Appeal No.	EAT/1100/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MS B SWITZER

S C PLANT HIRE	APPELLANTS

MR P FISHER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR P SANDERSON
(Representative)	

	JUDGE PETER CLARK:     This is an appeal by the employer, S.C. Plant Hire, against a decision of the Norwich Industrial Tribunal sitting on 18 August 1997 upholding the Applicant’s complaint of unfair dismissal.

	The Tribunal went on to find that he had contributed to his dismissal to the extent of 15% and awarded him compensation totalling £1,679.60.

	It is right to point out that at the Industrial Tribunal the Applicant appeared in person but the Respondent was not present and not represented.  Today Mr Sanderson, a Director of the Respondent appears before us in support of this appeal and accepts, with hindsight, that it might very well have been better had the Respondent been present at that hearing, not least because an issue was raised on the pleadings as to whether or not the Applicant was an employee or was self-employed.  The Tribunal resolved that issue in favour of the Applicant, although it is plainly a matter which would have been very much in dispute had the Respondents appeared.

	The Applicant was engaged on a site at Kings Lynn on 24 March 1997, having a smoke with his foreman, Mr Oakes, in a non-smoking area, when the Managing Director of the Respondent’s main customer, Carters, a Mr Dixon reversed his car.  

	The Originating Application suggests that the vehicle came into contact with the Applicant injuring his leg, although the finding of the Tribunal, presumably based on the evidence given by the Applicant, was that he was not injured in any way.  At all events, a verbal altercation then took place between the Applicant and Mr Dixon in which the Applicant used foul language.

	Mr Dixon told the Applicant and the foreman to stop smoking and later that day, presumably as a result of a complaint by Mr Dixon, Mr Sanderson saw the Applicant and told him to leave the site.  The Applicant refused.  The following day his usual transport did not call at his home for him and he telephoned Mr Sanderson who told him that he was dismissed as a result of the confrontation with Mr Dixon.

	Today, Mr Sanderson has said that the whole matter could have been resolved had the Applicant apologised to Mr Dixon as he was asked to do.  However, in the absence of any evidence before the Tribunal as to that, not surprisingly, no finding to that effect is made.

	In these circumstances the Tribunal found that the Applicant was unfairly dismissed.  There was no proper investigation and one can see that procedurally this dismissal was unfair.  Nevertheless, the Tribunal went on to find that there was a degree of contribution which they assessed at 15%.

	Before us today we have put to Mr Sanderson that in order for an appeal to proceed to a full hearing there must be an arguable point of law.  He is a businessman and not a lawyer and candidly accepts that he is unable to identify an error of law on the part of the Industrial Tribunal.  Instead, he has put before us various factual issues which, of course, cannot now be resolved at the appellate stage.  

	In these circumstances we have no alternative, bearing in mind that our jurisdiction is limited to correcting errors of law, other than to dismiss this appeal.