Appeal No. EAT/682/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 1996

Before
HIS HONOUR JUDGE H J BYRT QC
MR D CHADWICK
MR R JACKSON

MR J McLEAN	APPELLANT

McLANE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR EPSTEIN
(of Counsel)
E.L.A.A.S.	

	JUDGE BYRT QC:   This is a preliminary hearing in the course of an appeal from the decision of Industrial Tribunal sitting in Plymouth on 20th May 1996. They unanimously concluded that the appellant had been dismissed as a result of his conduct and found his dismissal was fair.

	The appellant is a young man of 20, employed by the respondents as a forklift driver. He had been so employed between November 1992 and January 1996 when he was dismissed. It was accepted in evidence before the Industrial Tribunal that he was a good employee and hard working. He worked at Saltash in a depot that handles receipt, warehousing and despatch of a variety of goods including tobacco, confectionery, soft drinks, groceries and so on.

	The respondents’ case was that a forklift truck driver was daily manipulating and driving equipment which was capable of causing considerable damage if mishandled. On 8th January 1996, Mr Peters, the branch manager, had placed in front of him newspaper reports which recorded the appellant’s conviction on 1st December 1995 of being drunk, causing damage to the doorway of a take-away, and of being found in possession of cannabis. He had been found guilty and compensation ordered. 

	Mr Peters summoned the appellant for a disciplinary interview at 3 o’clock that afternoon. During the course of that interview, the appellant was apparently quite frank about his previous conduct, conduct outside work. He referred to the fact that he had been previously convicted some six or nine months before for being in possession of cannabis. He also added detail to the effect that he had spent most of the Christmas holiday intoxicated, and in the result had had time off work which he had covered with a medical certificate to say he had flu.

	As a result of that meeting, Mr Peters suspended him. He was required to attend before a disciplinary hearing on 11th January 1996. The charge he had to meet was that such irresponsible behaviour out of work hours meant that he might not be in a fit condition when he attended work and as a result be a risk to his employers.

	The appellant’s case was that what he did outside his working hours was his own business, and no concern of the respondents. 

	Mr Peters who chaired the disciplinary hearing took a different view. He observed that the appellant did not appear to have any contrition, and seemed to be unaware of the danger his indulgence, for instance, the evening before might constitute next day for a fellow employee and the equipment of the respondents he had to use. Anyway Mr Peters decided that this was a cause for dismissal, and he dismissed him. He was so notified on 12th January 1996. The appellant appealed and that matter was dealt with on 24th January when his appeal was dismissed.

	The Industrial Tribunal came to the conclusion that the dismissal was within that broad band of reasonable responses of a reasonable employer, and found that there was no alternative job available for the appellant. Accordingly they dismissed the appellant’s application.

	One of the findings of the Industrial Tribunal is that there was no evidence to the effect the appellant’s in take of drugs and alcohol on any occasion had apparently affected his conduct whilst at work. The respondents too accepted that that, so far, seemed to be the position. it seems to us that a point of law might arise whether it was reasonable to dismiss the appellant from his employment in those circumstances.

	The case has been argued on behalf of the appellant by Mr Epstein, who has appeared as a representative of ELAAS, and we are greatly indebted to him for the carefulness with which he had advanced that argument.

	The only point remains how we should limit the issue when it goes forward to a full tribunal hearing.

[Further submissions from Mr Epstein]

	We think it appropriate to limit the issue to whether it was reasonable to dismiss in all the circumstance of the case, and in particular having regard to the finding that there was no evidence that the appellant’s conduct at work had ever been affected by the intake or effects of alcohol or drugs.