Appeal No. EAT/464/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 29th November 1993

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR R JACKSON

	MRS M E SUNDERLAND JP

ANSTON PARISH COUNCIL	APPELLANT

MR W LOWE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G COTTAM
(Representative)
Yorkshire & Humberside
 Provincial Advisory &
 Consultancy Services
Arndale House
Arndale Centre
Headingley
Leeds
LS6 2UU

	MR JUSTICE MUMMERY (PRESIDENT):  This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at Sheffield on the 20th February, 13th April and 8th May 1992. 

	The Tribunal unanimously decided that Mr Lowe was unfairly dismissed by the Anston Parish Council but, by his conduct, had contributed to his dismissal to the extent of 50%.

	The Parish Council appeals against the decision on unfair dismissal.  

	Mr Lowe was employed by the Council from the 6th July 1981 to the 24th July 1991 as a general handyman.  His work included the maintenance of the burial ground.  His wife was appointed Sexton.

	The Tribunal in its decision dealt with the circumstances of the dismissal.  A disciplinary hearing took place on the 25th July under a committee of six Councillors chaired by Mr Green.  The statement of the complaints against Mr Lowe were contained in a document prepared by the Parish Clerk, who was employed on a part-time basis.  Mr Tyrell was the Parish Clerk.  The statement of facts included complaints about burial matters and certain other matters, including the failure to maintain the graveyard;  overcharging of Sexton's fees;  ordering protective clothing of the wrong type;  ordering stone of the wrong colour for Council work and other difficulties in relationships between Mr Lowe and Council staff and members.  The decision of the disciplinary meeting was that the relationship between the Council and Mr Lowe had irretrievably broken down and that he should be summarily dismissed but that 10 weeks pay in lieu of notice would be paid to him.

	Before the Industrial Tribunal there was no dispute that Mr Lowe had been dismissed. On this appeal there was no dispute that the Tribunal came to the correct conclusion that the reason for the dismissal was a breakdown in trust and confidence and that that reason was a reason relating to the conduct of Mr Lowe within the meaning of Section 57(2) of the Employment Protection (Consolidation) Act 1978 .

	The ground on which the Council wishes to appeal the decision is concerned with Section 57(3).  	It is argued by Mr Cottam, on behalf of the Council, that a question of law is raised as to the Industrial Tribunal's interpretation and application of that subsection.  For the purposes of his argument the crucial passage in the reasons for the decision is at paragraph 14.  In paragraph 14 the Industrial Tribunal stated:
"We now have to consider all the facts of the case and decide whether the respondents acted reasonably or unreasonably in treating the applicant's conduct as a reason justifying dismissal.  We remind ourselves that we do not have to decide what we would have done if we had been in the position of the applicant.  We have to say whether or not the decision to dismiss fell within the band of reasonable responses of a reasonable employer.  It seems to us that the precipitating reason for the dismissal was the burial which occurred on 9 July."

That is a matter referred to in some detail earlier in the decision.
"If it had not been for that matter no dismissal would have resulted at that time.  Although the respondents specifically agreed that Mrs Lowe was the Sexton Mr Tyrell and the Committee quite clearly regarded him as responsible for the Sexton's duties.  There can be no doubt that the applicant aided and abetted the decision that was made by Mrs Lowe.  Nevertheless, it was not part of his contract of employment and it seems to us that his denials of responsibility were to a large extent justified.  Unfortunately the respondents did not make a comprehensive investigation and they relied on Mr Tyrell's account of conversations his wife had had with the undertaker and grave digger when direct evidence from one or other of those sources might well have lent some support to the applicant's case.  We think too that the question of failing to maintain the grave yard was relatively insignificant as was the ordering of clothing and stone.  We conclude that the respondents were not justified in pursuing these disciplinary procedures in the way that they did.  In our view they would have been wiser if they had held an investigatory meeting before asking the applicant to defend himself on these disciplinary charges.  Having said this we also think that the respondents should have realised that by confronting a man of the applicant's character with allegations of failure as a Sexton they were inevitably going to provoke an aggressive response.  We suspect that once the meeting had started the outcome was inevitable and we have to say that the terms of the applicant's prior suspension were such as to lead him to anticipate such a result.  We conclude that the decision to dismiss did not fall within the band of reasonable responses of a reasonable employer.  Accordingly we find that this dismissal was unfair."

That is the crucial part of the decision for the purposes of the point which the Council raises on this appeal.

	In support of his contentions on this Mr Cottam submitted that the Tribunal had reached an unreasonable result in relation to the arguments referred to in paragraph 14 and it had erred in law in arriving at its conclusion.  He complained that the Tribunal had not addressed itself to one crucial issue which it was required to address itself to under the terms of Section 57(3):  that is, among other things, the size and administrative resources of the employer's undertaking.  He therefore submitted that the Tribunal had reached an unreasonable decision.

	We have considered these arguments and the various authorities that Mr Cottam relies upon to support them, in particular the case of British Home Stores Ltd v. Burchell [1978] IRLR 379.  We have come to the conclusion that, while the Council may not agree with the conclusion of the Industrial Tribunal in paragraph 14, there is no prospect of satisfying this Tribunal on a full hearing of the appeal that the Industrial Tribunal misdirected itself in law or misapplied the law in the way in which it dealt with the crucial matter of Section 57(3).  A person who loses before an industrial tribunal may often have reasons for not agreeing with the conclusion of the tribunal, but there is only a right of appeal to this Tribunal if it can be shown that the industrial tribunal's conclusion was vitiated by some misunderstanding or misapplication of the law.  

	We are unable to find any in this case.  We shall therefore dismiss the appeal at the stage of a preliminary hearing.