. In paragraph 27 of the Tribunal's decision the Tribunal considered whether Mr Thomas had caused or contributed to his own dismissal. They found that he had made a considerable contribution. They referred to the fact that he himself had admitted that he had acted stupidly in repeating his access to inappropriate sites on the Internet after the first occasion. The Tribunal found that it should reduce Mr Thomas' award for unfair dismissal by thirty percent. It is contended that the finding of thirty percent deduction is not within the scope of the meaning of "a considerable contribution" and that the reasoning of the Tribunal is internally inconsistent. Whilst we do not consider that there is a great deal of merit in this argument, it is, in our judgment, arguable. That too should proceed to a Full Hearing.
4. We should say that also on the unfair dismissal, an argument is raised that the conclusion of the Tribunal is a perverse conclusion. That is a separate ground from that of applying the wrong test. In our view there is probably not a great a deal of merit in that argument but since this appeal is proceeding to a Full Hearing on the other two grounds, we permit the perversity argument to go forward as well.