Appeal No. EAT/1412/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR J C SHRIGLEY
MR N D WILLIS

MR D BONE	APPELLANT

COLLIER COTRACTS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR I MCLELLAN
(Representative)
Free Representation Unit
Fourth Floor
8-14 Verulan Street
London  WC1X 8LZ	

JUDGE CLARK

1	This is an appeal by the Appellant before the London (South) Employment Tribunal, Mr Daniel Bone, against part of that Employment Tribunal’s decision promulgated with extended reasons on 14 October 1999.  The Employment Tribunal upheld his complaint of unfair dismissal, but awarded him no compensation on the ground that he had contributed to his own dismissal to the extent of 100 per cent.  It is against that latter finding that this appeal is brought.

2	The Appellant was employed by the Respondent, a building company, as a bricklayer from August 1996 until his dismissal effective on 18 January 1999.

3	The background to his dismissal was as follows:  It was a term of his contract of employment that the Appellant was entitled to 10 days paid holiday entitlement in each year.  The holiday year began on 1 April.  It was generally accepted, the Employment Tribunal found, that it was necessary to give at least 2 weeks notice of intention to take 2 weeks annual leave other than over the Christmas shut-down period.

4	In late 1998 the Appellant decided to take up to 4 weeks leave over Christmas.  When the Operations Director, Amarjit Singh learned of this he told the Appellant that he was not entitled to more than 2 weeks holiday.  That was on 18 December 1998, prior to the shutdown.  On the same date the Company Accountant, Mr Vimalendran, wrote to the Appellant, warning him that if he took more than 2 weeks holiday his contract would be terminated.  He was expected back at work on 4 January 1999, so the Employment Tribunal found.  Despite this the Appellant booked a 2 week holiday to Lanzarote on 23 December 1998.  He told nobody at the Respondent that he had done so.  He flew out of the country on 31 December 1998 and returned to the United Kingdom on 14 January 1999.  He did not report for work the next day, Friday 15 January, but contacted the Respondent on Monday 18 January.  He was told that there was no work for him.  On those facts the Employment Tribunal reached the following conclusions, summarised at paragraph 16 of their reasons:

(i)	“that it was an implied term of the Applicant’s contract of employment that at least two weeks’ notice should be given by the employee in respect of proposed holiday (other than Christmas) and that the employer was entitled to refuse such holiday if the workload warranted it.
(ii)		That by failing to return to work on 4 January 1999, the Applicant repudiated his contract of employment, but thereafter claimed that he was entitled to resume his work;
(iii)		That the Respondent accepted that repudiation by refusing to allow the Applicant to resume or continue his work;
(iv)		That there was thus a dismissal of the Applicant by the Respondent.  The effective date of termination of the contract of employment was Monday 18 January 1999;
(v)		The category of reason for the purpose of the Employment Rights Act was conduct;
(vi)		The Applicant’s conduct did not fall within the definition of gross misconduct entitling the Respondent to summarily dismiss him;
(vii)		That by failing to hold any disciplinary meeting or disciplinary hearing, the Respondent did not act reasonable and the dismissal was therefore unfair.
(viii)	That the Applicant’s conduct contributed 100% to his dismissal and he is thus not entitled to any compensation from the Respondent.”

Thus the dismissal was held to be unfair but that the Appellant entitled to no compensation in respect of that unfair dismissal.

5	In this appeal Mr McLellan first advanced the argument that the Employment Tribunal had failed to take into account certain matters which arose after the Appellant’s dismissal, namely, that he was suffering from severe depression and that his character had been slandered following his dismissal by the Respondent.  He accepted in argument, that for the purposes of respectively section 122 (2) and 123 (6), of the Employment Rights Act 1996 the question for the Employment Tribunal in determining whether or not to make a reduction for the employee’s contributory conduct was what happened before, not after dismissal.  

6	Mr McLellan accepts that on the Employment Tribunal’s findings of fact, a degree of contribution was made out but he submits that a finding of 100% contribution was excessive and wrong in law.  He submits that the Employment Tribunal failed to take into account what was just and equitable for the purposes of the relevant statutory provisions.

7	It seems to us that the real question in this proposed appeal is whether it can be said that the Appellant’s conduct in taking his holiday contrary to the Respondent’s clear instructions and the terms of his contract was the sole cause of his dismissal, see Gibson –v- British Transport Docks Board [1982] IRLR 228.  In our judgment it is plain that on the Employment Tribunal’s findings of fact such a conclusion was one which the Employment Tribunal was entitled to reach.

8	In these circumstances it seems to us that there are no grounds in law, our jurisdiction being limited to correcting errors of law by Employment Tribunals, for us to interfere with this decision.  Accordingly the appeal must be dismissed at this preliminary hearing stage.