Appeal No. EAT/540/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 November 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS E HART

	MR J C RAMSAY

DARCHEM CONTRACTING UK LTD	APPELLANTS

P J GIBBS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr K.T. Fletcher
Solicitor
Messrs Jacksons 
1-15 Queens Square
Middlesborough
Cleveland TS2 1AL

For the Respondent	Mr P.J. Gibbs
(In Person)

	JUDGE HULL QC:  This is an Appeal to us from the Industrial Tribunal sitting at Nottingham under the Chairmanship of Mr Sneath with two Industrial Members.  They sat on the 22nd April and 14th May 1993 to hear the complaint of Mr P J Gibbs (who appears before us today as Respondent to the Appeal), that he had been unfairly dismissed on the 
28th September 1992.  

	Mr P.J. Gibbs, I give him his initials because his brother Brian Gibbs was a part of the story, was employed as a thermal insulation engineer;  his brother similarly; with Mr Albert Ford, who is senior in employment to either of them.  The three men were employed on various sites, in thermal insulation.  Mr Gibbs was first employed in 1984.  He is now a gentleman aged 41 years. As one knows on construction sites where this sort of work is being carried out, or where refurbishment or anything of that sort is being carried out, there is a good deal of contracting and sub-contracting and quite small teams are employed to do specialist tasks such as thermal insulation.  It appears that so far as the Appellants, Darcham were concerned, there were just the three men on site.  There was no foreman there.

	Now what happened is that on Thursday, 10th September 1992, when they should have been on the site, which was Glaxo's premises at Stevenage, they took themselves off in the afternoon and then on the Friday, 11th September, they simply did not go to work at all. These facts are recorded in the Decision of the Industrial Tribunal which is before us.

	The matters were reported by one of the other contractors, Mr Bloor who is the Netco Manager; and Mr Drewery, the Area Manager for the Darchem, asked Mr Darcy, the foreman, who, as I say, was not present on the site, to make inquiries.  Mr Darcy did speak to Mr Brian Gibbs on the telephone on Friday 11th September.  The explanation for the absence was that there had been trouble with the car on both days, and that had led to their absence.  They had to go off with the car again on Friday, although they had arrived on site.  In due course, as we note in the Decision, Mr P J Gibbs said that he had hurt his leg on the Thursday, and that was the reason for his absence.  But that was not apparently mentioned, according to the Industrial Tribunal findings.   There was this conversation between Mr Darcy, the foreman, and Mr Brian Gibbs, who evidently usually acted as the spokesman for the men.  Until this telephone conversation there had been no report of this absence, or the reasons for it, to the Company.  

	The important question about all this was whether this absence was, so to speak, an honest absence caused by some reasonable cause or other, or whether indeed it was a dishonest thing, and it was intended that these men should claim their pay for the period of absence.  That would make, in the view of many employers, all the difference.  The men might be rebuked for absenting themselves for some reason or other, if it was not in the employers' view a good reason, but the question of honesty was really quite essential.

	The employers allowed the three men to continue at work until the 28th, when there was a disciplinary hearing.  On the 24th September, pressure of work on the site had eased and now, for the first time, Mr Drewery saw Albert Ford, the senior man of these three, to ask him about what had happened.  This was the first time that anybody had become aware that disciplinary proceedings were contemplated, and Mr Ford failed to give a satisfactory explanation to the employers.  The applicant was seen on the 28th, he told the story about the injury to his leg, and Mr Drewery did not believe it.  He concluded that both men, Mr Gibbs and his brother, had told them lies.  

	Mr Drewery decided he could not believe either of the brothers, he said, and so he decided to dismiss them.  The letter to Mr P J Gibbs is at page 35.:

		"1.	It is our belief that you deliberately absented yourself, without authorization, from the Glaxo, Stevenage work site on Thursday 10th September and Friday 11th September 1992.

		2.	We further believe that it was your intention to defraud the company by accepting payment for this lost time.

		3.	Your unauthorised absence over this period of time, without making any attempt to contact the company, has seriously undermined our commercial credibility with our client."

