Appeal No. EAT/324/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21 April 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MR G R CARTER

	MISS A W MADDOCKS OBE

J & S LEWIS LIMITED	APPELLANTS

MR R TAYLOR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P NORBURY
(SOLICITOR)
Messrs Eversheds Alexander Tatham
30 St Ann Street
Manchester M2 3DB

For the Respondent	MISS C GRUNDY
(OF COUNSEL)
Messrs Dootsons
Solicitors
23 Jackson Avenue
Culcheth
Warrington WA3 4EJ

	JUDGE PEPPITT QC:	This is an appeal by employers from a decision of the Manchester Industrial Tribunal sent to the parties on the 3 April 1992.  The Tribunal found that the Respondent had been unfairly dismissed, but that the amount of his compensation should be reduced by 50% by reason of his contributory conduct.	The compensation which the Tribunal awarded to the Respondent after deduction of the 50% was £5,604.  

	Mr Norbury, on behalf of the employers takes two points.  Firstly, he said that the Tribunal in arriving at its conclusion on liability substituted its own views for those of the Appellant, and accordingly were guilty of an error in law.  Secondly, says Mr Norbury, the Tribunal's award of compensation is backed by no findings of fact, but merely appears as an arithmetical calculation resulting in a final figure of £5,604.

	We deal with Mr Norbury's two submissions in the order in which they were made.  It is unnecessary for us to deal in detail with the facts.  We say simply that the Applicants are agricultural engineers.  The Respondent was employed by them as the driver of a low loader.  On the 24 June 1991 the Respondent was due to take his two weeks annual holiday.  He did not appear for work on the previous Friday, the 21 June, but instead used that day to take his car to the garage to obtain a MOT certificate before he went on holiday.  He had, as the Tribunal found, on three previous occasions taken off the day immediately preceding his annual holiday, but in each case with the knowledge and consent of the Appellants.  It was not in dispute that on this occasion he neither sought, nor obtained, the Appellants' consent for having that Friday off.  The result was that on the Respondent's return from holiday there was a disciplinary hearing which resulted in the Respondent's dismissal.  

	The question for the Tribunal, accordingly, was whether in those circumstances the Respondent had been fairly or unfairly dismissed.  Having set out the facts which it found, the Tribunal in paragraph 4 of its decision spelled out the test which it proposed to set itself.  Paragraph 4 reads as follows:

"The applicant was dismissed for taking unauthorised time off work.  That reason related to his conduct.  His misdemeanour was treated as gross misconduct and, not being subject to warning, he was dismissed without notice.  The question for us was, having regard to the above reason, were the respondents reasonable or unreasonable in treating it as sufficient to justify the applicant's dismissal?  In reaching an answer, we had regard to equity and the substantial merits of the case.  We had regard to the size and administrative resources of the respondents' organisation:  they are a small firm in which good attendance is required from each of the small workforce, and whose management does not need to operative sophisticated procedures.  We further strove not to substitute our own judgement for that of the respondents: the question was not what we should have done in the respondents' place, but whether their action lay within the range of options reasonable open to them".

	It being agreed that the reason for the dismissal was a reason relating to the Respondent's conduct, the function of the Tribunal was to proceed to Sub-Section 3 of Section 57 of the Act, to decide whether the Appellants were entitled to treat that reason as a sufficient reason to justify the Respondent's dismissal.  Mr Norbury complains that in paragraph 4 of the decision there was no express reference to Section 57(3).  In our judgement that complaint is without substance, because it seems to us that in paragraph 4 of the decision, the Tribunal accurately set out the test which it was required to apply.  Indeed, to be fair to Mr Norbury, he does not seriously suggest otherwise.

	What Mr Norbury does submit, however, is that when seeking to apply that test in paragraph 5 of the decision, the Tribunal substituted its own view for that of the employers.  We have read paragraph 5 with some care and we have come to the conclusion that that submission too is groundless.  Paragraph 5 begins with the words:

"We decided that the respondents were not reasonably entitled to dismiss the applicant".

	That finding immediately follows the question which the Tribunal asks of itself in the last sentence of paragraph 4.  The Tribunal in paragraph 5 thereafter set out a number of factors relating to the Applicants' decision and at the conclusion of that paragraph expressed the view that the dismissal was unfair.  The word "reasonable" appears on at least two occasions in paragraph 5.  We are quite satisfied reading paragraph 5 that what the Tribunal was doing in that paragraph was considering whether the Appellants' response to the Respondent's conduct was within, or without, the band of responses reasonably available to a reasonable employer.  

	In applying their minds to that test, the Tribunal necessarily and inevitably used their own judgement, but they used their judgement in our view only in deciding whether the Respondent's conduct was within or without that band.  In those circumstances it seems to us that the Tribunal was doing precisely what the act required them to do, and that the Appellants' complaint is without substance.

	Nr Norbury's second point relates to the award of compensation.  Compensation is dealt with in paragraph 7 of the award and as we have indicated this part of the decision simply consists of an arithmetical calculation.  Both Mr Norbury and Miss Grundy tell us that evidence was given before the Tribunal by the Respondent on the subject of compensation.  There are significant differences between the summary of that evidence appearing in the Notice of Appeal, and that appearing in the Respondent's skeleton argument.  It is impossible for us sitting as we do, and without the benefit of the Chairman's notes, to decide precisely what was, or was not, said.  We are also told that one of the factors argued at the hearing was the extent, if any, to which the Respondent was under a duty to mitigate his loss and the extent, if any, to which he performed that duty.  

	There are no findings in the decision on that topic.  The compensation consisted in the basic award, a compensatory award consisting of firstly the prescribed element, which we are told was 30 weeks from the 9 July 1991 when the Respondent was dismissed, to the 7 February 1992 when the Tribunal's decision was arrived at.  Secondly, a future loss award based upon 46 weeks loss of earnings.  Mr Norbury, in our view justifiably, submits that without some indication of what the Tribunal found, it is impossible for him on his clients' behalf to form any view as to whether or not that award might be open to challenge.  Miss Grundy fairly and realistically has not sought to suggest otherwise, but does express the view that it would be unfair to her client who was awarded a substantial sum of money in February 1992, to have to wait yet further to receive it.  

	It seems to us, however, that we have no alternative but to have to regard to Mr Norbury's submission.  What we propose to do is to remit this case to the Tribunal with a direction that it sets out the facts which it found as a means of arriving at the award of compensation which it made in the sum of £5,604.