Appeal No.	 EAT/1367/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 April 2001

Before
MR RECORDER LANGSTAFF QC
MR J HOUGHAM CBE
MR P R A JACQUES CBE

MR A AGONAFIR	APPELLANT

ADMINSTORE GROUP	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	COLIN NASIR
Solicitor
Messrs Linklaters
Solicitors
1 Silk Street
London
EC2Y 8HQ	

MR RECORDER LANGSTAFF QC

1	This is a Preliminary Hearing in an appeal from the decision of the Employment Tribunal sitting at London Central which was promulgated on 19 September 2000.  By that decision the Tribunal dismissed the Appellant’s complaints that he had been unfairly dismissed and wrongfully dismissed and further by consent upon terms reached between the parties dismissed his complaint in respect of non payment of holiday pay.

2	The facts as revealed by the Employment Tribunal’s decision are that the Appellant was a night supervisor at a Brompton Road store.  On 10 February 2000, the manager of the premises paid a visit, at night, at a time when the Appellant should have been on duty.  He discovered that from at least 2:00am until 5:30am, the Appellant had locked himself in a basement cash office and was nowhere to be seen.  Two members of staff whom he had the duty of supervising were themselves asleep.  In consequence of the manager’s discoveries the Appellant was interviewed.  The interview was found, by the Employment Tribunal, to have been conducted in a manner which was procedurally fair and reasonable.  One of the issues before that hearing was whether the Appellant had in fact been suffering from various ailments, in consequence of which, being ill, he had chosen to sleep or rest away from the store, in the room.  

3	That explanation was, it appears, rejected by the employer and indeed, the Employment Tribunal took the step, unnecessary for their decision, but open to them on the facts in any event, to determine that they too regarded the Appellant’s evidence as to what he actually did on 10 February, implausible.  They decided that insofar as any matter rested upon credibility they accepted the evidence of the Respondent’s witnesses entirely.  They had what they described as, serious reservations as to the integrity of the Applicant’s evidence as to the circumstances leading up to his dismissal.

4	Accordingly, they treated this as a case in which the Appellant had deserted his post and his staff for some five hours to sleep like his other two colleagues and had thereby left the store vulnerable, as understood by his management.  Subsequently, it seems, he lied as to what he was doing.  The Employment Tribunal not only found that his description of his conduct was implausible, but they found it reprehensible, and the excuse implausible.  

5	Against that background of fact, Mr Nasir, for the Appellant, makes three points in this appeal.  The first is that the express reason for the Appellant’s dismissal was that he acted in breach of the Respondent’s health and safety regulations incorporated in his contract of employment.  That emerges from the IT3, in which the second last paragraph reads:

“….. Mr Agonafir was dismissed for gross misconduct – Serious Breach of Health & Safety Regulations.”

He submits that there was, on any view, no actual breach of health and safety regulation, simply an increased likelihood that such a breach might occur, notwithstanding the fact that there were four other employees in the store at the time.  This point shades into his essential submission to us, which was that the sanction of dismissal was too harsh and the Employment Tribunal, not having properly identified the reason for dismissal, should have concluded that it may have been too harsh and determined that it was not open to an employer acting reasonably to dismiss an employee for such conduct.

6	We reject that ground.  We do so because it seems to us that the Employment Tribunal looked at the facts in the context of the issue of health and safety, which had been raised.  They say at paragraph 12:

“Mr Agonafir was dismissed because the Respondent genuinely believed that he had, in his capacity as Night Store Supervisor, by his conduct on the night of 9/10 February 2000 deliberately withdrawn himself from being able to discharge his supervisory responsibilities for several hours thereby seriously compromising the security and safety of the premises and the staff.”

That echoes a finding of fact which they had made at paragraph 9, in which they say:

“…. that he had left the store vulnerable as understood by his management.”

and it indicates an acceptance of the submission made to them by the representative acting for the employer, who argued that what the Appellant had done amounted to a clear case of gross misconduct, in that he had signally failed to fulfil his duties of managing and supervising the store, placing the premises, the staff and customers at risk, and pointing out that that was deliberate behaviour on his part.  The point is weakened further still by the fact that it appears, from what the Employment Tribunal say, that there was no dispute before the employer, on appeal internally, that the grounds of misconduct were made out.  The argument was about penalty, or as Mr Nasir put it to us, mitigation, and it appears, from what the Tribunal themselves say, that essentially the same points, that it was mitigation, rather than misconduct, which was the issue, were repeated before them.

7	The second ground was that the Appellant had been employed for six years and had a clean record, that he was ill at the time and that he had instructed one of four other employees in the store at the time that he was taking a break because of illness.  Mr Nasir was keen to urge upon us the fact that if an employee is indeed ill, then his behaviour in resting, in a position where he might, nonetheless, scan the security monitor from time to time, showed, not the irresponsible attitude to his employment that the employers had determined, but an attitude which was less deserving of condemnation and did not merit the severity of the penalty of dismissal which it was afforded.  

8	We reject this submission too.  It seems to us, that whatever our own decision may have been, it was plainly open to the Employment Tribunal to conclude that the misconduct which they found, the employer thought had taken place, was of such severity as to justify dismissal.  In particular, the task which the Employment Tribunal had was to judge the decisions made by the employer.  It was not to substitute a decision of its own.  It appears, from what is said at paragraph 7 of the extended reasons, that there was no proper evidence given to the employer that the Appellant was indeed ill.  Moreover, the employer had disbelieved the employee as to that.  The Employment Tribunal plainly thought that that decision by the employer was a reasonable one and accordingly, what they had to judge was the decision made by an employer who did not accept that the employee was in fact ill.  Thus understood, there is no force and could not be any force in the second ground which Mr Nasir makes to us.

9	The third ground on which he seeks to challenge the decision was that the Tribunal misdirected itself in giving the Appellant’s credibility or, alleged, lack of it, an importance which it did not have on the facts, and in impugning his credibility.  All that we can say as to that is that it is open to an Employment Tribunal to reach a conclusion on the evidence before it; insofar as that conclusion rests upon matters of credibility, it has a duty to say so.  It may sometimes be the case that one would chose other words which are less damning of an employee than the words which the Employment Tribunal chose in this case.  We cannot say that there is any arguable point of law in suggesting that they were necessarily wrong to do so, or suggesting that their view of the credibility of the Appellant was not something that they could take into account in determining what evidence led before them they accepted and rejected.  There is no clear evidence that their view as to the credibility of the Appellant affected a view of the clear facts of the case so as to lead the Employment Tribunal to conclude that those facts were adverse to the Appellant when they were not.  Accordingly, we have no hesitation in rejecting that third ground too. 

10	Accordingly, on each of the arguments advanced to us as potential arguments in law, we think this case is truly unarguable and the appeal must be dismissed