Appeal No.	 EAT/215/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 December 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MS B SWITZER
MRS R A VICKERS

ROVER GROUP LTD	APPELLANTS

MR M SHAZAD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS N JOFFE
(of Counsel)	
For the Respondent	In person

HIS HONOUR JUDGE D PUGSLEY

1.	This is an appeal by the Respondent at first instance, the employer, now the Appellant against a finding by the Industrial Tribunal, that the Applicant was unfairly dismissed but with a contribution of 75%.  This matter has come as a preliminary issue before other members of this Tribunal and they found that there was an arguable issue.  We are grateful for the skeleton argument drafted by Miss Natasha Joffe, in which she sets out the chronology.  

2.	In 1989 the Respondent commenced employment with the Respondent Company which is a large motor manufacturer, subsidiary of a German Multinational.  The Respondent was counselled in December 1997 about his failure to contact the Company during sickness absence and he was issued with contact telephone numbers.  On the 15th December he was issued with a final written warning for sleeping at work, he was absent from work on 3rd April.  On 27th April a letter was sent requesting an attendance to a meeting.  Mr Shazad failed to attend that meeting arranged for 1st May 1998 and sick pay was suspended.  On the 6th May 1998 a letter was sent by recorded delivery to Mr Shazad informing him that if he failed to make contact his employment will be terminated.  There was a letter sent terminating his employment on 21st May 1998 and at that Mr Shazad did make contact and is invited for a meeting and the meeting took place on 22nd May and he was dismissed.  He appealed against his dismissal and the Extended Plant Conference procedure was invoked, the result was the decision to dismiss was upheld.  The case was heard at the Industrial Tribunal in Birmingham on 6th November and the decision was promulgated on 16th December.  

3.	We do not in any way accuse Counsel of prolixity, but we do think that the whole gist of their complaint can be summarised in ground two of the appeal which relates to paragraph 14 of its decision where the Tribunal found that the dismissal of the Respondent was unfair because 

“the fact that the final written warning is specifically directed to a breach of discipline at the works itself and not because of absence through illness, that breach of discipline being falling asleep whiles in works time which is clearly defined as an act of misconduct in the Code of Conduct issued by the company.  We also conclude however, that as far as the applicant is concerned, he contributed to his dismissal by not making regular contact with the company during the period of absence and certainly by not notifying them of his change of address, sufficient to at least let the company know as to the potential length of absence and when he was most likely to return”.

4.	If the Tribunal is seeking to say as a matter of law the decision to dismiss was unfair because the conduct which is the subject of the final written warning was of a different type from the misconduct which lead to the dismissal, that was a misdirection of law having regard to the decision of Augusta Noel Ltd –v- Curtess (1990) IRLR 326 in which Mr Justice Wood gave the following judgment at paragraph 11.  

“In the present case under appeal there is in our judgement an error of law for the Tribunal to decide that because the behaviour was not of the same nature or kind as that which had been the subject of the warnings, therefore, ‘those warnings were irrelevant to the situation which had to be considered by the employer”

5.	The jury point is made that the uncontradicted evidence from the Appellant’s witness, June Poulsom, is to the effect that the Respondent was counselled on 8th December 1997 about the need to notify the Appellant of his sickness absence and was issued with a relevant telephone number to be used by him in his absence, is not a matter which surfaces as a finding of fact in the decision.  It is said that the Appellant employer was entitled to conclude the Respondent was fully aware of his obligations when on sickness absence and his failure to comply with those obligations would amount to misconduct.  That is not a matter about which the Tribunal makes specific findings.  
6.	The Employment Appeal Tribunal, like Employment Tribunals, sit with two members and both members have extensive industrial experience.  They are concerned at paragraph 14 in the light of the written warning which concluded with the words 
“I must remind you any further breach of discipline within this period (ie; 12 months) will make you liable to dismissal from the company”

It is the united view of the Industrial members that means any breach of discipline, not the particular species, activates the final written warning.  If an employee repeats exactly the same species of misconduct it is a statement of the obvious to say that they are rendering themselves almost certainly liable to be dismissed or to have other disciplinary sanctions taken against them.  If it is a different species of Industrial misconduct then an employer may take a more lenient view, but a reasonable employer would not ignore it.  The fact that if during the period of a final written warning further misconduct takes place is a matter that is rightly to be construed by an employer that is something that is relevant.  We think this is no more than a state of the obvious, but we do find the drafting of paragraph 14 of the decision somewhat quixotic. 

7.	But we do think this matter could be set out in rather more formal terms and clearly indicate both to the employer and the employee the basis of their decision.  We consider in that it seeks to suggest that the written warning is specifically directed to a breach of discipline and not due to absence or illness, this mistakes and misunderstands the basis of the Respondent’s case and indeed their own findings as to the culpability on the part of the employee.  We consider that this matter should go back to a Tribunal, differently constituted and it should reconsider in light of the evidence before them, the whole issue afresh including the issue of contributory fault.  

8.	We strongly advise the Respondent to seek legal advice.