Appeal No.	EAT/514/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 July 1999

Before
HIS HONOUR JUDGE D M LEVY QC
MR D A C LAMBERT
PROFESSOR P D WICKENS OBE

WHITBREAD PLC T/A BEEFEATER RESTAURANT & PUB	APPELLANT

MR G YELLOWLEES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR I HARTLEY
(REPRESENTATIVE)

	JUDGE D M LEVY QC:	This is an Appeal by Whitbread Plc t/a Beefeater Restaurant & Pub against a decision of an Employment Tribunal sitting at Stratford on 4th and 5th January 1999.  The issue before the Employment Tribunal on those days was whether Mr G Yellowlees, the Respondent to the Appeal, an employee of the Appellant had been unfairly dismissed.  The Tribunal decided, having given leave to the Respondent to amend its Notice of Appearance to show its correct name, that the Respondent was unfairly dismissed.  It adjourned the Remedy Hearing to the 1st April 1999.  The main decision of the Tribunal was sent to the parties on 4th March 1999.  There was subsequently a Remedy Hearing which was held on 1st April 1999 and the decision from the Remedy Hearing was sent to the parties on 10th May 1999.  From the decision of Unfair Dismissal the Appellant appealed by a Notice of Appeal dated 6th April 1999.  The Notice of Appeal was signed and served by the consultant who represented the Appellant below.  

1	We have before us this morning, Mr Hartley, on behalf of the Appellant, who largely seeks to support the matters set out in the Notice of Appeal.  We have received a skeleton argument from Mr Hartley today.  Apparently, his Chambers had put it in the post earlier.  He says this in the skeleton argument:

“The Appellant’s Appeal falls under 4 heads.
2.1	The Tribunal, in reaching a particular conclusion or finding of fact, where there was no evidence to support that conclusion or finding;
2.2	The Tribunal misapplied the law in that coming to its decision the Tribunal failed to give sufficient consideration to material issue which it should have done;
2.3	The Tribunal misapplied the law in that it applied the wrong legal test and/or misdirected itself in law;
2.4	The Tribunal’s decision was perverse in that no reasonable Tribunal properly directed in law could have reached the decision which this Tribunal did in this case as reached."

2	The short facts on which the Hearing below are based are these.  The Respondent had been employed by the Appellant for some years in various places.  At the material time, he was the Manager of its restaurant at the George & Dragon Public House in Brentwood, Essex.  It was known that theft of stock was taking place at the restaurant and, as the Tribunal found, the Appellant’s Regional Manager knew of this and further that the stock losses were being covered up in the records of the Appellant for which the Respondent was responsible.  The knowledge of the Regional Manager was an important finding of fact by the Tribunal which, in our judgment, led to it, coming to the somewhat unusual decision that an employee who is in a senior position and has been found wanting in stock control should not be dismissed.  However, an Employment Tribunal heard from the witnesses and came to a conclusion on evidence presented to them.  In our judgment, on the evidence before it, the Tribunal was entitled to reach the decision made.  

3	In his skeleton argument, Mr Hartley makes a submission challenging the findings made by the Tribunal of the manner in which the Regional Manager gave evidence.  In our judgment a Tribunal having seen and heard witnesses over a period is entitled, indeed, is bound to make findings regarding witnesses - as this Tribunal did.  It is not open to an appellant to challenge that in the way this has been done in the Notice of Appeal, where proper findings have been made.  

4	Paragraph 10 of Mr Hartley’s skeleton argument, under an earlier heading “The Tribunal failed to give sufficient consideration to a material issue” reads:

“The finding indicates the tribunal accepts the evidence that the Appellant was unaware of the practice.” 

The Appellant of course is the company.  The finding by the Tribunal was that the Regional Manager of the company was aware of the practice.  In those circumstances, we do not consider Mr Hartley’s submission is good or that the Tribunal failed to give sufficient consideration to a material issue.  Indeed, it was a crucial issue to which they were entitled to pay regard.

5	Within the third heading of the Skeleton Argument there is the complaint that the Tribunal wrongly imputed the knowledge of the Regional Manager to the Respondent.  We see nothing wrong in the finding the Tribunal made given the other findings which it made.  

6	The final heading in the skeleton argument is that the Tribunal’s decision was perverse.  Again, with great respect to Mr Hartley’ submissions, on the facts which were before it, we do not find the decision of the Tribunal perverse.  It is right to say that in the Extended Reasons the Tribunal found the Appellant’s disciplinary code was in wholly general terms and did not inform employee what circumstances were likely to give rise to their summary dismissal and it was a clear breach of the ACAS code of disciplinary practice procedure.  There is some merit in Mr Hartley’s submissions that anyone could reasonably be expected to know that failure to comply with the company’s policies and procedures relating to the recording of sales, special offers, discounts, refunds and other transactions regarding stock, assets or money” could potentially be a dismissable offence but in our judgment, given the facts surrounding the Respondent’s conduct here, the Tribunal was quite right in reacting to its finding that this was not a case where a reasonable employer would have dismissed the Respondent as occurred here.

7	In the circumstances, we do not think that an appealable issue exists here.  Accordingly, it would be inappropriate to let this Appeal go forward to a full hearing and accordingly, we dismiss it at this stage.