Appeal No.	 EAT/1263/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2000

Before
MR RECORDER BURKE QC
MR P DAWSON OBE
MRS D M PALMER

JBD PLASTICS LTD	APPELLANT

MR G P DOLBY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	CHRISTOPHER WALKER
(of Counsel)
Messrs Bevan Ashford
Solicitors
41 St James Street
Taunton
Somerset TA1 1JR	

MR RECORDER BURKE QC

1	This is the Preliminary Hearing of the employer’s appeal against the decision of the Employment Tribunal sitting at Exeter, chaired by Mr Anderson and promulgated with extended reasons on 29 August 2000.  By that decision the Tribunal found that the employee, Mr Dolby, had been unfairly dismissed on 13 March 2000 and awarded him compensation of £12,340.

2	We need not deal with the facts in any detail.  The reason for the dismissal was found by the Tribunal to be the employee’s conduct.  The conduct relied upon was the employee’s being absent from work and claiming statutory sick pay when in reality he was on a skiing holiday with his partner.

3	The Tribunal correctly directed itself in paragraph 4 of its decision to follow the familiar principles in British Homes Stores v Burchell 1980 ICR 303.  It set out the evidence which caused the employers to believe, as the Tribunal found that they did, that the employee had committed the alleged misconduct.  It then said, at paragraph 7:

“In our view those grounds were not wholly conclusive and did not constitute reasonable grounds upon which the Respondents could reasonably rely to support its belief.”

It went on in paragraph 8 to say this:

“Given the lack of sufficiently weighty evidence and given the fact that the Applicant had 16 years’ of service we take the view that the Respondent should have given the Applicant the benefit of the doubt and at best treated his perceived misconduct as warranting a final written warning in accordance with that disciplinary procedure.”

4	In our judgement it is clearly arguable that in paragraph 7 of its decision the Tribunal fell into error in seemingly setting for itself as a test of the employer’s belief whether the evidence was wholly conclusive as opposed to the test as to whether the employers belief was based on reasonable grounds.  In paragraph 8 it is arguable that the Tribunal contradicted what it appears to have decided in paragraph 7 by appearing to find that there was a reasonable belief for the misconduct whereas in paragraph 7 it had taken the opposite view.  Further, in concluding that the employers should have given the employee a final written warning rather than dismissing him it is arguable that the Tribunal erred in two different ways: - firstly, in substituting their own view for that of the employers as to the appropriate penalty for the misconduct and, secondly, in seemingly forgetting that it was an agreed fact between the parties that at the material time the employee was already on a final written warning, that warning having been given in November of the previous year.  We need not go into any further details; we should mention, that in considering reasonableness as a whole, it is arguable that the Tribunal failed to consider the employee’s previous disciplinary record which was arguably a material factor to which they appear on the face of their decision to have paid no account.

5	Although for these reasons we regard all of the grounds of appeal set out in paragraph 7 of the notice of appeal as arguable, the notice of appeal raises a further ground of appeal relating to the compensatory award.  The Tribunal was invited to consider reducing the award on the basis of the employee’s misconduct.  They decided not to do so because, in the light of their reasons for the decision that the employee had been unfairly dismissed, the Tribunal took the view that it would not be appropriate to make any such deduction.  

6	This finding or conclusion appears to us arguably to be in conflict with what appears in paragraph 8 of the decision and furthermore, at the stage of considering contributory conduct, what the Tribunal had to consider, it can be said, was not whether the employers did or did not have a reasonable belief at the time of the dismissal but whether the conduct had actually taken place.  Thus there is a further arguable ground in relation to the Tribunal’s approach to the compensation issue.  This appeal will therefore go for a full hearing on all the grounds set out in the notice of appeal.