Appeal No.	 EAT/325/99 & EAT/326/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 1999

Before
HIS HONOUR JUDGE HAROLD WILSON
MR D CHADWICK
LORD DAVIES OF COITY CBE

EAT/325/99
MR L J COLLINS	APPELLANT

FGF (SOUTHERN) LTD	RESPONDENT

EAT/326/99
FGF (SOUTHERN) LTD	APPELLANT

MR L J COLLINS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For Mr L J Collins	MR WILSON
(of Counsel)
Messrs Hillman & Co
Solicitors
PO Box 429
Reading
Berkshire
RG6 1QT	
For FGF (Southern) Ltd	MS SHALDON
(of Counsel)
Messrs Willcox Lane Clutterbuck
Solicitors
55 Charlotte Street
St Paul's Square
Birmingham
B3 1PX	

	JUDGE HAROLD WILSON:	This is the preliminary hearing of the proposed appeal by the respondent Company in the Employment Tribunal against the decision reached by that tribunal. Mr Collins, who was the applicant before the Employment Tribunal, has presented a proposed appeal of his own. For the sake of clarity, and with the agreement of Counsel, this judgment will relate to both cases and I shall refer to the parties by their original status before the Employment Tribunal. The parties today have been represented. Ms Shaldon has represented the respondent and Mr Wilson has represented the applicant. 

1.	The facts may be shortly stated. The applicant had been employed by the respondent Company from 1986 until summary dismissal in June 1998. The reason given for the dismissal was gross misconduct. The tribunal found that he had been unfairly dismissed because the dismissal had been, in their view, primarily with regard to a matter not described by the Company as gross misconduct. 

2.	The respondent Company supplied building materials to the trade. The applicant was manager of one of its branches. New targets had been set for that branch. A national director had warned the applicant about certain aspects of his management style and the branch’s failure to reach target figures. 

3.	In May 1998, following internal audits, there was found substantial miscoding of stock which resulted in paper profit being shown. Furthermore, also in May 1998 there was a problem over a customer who was given credit which exceeded his limit. Subsequently he went into liquidation and no money was recovered. A similar instance had happened in January and February 1998 with another customer with whom there had been no business for some three years. The applicant, however, authorised release of goods to that customer without obtaining the requisite authority from credit control. 

4.	There was a disciplinary hearing concerning all three matters. In particular the last mentioned matter, involving the customer with whom no business had been done for three years, was categorised as misconduct. The matter of miscoding was regarded as gross misconduct and was described as deliberate falsification of stock records. The applicant said, at the disciplinary proceedings, that he had never been given any management guidance. In due course he was informed that he had been dismissed without notice or payment in lieu of notice. The issues before the tribunal were whether there was a full and fair investigation; whether the respondents held a genuine belief; and whether, if they did, summary dismissal was a reasonable response.

5.	The tribunal found that there was no doubt that the respondents had held the necessary reasonable belief. In particular they said that they were “entirely satisfied that the applicant deliberately manipulated a situation” with regard to the customer with whom there had been no business for three years, so that that customer “could be supplied with goods in breach of clear company policy”. They went on to say that in their view this was conduct which was “inexcusable” and the respondents were entitled to terminate the applicant’s employment. In all the circumstances however, they found that the dismissal without notice was not appropriate particularly as this was not the charge which was categorised by the respondent as “gross misconduct” justifying summary dismissal. They found that the employment could have properly been terminated by notice but not summarily. The tribunal made an award consequentially.

6.	The respondent appeals against that conclusion and the basis upon which it was made. The applicant appeals concerning the extent of the award which was made and the basis upon that was calculated.

7.	In our view, the matter should proceed to full argument both on the grounds of the appeal and of the cross-appeal. We categorise the matter ‘C’ and we put a time estimate of three hours upon it. We direct that responses to the appeal and cross-appeal be filed and served within 28 days. We further direct that skeleton arguments from each side to be filed and served on each other and the Employment Appeal Tribunal not less than 14 days before the date fixed for the hearing. We invite the Chairman to notify the Employment Appeal Tribunal of the detailed circumstances in which the information contained in paragraph 13 of the decision was received by the Employment Tribunal. If he has Notes specifically relating to that matter, we invite him to supply copies by 1st September 1999. Upon receipt of information from the Chairman it will be forwarded to each side within 14 days.