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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Walpole v Vauxhall Motors Ltd [1997] UKEAT 186_97_0112 (1 December 1997) URL: http://www.bailii.org/uk/cases/UKEAT/1997/186_97_0112.html Cite as: [1997] UKEAT 186_97_0112, [1997] UKEAT 186_97_112

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APPEARANCES

 

For the Appellant	MR J FARRELL (Colleague)
For the Respondents	MR S GORTON (of Counsel) Messrs Hill Dickinson David Campbell Solicitors Pearl Assurance House Derby Square Liverpool L2 9XL


 


JUDGE PETER CLARK: This in an appeal by Mr Walpole, the applicant before the Liverpool Industrial Tribunal, against that tribunal's majority decision, following a four day hearing held on 30th September and 1st to 3rd October 1996, to dismiss his complaint of unfair dismissal against his former employers, the respondent, Vauxhall Motors Ltd. Extended reasons for that decision are dated 16th December 1996.

The facts

Working the Welt ["WTW"] at the respondent's Ellesmere Port plant means working in rotation, so that, for example, out of a team of six employees four will be working and two resting.

The appellant was employed by the respondent from 5th May 1979 until his summary dismissal by his manager, Mr Hunt on 10th February 1992. Subsequent internal appeals against dismissal failed. He was never given a letter of dismissal setting out the respondent's reasons for dismissal.

He presented his complaint of unfair dismissal on 5th May 1992. In their Notice of Appearance dated 17th June 1992 the respondent gave as the reason for dismissal the appellant's refusal to carry out work at the agreed speed, against the background of earlier disciplinary proceedings. That was said to amount to gross misconduct.

When the case finally came before the Industrial Tribunal, having been adjourned generally pending the outcome of a wrongful dismissal claim brought in the County Court by a Mr Newton, a shop steward dismissed on the same occasion as the appellant, the reason for dismissal was given by Mr Hunt in evidence as an accumulation of misconduct amounting to gross misconduct.

The appellant's disciplinary record was agreed. It included two separate occasions in October and November 1991, when he was dismissed first for refusing to carry out a proper instruction, then for not carrying out his job function. On both occasions the dismissal decision was rescinded. It is right to say that Mr Newton also had a poor disciplinary record by the time of the last incident.

Despite the respondent's pleaded case, that incident on the respondent's evidence, concerned a six man team, of which the appellant and Mr Newton formed a part, who were WTW on the night shift of 6th/7th February 1992 having earlier been warned not to do so by their supervisor, Mr Owen.

The majority of the tribunal found that:

"4.(b) ... Working the welt was an illicit practice. Everyone knew that; management, unions and workforce: the unions never objected when employees were disciplined for it."

The minority member accepted the appellant's evidence that the practice was so condoned by management that it could not be said to be a serious offence.

By a majority, the tribunal found the dismissal fair on the basis of their factual findings.

In this appeal Mr Farrell's principal submission is that WTW had never been a disciplinary matter at the respondent's factory over 30 years. His point is that there was no evidence before the Industrial Tribunal to find otherwise.

We have before us the Chairman's Notes of Evidence and the Industrial Tribunal bundle extending to 324 pages. Within that bundle are the witness statements of Messrs. Hunt, Owen, MacDonagh (Personnel Manager) and Millward (Unit Manager). Those statements formed part of their evidence before the Industrial Tribunal. Each witness averred that WTW was an outlawed practice.

That case was vigorously challenged by Mr Farrell on behalf of the appellant before the Industrial Tribunal. He pointed out that no individual who had been disciplined for WTW prior to the material incident throughout the factory over the last 30 years had been identified by any of the respondent's witnesses; nor had they produced any documentary proof of such disciplinary action.

The appellant gave evidence that in the 13 years that he had been employed at the plant he had always worked the welt without complaint. The practice was condoned.

In our judgment there was ample evidence before the Industrial Tribunal to reach the factual finding which the majority made. Equally, it was open to the minority member to find, on the evidence, that the practice had been condoned. The findings by both the majority and the minority reflect the complete evidential conflict with which the tribunal were faced. The majority view prevailed and on that basis the majority concluded that the dismissal was fair. The minority member would have found it unfair.

In so concluding, the tribunal were directed to the Court of Appeal judgment in Securicor Ltd v Smith [1989] IRLR 356. The majority found that the dismissal of the appellant was reasonable in circumstances where the other four members of the team (excluding Mr Newton, who also had a poor disciplinary record and was dismissed) were not dismissed, in that they were not as advanced in the disciplinary procedure as was the appellant. That, it seems to us, was a permissible distinction for, first the respondent and then the Industrial Tribunal, to draw. See London Borough of Harrow v Cunningham [1996] IRLR 256.

Having rejected Mr Farrell's principal submission his remaining arguments must fail. In particular, it is unnecessary for us to consider his submission that the tribunal reached a perverse finding in concluding that Mr Hunt's notes of the disciplinary meetings held on 7th and 10th February 1992 were accurate in circumstances where he failed to identify correctly the persons present at those meetings. It is sufficient for the purposes of this appeal that we find that there was other evidence given by the respondent's witnesses to support the majority's critical finding of fact, based on which they were entitled to conclude that dismissal was fair under s.98 of the Employment Rights Act 1996.

In these circumstances, the appeal must be dismissed.