Appeal No.	 EAT/500/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 November 1996

Before
HIS HONOUR JUDGE D PUGSLEY
MRS T A MARSLAND
MR T C THOMAS CBE

SONICO LTD	APPELLANTS

MR Z VIRANI	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A SONI
(Director)	
For the Respondent	THE RESPONDENT IN PERSON	

	JUDGE PUGSLEY:   This is case that comes before us by way of full hearing from an appeal of a decision of the London (North) Industrial Tribunal heard on 12th March 1996.

	We have to say that we find it a matter of regret that the Notice of Appeal and skeleton argument, if the document concerned can be dignified by those terms, is a letter from Mr Soni dated 26th April 1996 which is offensive and makes totally unsupported allegations members of the tribunal. Mr Soni seems to be labouring under the misapprehension he is free to stigmatise those with whom he disagrees. He is a professional man and the intemperate nature of the letter falls short of the standards of professionalism one would have expected. We understand that he is a chartered accountant.

	Be that as it may, we have considered the allegations and contentions in the Notice of Appeal and we reject them. There are two grounds. The first is that he claims he thought it was a preliminary hearing. All the other matters he raises are issues of fact.

	We have looked at the decision overall. We find it quite incredible that Mr Soni, who was represented, was under that misapprehension, that the final hearing was a preliminary hearing. We have to point out that the tribunal in terms offered him the opportunity to adjourn to call any other evidence he wished to. We are quite satisfied the case was conducted with fairness by the Chairman and the members.

	However other issues arise. We have given the respondent to this appeal, Mr Virani, an opportunity to comment on those matters which we indicated were a cause of concern to us. The learned chairman sets out very comprehensively a number of factual conclusions. But our concern is that the way in which the issues of unfair dismissal is dealt with does constitute a misdirection of law. In a decision which runs in total to over 10 pages, the issue as to the findings of unfair dismissal are dealt with very briefly in a matter of a few lines in paragraph 15, where the decision records:

“	On the majority’s finding of facts we find that there was a dismissal and that this dismissal was unfair Mr Virani had worked for them for six years. He had been put in the position of relief manager and had never been accused of dishonesty or fraud until this letter which the majority find he did not receive on the 30th.”

	It is pertinent to note that at no stage was there an express finding by the tribunal as to what was the reason of the dismissal. There was no finding whether that was a potentially fair reason within the meaning of section 57(2). Moreover, in the way it is put there is no finding whether the decision to dismiss was outside the range of options available to a reasonable employer having regard to the criteria of section 57(3). We are concerned that at times during the decision what is being analysed by the tribunal is their finding of fact, rather than an assessment of what was in the employer’s mind at the time the decision to dismiss was made, and whether it was reasonable to treat those matters as the reason for the dismissal.

	Our concerns are heightened because of the statement of law in paragraph 19. We bear in mind that there was a case not only of unfair dismissal but also of wrongful dismissal. At paragraph 19 the learned chairman says this:

“As we found this dismissal to be unfair Mr Virani was entitled to six weeks’ notice having regard to the provisions of section 131 of the Employment Protection (Consolidation) Act 1978. The failure to give him his notice and the money for that notice is a breach of contract and the damages are the equivalent of the notice he should have been given, which by reason of the statutory provisions having regard to the length of his service is six weeks at his net pay of £125.30 per week. That gives a sum of £761.80 under section 131.”

	With great respect to the learned chairman, the sentence “As we found this dismissal to be unfair Mr Virani was entitled to six weeks’ notice” is not an accurate statement of the law. Section 131 is concerned with breach of contract of wrongful dismissal and not unfair dismissal. They are very different tests. Under section 131 a tribunal is required to decide if there is breach of contract. In a case of unfair dismissal, it is the employee’s perception of the employer’s conduct which is the issue.

	The mathematics suggests that the tribunal have added the six weeks for non-payment of the notice money and the four months time when they say should be compensated for the loss of wages. The period of the prescribed element is a period of four months; namely from 30th June 1994 to 31st October 1994. It should be noted that the applicant had by their decision already received damages fro wrongful dismissal for the first 6 weeks of the period.

	Therefore to summarise. The claim under the Equal Pay Act was dismissed and Mr Virani has made no ground of appeal from that decision, and if we may say so rightly. We consider the whole issue as to the Wages Act, the unfair dismissal and the wrongful dismissal case are so inter- connected that it would be quite wrong to take a different view on any of the cases. Our decision is that these three matters should be remitted back to a differently constituted Industrial Tribunal so that they might, in the light of the observations that this tribunal has made, rehear the matter. If it becomes appropriate the tribunal should consider the issue of recoupment in the context of making an assessment of damages for a breach of contract action.