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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sankey v. Nalco Diversified Technology Ltd [2001] UKEAT 888_00_1911 (19 November 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/888_00_1911.html Cite as: [2001] UKEAT 888_00_1911, [2001] UKEAT 888__1911 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE D M LEVY QC
DR D GRIEVES CBE
MR P M SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR T RIGBY (of Counsel) Instructed by: Messrs Gorna & Co Solicitors Cheapside King Street Manchester M2 4NB |
For the Respondent | MR B CARR (of Counsel) Instructed by: Messrs Eversheds Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES |
JUDGE D M LEVY QC
"2. ………………Full reimbursement of fuel and oil expenses including private mileage on the basis of the shell Gold Card invoices submitted to the Company"
3. In 1999 there was a transfer of the undertaking of Dubois Chemicals Ltd to Diversey Limited and on the 1st of October of that year the Appellant signed a Service Agreement with his new employer. Clause 7 of that Agreement provided that the Company would "reimburse to the executive all agreed proper and reasonable travelling and other expenses incurred by him in the performance of his duties"
Pausing there for a moment, it is quite clear that there is a sea change between the term of the Appellant's original contract of employment and that which he signed on 1 October 1999. The Appellant gave evidence that he:
" reluctantly came to an agreement with the Personnel Manager Mr Charles Butcher and with Mr D Acton that he would make a nominal deduction from his petrol expenses claim to represent private mileage."
There was some written evidence to the Tribunal supporting this contention the Tribunal did not make a finding on this but, implicitly, they rejected it.
"Petrol Consumption"
Further to our recent discussion, I thought I'd just reiterate one or two points.
You need to get your heads together in order to assess what is reasonable and what is unreasonable. The actions of one may greatly affect the other.
The overdrive card is provided to cover all mileage covered by your car, with realistic deductions made for private use. It is not provided to cover a second family car (not that this is necessarily the case, but I did need to make that point clear)."
And then an example is given and the memorandum ends:
"Is that reasonable? Well, it would be if proper deductions were made for private mileage. They weren't"
"Our memos must have got crossed in the post.
To add to the embarrassment of our recent audit highlighted discrepancies in our private mileage policy.
I was very relieved not to have to answer the question "How can anyone cover six months of private mileage, including a visit to Scotland/Cornwall at an average private mileage of 10 miles per week?"
I don't mind turning the odd blind eye but trips purely for holiday purposes must be at the individual's expense, not the Company's.
We can at times be creative but not that creative.
Please correct and resubmit."
As a result of that memorandum, a mileage claim which the Appellant had made, dated 17 August, a week before that memorandum, was altered and a private mileage deduction from his claim was substituted. The reduction was considerable and was approved by Mr Acton.
"Further to my correspondence regarding expense claims dated 24 August 1998, it appears that there are certain discrepancies on your subsequent expense reports relating to period when you were apparently on holiday last year.
To help clarify this matter, could you please attend a meeting with David Kruze and me at the Northwich office on Monday 12th April at 9.00 am. It would be helpful if you could bring your 1998 diary and I will bring along all "applications" for holiday leave covering the same period.
Given the potential implications concerning this subject I must advise you that the meeting will be regarded as a formal disciplinary hearing and in accordance with company procedures you may wish to be accompanied by a colleague."
A: Complaints of the findings of fact made in paragraph 4 of the Extended Reasons. There followed a long comprehensive list of alleged failures by the Tribunal.
B: Under the heading "The Reason for Dismissal", complaints about the finding of the ground of dismissal made by the Tribunal, together with complaints of matters not taken into consideration or matters to which too much weight was given.
C: Under the heading "The Procedure adopted "by the Respondent before, on and after 16 April 1999, complaints were made about the failure of the Tribunal to consider various aspects of it.
D: Under the heading "The Fairness of the Dismissal", a number of failures to give reasons for the findings made or to take account of certain factors were set out.
" a right of appeal was limited by statute to a question of law, the appellate tribunal must accept the findings of fact of the tribunal below unless it was apparent that, on the evidence, no reasonable tribunal could have made those findings; that where the appellate tribunal would have reached a different conclusion on the facts it must not treat the findings of fact as holdings of law or mixed findings of fact and law"
"(d) Dismissal was a penalty reasonably open to the respondents to impose. They had a policy that restricted the use of a motor car they were prepared to pay for. The applicant was not prepared to accept it, whatever explanation was directed at him. The respondents were reasonably entitled to say that things could not go on like that. It was not from any desire to avoid a redundancy payment, or to resolve a personality clash, that the respondents dismissed the applicant. He would not stop doing what he knew he should not do."
In our judgment, the Respondent's decision to dismiss may have been a decision which other employers would not have reached, but it is one which the Respondent was entitled to reach. In those circumstances, it would not have been open to the Employment Tribunal to interfere with it, and in our judgment, it was not a perverse Decision.