So the Decision was that this was Gross Misconduct and Mr Gibbs was summarily dismissed by his employers.  

	It had indeed, been an absence which had caused embarrassment and loss to the company.  They had to go in for overtime for which they were not indemnified by any payment by the employers, and there had been various pressure at this time.

	In those circumstances, Mr Gibbs complained to the Industrial Tribunal.  The Industrial Tribunal had to consider whether he had been unfairly dismissed or not.  The majority, that is to say, the Industrial Members of the Tribunal, found that there had been an Unfair Dismissal, and I must deal with some of the matters which were set out in the Decision.

	In paragraph 12 of the Decision, the Tribunal gives a unanimous finding:

		"12.		Where the evidence of the respondent's witnesses and that of the applicant conflicted, we all preferred the evidence of the respondent's witnesses.

		The applicant admitted that he would not have disclosed his absence on Thursday afternoon.  

		[and they say]:

		All the members of the Tribunal agree as a matter of fact that the applicant and his colleagues were all absent without authority and without excuse on Thursday afternoon and on the whole of Friday"

But there was a difference between the Industrial Members and the Chairman thereafter, as to what they made of these basic findings of fact.  They say in paragraph 14:

		"14.		The majority members identified both procedural reasons and reasons on the merits why the decision to dismiss was outside the band of responses of a reasonable employer.  First, although they agree with the Chairman that the reason for the dismissal was that set out in the letter of 28 February [which I have referred to] and that it was an admissible reason under Section 57(2) of the 1978 Act, they held that Mr Drewery was not entitled to come to the conclusion that the applicant intended to defraud the respondent by accepting payment for the time lost on Friday."
		[Why did they say that Mr Drewery was not entitled to reach that conclusion]  "They say that because the intention or lack of it was never put to the test.  For, although the applicant and his colleagues had the means to contact Mr Darcy during the day, the practice was to make contact in the evening after work by telephone.  Mr Drewery ought to have known that.  Given that Mr Darcy called Brian Gibbs some time after 4 pm on the Friday, the majority are of the view that Mr Drewery should have given them the benefit of the doubt and concluded that they might have called later to explain why they had not been at work at least that day.  That would have limited this element of the applicant's conduct to failure to disclose an early departure from site on Thursday which, given the practice of people sometime taking "flyers", [that was leaving early on Friday] would not have amounted to an offence worthy of dismissal."

	Now, one asks oneself, is that a proper approach by the majority members to what they had to decide?  Here they had rejected the evidence of the Gibbs brothers where it differed from that of the employers.  They had found, and they agreed, that as a matter of fact these absences took place.  They had heard an explanation, the explanation concerning the injury, which they had had to reject.  One asks oneself why should not Mr Drewery, in those circumstances, have reached his conclusion? It is for the employer to conduct the inquiry.  Of course, he must do so fairly.  It is for the employer to reach findings of fact, of course those must be fair findings.  It is for the employer to say how he is going to react to those findings of fact and of course he must act fairly throughout and give the employer or proper opportunity to be heard.  But in the circumstances here, why should Mr Drewery not have reached that conclusion?

	It is said; because of a matter to which the majority members attach importance, namely, that there was this premature telephone conversation, and Mr Drewery ought to have taken into account the possibility that if it had not been for that conversation, if the ordinary conversation at the end of the week had taken place, these absences might have been disclosed, or the absence on Friday, at any rate.

	But that was a matter for Mr Drewery.  It was for him to say whether he was satisfied by the evidence which he had heard, that he should make the inference of dishonesty.  It appears to us that there is justice in the comment made by Mr Fletcher that:

		"Here the majority of the members of the Industrial Tribunal appear to be putting themselves in the shoes of the employer, and saying what they would have concluded."

