Appeal No.	EAT/1245/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 January 2000

Before
HIS HONOUR JUDGE COLIN SMITH QC
MRS T A MARSLAND
MR T C THOMAS CBE

CHARLES ROBERTSON DEVELOPMENTS LTD	APPELLANTS

MR T W KEENAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR N MOORE
(Solicitor)
Messrs Stephens & Scown
Solicitors
25-28 Southernhay East
Exeter
Devon
EX1 1RS	

	JUDGE COLIN SMITH QC:	This is an application by the employers before the Employment Tribunal, Charles Robertson Developments Ltd, for leave to proceed to a full hearing of an appeal against the decision of an Employment Tribunal held at Plymouth on 2nd September 1999, of which extended reasons were sent to the parties on 30th September 1999, whereby the Employment Tribunal held that the employee, Mr T W Keenan, had been unfairly dismissed from his employment as Head Groundsman by the employers but that he had contributed to his own dismissal by his conduct to the tune of 75%. It is against that decision that it is the employers who now seek leave to appeal to a full hearing. We have reminded ourselves that the employers, the appellants before us, need only show an arguable ground or grounds of appeal to be allowed to proceed to a full hearing.

1.	We have had very helpful and very clear submissions from Mr Moore on behalf of the appellants. We have considered not only his oral submissions to us this morning but also his skeleton argument and the matters contained in the Notice of Appeal. 

2.	As appears from the decision of the Employment Tribunal, it was agreed before the tribunal that the reason for dismissal was misconduct on the part of Mr Keenan. It was further agreed that Mr Keenan had failed to carry out certain instructions he had been given which concerned a new piece of landscaping and planting and so on that was to be done at the behest of the Chairman of the appellants in and around the bandstand area. The issue before the Employment Tribunal was whether the employers had acted reasonably in concluding that Mr Keenan’s refusal to carry out instructions was or was not deliberate or wilful, since it was only if it was either deliberate or wilful, that it could constitute gross misconduct and be subject to the sanction of dismissal. That of course is clear and was common ground from the appellants’ own disciplinary procedure which is referred to by the Employment Tribunal and carefully set out by them in paragraph 2(xii) of their decision. The employers’ code here, as is commonly the case, makes a distinction between serious misconduct which is dealt with by way of perhaps extra training, although no doubt in Mr Keenan’s case would have been dealt with by a written warning, he being an employee of some considerable experience on the one hand, serious misconduct being “failure to carry out lawful, reasonable instructions given by superiors”; and gross misconduct, of which the usual catalogue of examples are given and (i) under page 24 of the code is “deliberately refusing to carry out a lawful, reasonable and safe instruction from a superior or be rude or offensive to them”. It was upon that the Employment Tribunal, in our judgment, rightly focussed, namely, whether the employers had acted reasonably in concluding that there had been a wilful or deliberate refusal to carry out an instruction.

3.	The Employment Tribunal set out the facts that it found in paragraph 2 of the decision, and we consider that they set them out there with care and in detail. We pause here to note a submission that was made to the effect that the Employment Tribunal overlooked and failed to make a clear finding in relation to a particular instruction that was given on the Tuesday of the last week before all this matter arose to the effect that Mr Keenan was to drop everything and finish the bandstand work by the end of the week. We find that we cannot criticise the Employment Tribunal on that basis, because, in our judgment, looking carefully at the matters that are set out in Mr Keenan’s Originating Application, it is by no means clear that there was ever such a clear cut emphatic decision in the last week before this incident developed and we do not find that there is any room for criticism of the Employment Tribunal in the way in which they reached the findings of fact which they did in paragraph 2 of the extended reasons. We consider that they have fully and carefully reached appropriate findings of fact.

4.	The Employment Tribunal then carefully considered the point at issue in detail with regard to liability in paragraphs 3 and 4 of its decision. In our judgment the way in which the Employment Tribunal dealt with the matter was in keeping with the correct approach to the test laid down s.98(4) of the Employment Rights Act 1996, taking into account the recent decision of Haddon v Van Den Burgh Foods Limited [1999] IRLR 672. We mention that in particular because perhaps the major ground that is put forward by Mr Moore is that the Employment Tribunal have erred in law in that they have substituted their own decision instead of focussing on whether the employer’s decision was a reasonable one to conclude that Mr Keenan had wilfully disobeyed the instructions he was given. The criticism is made by Mr Moore to the effect that the Employment Tribunal should not have assumed that Mr Keenan’s answers given in cross-examination by Mr Moore in the course of the Employment Tribunal hearing, must have been along the lines of the answers that he had made during the disciplinary hearing which was held. Mr Moore submits that the Employment Tribunal has been guilty here of substituting their own decision for that of the reasonable employer instead of concentrating, as they should have done, on whether what Mr Watts had concluded was a reasonable conclusion.

5.	This is a very difficult line to draw in any given case, but, in our judgment, the Employment Tribunal’s approach to the matter was entirely proper on a fair reading of everything that is contained in paragraphs 3 and 4 of the decision. What the Employment Tribunal was saying, as it appears to us, was that there had not been a close and focussed investigation on the crucial question as to whether Mr Keenan had been guilty of gross misconduct and that he had acted wilfully. The Employment Tribunal find as a fact, and they were entitled so to find in our judgment, as follows:

“4 … Little attention was paid to what the applicant said at the Disciplinary hearing and then only in the sense that what he said was regarded as confirmation of Mr Watts’ views. …”

	The Employment Tribunal went on to say in paragraph 4:

“It was plainly apparent that whilst there were failures on his part that there was never any wilful refusal and all the evidence pointed to requests for work to be carried out by other departments, a preparation of a list of the plants that would be required and a genuine belief given the weather conditions and problems real progress had been made in relation to the bank at the same as complying with other instructions which had been given to the applicant. Accordingly the Tribunal find the dismissal to be unfair as the applicant’s failures fell clearly within the description of serious misconduct as set out in the respondent’s disciplinary code the response to which should have been extra training and/or written warning which would have included a final warning.”

6.	In our judgment, the Employment Tribunal, sitting as an industrial jury, making findings of fact as to whether an employer had acted reasonably or not, are entitled to look closely at the way in which the employer has proceeded and to reach a conclusion as to whether there has or has not been a sufficiently detailed investigation on the crucial matter. In this case the crucial matter being whether or not there was deliberate failure to comply with an instruction.

7.	Accordingly, we reject the submission, skilfully made to us by Mr Moore, that the Employment Tribunal have substituted their own view for that of the reasonable employer. What the Employment Tribunal did was to put into a sharp focus their assessment of what the employers had done and conclude that it had fallen short of a reasonable investigation on the crucial issue as to whether the failure to comply with the instruction was or was not deliberate. In our judgment, that is the proper function of an Employment Tribunal consistent with their duties under s.98(4) and consistent with the recent authority of Haddon in the all the circumstances.

8.	A further point was taken to the effect that the appeal had not been given sufficient weight and there were no specific findings made with regard to the conduct of the appeal. 

9.	In our judgment, here again, there were no particular points relied upon before the tribunal, as we understand the matter, arising from the appeal. In our judgment, the Employment Tribunal plainly took into account that there had been a form of appeal to Mr Sandbach, the director. Again, in our judgment, there is no reason for criticism of the way in which the Employment Tribunal dealt with that aspect of the matter. The impression we get from the letter relating to the appeal is that here again there is no clear indication at all that any particular focus was given to the key issue which was whether the refusal to comply with instructions was in any way deliberate.

10.	At the end of the day and accordingly, for those reasons, we have concluded, skilfully though the matters have been deployed before us, that there are no arguable points here on appeal and this application will have to be dismissed.