Appeal No.	EAT/614/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 July 1999

Before
HIS HONOUR JUDGE D M LEVY QC
MR D A C LAMBERT
PROFESSOR P D WICKENS OBE

NORBROOK LABORATORIES (GB) LTD	APPELLANTS

MR T C BEALBY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR HILLMAN
(OF COUNSEL)
(Instructed by)
Messrs Cartmell Shepherd
Solicitors
Viaduct House
Carlisle
Cumbria  CA3 8EZ	

	JUDGE D M LEVY QC:	This is an Appeal by an employer, the Respondent below, (“the Appellant”), from a decision of an Employment Tribunal held at Carlisle, according to the Extended Reasons, on 13th January 1999.  Counsel for the Appellant who appeared before the Tribunal (although that does not show on the first page of the decision) has appeared before us today.  He tells us that the Hearing took some 4 days, on one of which Dr Haughey, the Chairman of the Appellant, gave evidence. Before we move to the merits of the decision we would say that it is helpful if an Employment Tribunal’s decision shows on the first page all days of the Hearing and names those who represented the parties.

1	The history of the case is this.  Mr Timothy Charles Bealby (“the Respondent”), born on 4th April 1948, was employed by the Respondent below from 18th September 1995 to 17th January 1998.  On the 11th March 1998 he brought a complaint to an Employment Tribunal that he had been unfairly dismissed.  He gave details of his complaint with his IT.1.  The company’s response was received by the Employment Tribunal on 14th April and gave reasons as to why the dismissal was fair.  The Hearing before the Employment Tribunal took, as we say, some 4 days.  The Extended Reasons were communicated to the parties on 22nd March 1999.  The decision of the Tribunal was that the Applicant was unfairly dismissed.

2	In the Extended Reasons, having first set out the employment of the Respondent as a Farm Manager at the Corby Castle Estate Company’s premises, the Employment Tribunal then set out the issues and its conclusion.

(a)	What was the reason for the dismissal?  We find that it was Dr Haughey’s belief that the Applicant had “in blatent breach” of instructions and “defiance of warnings” failed to communicate with Dr Haughey about matters relevant to farm management.
That is a matter of conduct and as such a potentially fair reason for dismissal within section 98 of the Employment Rights Act.
(b)	Was that a belief that Dr Haughey could reasonably have held?
		We find that it was not a belief he could reasonably have held because he failed to investigate adequately and fairly those instances on which he reached his decision; such investigation could not have born out a reasonable belief in the conduct on which his decision was based (as expressed in the letter of dismissal) save as to one aspect of one incident.
(c)	In all circumstances can dismissal for that one aspect alone be considered reasonable?
We find that it cannot.

The reasons were fully and clearly set out in the following paragraphs of the Extended Reasons.

3	In the Notice of Appeal which was received by the Employment Tribunal dated 30th April 1999 the grounds of appeal are set out thus:

a)	The Tribunal acted perversely in regarding the one failure to communicate properly on the part of the Respondent on 13th/14th December 1997 which they accepted was made out by the evidence as only meriting a reprimand or a warning when the context of weeks and months of concern over this very issue rendered it a very serious breach of instructions for which a dismissal was plainly a reasonable option open to an employer; and
b)	The Tribunal made an assertion that was unjustified and not supported by any evidence that the evidence of the company failed to follow its own procedures on discipline but it failed to cite any reasons for such a view, thus rendering it impossible to answer.

4	Mr Hillman, who has addressed us this morning on behalf of the Appellant, has really addressed us on the basis that the decision of the Employment Tribunal was perverse particularly as regards the second of the grounds in the Notice of Appeal.  He has taken us through some of the correspondence in support of his submissions.  We have carefully followed the correspondence with him.  We have come to the conclusion, having seen the correspondence and read the decision that it was not perverse of the Employment Tribunal to reach the decisions complained of for the grounds advanced by Mr Hillman or on any other grounds.  This is a Tribunal which had the opportunity of seeing the witnesses over a long period.  The letters, to some extent, speak for themselves.  By way of example, Dr Haughey was the managing director of the Appellant and a number of other companies.  Shortly before one of the incidents complained of, a long letter was sent by fax by Dr Haughey to the Respondent demanding a reply to his several questions within the course of a day when clearly the Respondent had many responsibilities to discharge for the Appellant.  Dr Haughey, in our judgment, made quite a number of demands of the Respondent which it would have been difficult if not impossible for any employee, however hard he worked, to meet.

5	Perversity is a subject on the meaning and approach to which Mr Hillman did not cite any authorities to us but they are well known.  We are satisfied from the four corners of the decision and the documents we have seen that the decision of the Tribunal was one which it was entitled to reach on the evidence before it.  The incident in question which led to the dismissal of the Respondent was one for which the Tribunal felt a reprimand was suitable in the context of the employment history of the Respondent.  In essence this is an appeal where the Appellant complains of findings of fact.  We see no reason to believe that the Tribunal’s finding of facts were in any way unjustified.  The Appellant is not entitled to another hearing because it dislikes the proper conclusion reached in the careful decision under appeal.

6	At this stage we will pay tribute to Mr Hillman for the fortitude which he has shown in attempting to sustain his submissions today.