Appeal No.	 EAT/562/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 1996

Before
HIS HONOUR JUDGE D M LEVY QC
MR P DAWSON OBE
MR K M HACK JP

MR J CLAY	APPELLANT

MR L HINSLEY T/A SILVERDALE MEAT PRODUCTS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR 
ON BEHALF OF THE APPELLANT	

	JUDGE D M LEVY QC:  Mr John Alan Clay wishes to appeal from a decision of an Industrial Tribunal sitting at Leicester on Wednesday 10 April 1996, when the Tribunal held first that the principal reason for the dismissal of the Applicant, the Appellant here, was the language he used to a Mr Hinsley on 21 October 1995, secondly, that the reason was not related to health and safety and thirdly, the application was dismissed.

	The Originating Application was received by the Industrial Tribunal on 31 October 1995.  In it the Appellant’s statement of his case commenced:-

“1.  I was employed as a general assistant by the Respondent from a date in July 1995 until October 20th 1995 when I was dismissed.  My job involved, amongst other things, slicing bacon with an electric slicing machine.
2.  On October 10 1995 I caught my finger in the blade of the bacon slicer which I was using and badly cut it.”

	He then goes on to say about how he bandaged his finger and came back to work a bit later.  During the morning of 12 October, he telephoned his employer to inform him that he would need an operation; he was threatened with dismissal if he did not return to work although, at this stage, he did not take the employer’s threat seriously.  He had an operation.  He went to work on 13 October for his wages and informed the employer he hoped, but could not guarantee, to return to work on the following Monday, being 16 October 1995.  His employer said “we will see”.

	Some time later, on 20 October, “I phoned my employer to ask whether I could collect my wages” his case reads, “and I was told that I had been ‘replaced’.”  He considered he was dismissed because he was not prepared to attend work following his injury.  However, if he had attended, he would have exposed himself and his customers to serious infection and by not attending, he considered that he was acting in the best interests of all concerned in respect of health and safety.

	The Notice of Appearance was entered on 24 November 1995 and received by the Industrial Tribunal some time a little later.  In that Notice of Appearance the essence of the employer’s case is that, when there was a conversation between him and the employer, he let fly with a range of foul and abusive language, so the employer said he should not bother returning and there were witnesses to this conversation.

	The matters in dispute were rehearsed at the hearing before the Industrial Tribunal and the Tribunal found facts, as it was entitled to do, and concluded, on the basis of the evidence the principal reason for the dismissal of the Appellant was that he used abusive language to Mr Hinsley and then came the confusion which we have set out.

	The representative of the Appellant has been delayed by trains this morning and he asks us to deal with this matter in his absence.

	We have carefully considered the case and all that is said in the notes of appeal.  There has been no skeleton argument from the representative of the Appellant and we therefore have only what is in the Notice of Appeal.  The grounds of appeal are as follows:

“(a)  Having referred to the demeanour of the witness in the witness box in paragraph 4 of the extended reasons the Chairman does not describe the demeanour nor state how the Tribunal were led to the conclusion based upon it and therefore those conclusions are, at least arguable, perverse.”

	In our judgment, that is absolutely not a ground of appeal.  The Chairman has stated what evidence he preferred; that is quite sufficient and is there is certainly nothing perverse about it.

	The second ground of appeal is:

“(b)  The Tribunal concluded that the principal reason for the dismissal of the Applicant was the language he used ... yet, when being examined by a wing member of the Tribunal, Mr Hinsley freely admitted that there had been a verbal exchange of like for like and, further, did not give the impression that his reason for dismissing the Applicant was, principally, the language used towards him.  This is notwithstanding that the response of the Respondent lists the Applicant’s language as being a factor which led the Respondent to dismiss the Applicant.”

	Again, the Tribunal heard witnesses of fact and it was then to reach conclusions.  The conclusion reached was eminently within that which they could have reached and this is an attempt to make a point of law out of findings of fact and must inevitably fail.

	Thirdly, the Notice of Appeal says:

“(c)  In sub-paragraph (i) of Paragraph 4 of the extended reasons the Chairman states ‘on 21 October, a Saturday, as a result of advice, the Applicant went to the Respondent’s premises to obtain his wages’.  Both the Applicant and his solicitor recall that no such evidence was given by the Applicant and it is thought, therefore, that the Chairman misunderstood the evidence which was given by the Applicant.”

	This sounds peripheral to the facts found and would not have made any difference to the decision and in those circumstances we do not think it is a ground for letting the matter go forward.

	Those are all the matters which we are asked to consider in the Notice of Appeal.  In our judgment, this appeal is doomed to failure and would only be right to stop it at this stage.

	In the circumstances therefore, we dismiss the appeal.