Appeal No.	 EAT/840/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
MR B M WARMAN

COOPER CLEANING SERVICES LTD	APPELLANTS

MR K VOYSE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR SELWYN BLOCH
(of Counsel)
Messrs Wilkins
Solicitors
25 Walton Street
Aylesbury
Buckinghamshire
HP21 7QH	
For the Respondent	MS GEMMA WHITE
(of Counsel)
Messrs Steele & Co
2 Norwich Business Park
Whiting Road
Norwich
NR4 6DJ	

	JUDGE PETER CLARK:     This appeal, by the employer Cooper Cleaning Services Ltd, against a decision of the Norwich Industrial Tribunal sitting on 30 May 1996, arises in the following circumstances.

	The Respondent employee, Mr Voyse, joined the Appellant in July 1993.  In November 1994 he was appointed an Area Supervisor and provided with a company car.

	The Respondent had a history of alcoholism.  He had in the past been convicted of drink/driving offences on five separate occasions.  On the first four occasions he had been disqualified from driving for one year or less.  On the last occasion, in April 1991, apart from being banned from driving for three years, he was sentenced to a term of imprisonment.  In addition, it appears that the trial Judge ordered the Respondent to take a re-test.  That had not been ordered on the earlier occasions.  The Tribunal found that due to his distress at being sentenced to a term of imprisonment the Respondent did not then appreciate this further requirement before he could obtain a new licence.  He did not surrender his licence following sentencing.  On completion of the three year ban he did not take a re-test, but simply resumed driving.  From then onwards the Respondent was, unwittingly so the Tribunal found, driving without a valid licence.

	Upon his appointment as Area Supervisor the Respondent was not asked to produce a valid driving licence to his employer, although the Operations manager, Mrs Cox was aware of the fact that he had previously been banned from driving.

	The Appellant maintained a fleet insurance policy.  It was a requirement of that policy that all company drivers held valid driving licences.  In November or December 1994 the Respondent was asked by Mrs Cox to produce his driving licence.  He did not have it with him.  He mentioned that the licence had been endorsed with penalty points following a drink/driving conviction in 1989 which were by then expired.  She suggested that he send his licence to DVLC Swansea to have those details removed.

	He did so in January 1995.  In that same month he was promoted to Area Manager.  Again, his job required him to drive.

	In May 1995 DVLC sent him a driving licence.  It was a provisional licence, since he had not taken a re-test.  He was shocked to discover this state of affairs, and informed Mrs Cox of the position via his wife.

	Having considered the position Mrs Cox telephoned the Respondent, who was then off sick, and suggested that he should take a test and, if successful, the difficulty would be resolved “without anyone knowing about it”.

	He did so and on 8 July he successfully re-took the driving test.

	Meanwhile, Mrs Cox had had second thoughts.  She reported the matter to her superior, Mr Cooper.  On 22 June she telephoned the Respondent’s house, spoke to Mrs Voyse, and informed her that the Respondent had been sacked.

	In fact, Mrs Cox had no authority to dismiss the Respondent.  Consequently the dismissal was retracted and the Respondent was suspended on full pay.

	He was called to a disciplinary hearing which was held on 13 July.  As he waited in the Appellant’s Peterborough offices he noticed that the certificates of proficiency which he had obtained, and which had formerly hung on the office wall, had been removed.  He asked why and was told, untruthfully as the Tribunal found, that this was the Company’s practice where an employee was the subject of a disciplinary hearing.

	The disciplinary hearing was conducted by Mrs Cox and Miss Coyne, the Personnel Manager.  The Respondent described the hearing as confrontational.  It appeared to him to be a formality.  Finally the meeting was adjourned, but Miss Coyne indicated at that stage the likelihood was that the Respondent would be dismissed.

	Following that meeting Miss Coyne referred the matter to Mr Cooper for a decision.  He, of course, had not attended the disciplinary hearing.  He decided to dismiss the Respondent.

	Miss Coyne wrote to the Respondent on 14 July, informing him that he was dismissed.  He did not receive that letter until 21 July, which the Tribunal found was the effective date of termination.

	In a further letter dated 19 July Miss Coyne gave the following reason for dismissal.

“Due to the grave seriousness of driving a company vehicle whilst having only a provisional licence we believe we have no alternative other than to dismiss you.”

	As the Tribunal pointed out, in fact the Respondent did not drive a company vehicle following receipt of his provisional licence in May 1995.  He had driven such vehicles between November 1994 and May 1995 without, as the Tribunal found unknowingly, a licence.

	There was a right of internal appeal to Mr Cooper or another director.  It seems that the Respondent did not appeal the decision to dismiss him, but nothing turns on this.

The Complaint

	By an Originating Application presented on 18 October 1995 the Respondent complained of unfair dismissal, unlawful deductions from his wages and a claim in contract for pay in lieu of notice.

