Appeal No. EAT 441/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11th May 1992

	Before

	HIS HONOUR JUDGE HAGUE QC

	MR T S BATHO

	MR A FERRY MBE

CURRIE TRUCKS LTD	APPELLANTS

K J NELHAMS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MRS C WARREN
Group Personnel Officer

For the Respondent	MR M LAMBE
Free Representation Unit

	JUDGE HAGUE:  Mr Ferry has had to leave but he is a party to this decision which is a unanimous decision.

	This is an appeal by employers, Currie Trucks Ltd against a decision of an Industrial Tribunal sitting at London (North) given after a hearing in February 1991, the decision and the reasons being sent to the parties on the 4th July 1991.  The Industrial Tribunal's decision was that the claimant, Mr K J Nelhams, had been unfairly dismissed and an award of compensation was made in his favour in the sum of £6,559.00 taking into account a deduction of one-third for contributory fault, plus some further sums for wages in lieu of notice and in respect of a claim under Section 53 of the Employment Protection (Consolidation) Act 1978.

	Mr Nelhams commenced employment in October 1983 under the terms and conditions set out in a letter dated the 13th October 1983.  His responsibilities were:
"You will be responsible to ensure that you carry out all your duties in a safe, courteous and efficient manner and you achieve the required levels of work, quality and customer satisfaction.  Please find enclosed a Job Description that covers the general responsibilities."

The Job Description gave his job title as a panel beater.  He was to work in the employer's body shop, and the main purpose of the job was to repair and fit new panels to motor vehicles and so on.

	That letter, which was acknowledged in writing by Mr Nelhams, also had enclosed with it standard terms and conditions.  There has been a certain amount of confusion about which edition of the standard terms and conditions of employment were enclosed.  We are told by Mr Lambe, and we do not think this is disputed, that at that time in 1983 the relevant period for which a disciplinary warning would last would be six months.  That was later amended to twelve months in line with ACAS recommendations, but it may well be that that amendment took place after the date of Mr Nelhams' dismissal and so would not be relevant.  However, for the reasons we will come to in a moment, in our judgment that makes no difference.

	On the 6th November 1989 there was a disciplinary hearing at which the employers made complaint to Mr Nelhams about the standard of his workmanship on a vehicle.  There is a handwritten note on the conclusions of that disciplinary hearing which can be summarised as follows.  It was found that Mr Nelhams had been guilty of gross negligence which was a  gross misconduct offence, but in the light of the circumstances the employers proposed to commute that to a first and final warning.  In other words the employers thought they would be justified in instant dismissal, but were prepared not to dismiss but to issue a first and final warning instead.  The note continues as follows:
"Any further occurrences of such negligence would result in his dismissal and in future no `excuses/circumstances' would be accepted as he must take full responsibility for all his work.   KN was also informed of his rights of appeal and that the warning would remain on his file for 12 months."

	Immediately following that hearing a formal notification was given whereby the Personnel Manager confirmed the punishment awarded as gross misconduct "commuted without prejudice to first and final warning."  That was enclosed with a letter dated the 7th November the first paragraph of which reads as follows:
"Further to your recent disciplinary hearing, please find attached the official notification of the outcome.  This warning will remain on your file for twelve months, and any repetition of such negligence will result in your dismissal from the Company."

In view of the course that the employers were taking, we are of the opinion that they were entitled to make it a twelve month warning, whatever the state of the disciplinary procedures at that time, as part of the package for not dismissing Mr Nelhams from the Company at that stage.  The contrary has not been argued.

	The next event, and the critical one for present purposes, occurred on the 5th September 1990, which is under 12 months (in fact about 10 months) from the formal warning that I have just referred to.  There was a further disciplinary hearing on that date.

	The complaint of the employers was that Mr Nelhams had done some unsatisfactory work amounting to gross misconduct on two vehicles, a Securicor vehicle and what was referred to as a Budget vehicle, which was in fact a transit van.  The transit van had been delivered back to the owners, (or perhaps the hirers) and so it was not available for Mr Nelhams to see at the disciplinary hearing.  The Securicor vehicle was however there and he did see it.  It appears that the defects in respect of the repairs of the two vehicles would have taken 16 hours to rectify and the total cost would have been around £261.00.  At the hearing the employers decided to dismiss Mr Nelhams.  The second page of the record of the hearing states that the employers in giving the decision said this:
"When they returned [that is Mr Nelhams and his colleague] GV [Gill Varney who was the Personnel Manager] explained that following investigations regarding the two previously named vehicles it was considered that KN was guilty of gross negligence which constitutes Gross Misconduct and instant dismissal.  Coupled with the warning KN received in November for gross negligence, which was commuted to a final warning, and stated that re-occurrence of this offence within 12 months would lead to dismissal;  we therefore have no choice but to dismiss KN for gross misconduct.  GV explained to KN that he would not be entitled to pay in lieu of notice.

