Appeal No.	 EAT/786/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR D J JENKINS MBE
MR A E R MANNERS

MR B PERROTT	APPELLANT

HEAT RADIATION LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R THOMAS
(of Counsel)
Messrs Battens
Solicitors
2 Mendip House
High Street
Taunton
Somerset
TA1 3SX	
For the Respondents	MR J CAVANAGH
(of Counsel)
Messrs Ridson Hosegood
Solicitors
41-42 High Street
Taunton
Somerset
TA1 3PN	

	MR JUSTICE KIRKWOOD:	This is an appeal by an employee against the unanimous decision of an Industrial Tribunal sitting at Exeter on 21st April 1997 dismissing a complaint of unfair dismissal. The extended reasons for the decision were given on 7th May 1997.

	Mr Perrott worked for Heat Radiation Limited as a plumbing and heating engineer from 26th April 1976 until 13th December 1996 when a period of notice he had been given expired, that is to say, for over 20 years. 

	At about 12.40 p.m. on Friday, 20th September 1996 the employer company’s managing director, Mr Stodgell, in his car in Taunton, happened to see Mr Perrott in the company’s van he used. Mr Stodgell wondered what Mr Perrott was doing there, and surmised that he may have been going home, or at any event, he should not have been there at that time. Mr Stodgell made further enquiries for himself that day and on Monday morning checked Mr Perrott’s time and mileage sheets. Over claims in those would result in excessive charges to customers. Mr Stodgell and another director then called Mr Perrott into the office on the morning of 23rd September 1996. The events of 20th September were put to Mr Perrott. Mr Perrott admitted, in effect, that he had put false figures on the time and mileage sheets. The meeting then turned to other matters of disciplinary history and very late in the meeting, as noted that day, Mr Perrott appeared to accept the warnings and criticisms up to the point where he questioned if he was being made redundant:

“When he was told by PJS [Mr Stodgell] that he was being sacked, and given 12 weeks notice therefore terminating his employment on 13 December 1996, his whole attitude changed.”

	Little over a week later a letter was sent (on 2nd October 1996) confirming the decision to terminate Mr Perrott’s employment with the company. It reads:

“Following your request for a written statement of the reasons for this decision, we detail these as below:
Generally the reason for the decision is that the speed and quality of your workmanship has not, for some time, been up to the standard required by this Company, nor indeed up to that expected by our clients. ...”

The letter goes on to mention a number of instances referred to, and some examples in recent weeks before what is described as the “concluding factor” in the decision which was the events of 20th September 1996. The accumulation of events was a pattern described in the employer’s form IT3, in opposing the claim, and all that material was before the Industrial Tribunal. In addition, the Industrial Tribunal heard oral evidence and, of course, saw the witnesses. We have not had that advantage.

	The Industrial Tribunal found:

“3	Substantially it was the events of Friday 20 September and Monday 23 September which gave rise to the applicant’s dismissal ...”

The Industrial Tribunal referred to other matters as background, and I will come back to that in a moment.

	It is argued for the respondent to this appeal, and we are bound accept from the tribunal’s extended reasons, that the tribunal found the principal reason for dismissal to be the events of 20th September 1996.

	The principal challenge to the Industrial Tribunal’s decision relates to its approach to the procedural steps taken by the employer. It is argued that Mr Perrott was given no prior notice of the meeting of 23rd September; still less was he told in advance that it was to be a disciplinary hearing. Accordingly, it is argued, Mr Perrott did not have the chance to consider the specific charges, to prepare a defence, to call witnesses or to have representation. Complaint is made to us that Mr Stodgell was in effect the witness, the prosecutor and the decision taking Chairman of the meeting. 

