Appeal No.	 EAT/416/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 7 September 2001

Before
MR RECORDER UNDERHILL QC
MRS A GALLICO
MR P R A JACQUES CBE

DESIGN & DISPLAY LTD	APPELLANT

MR ANDREW MORRIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R TOONE
(of Counsel)
Instructed By:
Messrs Rice Jones
Solicitors
Westgate House
Market Street
Halifax HX1 1PJ	

MR RECORDER UNDERHILL QC:

1	This is the preliminary hearing of an appeal against the decision of an Employment Tribunal in Leeds upholding the Respondent’s claim for unfair dismissal.

2	The Respondent employee, Mr Morris, was employed by the Appellants in their warehouse in Elland, West Yorkshire.  A problem arose about his summer holiday for the year 2000.  The Employment Tribunal found the following facts in relation to that problem, picking up the Reasons at paragraph 4.

“(g)	In February 2000, the Applicant had made enquiries of his line managers, Mr Hussain, as to whether he could have two weeks’ holiday in August 2000.  He had understood that that had been agreed and was not aware that this had been overruled by Mr Windspear.  He had understood it that that holiday request had been granted by Mr Hussain, and indeed it had been recorded on the holiday chart.  It was subsequently tippexed out when Mr Windspear denied the holiday arrangement as requested by the Applicant.  The Applicant was not informed of this denial.
The reason for the refusal was that Mr Maddox had also booked a holiday and his holidays, provisionally booked at the time, overlapped with the Applicant by approximately one week.  That was the reason for the refusal, although not communicated to the Applicant.
(h)		In April 2000 the Applicant noticed on the holiday chart, which was situated in Mr Hussain’s office, that his holiday entitlement had been tippexed out.  Improperly, he therefore then re-entered it on the holiday chart.”

Those findings condense, and may arguably not give the full flavour of, the detailed sequence of events appearing from the witness statements, extracts from which Mr Toone, who appears for the Appellants, showed us.  We were content to look at those de bene esse while recognising the danger of doing so without access to the notes of the oral evidence.  But it is not submitted that the Tribunal’s findings, so far as they went, were not open to it on the evidence.

3	In due course Mr Morris’s continued claim to have his holiday on the dates originally booked came to the attention of Mr Windspear and more senior management.  He was told that he could not take his holiday in that week because of the clash with Mr Maddox.  There was a practice in the warehouse, which the Tribunal found to have no formal status, that two employees would not be away on holiday at any one time.  When Mr Morris refused to withdraw, the matter escalated to a disciplinary hearing.  There was an initial meeting on 24 May 2000, adjourned to allow for a period of cooling off, followed by a full disciplinary hearing on 26 May 2000.  The misconduct alleged against Mr Morris appears to have had two elements.  The first was his re-entry of his name on the holiday chart, which was described by the Appellants (somewhat dramatically, though perhaps because this was a specified category of misconduct in their disciplinary procedure) as “falsification of a company document”.   But it is clear that the more substantial complaint was the fact that Mr Morris was still insisting on taking a holiday for which the Appellants believed he had never obtained proper authority.  Indeed, the Appellants made it clear at the disciplinary hearing that if Mr Morris was prepared to re-book his holiday on another date no question of dismissal would arise based only on the re-entry of his name on the chart.  Mr Morris refused to change his position and was dismissed and brought the present proceedings in the Employment Tribunal.

4	By Extended Reasons sent to the parties on 16 February 2001 the Employment Tribunal upheld Mr Morris’s claim for unfair dismissal and went on to award him compensation, although it made a deduction of 35% for contributory conduct.  The key passages from the Reasons are as follows:

