Appeal No.	 EAT/607/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2000

Before
HIS HONOUR JUDGE A WILKIE QC
MR P DAWSON OBE
MR J C SHRIGLEY

CLC ELECTRICAL LTD	APPELLANT

MR N T LEE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR LARGE
Personnel Adviser
Instructed by
PAS Management Services
59 Ardmore Lane
Buckhurst Hill
Essex
IG9 5SB	

JUDGE WILKIE QC

1.	This is an Appeal by CLC Electrical Ltd against a decision of the Employment Tribunal sitting at Stratford on 7 March 2000 at which the Tribunal upheld the claim of the Applicant Mr Lee that he had been unfairly dismissed but concluded that he had contributed to his own dismissal to the extent of 30%.  At the Tribunal hearing the Appellant was represented by Mr Large who has represented them today before us.  We have to say that he has represented them with great clarity and conciseness and we are extremely grateful to him for his very helpful skeleton argument.

2.	We can perfectly understand why the Appellant was somewhat taken aback at the conclusion of the Tribunal.  Their employee Mr Lee admitted to them, as was manifestly the case, that a particular timesheet contained erroneous information and indeed was false.  He admitted to them that that was so in a meeting held on 22 July to investigate that matter.  There and then the Appellant dismissed Mr Lee and the Tribunal found as a matter of fact that they did so without having given him an opportunity to offer an explanation.

3.	Mr Lee did put forward an explanation some 5 days later on 27 July and Mr Large accepted and agreed that this was the explanation which found its way into his IT1 and which he repeated in evidence at the Tribunal.  It was to the effect that he had made an error in his timesheet because he was tired on the Monday morning some few days after the Friday in respect of which the timesheet had been filled because he had filled it at 6 am on the Monday morning after having arrived home at home at 2.30 am.  The Tribunal ruled against the Respondent on the basis that they had erred in terms of the procedure not having given the Applicant an opportunity to offer an explanation.

4.	The Tribunal ruled that in those circumstances they did not consider it reasonable to treat misconduct as a sufficient reason to dismiss the Applicant.  They concluded having heard Mr Lee’s evidence, that they did not accept that he had deliberately entered false hours.  They also noted that there had been previous occasions, not only in Mr Lee’s case but in the case of others, where errors in timesheets had occurred and Mr Lee had not been given any formal warning about this.

5.	Mr Large has argued that the Tribunal erred in law by substituting its judgment for that of the Appellant and that it has failed to apply the band of reasonable responses test which has been recently approved or re-approved by the Court of Appeal in the case of HSPC v Maddon.  Had it been the case that the Appellant, having heard Mr Lee’s explanation, did not accept it, but that the Tribunal had decided that it did accept his explanation then that would indeed have been the Tribunal substituting its judgment for that of the Appellant and would have been a good point for Appeal.

6.	However, in our judgment the proper analysis of the Tribunal’s decision is not that.  The Tribunal found as a matter of fact that no opportunity to give an explanation had been given.  They concluded that the failure to give an opportunity to give an explanation did not constitute the action of a reasonable employer conducting a fair disciplinary procedure and that, therefore, the dismissal was unfair.

7.	They heard evidence of what the explanation was and they were entitled, on that basis, to express the view whether they accepted that explanation not least because it might be relevant on the question of remedy, i.e. whether he should be entitled to compensation at all or subject to a contribution or to a nil or a very small award on the basis that he would fairly have been dismissed anyway. 
8.	Furthermore, it seems to us the fact that in stating in their decision that “we did not consider it reasonable to treat misconduct a sufficient reason to dismiss Mr Lee.”  They did apply the test laid down by section 98(4) of the Employment Rights Act.  The fact that there is an alternative formula of the band of reasonable responses which is an appropriate one for a Tribunal to apply does make it compulsory and where, as here, the Tribunal has applied the statutory test we can see no arguable case that they have erred in law in that respect.

9.	Accordingly, not withstanding the able argument put forward by Mr Large, it seems to us that the Tribunal decision was a pure question of fact.  The Appellants were taken by surprise at their conclusions of fact but nonetheless do not have any arguable point of law on the basis of which to appeal their conclusion and therefore we dismiss this Appeal at this stage.