	We have had all those arguments put before us cogently on Mr Perrott’s behalf. We are reminded that he was not specifically advised of an opportunity for appeal. We have been reminded, too, of the ACAS Code of Disciplinary Practice and Procedure in Employment. All this material was before the Industrial Tribunal. Mr Perrott was represented before the Industrial Tribunal and the Industrial Tribunal reached this conclusion:

“5 ... We find that Mr Stodgell did not say to him beforehand, as he ought to have done, that it was disciplinary hearing, but our conclusion is that in the end that did not matter because the applicant agreed that he realised the meeting was of a very serious nature and that at the meeting his job might well be at risk. It was very unusual to be asked to see Mr Stodgell in that way in his office. If there had been a warning it would only have emphasised what the applicant was already aware of - and so the absence of a warning was not crucial.”

	The documents suggest that Mr Perrott thought that redundancy may have been the issue. We are told that Mr Perrott said that he thought he may be in for a “ticking off”, but however that may be, the Industrial Tribunal was well aware that this was procedurally a peremptory meeting. The formality often found and normally expected to be found, was absent. But having heard and seen all the material they did, having had an opportunity to gauge the demeanour and style of the witnesses, as well as what they actually said and to get a flavour, the three members of the Industrial Tribunal all agreed that this was not a case in which dismissal was unfair for procedural reasons. That decision was open to them.

	Although in the end a perversity argument was raised before us, we are quite unpersuaded of perversity and we are not persuaded that there was any error of substantive law in the tribunal’s decision that might entitle us to interfere.

	A second line of argument on this appeal is that the Industrial Tribunal misdirected itself in relation to the tests in British Home Stores Ltd v Burchell [1980] ICR 303. As the Industrial Tribunal set out a series of considerations in the extended reasons, it looks at first sight as if the tribunal stated the test wrongly. If it stated the test wrongly then the probability is that it would have applied it wrongly, but in fact on a closer look at the extended reasons, it is clear that the tribunal did address the three stage approach enunciated in Burchell and we do not find an error of law in the approach the tribunal took.

	Complaint is made also in the argument before us that the Industrial Tribunal placed undue or improper weight on earlier reprimands or disciplinary warnings in considering whether the sanction imposed was within the broad band of possible reasonable outcomes. The tribunal having found the principal reason for dismissal to be as I have indicated, the relevance, if any, of previous matters must be as background matters to the eventual decision and there is no other relevance. As to those matters the tribunal said:

“3 ... there was a certain amount of background. The applicant was given 5 reprimands between 17 May and 17 September and he was given a verbal warning on 3 September. There was an issue between the parties as to whether the reprimands had or had not been given, but we clearly prefer the evidence of the respondents about this. The reprimands were reprimands only and no more. They were intended to try to improve the applicant’s performance but they clearly showed that things were amiss as far as the applicant was concerned. The applicant belittled them and said he did not even realise that they were reprimands. As far as the verbal warning was concerned a building firm had requested the respondents not to allow the applicant to do any more work on their site. The applicant’s comment was that he could not understand the comments about the quality of his work and he did not regard his being moved from the site as being of great importance.”

The tribunal there dealt with those matters as background and reminded itself of a distinction to be drawn between reprimands, which were reprimands only, and the verbal warning. The tribunal made clear again towards the end of its decision that those were background matters only. They referred to the “background to the case” in paragraph 12 of their extended reasons.

	We do not find any error of law in the way the tribunal approached that aspect of the case. 

	Fourthly, was a perversity argument. This was in the nature of a long stop argument. It is made in the absence of Notes of Evidence. It seems to us that the thrust of the argument is that dismissal was too severe a caution for what was in itself, it is said, trivial. The perversity argument is presented not so much on the basis that the tribunal made a finding that was unsupported by any evidence, but that looking at the matter as a whole, the finding that the dismissal was fair was outside the broad band of decisions the tribunal could legitimately reach.

	We reflect for a moment, however, that there was in fact an act of dishonesty. We reflect that there is an absence of material demonstrating to us that the tribunal could not possibly reach this decision as a matter of reasonable decision, and it follows that the perversity argument really has no hope of success in the circumstances of this case. The decision of the tribunal was one that was open to it and we are unable to find to the contrary. It follows from what I have said, that this appeal will be dismissed.

	Legal Aid taxation granted for the appellant.