Appeal No. EAT/319/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 May 1995

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR T C THOMAS CBE

	MRS P TURNER OBE

MR G BOATENG	APPELLANT

THE SCIENCE MUSEUM	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON

	

	MR JUSTICE MORISON:  Mr Boateng, to whom we shall refer if we may, as "the employee" was employed by the Science Museum as an assistant management accountant.  He started his employment in March 1988 and it ended in 1992 in circumstances which we shall briefly describe.

	In early March 1992, as a result of a family bereavement, the employee went to Ghana.  He did not return to this country until 26 September 1992.  Whilst he was in Ghana some correspondence ensued between himself and his employers, which culminated in a letter from them dated 15 July 1992 dismissing the employee on the grounds of unauthorized leave of absence, as from 1 June, the employers being satisfied that he had properly accounted for his absence from duty during the period from March through to that date.

	On his return to this country, he telephoned the Science Museum and asked if he could come back to work.  He was told that he was dismissed, sent his P45 and a copy of his letter of dismissal.  He was told that he had a right of appeal, which in the event he did not exercise.  Instead, as he was entitled to, he consulted the Cambridge House Legal Centre, who wrote to the Science Museum.  They were not impressed by what was said and indicated that whether or not the employee had actually received the dismissal letter, he knew from their prior correspondence the risks he was running if he did not return to the United Kingdom and face his employers to answer the allegations made against him in relation to his unauthorized absence abroad.

	The Industrial Tribunal held that the reason for dismissal was his misconduct in absenting himself from work without proper explanation, authority or excuse.  The Industrial Tribunal then considered whether the dismissal was fair and, having set out the rival contention of the parties, concluded that in the light of the facts known to them at the time the Museum acted reasonably in arriving at the decision to dismiss.  They specifically rejected the contention raised before them that this was a case of dismissal for reason of capability or, as the employee has said in his notice of appeal, competence.  They also rejected the employee's complaint that he had not been paid his full sick pay entitlement, because the employee had produced no medical certificates to cover the period in question.  However, they did uphold his complaint that he was owed 6.5 days' holiday pay but made no order in that respect, upon the Museum undertaking to pay it.  It was accepted by the Tribunal that the under-payment was purely a clerical error.

	That decision was entered in the Register and sent to the parties on 22 February 1994.  On 5 April the Employment Appeal Tribunal received a notice of appeal dated and apparently signed by the employee on 31 March 1994.  The grounds of appeal are stated in these terms:

		"The grounds of my appeal are that the Tribunal was wrong as matter of law in finding that this was a conduct case when a reasonable tribunal would have found in the reasonable evidence before it that it was a competence case.  Had they applied the correct law (ie this was a competence case).  They would have found that the dismissal was unfair."

	It seems to us quite clear that the employee has not shown an arguable point of law fit to go before a Tribunal.  As we have explained to him, our jurisdiction is confined to dealing with points of law by way of appeal from an Industrial Tribunal decision.  It was in our judgment a pure question of fact for the Industrial Tribunal to determine what was the reason for the dismissal.  Whether they regarded the employee's evidence as reasonable, was for them to decide.  The Industrial Tribunal clearly considered the issue which was raised before them.  Whether a dismissal is by reason of conduct or capability or competence is, in any event as it seems to us, largely a matter of labelling.  The Industrial Tribunal were regaled at the hearing with a series of authorities which very sensibly they said were of no assistance to them at all.  They properly directed themselves to the words of the Statute and were right to do so.

	We can see no grounds for an argument that the Industrial Tribunal decision was perverse and that is a conclusion we would be most reluctant to come to when considering a careful and well-reasoned decision of the sort here.  

	The real issue was whether, on the facts, the employers were reasonably entitled to treat the behaviour of the employee, whether due to ill health or otherwise, as giving fair grounds for a dismissal.  We consider that on the facts found by the Industrial Tribunal against which there can be no appeal, any reasonable employer could have behaved as the Museum did.  As there is no arguable point of law shown in the grounds of appeal, it must be dismissed.