	By their Notice of Appearance, drafted by Miss Coyne, the Appellant gave as the reason for dismissal:

“Gross misconduct.  Dismissed for driving a company car without a full valid driving licence.”

	It was contended that the Respondent was fairly dismissed on the grounds that he had been made aware when he lost his licence that he would need a re-test to gain a full licence.  It was said that the Appellant had fully investigated the matter.  Further, it was contended that the Respondent did not produce his licence in November/December 1994 because he knew that he did not have one that was valid.

The Industrial Tribunal Decision

	Before the Tribunal on 30 May 1996 the Respondent was represented by Counsel, Miss White and the Appellant by Mr Snowdon, an Industrial Relations Consultant.

	The Appellant took two points.  First, that the Respondent had been dismissed on grounds of gross misconduct, and secondly that by driving company vehicles without a valid licence between November 1994 and May 1995 the provisions of Section 57(2)(d) of the Employment Protection (Consolidation) Act 1978 (now Section 98(2)(d) of the Employment Rights Act 1996) applied, in that the Respondent could not continue to work in the position which he held without contravening a statutory requirement.

	As to the second point, we observe that at the date of dismissal the Respondent had passed a re-test, and was then not prevented from driving.

	The Tribunal found that the reason for dismissal related to the Respondent’s conduct but found the dismissal to be unfair on the following grounds.

(1)  The Appellant had not carried out a proper investigation.  We think it implicit in the Tribunal’s findings that a reasonable investigation would have provided the Appellant with the answer to the question, had the Respondent knowingly driven the Company vehicle without a valid licence between November 1994 and May 1995.  Whether the employer would have accepted the explanation put forward by the Respondent is quite another matter, but as the Tribunal found, there was no such enquiry.

The lack of investigation led the employer into confusion, so the Tribunal held.  The reason for dismissal given in the letter of 19 July was factually incorrect.

(2)  The dismissal was procedurally unfair.  The removal of the Respondent’s proficiency certificates; the way in which the disciplinary hearing was conducted; and the fact that the decision to dismiss was taken by Mr Cooper, who did not attend that disciplinary; demonstrated to the Tribunal a failure on the part of the Appellant to appreciate the principle of fair play which should underlie any disciplinary hearing.

(3)  The Respondent made no attempt to conceal the true position when it emerged in May 1995.  He informed Mrs Cox, who initially told him to take the re-test.  The Tribunal concluded that in the circumstances dismissal fell outside the range of reasonable responses open to the Appellant.

	We are told by Miss White (and it is not disputed) that the Appellant did not raise the issue of contributory conduct on the part of the Respondent before the Industrial Tribunal.  There is no finding as to contribution in the Industrial Tribunal’s reasons.  We shall return to this point later in this judgment.

	The Tribunal then went on to assess compensation under all three heads of claim in the total sum of £14,181.64.

	Their Extended Reasons for that decision are dated 18 June 1996.

Review

	Following promulgation of the full reasons, the Appellant instructed Solicitors, who by letter dated 2 July 1996 applied for a review of the Tribunal decision.  That application was summarily dismissed by the Chairman by letter dated 9 July on the grounds that the matters raised in the application were raised and considered by the Tribunal at the substantive hearing.

The Appeal

	By a Notice dated 25 July 1996 the Appellant appealed against the Tribunal’s decision solely on the ground that the Tribunal were wrong in their interpretation of Section 57(2)(d) of the 1978 Act.

	The appeal, based on that ground, was listed for a preliminary hearing before a division of the Employment Appeal Tribunal presided over by Judge Colin Smith QC on 13 January 1997.  Mr Snowdon appeared for the Appellant.  That division of the EAT allowed the matter to proceed to a full hearing in circumstances to which we shall return later.

	Skeleton arguments were exchanged between the parties and lodged with the EAT, directed to the Section 57(2)(d) issue.

	Thereafter, Solicitors were again instructed by the Appellant.  They in turn instructed Mr Selwyn Bloch of Counsel.

	On 19 June 1997 the EAT and the Respondent’s Solicitors were served with a proposed Amended Notice of Appeal drafted by Mr Bloch, together with a new Skeleton Argument directed to the issues raised in the draft Amended Grounds of Appeal.

	Mr Bloch made application to amend the grounds of appeal before us today.  That application was strongly opposed by Miss White.

	Having considered the submissions of Counsel we were just persuaded to allow the amendment, subject to the question of costs to which we shall return, in the unusual circumstances of this particular case.

