United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COLIN SIBLEY (Representative) Response 2000 International Plc 792 Green Lanes Winchmore Hill London N21 2SH
For the Respondent	No appearance or representation by or on behalf of the Respondent

SUMMARY

Unfair Dismissal: Polkey Deduction

Employment Tribunal found that Claimant was unfairly dismissed on procedural grounds but failed to consider whether he would have been dismissed (fairly) had a proper procedure been adopted.
 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal by the Respondent employer from a Decision of the Employment Tribunal at Southampton, chaired by Mrs C M Green. The Decision was promulgated on 4 February 2005. The Employment Tribunal held that the Claimant had been unfairly dismissed, but had contributed to his dismissal to the extent of 50%. He was awarded compensation in the sum of £1,590.00 being one-half of the £3,180.00 which would have been the amount he would have received but for the reduction.
2. The Claimant does not appear. On 15 July, the Registrar made an order debarring him from participating unless an answer was lodged within seven days of 15 July. That did not happen. On 21 March, HHJ Burke referred the matter to a preliminary hearing and Silber J, at the preliminary hearing, directed that there should be a full hearing, which we are dealing with today, of amended grounds, all others being abandoned. The amended ground is that the Employment Tribunal erred in not considering or in not considering adequately whether, in the light of its findings in paragraph 5.1 of the Judgment, the dismissal would, in any event, have been fair if the Respondent had followed the correct procedure and in the circumstances the Claimant should receive no compensation.
3. The basic facts we take from the Decision of the Employment Tribunal. The Claimant was employed as a plasterer; there had been concern for some time over inaccurate time-sheets produced by him. On 16 June he completed an inaccurate time-sheet. If this had not been spotted, it might have led to the Respondent making a false claim on an insurance company. As a consequence, on 25 June, the Claimant was called to a disciplinary meeting for 28 June, but he received no advance notice of the fact that it was to be a disciplinary hearing and neither was he shown in advance the relevant time-sheets. At the meeting, the time-sheets were put to him, he was unable to advance an adequate explanation in particular as to why the time-sheets showed him finishing later than the time he actually had reported that he had completed his work. He was thereupon dismissed for gross misconduct.
4. The Employment Tribunal set out the facts and was satisfied that, on the basis of the matters which I have just mentioned, that the employer had shown a potentially fair reason for dismissal. However, the Employment Tribunal concluded that the procedure adopted was unfair. No advance warning had been given to the Claimant; he had no adequate opportunity to respond to the material that was put in front of him because he had only been shown it during the course of the hearing; neither did he have the opportunity to have a friend accompany him. In addition to that, he was not afforded the opportunity of an appeal and was not given written reasons for his dismissal. In the circumstances, the Employment Tribunal concluded that the dismissal was unfair, but that the Claimant's conduct was blameworthy and contributed to his dismissal and, and as we have already mentioned, his compensation was accordingly reduced by 50%.
5. It is apparent from reading the Decision of the Employment Tribunal that no consideration appears to have been given as to whether, had there been a proper procedure, he would have been dismissed in any event and accordingly would have received no compensation, or reduced compensation. That is the matter which Silber J directed should be considered today. The point appears to be correct. Mr Sibley, who has appeared on behalf of the Respondent employer, has sought to persuade us that we could make findings ourselves that the Claimant should not be entitled to compensation on the basis of the facts set out in the Decision of the Employment Tribunal. We do not feel able to do that. This is a fact sensitive issue and questions of fact are for the Employment Tribunal, not for us and we do not feel, on the material before us, able to accede to that submission. It seems to us that the most economical way for dealing with this matter is to remit the matter to the Employment Tribunal, that is to the same panel that heard this matter, to make such findings as are appropriate on the question as to whether or not, had a proper procedure been followed, the Respondent would have been entitled to dismiss the Claimant in any event without notice and what effect this might have on the compensation which he was awarded. Of course, we would invite the Employment Tribunal to deal with this matter on the basis of the evidence that it has already heard. It is, of course, a matter for the Employment Tribunal to decide how it wishes to go about this matter, whether it wishes to have further evidence called or whether it wishes to deal with the matter simply on the basis of submissions. However, the appeal must be allowed and the matter remitted to the Appeal Tribunal to consider that point only.