Appeal No. EAT/366/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22nd November 1994
	Judgment delivered 20 March 1995

	Before

	HIS HONOUR JUDGE J BULL QC

	MR D A C LAMBERT

	MR A D SCOTT

G CUSWORTH	APPELLANT

YORKSHIRE WATER SERVICES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M J STOKES
(Friend)

For the Respondents	MR M SHRIVES
(Solicitor)
Hammond Suddards
2 Park Lane
LEEDS LS3 1ES

HIS HONOUR JUDGE J BULL QC         This is an appeal against the decision of the Industrial Tribunal sitting at Leeds on 10th February 1993 when, by a majority, that Tribunal dismissed an application by Mr Geoffrey Cusworth that he had been unfairly dismissed.
The Full Reasons were sent to the parties on 1st April 1993.

	Mr Cusworth is a man who had achieved the highest grade as a layer for Yorkshire Water, and had been so employed with a good record for 16 years.  He worked as part of a two-man team in the repair and maintenance of underground water pipes and in the installation of new water pipes in the general area of Huddersfield.

	At about 7.45 on the morning of 22nd June 1992, Mr Cusworth was seen in the passenger seat of a van belonging to one of the sub-contractors for Yorkshire Water Services, O'Donnells.  He was further seen in an O'Donnells van on the following morning and evening, and further on the morning of Wednesday 24th June 1992.  The Respondents had information from O'Donnells that there was an additional man on one of their sites and the employers took the view that the Applicant had failed to work for them and was instead working for O'Donnells on those three days.  He returned to work the following Monday, 29th June 1992, and a disciplinary hearing was convened on 3rd July 1992, when he was dismissed for misconduct.

	The Applicant's case is that very late on Saturday 20th June, having had a lot to drink, he had accepted a lift home from a woman and that this had led to his wife evicting him from the matrimonial home.  On the following day, a Sunday, he was befriended by an employee of O'Donnells who allowed him to sleep at his home.  On Monday 22nd he was so distraught and distressed as a result of his matrimonial upset that he was not in a frame of mind in which he felt able to work for his employers and thus he accompanied his friend to Dewsbury in a van belonging to O'Donnells the sub-contractors.  He denied strongly that at any time during those three days he worked for O'Donnells.

	Mr Stokes, who has acted as a friend of the Appellant in putting his case for him which he has done with great skill, force and attractiveness, made three main submissions to us.  First he submits that the Industrial Tribunal erred in law  in finding that Mr Cusworth worked for O'Donnells and further failed to consider the impact of his conduct upon the employers.  He suggests that they ought to have made a finding in relation to whether the employer had sustained substantial harm in consequence of his conduct and in that connection referred  to the case of Nova Plastics v. Froggatt [1982] IRLR 146.  We doubt whether the case cited has any direct application to the facts of the present case since Nova Plastics was concerned primarily with the concept of implied terms in a contract of employment relating to work undertaking in the employee's spare time.  The passage which is of importance in this context is to be found in paragraph 9 of the Reasons given by the Industrial Tribunal:

		"...The majority of the tribunal find that the employers had evidence which led them to believe that the applicant had failed to work for them and was working for O'Donnels. ... If an employer has held a proper enquiry it is enough if he has reasonable grounds for believing that there has been misconduct.  The tribunal have to be satisfied that in doing what the employer did fell within the band of reasonable responses of a reasonable employer.  The majority of the tribunal find that on the information which the respondents had at the time of the dismissal they were not unreasonable in taking the decision to dismiss. ..."

	Mr Stokes urges us to consider the position which might arise if Mr Cusworth were on holiday and therefore working in his own time for O'Donnells.  It may well be that in such circumstances the dicta in Nova Plastics would be relevant.  However in this case there is a finding of fact by the Industrial Tribunal that the
		"employers had evidence which led them to believe that the applicant had failed to work for them and was working for O'Donnells"
Although we have looked at pages 28 and 29 of the Respondents' bundle of documents, which are weekly time-sheets, we are bound by the finding of fact which was made by the Industrial Tribunal.  That finding is not consistent with a view that the Industrial Tribunal considered that the Appellant was on holiday from 22nd to 23rd June 1992.

	The second main point taken in this appeal is that the Industrial Tribunal failed to take into account the evidence before the employers that Mr Joyner, the supervisor, had checked all the sites of which he knew in the Dewsbury area, and had been unable to find that the Appellant was working for O'Donnells.  We were asked further to make our own comparison between the signatures of documents 28 and 29 of the Respondents' bundle of documents.  It seems that this point was not specifically taken before the Industrial Tribunal but there is nothing in their Reasons to demonstrate directly or by inference that they failed to take into account the negative aspect of this search.

	The third main ground was again a matter it seems not raised before the Industrial Tribunal, namely, the issue of undue delay which leads Mr Stokes to submit to us that there was an error in procedure.  As is plain from Kumchyk v. Derby City Council [1978] ICR 1116 there are strictly limited circumstances in law in which it is permissible for the Employment Appeal Tribunal to consider a point not presented to the Industrial Tribunal.  This case does not fall, in our judgment, into any of the known exceptions to that rule.  We would however reiterate that just because an Industrial Tribunal fails to mention a particular point is not to be taken as evidence that it failed to consider the matter in its deliberations.

	The appeal to this Tribunal from the Decision of the Industrial Tribunal which held that the dismissal was fair can only be supported upon a point of law.  There can be no question of us re-trying the matter.  What the Industrial Tribunal had to decide was whether the dismissal was unfair.   This they did, and they set out their reasons for coming to their decision.  We of course recognise that that decision was by a majority.  However the Industrial Tribunal had the privilege which is completely denied to us because we are a Tribunal of law and not of fact, of seeing the witnesses give their evidence and of hearing their evidence tested.  In such circumstances it would be quite idle for us to say that we have a better view than that of the Industrial Tribunal.  We have considered even those points which were not raised before the Industrial Tribunal, but in none of them can we detect any error of law at this Industrial Tribunal, and most certainly we cannot say that in any of the respects which are put forward, or indeed, any other respect which occurs to us, that this Industrial Tribunal acted in a way and reached a conclusion that no reasonable Tribunal could have done.

	It follows therefore that there is no point of law raised upon this appeal and this appeal must therefore be dismissed.