Appeal No.	 EAT/223/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 May 1999

Before
HIS HONOUR JUDGE H WILSON
LORD DAVIES OF COITY CBE
MR R N STRAKER

NURDIN & PEACOCK LIMITED	APPELLANT

MRS M STEVENS	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR A LOCK
(Barrister (non-practising) )

SJB EMPLOYMENT SERVICES LIMITED
4 Copthall House
Station Square
Coventry
CV1 2FL	

	HIS HONOUR JUDGE H WILSON:	We have considered Mr Lock’s submissions and also of course the grounds of appeal submitted on 28 January.  So far as those are concerned, we think that the first ground, about the misapplication of the multiplier, key really is quite irrelevant to this case. What concerned the Tribunal was the procedure, or lack of it, with which mistakes were dealt with and in particular the first and second occasions when final written warnings were issued.  

	On 4 June there was the first meeting to consider what to do in respect of an error which had been made of just under £1000.  In being called to the meeting the Respondent to this appeal was told that there was no need to have a witness or representative with her.  No notes of the meeting were made, no record of any documentary evidence being considered, no denial of the mistake, no loss because of the checking procedures.  But she was told that she was going to be given a final written warning.  Mr Lock says that such a penalty is reserved for any mistakes over £100 but it is not expressly stated in any procedure anywhere.  Certainly we find it remarkable, as did the Tribunal, that anybody should be told, when that is a possible consequence, that they do not need a witness or a representative.

	Things seemed to go from bad to worse in that on 3 July, when there was a further mistake, the Respondent to the appeal was seen informally.  That was on 9 July when she was given a final written warning dated 8 July relating to the matters on 4 June.  That day another letter was written, which apparently was a further final warning.  Later on in August, there is reference in the findings of the Extended Reasons to other minor errors.  This all against the background of a request by the Respondent to the appeal to be moved and of being reassured by Mr Maturano that she was doing a good job and that she should not be worried about too many occasional mistakes.

	The Extended Reasons deal with what happened over the question of appeal procedures.  Paragraph 31 states that the Tribunal “accepted the applicant’s evidence that Mr Povey had told her not to bother with a witness or representative” at the initial proceedings.  “There was no indication that she was given notice of the potential outcome of the meeting which she attended with Mr Povey at which Mr McCaskie was present.”  

	With regard to the other grounds of appeal in the Notice, we observe that the Tribunal directed itself in paragraph 32:  

“While it is not open to us to substitute our decision for that of the respondent, it is open to us to determine whether the respondent’s decision was fair and reasonable and within the range of reasonable responses available to a reasonable employer in such circumstances.  We do not find it to be so -  it was in our view “manifestly inappropriate”.”

	They go on, in paragraph 35, to say that having found that the final written warning was unfair, it follows that the subsequent disciplinary proceedings were inevitably unfair as was the Applicant’s dismissal.  We can see no error into which the Tribunal fell in coming to that conclusion.  We note that they directed themselves properly concerning the law and in paragraph 36 they say 

“Whilst we did not invite the parties’ representatives to address us on the subject of the applicant’s conduct contributing to her dismissal we consider it may assist the parties if we set out those matters which, in our view, may be relevant to such considerations.  That the applicant made errors she has never denied and that such errors contributed to her dismissal there can be no doubt.  Furthermore, the applicant failed to avail herself of the opportunity of an appeal hearing.  We consider it likely that if the applicant had been adequately represented at such hearing bringing to the attention of Mr Maturano the mitigating circumstances and the deficiencies of the respondent’s application of its disciplinary procedure, it is unlikely that the decision to dismiss would have been upheld.  In respect of the question of representation at the appeal, we are critical of  both parties.  We are, however, of the opinion that in seeking a move from the tobacco room the applicant was seeking to answer the respondent’s complaints and that the respondent’s lack of response to the applicant’s requests does much to limit the extent to which her errors have contributed to her dismissal.”

	That is an overview from the Tribunal which illustrates the manner in which they had properly and impartially approached the whole matter.  We consider that there is no reasonable prospect of success on any full hearing of this appeal and accordingly the appeal is dismissed.