“7  The Tribunal then goes on to consider what the reason was for the dismissal.  Here the Tribunal is satisfied the reason was that of conduct and that is a fair reason within the provisions of Section 98 of the Employment Rights Act 1996 (‘The Act’).
8  That, therefore, leaves the Tribunal to consider the provisions of Section 98(4) of the Act;  what are colloquially known as the fairness provisions, where the burden of proof is neutral.  Here the Tribunal are satisfied the Respondents cannot have acted properly and reasonably and fairly in the circumstances.
9  The terms of employment of the Applicant in respect of holidays only specified holidays should not be taken in September and October of each year.  That was a proper specified term of employment.  The agreement which was reached between a section of the workforce [that is, the practice referred to above under which two employees would not take holiday at the same time] was not a term of employment and was not duplicated into the written terms of employment and it was not an agreement reached between the workforce and the Respondents, and in particular, therefore, not a term of employment of the Applicant.
10  However, the Applicant did change the holiday record charge and that could be said to be a falsification of a company document but it must be looked at in the context of the Applicant here having no previous disciplinary record, no previous problems with his holidays and what can be described as a clean bill of health.  It was a dramatic over-reaction on the part of the Respondents to dismiss the Applicant in these circumstances.  The Tribunal notes that the Line Manager of the Applicant in these circumstances intended only to issue a final written warning.
11  The Tribunal notes also that criticisms were made of the Respondent’s procedure.  The Tribunal accepts some of those criticisms and finds that an appeal was not satisfactorily offered to the Applicant nor was there any satisfactory confirmatory letter containing the reasons for that dismissal and specifying the appeal.  Further, the matter was not investigated as fully as should have been the case.  The Respondents do have the responsibility to do so and in this case they had the responsibility also to again interview Mr Maddox and properly ascertain alternatives and variations that might have been available.
12  In this case the Tribunal therefore has to consider what might have been within the bands of responses of a reasonable employer.  The Tribunal, without imposing its own decision as to the penalty that might have been imposed for the offences as found, is satisfied that the reaction to summarily dismiss in these circumstances is not a response that is available and within the bands of reasonable responses of a reasonable employer.  As said previously in this decision, it is a dramatic overreaction to the circumstances of this particular matter.”

5	The primary argument raised before us by Mr Toone is that it is clear from paragraph 10 of the Extended Reasons that the Employment Tribunal approached the issue in this case on the basis that the only misconduct on the part of Mr Morris was his re-entering of his name on the holiday chart, whereas in fact the more serious problem, to which the Employment Tribunal did not allude at all, was his continuing insistence on taking his holiday on the unauthorised date.  Paragraph 9 of the Extended Reasons, he submits, shows that the Employment Tribunal believed that Mr Morris had an unfettered right to take his holiday when he liked, provided that it was not in September or October - a view which, if the Tribunal really expressed it, we accept was wrong, since plainly even outside those months employees were only entitled to take holidays at times authorised by the employer, subject to the requirement of the employer to act reasonably.  Mr Toone says this was, and should have been treated by the Tribunal as, a case where the employee had “signalled a clear intention that he was going to take his holiday and therefore absent himself from work for a period of two weeks at a time when he did not have the permission of the Appellants so to do” and thus constituted a “considered, steadfast and stubborn decision to stand by his decision to take his holiday at a time when he did not have permission to do so”:  see paragraph 7(b)(iii) and (iv) of the grounds of appeal.

6	We accept that the Employment Tribunal’s reasoning is not as clearly spelt out as it could have been, but we nevertheless believe that Mr Toone’s contentions do not properly represent the grounds of its decision taken as a whole.  It is clear from the findings of fact which we have quoted above that the Tribunal had explicitly found (a) that Mr Morris believed that the taking of his holiday on the dates in question had been authorised;  (b) that there were reasonable grounds for that belief, not least that those dates had been entered on the holiday chart;  and (c) that his name was deleted from the chart without any notice or explanation to him.  Against the background of those findings of fact the Employment Tribunal was considering not a case of an employee who was stubbornly insisting on taking his holiday at a time when he had been told he could not do so, but rather that of an employee who had booked his holiday in good faith in the belief, for which there was some objective justification, that his employers had agreed to his doing so.  Mr Toone pointed out to us that the undisputed evidence (apparent both from an agreed written statement of Mr Hussain and, indeed, from the witness statement of the Mr Morris himself) was that it had been indicated to Mr Morris when he first booked the dates in question that Mr Windspear’s approval would have to be obtained, a fact which does not appear in the Employment Tribunal’s findings.  However, Mr Morris’s witness statement goes on to say that he did raise the matter with Mr Windspear, who had not suggested that there was any real problem.  The Employment Tribunal, in making its finding that Mr Morris understood that the dates in question had been agreed and was not aware that they had been overruled by Mr Windspear, must be taken to have accepted that evidence.  

