Appeal No. EAT/656/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18th July 1995

	Before

	HIS HONOUR JUDGE BUTTER Q.C.

	MRS E HART

	MR T C THOMAS CBE

ROCHFORD (UK) LTD T/A ROCHFORD LANDSCAPE	APPELLANTS

MR S KNOWLES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS S MCKIE
(of Counsel)
Messrs Gisby Harrison
Solicitors
Goffs Oak House
Goffs Lane
Cheshunt
Hertfordshire
EN7 5HE

For the Respondent	NO ATTENDANCE NOR 	REPRESENTATION BY 	RESPONDENTS

	JUDGE BUTTER Q.C.:   The applicant was dismissed at a disciplinary meeting held by his employers on 27th September 1993. He maintained that this was unfair, his employers said on the contrary that he had been dismissed for gross misconduct, specifically leaving early, lying to them and falsifying time-sheets.

	On 21st April 1994, an Industrial Tribunal sitting at Whittington House unanimously decided that the applicant was unfairly dismissed. They declined to reduce the award by reason of his conduct, and they ordered the employers to pay the sum of £5,254.00.

	The employers appeal against that decision, they have been represented by Counsel. The applicant himself wrote to the Tribunal on 4th July 1995 indicating that he would not be able to attend, expressing his apologies and making various comments which we considered and he wrote also on 15th July 1995 making certain comments with regard to the appellants skeleton argument.

	The background to the case appears from the full reasons given by the Tribunal. The employers run a nursery business and landscaping business. The applicant joined them in August 1989 and for much of that time was employed at the Sedgwick Centre in Whitechapel. In May 1991 he was promoted to supervisor and had two people working under him. There was no written contract, and the respondents had no formal disciplinary procedure.

	In September 1993, the Sedgwick contract was approaching renewal. There was a suggestion that the applicant was not working his full hours. It was decided that he should be assessed. He came in one week and was told there was an assessment which was continuing and he was to do some painting work. He was not happy about that, and felt that he was being treated as a "dogs body".

	According to the findings of the Tribunal he left early almost all the time that he worked at the nursery. In relation to the particular period of time, to which I have just referred, the Tribunal accepted the evidence that the applicant left work early on most nights. On 24th September 1993 he submitted a time sheet showing his daily hours to be eight, but it appears he had started at 1p.m. and had left by 7 or 8p.m. most nights.

	On 27th September 1993, he was asked to go in to the office of Mr Kilmurray and Mr Loftis. There was then a discussion about his, the applicant's leaving early. Initially he denied that, but was then told that the respondents the employers had evidence. He fell silent after admitting leaving early. The meeting was then adjourned for a disciplinary meeting.

	At the start of the second meeting, the applicant was offered a representative but notes were not made available to him. Dismissal was summary at the meeting, and the Tribunal found as a fact, that the employers had made up their minds to dismiss the applicant before the second meeting started.

	The Tribunal in paragraph 13 of their reasons said:

		"... We find that the reason shown by the employer was conduct, specifically dishonesty, that is leaving early, filling in timesheets incorrectly and also lying to the employers. ..."

	They say in paragraph 14 that that was a potentially fair reason for dismissal. And then moved on to consider Section 57(3) of the Act. 

	They formed the view that the employers ought to have a proper procedure and they decided that the procedure was unfair.

	They went on to consider the leading case of Polkey v A E Dayton Services Ltd. They thought that there was no reason for the employers to have given the employee, the applicant, a job such as painting and that that was unfair. 

	They go on in paragraph 16 to say:

		"... We find that the breach of trust comes from the employer. Although we find that the Applicant was not truthful either to his employer or to us today, we find that that breach of contract of untruthfulness alleged by the Respondent stems from and is subsequent to their own breach of the mutual trust and confidence necessary between employer and employee. We find that the Applicant was unfairly dismissed by the Respondent."

	They then turn to the question of remedy. They said they would not substitute their views for that of the employer. They had to assess what is within the range of reasonable responses of the employer. They concluded that there was no prospect of a fair dismissal. 

	Before dealing with the question of contribution, I should say that Counsel for the appellants today recognises the difficulties in attacking the main findings of the Tribunal. There was evidence before them which permitted them to reach the main conclusions which they did.

	The argument which has been placed before us primarily relates to the question of the amount which was awarded. This was dealt with in paragraph 18 of the Tribunals reasons. They said:

		"18		We have considered also the question of contribution and the words of section 73(7B) and section 74(6)of the Employment Protection (Consolidation) Act 1978. It is our view that the employer caused the employee's dissatisfaction and has only itself to blame for the employee's reaction. After the Applicant was caught leaving early by the Respondent he told untruths. We do not consider those untruths caused or contributed to the dismissal, nor it would be just or equitable to reduce the compensation we award."

	One of the arguments presented to us today is, that we should say that if the proper procedure had been used by the employers, the applicant would probably have remained in employment for say a further three weeks, but would then, because of his dishonesty, almost certainly have been dismissed.

	We consider however, that this is speculative, and in the end we prefer to base our decision as to what is just and equitable within the meaning of section 73(7B) of the 1978 Act.

	We are satisfied that on a true analysis of the facts, the applicant's conduct involving dishonesty, and what has been called "the stealing of time", was conduct that was serious, relevant, and causative in relation to the actions which the employers took.

	We are unanimously of the view that the Industrial Tribunal fell into error in their approach as set out in paragraph 18 of their reasons. It is clear from the case of Gibson v British Transport Docks Board [1982] IRLR 228, that this Tribunal is entitled to substitute its own conclusion as to contribution. We assess the applicant's contribution as being 75%. The appeal is therefore allowed to that extent and the award will be reduced.