	Then they go on, as follows:

		"15.	Further, the majority consider that, in discharging its obligation to carry out a reasonable investigation, Mr Drewery ought to have instructed Mr Darcy to speak not only to Brian Gibbs but also to his brother so as to have their explanations independently.  Such a step may well have focused on the practice of evening communication between Mr Darcy and the team."

	Now what happened here was that Mr Drewery, having been told that his men were not on site, was not on the 11th September concerned with all whys and wherefores of it, he just wanted to know what on earth was going on.  He therefore instructed the foreman to make a phone call to the person who was usually the spokesman for the three, and that is exactly what the foreman did.  

	It appears to us that, considering this, simply as an operational move, when the emergency arose and Mr Drewery first heard of it, to suggest that that was a defect in the inquiry is, again, putting themselves into the shoes of the employer, and indeed on the face of it is irrational.  All Mr Drewery was concerned to do then was to find out what was going on, and he therefore asked the foreman to make the call to the usual member of the three, and he did.  It was not a disciplinary inquiry, where of course each man had to be heard.  

	Then, in paragraph 16 the majority go on to say:

		"16.	..the majority members consider that dismissal for absence amounting to one whole day and two hours, part of another day, was outside the range of responses of a reasonable employer in the case of an employee with 8 years' service and a hitherto unblemished record.  They do not think that the disparity in length of service between the applicant and Mr Ford nor the fact that Mr Ford was frank makes any substantial difference to what should be a reasonable response to this conduct."

Mr Ford, of course, had not been dismissed.  He was frank, Mr Drewery found.

	One asks how it can be that the majority have disregarded the fact that, as Mr Drewery found, Mr Gibbs had not been honest with him. That is again, to us, an indication that the Tribunal were trying the case in effect themselves, and not as they should have done looking to see whether the employer had approached the matter fairly. 

	Then they go on to matters of procedure.  We are told by Mr Fletcher and, of course, accept, that these matters were not put to the witnesses by the Tribunal, and in those circumstances, there is an element of their appearing to be a make-weight.  Mr Fletcher again invites us to consider the conflicting decision of the Chairman, in which he reaches findings contrary to those of the Members, as showing the correct approach:  and in particular, the Chairman standing back, as he was obliged by law to do, and asking himself not "what would I have done in the circumstances?" but "whether the employer was entitled, in fairness, to behave in the way that he did."  

	There is in our view sufficient here, to suggest, very strongly, that the majority Members of this Industrial Tribunal were applying the wrong test, and were indeed putting themselves in the shoes of the employer, and saying what they would have considered reasonable.  In particular, on the vital issue of whether Mr Drewery was entitled to reach the conclusion which he did, it appears to us from what the majority have said, that they were imposing a test of their own. They were saying what they would have considered as important in reaching that decision, and not asking themselves the vital question, whether Mr Drewery was entitled to reach such a conclusion, bearing in mind that he had been told what (he found) were untruths by Mr Gibbs.

	Now in those circumstances, we of course are not entitled to try matters of fact, or to entertain arguments about facts - our concern is to see that the Tribunal have directed themselves in accordance with law, in arriving at their findings of facts.  It appears to us that the majority of this Tribunal have not directed themselves, on these matters, in accordance with law, and therefore perhaps have a reached a conclusion which cannot be supported.  

	We think that there are errors of law. We note, in particular, that having found that there was procedural unfairness, the majority Members did not go on to consider what difference it would have made, if there had been perfect procedural fairness.  In other words, they overlooked Polkey v A E Dayton Services Ltd [1988] ICR 142, and awarded compensation on an indemnity basis, reduced by 50% for contributory conduct.

	We say no more about this, because of the decision which we have reached, which is that this matter should go back for a new hearing, from the start, by a differently constituted Tribunal. We think that it would be embarrassing for this Tribunal, having been divided already, and having reached different conclusions on the facts, to be asked to address its task again, and in those circumstances we say no more about the facts or about the errors of law which we find.  We simply say that there is to be a new trial for this Application in due course, by a differently constituted Tribunal.

	That is the Decision of us all.