7	On this basis the Employment Tribunal’s focus on the so-called falsification of documents is understandable.  It did not believe, on those findings, that Mr Morris’s refusal to re-arrange his holiday was misconduct;  and if all that he could be criticised for was, indeed, the re-entering of his name on the holiday chart, then we do not think it is possible to challenge the Employment Tribunal’s finding that dismissal was a dramatic over-reaction.  Mr Toone does indeed submit (at least in his written skeleton argument) that “falsification” was a serious breach of contract, but we do not think that this is sustainable.  The re-entry by Mr Morris of his name on the holiday chart was not surreptitious or intended to mislead;  it was merely a rather irregular reassertion of what he at the time believed were his authorised holiday dates.  We believe that, given the Tribunal’s findings, its decision that the dismissal of Mr Morris was outside the range of reasonable responses was entirely open to it in law.

8	We would in any event add this.  Even if there were room for criticism of Mr Morris for his intransigence in continuing to insist on his holiday dates, the highest that it could be put in the light of the Employment Tribunal’s findings is that there had been a muddle about the booking of the holidays to which both parties had contributed - the Appellants by, as the Tribunal found, leaving Mr Morris with the impression that his holiday had been authorised, and Mr Morris by not getting the position clear before proceeding to book his holiday and then refusing to change.  Even in those circumstances it is our view that dismissal was, and would have been found by the Employment Tribunal to be, outside the range of reasonable responses.  On that basis the Appellants were faced with a situation in which an employee with a clean record had booked a holiday, which we can reasonably assume could not have been changed without at least some awkwardness and disruption, on the basis of a bona fide misunderstanding.  We do not have the material before us on this occasion to say precisely how that situation could have been resolved, (though there was some evidence that Mr Maddox would have been prepared to change his holiday so as to avoid the clash if the Appellants in their turn had been able to accommodate him with a week in September).  But the lay members in particular, with their experience in these matters, regard it as almost inconceivable that a solution short of dismissal could not have been found to a problem of this sort with some good will and commonsense.  That was plainly the view of the Employment Tribunal as well.  

9	That, we believe, disposes of the principal argument advanced by Mr Toone on behalf of the Appellants and, in particular, of the grounds identified in the Notice of Appeal at 7(a) and 7(b) (iii) and (iv).

10	We are not clear what additional point is being made at 7(b)(i), which merely recites that falsification of records was an identified head of gross misconduct under the employer’s disciplinary procedures, rendering an employee liable to summary dismissal.  That does not appear to us to advance the argument whether dismissal was a reasonable response to the situation in the present case.

11	Paragraph 7(b)(ii) alleges that the Employment Tribunal placed excessive weight on the fact that the initial reaction of senior managers in the Appellants was that a final written warning would be a sufficient disciplinary penalty for Mr Morris.  We can see no sign that the Employment Tribunal gave improper weight to that consideration.  It referred to it, perfectly reasonably, but it did not treat it in any sense as conclusive.  

12	The final head of appeal is that raised at paragraph 7(c) in the grounds of appeal, where the Appellants submit in effect that they were not under any obligation to consider what the Employment Tribunal referred to as “alternative solutions” in the light of the seriousness of the Appellants’ breach as revealed by their investigations.  But that begs the question whether there had indeed been any sufficiently serious breach in the part of Mr Morris.  With that we have already dealt.

13	Mr Toone’s skeleton argument, ably supplemented by his oral submissions, makes essentially the same points, although not under identical heads.  We do not believe anything is gained by going through it in detail.  We believe that we have dealt with the heart of the grounds of appeal.  His broad overall submission was that this was a case where the Employment Tribunal substituted its own view of the merits rather than limiting itself to reviewing the reasonableness of the view taken by the employers.  The Tribunal directed itself correctly as to its role and we could only find that it failed to follow that self-direction if the conclusion to which it came was one that could not reasonably be come to on a proper basis in law.  That is, in our view, far from being the case here.

14	We therefore believe that the grounds of appeal advanced by the Appellants raise no proper ground of challenge to the decision of the Employment Tribunal and we dismiss the appeal.