Appeal No. EAT/340/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 July 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR T C THOMAS CBE

	MRS P TURNER OBE

AAH BUILDERS MERCHANTS	APPELLANTS

MR M ELLARD	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR L G WILDING
(PERSONNEL ADVISER)
Personnel Management Services
Midland Buildings
Corporation Street
Chesterfield
Derby S41 7TP

For the Respondent	MS C MCGAHEY
(OF COUNSEL)
Messrs Hinton Hewitt
12 Market Place
Whittlesey
Peterborough

		MR JUSTICE MORISON:		This is an appeal against the unanimous decision of an Industrial Tribunal held at Bedford on the 25 September and the 20 November 1992 in which they concluded that the Applicant, Mr Martin Andrew Ellard, had been unfairly dismissed and was entitled to a basic and compensatory award amounting to about £10,750 in all.  The decision of the Industrial Tribunal is set out in writing and was sent to the parties on the 9 March 1993 when it was entered on the Register.

	The appeal is brought on behalf of the employers, AAH Builders Merchants Ltd, by whom Mr Ellard, whom we shall call the employee, had been employed since the 4 July 1985.  The brief facts relating to this appeal which we can extract from the Industrial Tribunal decision are these.  

	Having commenced his employment and having given considerable satisfaction to his employers, the employee was promoted to Yard/Transport Supervisor.  His 
Branch Manager at the relevant time was Mr Keith Baxter, but he was replaced by a new manager, Mr David Banks on the 3 October 1991.  The employee says that an agreement was made between himself and Mr Baxter, whilst Mr Baxter was in position, that he could claim for extra wages on the basis of working one Saturday in four when in fact he was not doing so.  This was a method by which he could be paid more money and the monies were properly accounted for with the Inland Revenue.  On the 12 November 1991 an investigation was commenced by the employers' personnel and training manager because it had been reported that the employee had signed a time sheet saying that he was at work on a particular Saturday when Mr Banks had noticed that he had not been there.

	When challenged about it on the first of these interviews on the 12 November, what we might loosely refer to as the spanish practice which had been entered into, was immediately mentioned by the employee and that is recorded in notes of the interview which the Tribunal accepted were accurate and I read:

		"Martin Ellard said that in July 1989 he was on the verge of handing in his notice, but Keith Baxter agreed to pay an increase to match the job he had been offered elsewhere.  Peter Howlett got a pay rise at the same time.  Martin Ellard was promised to be paid for 1 Saturday per month 8 am to 12 noon at overtime rate, although it was not worked."

	Thereafter, during the course of that interview, Mr Stephenson put to the employee various alleged excessive claims outwith the terms of that spanish practice and the employee made a number of responses to the allegations.  The disciplinary meeting was resumed on November 15 (inaccurately in paragraph 5 of the Tribunal decision referred to as the 15 October) where the questions of lateness and false claims were debated.  The employee repeated what he had originally said about the spanish practice and indicated that another branch manager was also aware of the arrangement and that was subsequently confirmed.

	However, the Company suspended the employee from his employment until the following Monday, the 18 November, when the disciplinary meeting resumed.  Again there was the same kind of debate to which I have already referred.  In addition, what the employee was also saying was that he had been late on a number of occasions but had not defrauded the Company because he had made up for lost time at the end of the day without claiming overtime, and that therefore, although the entry on his time sheet was technically speaking inadequate it certainly did not have the implication which the Company were placing on it.  He also indicated to the Company the difficult domestic circumstances which had temporarily occurred as a result of him being left on his own to look after two small children; and he accounted for his lateness on that basis.  

	It would appear that the employers did not accept what they were told and decided to dismiss the employee and that dismissal was mentioned on the third interview and confirmed in writing subsequently.  The letter of dismissal referred to five specific occasions which are listed in paragraph 7 of the Industrial Tribunal decision.  Thereafter an appeal was heard on the 6 December but dismissed.  

	Those are the background facts.  We turn therefore to the structure of the Tribunal's decision.  They asked themselves first what was the true reason for the dismissal and they concluded that the reason was (in paragraph 9 of their decision) the alleged false claims; in other words, misconduct.  They then had to ask themselves the question whether under Section 57(3) of the 1978 Act the dismissal was fair or unfair in all the circumstances, and in paragraph 9 of their decision they correctly direct themselves as to that.

	The Tribunal then consider the matter in paragraph 11 of their decision and do so in the context of having applied, as they say expressly in that paragraph, the test in the Burchell case and bearing in mind the Polkey case.  Their conclusion was that in many respects for the reasons stated in that paragraph the dismissal was unfair.  They then go on in paragraph 13 of their decision to ask themselves the question whether the employee himself must have deducted from any such compensation as he was awarded a percentage by reason of his own contributory fault.  Having applied themselves to that question, they concluded in these terms:

		"... we do not find that he contributed to his own dismissal as the arrangement was one that we find was known to at least 3 other employees, and appears to have been mentioned quite openly to Mr Stephenson during the summer of 1991.  We also find that there is no satisfactory evidence here on a balance of probabilities, that the disciplinary process established that the applicant had made false claims."

