Appeal No. EAT/528/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30th October 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR E HAMMOND OBE

	MRS M E SUNDERLAND JP

MR D J COPPS	APPELLANT

S WREFORD & CO	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C HARRISON
Representative
Citizens Advice Bureau
27 Montagu Street
Kettering
Northants
NN16 8XG

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by Mr Copps from a decision of an Industrial Tribunal sitting at Bedford under the Chairmanship of the learned Regional Chairman, Mr Carruthers, who by a majority found that he had not been unfairly dismissed by his employers, S W Wreford & Co.  

	Mr Copps was represented before the Tribunal, as he has been today, by Mr Harrison of the Kettering Citizens Advice Bureau.

	The firm are road hauliers, having some 50 vehicles or so and about 100 employees.  The Applicant started working for them from September 1983.  He had become a driver, qualified for Class I vehicles.  There had been some warnings in the past, one written warning;  his dismissal arose out of an accident on the 8th February 1991.  On that day Mr Copps had been on one of his usual runs up to Leeds, and on the return journey, whilst driving through Leicestershire, his vehicle jack-knifed.  He went into the middle crash barrier and some 17 or so lengths of the crash barrier were damaged.  That, as anyone would know, was an extensive length of crash barrier to be damaged in that way.  The Applicant was not injured, he was obviously shaken.  The Police were called.  Another vehicle picked him up, they returned to his depot.  The tachograph was kept.  The damage to the vehicle was between £8,000 and £10,000 worth and presumably the cost of the crash barrier was also to be paid for.  Mr Copps was breathalysed but there was no indication that he had been drinking.  

	Naturally enough Mr Wreford was anxious to investigate the matter.  He left a message for Mr Copps to come and see him, and on the Tuesday following, he arrived.  It must have been perfectly apparent to Mr Copps that Mr Wreford was going to investigate the matter and with an accident like that unless there was some explanation the obvious conclusion is that this a question of speeding, because there is no explanation to the jack-knifing of a vehicle with that damage, in that way, other than to indicate to anyone, excessive speed.

	When he arrived for the interview he was asked to give his explanation about the accident and the Members of the Tribunal were satisfied that he gave no explanation of any kind.  Therefore, Mr Wreford was left with those facts, coupled with further enquiries that he, Mr Wreford, had been making, and also the examination of the tachograph.  At the end of that interview Mr Copps was dismissed.  He was not told of any right of appeal or told of any right to have a representative.  Even in a small business like this, no doubt Mr Wreford will consider whether or not some form of procedure, a very simple one, might not be advisable.

	However, the Tribunal saw and heard the witnesses and they directed themselves, perfectly correctly in law.  They found that the reason for dismissal was misconduct, Mr Harrison does not seek to argue against that;  they then looked to see whether there was an adequate investigation, that is the next step in the procedure, they found there was.  Then they had the more difficult point which Mr Harrison advanced before us.  He advanced the criticisms that Mr Copps was not told that this was to be a disciplinary hearing, he was not told that he had a right to a representative and he was not told that he had a right of appeal.  This driver, was a driver of many years experience.  Mr Harrison's submission is that this is a perverse decision, that no reasonable Tribunal on those facts, which are not doubted, could have found that the dismissal was fair, the majority.

	It is important to bear in mind the wording of Lord Mackay of Clashfern, the learned Lord Chancellor in the well known case of Polkey v. A E Dayton Services Ltd [1988] ICR 142, it is to be remembered that that was a redundancy case and it was a question of lack of consultation, but the principles of that case have been adapted and adopted when looking at procedural matters in conduct cases the passage which we have in mind is the passage which appears at page 153.  As will be remembered the main issue in Polkey was whether the view taken by this Court in the earlier case of British Labour Pump Co Ltd v. Byrne [1979] ICR 347, was a proper view of the law, namely, that if it would have made no difference then a failure in procedure did not render the dismissal unfair in the House of Lords.  So one must look at the procedure and decide whether or not it was fair, and if one finds it unfair it is still open to award nil by way of compensation, if you think it would have made no difference, but it is at the compensation issue and not at the liability issue that that consideration comes in.  At page 153 at "D" the learned Lord Chancellor says this:
"Where there is no issue raised by sections 58 to 62 the subject matter for the tribunal's consideration is the employer's action in treating the reason as a sufficient reason for dismissing the employee.  It is that action and that action only that the tribunal is required to characterise as reasonable or unreasonable.  That leaves no scope for the tribunal considering whether, if the employer had acted differently, he might have dismissed the employee.  It is what the employer did that is to be judged, not what he might have done.  On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.

If the employer could reasonably have concluded in the light of circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code.  Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair.  Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."

That of course, as we have already said, is referring to redundancy.  But the same principle is applicable when considering a conduct case.  

	It is not every failure in procedure that renders a dismissal unfair it must depend upon each individual case and it is essentially a matter for industrial tribunals who see the parties, most importantly, and are able to see and hear them and assess them and look at them and the facts as they find them to be in the particular case.

	In this case, you had a very experienced Chairman and clearly, the principles of law were before the Tribunal.  The question is whether they could look at the facts and decide that the dismissal was not unfair.  There are one or two points about that.

	A tribunal is not bound to set out every single fact.  They are giving a broad indication of what they find and it has been said before now that it is not for this Tribunal to examine a decision as one would examine a pleading in a High Court case.  One can look at the whole sense of it and see whether the approach is right.  Mr Harrison says, there was here, no disciplinary meeting.  It would seem perfectly open to the Tribunal to say, as they found, that he was an experienced driver, he gave no explanation, he knew in this case, to use a colloquialism, he was for the "high jump" and they clearly took that view.  He was not informed about the right to a representative, that is not fatal, although preferable if there is a union for a union representative or some other member of the staff, and he was not told of his right to appeal.  They looked at the whole of this, they saw the people, it is not a very big concern.  We cannot say on the findings of fact there that this case was perverse.

	The second point raised by Mr Harrison is that the Tribunal were wrong to find that it was within the range of reasonable response to dismiss.  He said it was one incident and this clearly not within the bracket, that again is essentially a matter for the Tribunal but one cannot see great detail about the accident but there seems to be sufficient here to indicate it was really a bad piece of driving.

	Thirdly, as to the compensation, that matter is really not material.  Despite the admirable brevity and succinctness of the submissions made I am afraid we are not with Mr Harrison.

	There is no point of law to disclose which is erroneous and the appeal must be dismissed.