Appeal No.	 EAT/24/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 April 1997

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR A D TUFFIN CBE

J H & L PROCTER LTD	APPELLANTS

MR D SIMMONITE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR R THORNTON
(Representative)
J H & L Procter Ltd
70-76 Attercliffe Road
Sheffield
S4 7WW	

	JUDGE PETER CLARK:   This is an appeal by the employer, J H & L Procter Ltd, against a decision of the Sheffield Industrial Tribunal sitting on 25th October 1996, that the employee, Mr Simmonite, was unfairly dismissed and entitled to compensation totalling £9,428.15. Extended reasons for their decision are dated 15th November 1996.

The facts
The respondent was employed by the appellant as a driver from 24th September 1992 until 2nd May 1996 when he was dismissed.

	The appellant is in the business of delivering newspapers to newsagents in the Sheffield area. It employs about 42 drivers under the control of the Contracts Manager, Mr Gareth Vann. The drivers start work at 2 a.m. and continue their deliveries until they are completed. There is some pressure on them to complete those deliveries in time for newsagents to open each morning.

	During the course of his employment the respondent was involved in three road traffic accidents. The first was in 1993, when he skidded on ice and the Company vehicle which he was driving suffered minor damage. The second was in May 1995, when a fox ran across a country road, causing him to lose control of his vehicle. The police investigated, but there was no prosecution. In neither instance, so the Industrial Tribunal found, was the respondent given any sort of warning by the appellant. We shall return to this point later in our judgment.

	The third accident occurred on 2nd May 1996 when, as the car in front unexpectedly stopped as it approached a roundabout, the respondent ran into the back of it. Following the accident, he was provided with an alternative vehicle, completed his round, and then returned to the depot where he saw Mr Vann.

	The ensuing meeting lasted about five minutes and then Mr Vann said he must discuss the matter with a director, Mr Procter. Meanwhile, he suspended the respondent who went home to await developments.

	Nothing happened. The respondent tried to contact Mr Vann, leaving him messages, but he received no reply. On 28th May he wrote to the appellant in these terms:

“On 2 May 1996 you suspended me when I had an accident in my van. I have heard through the grapevine that I have been dismissed. I am not clear on my position with the firm. If you could clarify my position.
I look forward to hearing from you within 7 days of the post date on this letter.”

To that the respondents replied by letter dated 4th June 1996, in which Mr Procter said:

“This letter confirms Mr Vann’s verbal dismissal from this company on May 2nd 1996 as a result of your continual poor accident record.”

	In evidence before the tribunal Mr Vann admitted suspending the respondent and also admitted that the decision to dismiss him had been made before seeing the accident report or hearing from the insurance company. He said that he assumed that Mr Procter had written a letter of dismissal. He said that nobody had been dismissed for bad driving in the past, but maintained that all employees knew that after two accidents dismissal would automatically follow.

The tribunal decision
On these facts the Industrial Tribunal held:

(1)	that the appellant had failed to show a reason for dismissal falling within s.98 of the Employment Rights Act 1996. They put it in this way:

“9. It is for the respondents [the appellants before us] to show a reason for the dismissal in accordance with Section 98(1) of the Employment Rights Act 1996. We are not satisfied that the respondents have discharged this burden. They say that the reason was the applicant’s [the respondent before us] conduct in that his involvement in a road accident threatened their ability to obtain insurance for their fleet of vans at an economical rate. The respondents have produced no convincing evidence to substantiate this and the only documentation put before us is their insurance claims record which was obtained by them in October 1996. It seems to us that in reality there was no considered decision to dismiss the applicant and the matter in effect went by default. Certainly the decision was not based on any consideration of the accident report or the insurance record.”

(2)	alternatively, if the tribunal was wrong about their first finding, they went on to consider the question of reasonableness under s.98(4) of the Act and concluded that no proper investigation had been carried out by the appellant; the dismissal was procedurally defective, in that the respondent was given no opportunity to state his case and no disciplinary hearing; finally, the appellant did not inform him of the decision to dismiss until 4th June, and then erroneously believed that the respondent had earlier been dismissed by Mr Vann.

	In these circumstances the tribunal held that the dismissal was unfair and went on to calculate compensation.

The appeal
First, Mr Thornton, the Company accountant who appears before us today, as he did before the Industrial Tribunal, applies to adduce fresh evidence before us. That evidence consists of two written warnings directed to the respondent and dated 8th July and 10th August 1993.

	In considering that application we apply the threefold test laid down by the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, and adopted by this Employment Appeal Tribunal in Wileman v Minilec Engineering Ltd [1988] ICR 318.

	The first question is whether it is shown that the evidence could not have been obtained with reasonable diligence for use before the Industrial Tribunal. We need go no further. Mr Thornton accepts that he cannot pass that hurdle; the documents were at all times on the appellant’s files, but were not extracted prior to the tribunal hearing. Accordingly, we shall not admit the new evidence.

	As to liability, Mr Thornton submits that the appellant did have a good reason for dismissal, namely the impact on the Company’s insurance position caused by the respondent’s accidents. Even if that is right, it does not deal with the tribunal’s alternative finding that the appellant acted unreasonably in dismissing the respondent. Mr Thornton expressly conceded that the dismissal was procedurally unfair; he does not challenge the finding that there was no proper investigation, nor the finding that dismissal was outside the range of reasonable responses. In these circumstances the appeal against the tribunal’s finding of unfair dismissal must fail.

	Finally, compensation. Mr Thornton takes two points.

	First, he submits that the tribunal failed to take into account:

(a)	 that the respondent had done casual work as a driver for Eurodollar Self Drive hire during the period between dismissal and the tribunal hearing, and 
(b)	that he admitted that he could have done more work with Eurodollar, and thereby further mitigated his loss.

	The difficulty with that submission is that Mr Thornton frankly concedes that he did not elicit in cross-examination below either the amount of money earned by the respondent with Eurodollar, or secondly, the value of the extra work which it is said he could have undertaken for that firm. In the absence of such evidence, we feel unable to interfere with the tribunal’s award for loss of earnings between dismissal and the tribunal hearing.

	Secondly, he complains that in closing submissions, the respondent’s solicitor was asked whether there was a claim for future loss and if so, for what period of future loss the respondent contended. We are told that a claim was advanced and the solicitor submitted that the normal period was 13 weeks. In the event the tribunal awarded 20 weeks future loss. It seems to us that that is entirely a matter for the discretion of the Industrial Tribunal. There is no material before us to suggest that that conclusion was a perverse one.

	In all the circumstances, at this preliminary hearing, we have reached the conclusion that this appeal raises no arguable point or points of law, and accordingly must be dismissed.