United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0623/12/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

                                                                                                           At the Tribunal

                                                                                                           On 10 May 2013

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

(SITTING ALONE)

DISOTTO FOOD LTD                                                                                           APPELLANT

CARLOS SANTOS                                                                                             RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

                                              APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE

Chairman alone

Appellate jurisdiction/reasons/Burns-Barke

UNFAIR DISMISSAL

The important point, which justifies publication of this ruling at a preliminary hearing on the website, is that no different quality of reasoning is required when a Judge sits alone rather than as chair of a panel of three.  An argument that his reasoning should be fuller than it would otherwise have been was rejected.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

1.            This is a preliminary hearing in an appeal against a judgment delivered by Employment Judge Southam sitting on his own at Watford, Reasons for which were sent to the parties on 24 September 2012.

2.            He found significantly that the Claimant had been unfairly dismissed, that there had been no statement of changes to his particulars of employment, contrary to section 4 of the Employment Rights Act 1996, and he awarded compensation only a few pounds short of £60,000.

3.            The Claimant was a factory manager at first, employed from 21 March 1994 until, having fallen ill and come back to work in the reduced capacity of warehouse manager in 2009, he was dismissed on 22 November 2010.  There had been four occasions after his return to work, having suffered stress, upon which he had been subject to disciplinary proceedings.  They were all in respect of his alleged conduct.  The first, on 16 July 2009, was in respect of a failure, it was said, to follow his employer’s instructions; that, on 20 May 2010, a failure to ensure appropriate stocking in the warehouse; on 3 November 2010, later determined on 8 December 2010, a failure to discipline a member of agency staff as instructed to do; and an incident on 8 December 2010 which involved the question of a failure to load a vehicle fully on the evening of 22 November 2010.  The failure to load was in respect of four banoffee pies, the circumstances being set out in paragraph 19.

4.            The Tribunal took the view that the offence, which consisted of the Claimant having asked what he should do in respect of the load, having been instructed late in the evening to complete the full load and having agreed to do so, did not.

5.            The grounds of appeal raised a number of points which were referred by HHJ Peter Clark on the sift to this preliminary hearing.  Having considered the papers and heard what Mr Harding has to say, it seems to me that there are these grounds which may be pursued, though they will have to be pursued in something of a recast form.  The first question is whether the Tribunal substituted its own decision for that of the employer.  As part and parcel of that question, it is open to the employer to argue on the appeal that the approach which the Tribunal took to the employer’s reliance on the previous three warnings that had been given betrayed substitution.  Secondly, it is open to the Appellant, and it has reasonable grounds, to appeal in respect of some matters relating to compensation.  First is the question of contributory fault.  This is dealt with in the original ground 7.  Paragraph 73 of the original Notice of Appeal is arguable, as also is paragraph 77, though 77 relates to the question of grossing‑up.  The Judge invited the parties to make submissions to him as to grossing‑up.  They did not do so.  He indicated that if they did not and there was a faulty calculation, they might apply to the Tribunal for a review.  Other related matters are, I am told, ongoing at the Tribunal.  It is thus not inconceivable, though entirely a matter for the Employment Judge, that the Tribunal might entertain a review out of time.  The parties should attempt to agree what is the appropriate figure, taking account of the Claimant’s actual tax position so that the Claimant obtains every penny which the Tribunal thought him entitled to but not a penny more.

6.            Paragraph 73 is capable of including argument that the Tribunal was not entitled to examine the facts underlying each of the previous disciplinary warnings as opposed to simply relying upon the fact that there had been such warnings unappealed in respect of his alleged misconduct.

7.            Those issues cover ground 2 and, in part, ground 4 of the original Notice of Appeal.  They take into account some of what was original ground 3 and 5 but are better summarised, as I have just done, having had the assistance of Mr Harding in those formulations.  All other grounds seem to me to raise no arguable point of law which gives reasonable ground for appealing.  The first ground fails.  It is for a Tribunal to decide as a matter of fact what was the reason for the dismissal and if it was a reason related to conduct or, for that matter, capability.  Here the Tribunal made that finding of fact.  It was not perverse.  It appears entirely justified by the Tribunal’s findings.  Each of the matters in respect of which the Claimant was disciplined was a matter essentially of conduct.  The fact that the employer sought to characterise the Claimant as being unable to follow instructions is not a matter, as it seems to me, of any lack of capability.  It is rather a somewhat unpleasant way of expressing someone’s misconduct on a repeated basis.  The Tribunal was entitled to come to the conclusion it did.

8.            As to ground 6, it is suggested that the Judge should have made further findings and given greater explanation of his conclusions because the Judge was sitting alone without the benefit of lay members.  This I simply cannot accept.  The quality of reasons which is essential is judged against a standard which is the same, whether the Tribunal is composed of one, three or, for that matter, any other permitted number.  That is clearly set out in Meek v City of Birmingham District Council [1987] IRLR 250 CA and other cases which encapsulate the point of law.  It is also a matter of the rules, rule 30(6) of the Tribunal Rules, to which all Tribunals, whether chaired by a Judge alone or chaired by a Judge in a panel of three, are subject irrespective of the constitution.  The essential quality of reasoning is that the party who loses must know why they lose, that the reasons must be sufficient to satisfy that, in justice, and, second, indicate to an appeal court sufficient of the reasoning so that it may be known whether there has been any error of law or not.  Any more than that is unnecessary surplusage.  In this Tribunal, we constantly see the problems of too much being said rather than too little.

9.            Further, Parliament, in providing that Judges should sit alone in unfair dismissal cases, made no consequential provisions that the conduct of the case should in any other way differ.  I see no fault in law in the Judge here giving reasons which would be entirely satisfactory if sitting with no members, simply because it is said they are insufficient because he is sitting alone.  The standard is the same; the point is without substance.

10.         The Appellant does not pursue the points made under paragraphs 75 and 76.

11.         There will be a transcript of these Reasons.  The consequence will be that the case will be heard.  It should be capable of being finished within the day, Category B.  The usual order will follow that if there is an evidential point which arises either for the Appellant or the Respondent/Claimant, then the parties are to identify it and agree it, and otherwise the standard order.