Appeal No. UKEAT/0557/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 2003

Before
HIS HONOUR JUDGE PROPHET
MS J DRAKE
MR T HAYWOOD

COUNTRYWIDE ASSURED FINANCIAL SERVICES LTD	APPELLANT

MR K F TREANOR	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised 26 February 2004

	APPEARANCES

For the Appellant	MR K VARNOUS
(Solicitor)
Countryside Assured Group Plc
Countrywide House
Perry Way
Witham
Essex CM8 3SX	
For the Respondent	MR M JONES
(Solicitor)
Messrs Underwoods Solicitors
83/83 Marlowes
Hemel Hempstead
Herts HP1 1LJ	

HIS HONOUR JUDGE PROPHET

1.	Mr Treanor submitted a complaint of an unfair dismissal and also what he described as loss of earnings (which subsequently was clarified to mean non-payment of commission), to the Employment Tribunal at London (North-West) on 19 August 2002.  His complaints were resisted by his former employer and accordingly his case duly came up for hearing before an Employment Tribunal sitting at Bedford on 27 and 28 January 2003, with Mr I Henry as the Chairman and Mrs P Tobin and Mr J N Williams as the lay members.

2.	Mr Treanor was represented by Mr Slater, of Counsel and the employer of Mr Varnous, solicitor.

3.	A reserved decision with Extended Reasons was promulgated on 22 May 2003, i.e. some two months after the chambers meeting on 20 March 2003 when presumably the decision was arrived at.  That decision, which was unanimous, stated that Mr Treanor was unfairly dismissed.

4.	A Notice of Appeal by the employer was lodged on 3 July 2003 and by Order of the Employment Tribunal dated 16 July 2003 the appeal was set down for a full hearing.  We are constituted today to conduct that full hearing.  The Appellant is again represented by Mr Varnous and Mr Treanor is represented by Mr Jones, solicitor.

5.	We may observe initially that although the Employment Tribunal sets out in its Reasons as one of the issues which it had to determine whether Mr Treanor was entitled to unpaid commission, it makes no mention in the decision of its conclusions on that matter.  The contents of paragraphs 68 and 69 of the Reasons are not adequate in that respect.
6.	We may also observe that when we look at the form of the Reasons we are struck by their unusual length, brought about by extensive references to the contents of letters and documents before the Tribunal, when what is required is a concise statement of the Tribunal’s findings of fact.

7.	The danger of this lack of precision is that the Tribunal may well lose sight of those matters which are essential to its reaching a proper conclusion and in respect of which it must correctly direct itself.  Indeed, as we are about to say, that does appear to have happened in this case.

8.	Because we have decided to allow the appeal and to remit the whole case for reconsideration to a freshly-constituted Employment Tribunal, we will state only briefly what we are all agreed is sufficient for us to reach that conclusion.  That is because we do not want to inhibit in any way how the case may be decided by that new Tribunal.  That Tribunal, correctly directing itself, is the proper body to decide the case on the evidence, for or against Mr Treanor.

9.	We will just say this.  The principal problems we have identified with the Henry Tribunal’s reasoning process are these.  First, it appears from reading the Tribunal’s Reasons as a whole, that Mr Treanor knew or ought to have known that an action on his part, on the face of it as serious as falsifying clients’ signatures and, if such action be reasonably found by the employers after reasonable investigation to have occurred, could be expected to lead to his summary dismissal.  We have difficulty in understanding how the Tribunal was able to make the statement it did in paragraph 63 of its Reasons.

10.	The second, and perhaps crucial, problem is that notwithstanding that the Employment Tribunal purported to remind itself at paragraph 55 that it had to apply an objective “reasonable employer” test to the decision to dismiss, the only way we can read paragraphs 62 to 67 of the Reasons is that the Employment Tribunal lost sight of that requirement.

11.	We are satisfied that the Employment Tribunal fell into the simple trap of substituting its own views on what the employer should have done instead of answering the question of whether dismissal was within the band of reasonable responses by a reasonable employer in the particular circumstances.

12.	Mr Jones has emphasised that the Tribunal’s finding that dismissal was an automatic sanction by the employer was a finding of fact on its part.  However, that does not appear to us from the depth and content of the disciplinary process and the internal appeal, that the Respondents were operating an automatic process in the sense of shutting their minds to any mitigating matters advanced by Mr Treanor.  However, we say no more about that because that is essentially a matter which must come into consideration by the new Employment Tribunal.

13.	Consequently, as indicated, we allow the appeal in full and direct that the case be reheard by a differently-constituted Employment Tribunal.

14.	By way of a postscript we would respectfully ask the Regional Chairman to investigate for her own benefit how copies of all the Chairman’s handwritten notes of evidence came to be sent to the Employment Appeal Tribunal.  Our understanding, and that of the representatives here today, is that only very limited notes were ordered to be produced and indeed were so provided.