GV further explained KN's right to appeal......"

To complete the story, on the 12th September Mr Nelhams wrote to Gill Varney asking her to send written reasons for dismissal.  That was replied to on the 17th September in the briefest terms as follows:
"As we discussed at your disciplinary hearing your dismissal was based on gross negligence."

Mr Nelhams then made a claim for unfair dismissal. 

	In paragraphs 2 and 3 of the Industrial Tribunal's decision they say this:
"During the course of the evidence the Respondents admitted that if they were dealing solely with the incidents that led up to the 5 September 1990 they would not have felt dismissal was fair, but in the light of what happened in November 1989 [the year 1990 is a misprint for 1989] the dismissal was justified and fair.

We do not accept that proposition.  We think that the long time from November 1989 to September 1990, without complaint or criticism, expunged the warning given in 1989 and did not justify instant dismissal in September 1990."

In our judgment paragraph 3 contains a misdirection by the Tribunal.  We think it is really quite clear, and Mr Lambe has sensibly not sought to argue the contrary, that having regard to the clear terms of the written warning in November 1989 the Tribunal was not justified in saying that the warning was expunged.  It follows therefore that they took into account something which they were not entitled to take into account, that is to say the expunging of the warning, or putting it the converse way, they did not take account of the warning as they should have done.  Either way it seems to us to be a misdirection and an error of law.

	Mr Lambe on behalf of Mr Nelhams has submitted that nevertheless the Tribunal did come to the conclusion, and were justified in coming to the conclusion, that Mr Nelhams' dismissal was in any event unfair.  He relied on paragraph 5 of the Industrial Tribunal's Reasons, the first sentence of paragraph 5 of which reads as follows:
"While we think that the employers dismissal was unfair and that they cannot rely on the previous waning given almost twelve months before, we do feel that the Applicant himself failed to give sufficient heed to that warning so that while, in fact, its existence did not justify the dismissal in September 1990 nevertheless the Applicant himself should have taken greater care in carrying out his work."

It was on that basis of course that they reduced the amount of compensation in the way I have mentioned.  So, says Mr Lambe, they have taken the warning into account.  He also relied on the first two sentences of paragraph 9, which read as follows:
"We do not feel that the circumstances justified instant dismissal.  We do not think the definition of gross misconduct covers the circumstances which arose in this case."

We appreciate the force of Mr Lambe's submission, but we cannot accept it.  In our view when in paragraph 9 the Tribunal says the dismissal by the employers was unfair and twice mentions "the circumstances", an important if not crucial circumstance that they are taking into account, is their view that the warning had been expunged.

	For those reasons we do not think that this decision of the Industrial Tribunal can stand.  
	It is of some interest to note that after the receipt of the Reasons for the decision the employers applied to the Chairman of the Tribunal for a review of the decision, taking the point about the formal warning being for twelve months.  The Chairman refused that application and so there was no review.  He did not admit the application for a review but declined to alter the previous decision;  he simply refused the application for a review and did so on his own without the involvement of the other members.  That being so, it seems to us that not only does the original decision stand, but the original reasons stand and cannot be altered by anything that the Chairman said in making his decision to refuse the application for review.  What he said is therefore, strictly speaking, irrelevant.   However, if one looks at those reasons, he did take on board the point about the twelve month period not having expired, and it seems to us, with all respect to him, that he really put forward somewhat different reasons to those which had actually been given in the decision itself.  If the application for a review had been admitted and considered by all the members of the Tribunal, it may be, we say no more, that those substituted reasons (for we think a Tribunal is entitled to substitute reasons on a review) might have precluded the success of an appeal. But it is not necessary to go into that any further because, as we have said, no regard can be had to those reasons.

	Accordingly, this appeal succeeds.  It is clearly not a case where we can reverse the decision.  We order that the decision be set aside and the claim be remitted to a differently constituted tribunal, which must consider the matter afresh including all questions concerning the compensation.  In other words, there must be a totally new hearing.