Appeal No.	 EAT/1191/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR L D COWAN
MS B SWITZER

RAINHAM FOODS LTD	APPELLANTS

MR L SENVER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR E KALAFAT
(Representative)
Rainham Foods Ltd
Woodlands Farm
Brundish
Woodbridge
Suffolk
IP13 8BP	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which former employers wished to raise against a unanimous decision of an Industrial Tribunal that the former employee, Mr Senver, was unfairly dismissed and against the award of £12,140 which was made to him.  Both parties before the Industrial Tribunal had been represented.  The employers had been represented by Counsel.

	The background to this is that Rainham Foods Ltd is essentially run and owned, I think, by Mr Kalafat.  One of his great friends, in fact his best friend from school days, has a younger brother and he was approached by the older brother and asked if he would take on the younger brother, who was Mr Senver.  He did so, as a favour in effect, and obtained for him the necessary work permit and then employed him.

	As a result of the employment relationship which was generated, thereby Mr Senver became entitled to the various statutory rights which are afforded to employees, including the right not to be unfairly dismissed. Thus, the Tribunal had jurisdiction to adjudicate upon the dismissal of Mr Senver, but no doubt they will have taken into account the family background and relationship, in an extended sense, between the parties when arriving at their conclusions.

	The reasons for the dismissal were set out in a letter dated 26 October 1995 and involve primarily, as it seems to us, two allegations, first, that the employee had been contacting the company’s customers in circumstances which led Mr Kalafat to believe that improper confidential information was being made available to them, and secondly, that he, Mr Kalafat, had found Mr Senver copying documents in his, Mr Kalafat’s office.  There was a dispute as to why the employee was in the office and what he was doing there and the Tribunal heard evidence both about that and about the contact with the customers.

	The Tribunal were critical of the way in which the decision was taken in this case.  They were satisfied that the dismissal was unfair for procedural reasons, largely because of the haste with which the dismissal was effected before the employee had been given any opportunity to put forward his side of the story and also, by reason of the failure to give him any warnings about the other matters on which reliance was placed, which should have preceded a fair dismissal in a case such as this.  As they put it, “Any pause for enquiry or reflection would have avoided the dismissal in this case”.

	During the course of the hearing the Tribunal indicated that they would receive submissions as to contributory fault.  They came to the conclusion, having looked at everything, that the employee could not be said to have contributed to his own dismissal and accordingly, they made no reduction for that element.

	They then calculated his compensatory award over a period of 42 weeks from the date of dismissal to the date of the hearing, and a further period of 6 months from the date of the hearing onwards, and then reduced the amount of the award to accord with the statutory maximum which applies.  

	It is to be observed in passing that, even if the Tribunal had decided that the employee was, himself, contributorily at fault, unless the finding of contribution was a high one, it would have made no difference to the total award, since the contributory element would have been applied to the sum calculated before the limit was applied.

	The Appellant says (if we may say so) in a compelling submission that the Tribunal failed to recognise that this was a relatively small business and that, having regard to the extended family background to this case, they failed to have regard to the fact that the result of the employee’s behaviour was to break trust and confidence, making it impossible for the employment relationship to continue.  We do not consider that that point is an arguable point of law because the submissions made by the employer’s Counsel to the Industrial Tribunal makes that point at paragraph 11.  It was therefore a point which was before the Industrial Tribunal and considered by them.  That was a question of fact for them to consider and weigh.

	Then it is said that Mr Senver was a family friend.  That, as it seems to us, was a matter of which the Tribunal were apprised and they have taken it into account.  Thirdly, quite rightly, it is pointed out that the Tribunal may have fallen into error as to the date on which the dismissal took place.  Whether it was the 16 or 17 October seems to us to be a matter of no importance in terms of the result of this case, but we have some sympathy with the submission made by Mr Kalafat to us today, that paragraph 8 of the Tribunal’s decision does not sit happily with box 4 of the employee’s own IT1.  

	Then it was said that the Tribunal were wrong not to have made a finding of contributory fault, having regard to a comment made by the Chairman during the course of the proceedings.  It seems to us that the Tribunal have looked at the question of contributory fault in their decision (paragraphs 12 and 13) and, it seems to us, accordingly, that we cannot interfere with that matter as it was essentially a judgment for them to make.  Then it is said that, since the decision of the Tribunal, evidence came to light that Mr Senver had been fraudulently claiming travel expenses and a letter was sent to the Industrial Tribunal on 3 September 1996, but the Industrial Tribunal’s response to this was that they passed it on to Mr Senver’s Solicitors but did nothing about it.  There is always a difficulty where a Tribunal has adjourned at the close of parties cases and after hearing submissions, in receiving further evidence which is sent to them.  They were entitled, in my judgment, to refuse to pay any attention to what was said to them after the hearing had been concluded.  Otherwise, it would have involved re-opening the whole case, inviting the response of the dismissed employee to the points which had been made.  In the exercise of their discretion, bearing in mind that the company was represented by Counsel, we consider that the Tribunal was entitled to do nothing about it.

	We have some sympathy with this company which was having difficulty in meeting its financial obligations.  The award against it is a large one and may seem, and does seem to Mr Kalafat, to be poor recompense for the favour which he extended to his best friend’s younger brother, but despite that we have to comply with our statutory obligations.

	We are not persuaded that there is an arguable point of law raised by this appeal and accordingly, the appeal must be dismissed.