Appeal No. UKEAT/0583/05/DZM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 26 January 2006

Before
HIS HONOUR JUDGE REID QC
MR D BLEIMAN
MR D G SMITH

MR M DAWES	APPELLANT

LIDL LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR O THOMAS
(of Counsel)
Messrs Samuels 
Solicitors
18 Alexandra Road
Barnstaple
Devon EX2 8BA	
For the Respondent	MR M CREAMORE
(Solicitor)
Messrs Gregsons
Solicitors
St Christopher’s House
Tabor Grove
Wimbledon
London SW19 4EX	

SUMMARY

Contract of Employment: Wrongful Dismissal & 
Unfair Dismissal: Reason for Dismissal including Substantial Other Reason

Appellant was dismissed for writing a letter confirming an offer of sponsorship.  He had been told not to write that letter (though the offer of sponsorship had been approved by the employer).  His case was that he had written the letter having forgotten this instruction not to do so owing to the pressure of work.  Employment Tribunal held no evidence of “malice” but a “very clear breach of a very clear instruction” that amounted to gross misconduct.  No finding whether he had forgotten the instruction or not.  The employer’s policy defined “gross misconduct” as including “flagrant refusal to obey a reasonable instruction”.  In the absence of specific findings as to how the Appellant came to write the letter, the case was remitted for re-hearing.  [Quare (not raised before Employment Tribunal on first hearing) was this instruction not to write the letter a “reasonable instruction” in the circumstances].

HIS HONOUR JUDGE REID QC

1.	This is an appeal by the employee, Mr Dawes, against a decision of the Employment Tribunal held at Bristol on 3 May 2005 which dismissed his claims for unfair dismissal and wrongful dismissal.  

2.	The background to the case is this.  The Appellant was a property executive with the Respondent, Lidl Ltd, and as such, he was concerned with identifying new sites for stores, liaising with local councils over planning applications and overseeing the acquisition of land.  In the late summer of 2004, he was dealing with an application for planning permission at Launceston in Cornwall.  In particular, one local councillor, Councillor Chapman, was very much in favour.

3.	In September 2004 Councillor Chapman asked the Appellant if the employer would be prepared to sponsor a charity firework display that he was organising and said that the cost would be about £1,000.  The suggestion was that the employer would be able to advertise heavily at the event.  The Claimant rightly put this to his manager and to another senior manager who received agreement.  There was then an instruction given to him that he should not put the employer’s commitment to giving this money in writing in case it should be construed as some sort of a bribe.  That matter was discussed on 28 September.  

4.	On 4 October, notwithstanding that instruction, the Appellant wrote a letter in these terms:  
“Dear Councillor Chapman [he then gives a reference] 
Further to discussions with our National Property Director, 1 am pleased to inform you that he has authorised the donation of £1000 to the Coronation Park Trust's forthcoming Grand Firework Display as a gesture of goodwill towards the people of Launceston in anticipation, and on the basis, of the successful planning application for our store.  
I would like to re-emphasize that this donation is a goodwill gesture towards the people of Launceston and should not be mistaken for an inappropriate arrangement.
I will be in contact in the near future to discuss the invoicing arrangements.  Please don't hesitate to contact” [and he then gives some contact details].

5.	On 12 October the Councillor, who was not a member of the planning committee but apparently was entitled to attend and speak at that committee, attended and spoke in favour of the planning application without revealing his interest.  Happily, that failure to disclose an interest was discovered and the decision revoked.  The matter was put before a further planning meeting set for 9 November.  The fact that the employee had written the letter became known to this employers.  They took disciplinary proceedings asserting that he was guilty of gross misconduct or gross negligence under paragraph 12.3.1 of his contract of employment.  Gross misconduct was defined by the non-contractual discipline and grievance policy of the employer, so far as relevant, as flagrant refusal to obey a reasonable instruction.  I should say that before the Tribunal on the last occasion the question of whether this was a reasonable instruction was not raised.  

6.	Following those disciplinary proceedings, he was dismissed.  The relevant paragraphs of the dismissal letter dated 27 November are in these terms:
“Further to the disciplinary hearing on Thursday 18th November 2004, I can confirm that you are summarily dismissed without notice with immediate effect in accordance with the Company's Disciplinary procedures by reason of Gross Misconduct. 
This decision has been made against you for your failure to follow a reasonable instruction from your superiors.  You were advised to not commit in writing the Company's agreement to sponsor a fireworks display and that you did so against a direct instruction”
We have not, of course, had cause to investigate why it should be appropriate for the company to commit itself to sponsorship of a firework display, but it should be gross misconduct to reduce that commitment to writing.  That is an interesting question which may need to be explored elsewhere.  

7.	The Appellant then brought his proceedings in the Employment Tribunal, alleging unfair dismissal and wrongful dismissal.  His case was that he had forgotten about the instruction by reason of pressure of work at the time when the letter was written, and he categorised it as an administrative oversight.  The Tribunal took the view that his act “cannot be categorised as a simple error” and went on to say “we accept there is no evidence here of any malice but this was a very clear breach of a very clear instruction”.  The Tribunal makes no finding whatsoever as to whether the letter was written in ignorance i.e. having forgotten the existence of the instruction or whether it was written with the instruction in mind; and if so, what was meant by there being no evidence of any malice.  The Tribunal went on to say that they regarded the Respondent’s approach as harsh but could not say that no reasonable employer in those circumstances would have dismissed on these grounds and they go on then to say that 
“As this action amounted to gross misconduct within the definition of the Claimant’s contract of employment we cannot say that dismissal was wrongful either.  In all those circumstances the claim must be dismissed.” 

8.	In our view, that is not a decision which can safely stand and the matter must go back for a re-hearing.  The question of whether he wrote the letter absent-mindedly was a fundamental question.  It would, in our judgment, be difficult to say that a letter written absent-mindedly was a flagrant refusal to obey a reasonable instruction.  It might have amounted to negligence of some form, but that was not the basis on which his dismissal was made.  

9.	It seems to us that in the circumstances of this case once the facts are clear, the unfair and wrongful dismissal claims effectively stand or fall together.  If there was no breach of the contract because there was no gross misconduct, it is difficult to see how a reasonable employer could have come to the conclusion that it did and, in any event, the wrongful dismissal would be made out.  

10.	We have considered what steps should be taken to remedy the situation, but have taken the view, in the end, that the only way in which the matter can be dealt with is for the matter to go back for a complete re-hearing at which the whole of the matter can be re-investigated.  The hearing will be before a different Tribunal.