Appeal No.	EAT/15/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2000

Before
HIS HONOUR JUDGE D WILCOX
LORD DAVIES OF COITY CBE
MR I EZEKIEL

MR PETER J ELLIS	APPELLANT

FLOMAT BAGFILLA INTERNATIONAL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS M TETHER
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

JUDGE D WILCOX:

1.	The Appellant seeks to appeal against a decision of the Southampton Tribunal on 15 October 1999 that his employers, Flomat Bagfilla International Ltd, did not unfairly dismiss him.  The brief background of fact to this case is that the Appellant was employed by the Respondent company for some years in a design capacity and had a most excellent work record.  In the fullness of time he moved his home south and operated from home, essentially, but reporting back to his company in Glossop, Derbyshire.  He had moved south to Bournemouth.  

2.	Up until that time there were no difficulties in his disciplinary relationship with his employer.  Then he wrote an e-mail on 13 January 1999; he wrote it to someone that he was friendly with in a licensee company. This was not merely a competitor or a potential customer, this was someone in a company licensed to make the product that he was concerned with and they were in Canada.  The relationship, therefore of trust between that company and his employers were of some importance.  He, in the course of that e-mail gratuitously volunteered certain matters.  They related to his employers’ daughter, who was shortly in this family company to take over the reins as Managing Director.  He said this:
“Now that Michelle has taken over all aspects of running the company in the UK I get very little information - Barrie has not spoken to me since my last visit to Glossop in early November (i.e. before his last visit to Canada), and I have very little contact with Michelle. (NB: Michelle was the daughter) and I have as little contact with Michelle as I can possibly get away with.  
I know that she is highly thought of in Canada - Barrie tells me that Ian Campbell was particularly grateful for the way her incisive and highly trained mind was able to get him over a few difficulties he is having with your accounts when she was over in the summer, but sadly, she and I do not get on well -she has little patience with the lower orders of biological life who contribute nothing to the company and are just a drain on her birthright.”

3.	He made forthright comment upon her character, her capacity to do the job and upon their future relationship.  He went on:
“The good news is that we have a new employee David Robertson who is a competent Engineer, with a considerable amount of common sense and who is also an exceptionally pleasant and likeable guy.” 
And then this comment:
“If only Ms P would allow him to get on with his job I feel sure he could be a very valuable asset to the company.”
Again a comment upon her ability and her capacity. The effect upon the licensee can be measured because the recipient of that e-mail was sufficiently exercised to draw the attention of its contents to the employer, who then considered the matter and set up a disciplinary hearing.  

4.	That hearing found that it was gross misconduct.  There was no unqualified apology, by the time that this matter came to a Tribunal hearing and I look at paragraph 13 the Applicant was still maintaining that he did not understand what it was that the Respondents’ were complaining about. Certainly, he was not prepared at any stage to accept the remarks he had made were offensive, derogatory or could have effected the working relationship of the business of the Respondents’ with their customers or licensees.  The Tribunal applied the test in British Home Stores v Burchell and the Boys and Girls cases.  In our finding they correctly in fact, directed themselves in law.  

5.	It is to the factual aspect of the matter that the real complaint has been addressed in this case.  It is submitted that they did not apply the proper test in law because they have not demonstrated in the course of their extended reasons, that they have done so, by finding facts and doing a balancing exercise as would so indicate.  This was an interesting decision in so far as there was a majority view and a minority view. At such a hearing in the discussion that takes place later the minority member will advance his or her case and reasons.  The majority members will advance their views of facts and matters.  There is a full interplay of minds; people are open to persuasion and to all the arguments that may be canvassed.  We get some very clear indication as to the scope of the matters that were in fact canvassed in the course of their discussions and the implicit findings of the Tribunal.  

6.	I turn to paragraph 23 in particular, where extensively the minority view is set out in this view:  
23. “The sanction of dismissal falls outside of the response of a reasonable employer of this size, and that the dismissal of the applicant was unfair in those circumstances.” 
It is almost the sort of test that was employed in Wilson v Ethicon  standing back and looking:
1) Dismissal was an over-reaction in relation to the scale of the effects.  
2) No reasonable employer would dismiss an employee with more than 8 years’ proven good service for an offence of this nature.  
3) The offence amounted to minor insubordination
In specific findings of the minority there are indications that these were matters canvassed and found against the minority.  We find that, that in itself is a very good indication as to the scope of discussions and, a guide to the conclusion that the majority came to, albeit not articulated in the precise detailed way that were in fact set out in paragraph 26.  

7.	The question we ask ourselves at the end of the day is this: Not what our finding would have been on the facts and matters put before the Tribunal.  Is this a decision that a Tribunal properly directing itself as to the law, having facts and matters before it, could competently arrive at?  We find that although we might not have taken that view individually some of us ourselves, nonetheless it was such a decision that they properly and competently could arrive at and we think that there is no arguable appeal in relation to this matter.  We therefore dismiss the appeal.