Appeal No.	 EAT/27/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 1999

Before
HIS HONOUR JUDGE D M LEVY QC
DR D GRIEVES CBE
MR G H WRIGHT MBE

HOMEBASE LIMITED	APPELLANTS

MR M D DEARY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR C SHELDON
(of Counsel)
Group Legal Services
J Sainsbury Plc
Stamford House
Stamford Street
London SE1 9LL	

	JUDGE D M LEVY:		Following a hearing on 28 August 1998 and on 5 and 9 October 1998 held at Southampton, the Employment Tribunal in a claim presented by Mr M D Deary (“the Appellant”) against, Homebase Limited, (“the Employer”) determined held that the dismissal of the Applicant was unfair and that a claim that he made that the Employer was in breach of contract also succeeded.

	From that decision the Employer appeals by Notice of Appeal received by the Employment Appeal Tribunal on 12 January 1998.  This is the hearing under the ex parte process of the Employer’s appeal.  Two matters set out in the round are raised in the notice of appeal.  One is that the finding of there was a breach of contract succeeded, the other is a holding that the dismissal of the Employer was unfair.  With some hesitation, we have been persuaded by Mr Sheldon that the breach of contract claim should go ahead.

	So far as the claim for unfair dismissal is concerned, the submission which Mr Sheldon makes with some emphasis is that what the Tribunal has done is to substitute its own views as to what the Employer shall have done instead of considering whether what the Employer did was reasonable in the circumstances.

	To consider that submission it is necessary to say set the background facts..  The Applicant was a store manager at Newbury, where the ownership of the company by which he was employed changed to that of the Employer.  As a result of that change of ownership, there was a change in the way that company petrol cards issued for the use of employees could be used.  The matters on which the Applicant was found wanting by the employee were, (i) use of his petrol card, (ii) the use by him of a discount card by another employee and (iii) because for several hours he wrongly permitted a chain to be placed on the exit doors of the store which he managed.

	A disciplinary hearing regarding the Employer’s complaints commenced on 22 January was continued on 26 January.  At its conclusion, the Applicant, was dismissed.  The contents of the letter of dismissal was then summarised in the Extended Reasons of the Employment Tribunal:

“Mr Davey confirmed the summary dismissal in a letter to Mr Deary of that same day, 27 January ........  He confirmed that Mr Deary was dismissed summarily by reason of two matters of gross misconduct, instructing the chaining of the fire exits on 21 September, and being in unauthorised possession of the fuel card and cheating the company.  He had a right of appeal.”

	However the Tribunal held that the disciplinary procedures were flawed, because the Applicant was not allowed to cross-examine witnesses and this error was not corrected at the appeal hearing when ensued.

	Mr Sheldon submit that the Applicant had no right in the disciplinary proceedings to challenge the evidence which the company was presenting by cross-examining the witnesses.  There is authority to say there is no absolute right for this to happen, but from the four corners of the decision it is clear, that the Applicant has been given, for quite some time before complaint was made of the use by him of the petrol card, at least a nod and a wink which might have led him not unreasonably to conclude that he could so use it.  In those circumstances, his testing by cross-examination of witnesses of the case against him was one which any reasonable Employer would have permitted.  Though Mr Sheldon has told us that at the remedy hearing a 40% deduction of sums which would otherwise have been made because of his behaviour, we do not feel there is an arguable case to go forward as against the holding of unfair dismissal because of breach of disciplinary procedures.  We think that what Mr Sheldon is doing, is knit-picking in the reserved extended reasons in a way, which is not permissible.  We will therefore not allow the appeal to go forward to a full hearing on this point.  

	The other ground on which Mr Sheldon submitted that the appeal should go favoured is that the Tribunal misdirected itself in its approach in determining whether the company was in breach of contract.  On this point he has persuaded us that that is an arguable case to go forward for a full hearing.   He thank Mr Sheldon for his submissions today, he has not all together had an easy run.