United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	J LADDIE OF COUNSEL
For the Respondent	T C STYLES REPRESENTATIVE


 


1. This is one of those comparatively rare cases where the Employment Tribunal did not reach a unanimous decision. Mr Kelly had submitted a complaint of an unfair dismissal against his former employers for whom he had worked for over 22 years prior to his dismissal on 12 November 2002 for misconduct.
2. An Employment Tribunal with Mr Walton as the Chairman and Mrs Winch and Mrs Cook as the lay members held a hearing at Truro on 26 June 2003 to consider his complaint. Mr Styles, a Consultant, represented Mr Kelly. The employers were represented by Mr Green, a solicitor from the Engineering Employer's Federation.
3. The outcome was that the Employment Tribunal was satisfied that Mr Kelly had been dismissed for a reason related to his conduct and then reached a majority decision that he had been unfairly dismissed from his employment. The Employment Tribunal then found, and this time unanimously, that he had contributed to his dismissal by 50%. The parties then reached a settlement in respect of the quantum of compensation i.e. £22,000.00. The decision with extended reasons was promulgated on 25 July 2003
4. .The area of disagreement between the members of the Employment Tribunal was in respect of their being called upon to decide whether the dismissal of Mr Kelly was fair or unfair having regard to the circumstances of the particular case.
5. Both the lay members found that there was an unfair dismissal. The Chairman however decided that dismissal was not unfair. Hence the majority decision.
6. The Notice of Appeal from the employers is in respect of that majority finding that Mr Kelly was unfairly dismissed. Mr Kelly, through Mr Styles, is content with the majority judgment of the Employment Tribunal.
7. The appeal was set out down by order of her Honour Judge Wakefield for a full hearing before the Employment Appeal Tribunal and we are constituted today to conduct that full hearing.
8. The employer is represented at this hearing by Mr Laddie of counsel and Mr Styles, a consultant, represents Mr Kelly as he did before the Employment Tribunal. Mr Laddie has three grounds of appeal but emphasises that they are interlinked and we have borne this in mind in our consideration of them.
9. The first ground of appeal is that the majority on the Employment Tribunal i.e. the lay members did not direct themselves correctly in respect of the well established "range of reasonable responses" test. In other words they substituted their own opinion for that of a reasonable employer.
10. It is a fair point, as made by Mr Laddie, that in the reasons no specific reference is made to their applying the band of reasonable responses test prior to their indicating their views . However, on a full reading of the reasons we are not able to accept Mr Laddie's submissions in this respect. There is a specific reference in paragraph 22 of the Employment Tribunal reasons to the band of reasonable responses, which indicates that that test was not overlooked by the Employment Tribunal. We assume that the very experienced Chairman of this Employment Tribunal would not have permitted the lay members to have judged the matter of fairness other than by directing themselves correctly in respect of the necessity for objectivity in regard to the test.
11. The second ground of appeal is that the majority of the Employment Tribunal failed to take sufficient account of the evidence which indicated the seriousness of the misconduct. It is perhaps fair to say that where there was disagreement between the lay members of the Tribunal and the Chairman a little more could have been said in the reasons as to the matters which came into their respective considerations. However, the Employment Tribunal set out carefully its findings of fact and noted the efforts of the employer to tackle false recording of records.
12. Although they did not refer specifically in the reasons to the disciplinary procedure providing for falsification of records being capable of constituting gross misconduct, we accept from Mr Styles (who was present at the Employment Tribunal hearing) that the disciplinary procedure was considered at length during the hearing and we are satisfied that the Employment Tribunal must have had its contents properly in mind.
13. Furthermore they clearly also had in mind that dismissal was the consequence of three allegations of misconduct all of which had to be considered, albeit that one of those was regarded as much more serious than the other two. The overall seriousness of the misconduct appears as a matter carefully considered by the Tribunal.
14. That leaves the third ground of appeal as being perversity and Mr Laddie accepts especially after the Court of Appeal Judgment in Yeobah v Crofton [2002] IRLR 634 that this is a very high hurdle to overcome.
15. Although the Employment Tribunal unanimously accepted that Mr Kelly was half to blame for his own dismissal the majority took the view that his falsification of records was directed to meeting targets. Having regard to Mr Kelly's long and hitherto satisfactory service record the majority decided that dismissal was outside the band of reasonable responses of a reasonable employer to the falsification of the records in the particular circumstances.
16. That is a matter for the judgment of the Employment Tribunal having heard the evidence. It neatly illustrates the value of having lay members on Employment Tribunals able to put their respective perspectives gained from by their industrial and employment experience to the facts. In this case both lay members approached the facts from their respective perspectives and were in agreement with each other. The Chairman took a different view. Perhaps another Employment Tribunal would unanimously have followed his view. Perhaps if the matter had been left to us we would have taken a different view. But all that is beside the point. The Employment Tribunal, albeit by a majority of the two lay members, reached a conclusion which they were entitled to reach in the particular circumstances of this case. Accordingly this appeal fails and is dismissed.