	Accordingly, they concluded that he did not contribute to his own dismissal.  They awarded him, as we have indicated, rather over £10,000.

	By a Notice of Appeal dated the 9 April 1993 the employers appeal from that decision of the Industrial Tribunal and the matter has come before us today for resolution.  The argument on behalf of the employers which has been succinctly made, under pressure from time to time from questioning from this Tribunal, is that in a sense, firstly, the Industrial Tribunal has misdirected itself, confused itself, as to the true facts.  In essence what is said is that the Industrial Tribunal have confused the spanish practice on the one hand with the items of lateness for which he was actually dismissed on the other.  It is said that the Company did not dismiss the employee by reason of his non attendance on any of the Saturdays' concerned (which were allegedly due to the spanish practice) but rather that they dismissed him for falsely filling in a time sheet showing that he had arrived for work at a time when he had not.  Therefore the whole of their decision is vitiated by what amounts in effect to a misdirection. 

	It seems to us that that submission is not borne out by an analysis of what the Tribunal have actually found.  It seems to us that throughout the Tribunal have drawn a distinction between lateness, where the spanish practice might have provided a defence, and other types of lateness and what they were concerned about was that the Company never investigated the allegations of lateness at all: whether lateness of a spanish practice nature, or otherwise.  It will be remembered that the employee said that, apart from some six hours where he accepted he had been later than the time recorded but the company did not lose out because he stayed on, he denied he had been late.

	If one has regard to paragraphs 11(b), 11(c) and 11(d), it seems to us perfectly clear that the Industrial Tribunal was well aware of the distinction between the latenesses where there were spanish practices in force and the latenesses where there were not.  We do not need to read those paragraphs but it seems to us that they speak for themselves.  

	The second ground was that although the Tribunal had said that they had applied the decision in Burchell they had merely paid lip service to that case, and had not applied it at all, and that the Tribunal have not asked themselves whether the decision that was reached by these employers was a decision which a reasonable employer could have arrived at but have in a sense substituted their own view of the facts for that of the employer.  We reject this submission because it seems to us it is unsustainable.

	In paragraph 11(f) of the decision the Tribunal found that the dismissal was not a reasonable response to the actions of the Applicant.  That language is consistent and consistent only with them having applied the correct test, namely, was the decision of the employer within the range of reasonable responses.  Secondly, they concentrate in paragraph 11 on the defects of the investigation which was carried out.  They criticise the way the investigation was carried out in a number of ways, including the fact that the Company never properly investigated when it should have done, and failed to take statements from the people concerned as to the exact detail of the spanish practice and those statements should have been supplied to the Applicant, certainly in advance of the second or third meetings which culminated in his dismissal, and then they add:

		"... as should the diary entries of Mr Graves."

	The diary entries of Mr Graves would relate to those occasions upon which the employers were relying as giving them grounds for dismissal, and the reason why they are complaining about the non-production of these diary entries is precisely because there was an issue between the employee and what was being reported to the employers by Mr Graves and the employee should have had the opportunity of exploring that conflict and the employers should have investigated that conflict so as to satisfy themselves that he had indeed not been at the premises on those times when Mr Graves had apparently been saying that he was not.  But in the absence of such investigation no reasonable employer could have concluded that, where the times were disputed, the employee had not been present.

	They go on to say that the investigation was flawed because they had not investigated properly the occasions on which the Company said he was late or had not attended, whereas the employee said that he either had been there or had not been there as a result of the arrangement.  They also criticised the employers for the fact that the Company did not take into account what they described as his unfortunate domestic situation.  What they were saying was that bearing in mind the investigation, or lack of it, that had been carried out, no reasonable employer would have dismissed this employee who had given many good years of service for what amounts to some kind of fraud on the Company, that is non delivery of his time, although claiming pay for that period.

	It seems to us that that was a decision on the facts which the Industrial Tribunal were entitled to arrive at.  Accordingly, in our judgment, there was no point of law in this case despite the able way in which the argument has been presented to us.  Accordingly, we will dismiss this appeal.                  

	We have power to award costs under Rule 27(1):

		"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings ..."

  It seems to us that in this case the proceedings before the Appeal Tribunal were unnecessary in the sense that there was no point of law in the appeal.  One could also say I suppose that it was unreasonable conduct to bring, or conduct, an appeal which raises no point of law; but whether it falls under the first or the second of those heads is unimportant, we will put it under both.  

	We therefore believe that we have a discretion to order the payment costs in this case and we have all of us come to the conclusion it is an appropriate case to make an order for costs.  We either can assess the sum to be paid or we can direct that it is assessed by the taxing officer from whose decision an appeal shall lie to a judge.  It seems to us appropriate that we should direct that the costs be assessed by the taxing officer, unless they can be agreed between the parties.  

	We do not think that it would be appropriate in this case to try and assess the sum ourselves, particularly bearing in mind that some of the costs that have been incurred may have been incurred in relation to the alleged settlement which we have not taken into account in arriving at our costs decision.  If there is a dispute as to what part of those costs are recoverable or not that is best dealt with by a taxing officer rather than by us.