	It appears that at the Preliminary Hearing, on which Mr Hammond sat, as he does today, the Appeal Tribunal were unimpressed by the ground of appeal then appearing in the Notice of Appeal, the Section 57(2)(d) point, but according to an affidavit sworn by Mr Snowdon on 26 June 1997, a suggestion came from the bench that the case might be better put on the grounds of perversity in relation to the Tribunal’s decision of unfair dismissal, and also in relation to contribution, although the point was then made that the point ought to have been raised before the Tribunal.  Since that was the basis on which the appeal was permitted to come to a full hearing before us, we felt it right to entertain the appeal on the new basis.

	We did so in the knowledge that Miss White was well able to deal with the new points raised, she having prepared a careful second skeleton argument to deal with the new points.

	As to costs, it seems to us quite unreasonable for the Appellant to delay between 13 January and 19 June before formulating the amended grounds of appeal.  The result was that the Respondent incurred wasted costs in preparing to defend the appeal on the original ground, now abandoned.  In those circumstances we order the Appellant to pay the Respondent’s costs thrown away by the amendment, that is, the costs of preparing to meet the original grounds of appeal, as a condition of granting leave to amend, those costs to be taxed in accordance with Rule 34(2) of the Employment Appeal Tribunal Rules 1993, if not agreed.

The New Grounds of Appeal

(1)  Mr Bloch attacks the Tribunal’s findings as to unfair dismissal on the following basis;

The decision was perverse in finding that no reasonable employer could have decided to dismiss the Respondent without considering whether he had knowingly driven a company vehicle without being qualified to do so.  Alternatively, he submits that the Tribunal implicitly found that because it, the Tribunal, found the Respondent to be innocent of knowingly driving when unqualified, had the Appellant properly investigated the matter it would have come to the same conclusion as the Industrial Tribunal, and therefore not dismissed him.

In our judgment both formulations overstate the effect of the Tribunal’s conclusions on fairness.  They found the dismissal to be unfair on three grounds.  The first was lack of proper investigation.  That, on the evidence, was a permissible finding.  We do not consider, as Mr Bloch submits, that in paragraph 11 of their reasons they misdirected themselves as to the burden of proof, which is neutral, under Section 57(3) of the 1978 Act as amended.  cf Boys and Girls Welfare Society v McDonald [1996] IRLR 129, paragraph 33.  Secondly, they found the dismissal to be procedurally unfair.  That finding is not, and cannot be challenged.  Further, there is no suggestion, even in the amended Notice of Appeal, that the Tribunal erred in law in failing to make a Polkey deduction on the basis that a fair procedure would, or might, have led to the same result.  Thirdly, they found that the dismissal fell outside the range of reasonable responses.  We have considered Mr Bloch’s submission that at various points in paragraphs 11, 12 and 13 of the Tribunal’s Extended Reasons, they appear to have substituted their own view for that of the employer.  That is not how we read their reasons.

In these circumstances we can find no ground in law for disturbing the finding of unfair dismissal.

(2)  Contribution

We have been taken to the affidavit sworn by Mr Snowdon on 26 June 1997, in which he says at paragraph 2:

“At the hearing when the Tribunal had returned from its deliberations and the Chairman had given his verdict he immediately went on to decide the matters of remedy without either asking or giving me the opportunity to raise the issue of contribution.  I had been under the impression that if there was a finding of unfair dismissal I would have a chance of making submissions on remedies, in particular contributions, but at no stage was an invitation to that effect given.”

There are cases, and an example is to be found in Duffy v Yeomans [1993] ICR 862, 870 B - E, where, in a split hearing, Industrial Tribunals fall into error by deciding the question of contribution at the liability stage without giving the parties, or one of them, an opportunity to call evidence and address them on that issue.  That is not this case.  Here the Industrial Tribunal did not decide the question of contribution at the liability stage or at all.  Following the liability decision it went on to deal with the question of remedies.  At that second stage it was open to Mr Snowdon to raise the issue.  He failed to do so.

We accept Miss White’s submission that the Appellant ought not to be allowed to raise the question of contribution, it not having been raised below, for the first time on appeal.  

In our judgment this case falls squarely within the approach expressed by Arnold J in Kumchyk v Derby City Council [1978] ICR 1116, where he said:

“It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate.  It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate.  It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. ... But we think that it is very far from the duty ... of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances.”

	We should add that in this case, not only was the point not raised when it could have been before the Industrial Tribunal, it was not raised in the Solicitor’s letter of application for a review; nor was it raised in the original grounds of appeal; nor in the original skeleton argument lodged on behalf of the Appellant.  It arises for the very first time in Mr Bloch’s amended grounds of appeal submitted on 19 June 1996.

	For these reasons we shall dismiss this appeal.  We would add only this.  This case should not be taken as authority for the proposition that an employee can drive company vehicles in the course of his employment when not qualified to drive with impunity.  On the contrary, it would have been open to this employer to dismiss the Respondent fairly had they approached the matter in a proper way.  Instead, their catalogue of errors has led to what otherwise might appear a strange result.