Appeal No.	 EAT/412/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MADDOCKS OBE
PROFESSOR P D WICKENS OBE

MR S SINGH	APPELLANT

WALKERS SNACK FOODS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR R REES
(of Counsel)
Messrs Freer & Archer
16-18 Millstone Lane
Leicester
LE1 5JN	

	JUDGE PETER CLARK:     This is an appeal by the Applicant before the Leicester Industrial Tribunal, Mr Singh, which dismissed his complaint of unfair dismissal against his former employer, the Respondent, Walker Snack Foods Ltd, following a hearing held on 19 December 1996.  Extended Reasons for that decision were given on 5 February 1997.  Both parties were represented by Solicitors at that hearing.

	The Appellant was employed by the Respondent from 5 June 1978 until his dismissal on 22 April 1996 for breach of the Company’s no-smoking policy.  Until that incident on 20 April he had an unblemished work record.

	The Tribunal found that the Respondent had a strict no-smoking policy in areas other than those, such as a part of the canteen, designated as smoking areas.  It was made clear in the Company’s Red Book, issued to employees, including the Appellant, in 1992 that breach of the policy would lead to summary dismissal, subject to management’s discretion on the facts of a particular case.

	The Tribunal found that another employee, Mr Whittaker, had been earlier dismissed for a similar offence, and that the Appellant was mistaken in believing that Mr Whittaker had previously received a warning for smoking.

	On 20 April the Appellant had been told that one of his brothers had fainted the previous day at work.  When he telephoned that brother he was informed that another brother in India might have to have a leg amputated.  In the stress of the moment he went to the locker room and lit a cigarette.  He was caught by two production line managers, Nick Davies and Gary Webb.

	Having at first told the Appellant to return to his line, Mr Davies changed his mind and suspended him with pay.

	On 22 April an investigatory meeting was held by Mr Davies, with Mr Johnson from Human Resources.  The Appellant attended that meeting, accompanied by his Trade Union representative, Mr Gill, the senior shop steward.  The Tribunal found that on that occasion the Appellant was given a full opportunity to explain the circumstances leading to his being caught smoking.  The meeting was then adjourned for 40 minutes and a disciplinary hearing convened.  Following the disciplinary hearing the Appellant was summarily dismissed and informed of his right of appeal.

	He gave notice of appeal, which was heard by Mr Sharp, the operations development manager on 2 May.  He dismissed the appeal on 8 May.

	It was then realised that the Appellant’s appeal ought, under the Company’s procedure, to have been heard by Mr Smith, the plant manager.

	Accordingly the Sharp appeal finding was set aside, and on 22 May Mr Smith re-heard the appeal.  The Tribunal found that at that hearing the Appellant was given every opportunity to advance mitigating factors as to penalty, he then being represented by a full-time union official, Mr Whale.  A petition had been raised for the Appellant’s reinstatement, signed by some 75 per cent of the workforce.

	Having considered all that was said Mr Smith dismissed the appeal, notifying the Appellant of that decision by letter dated 3 May 1996.

	The Tribunal found that the reason for dismissal related to the Appellant’s gross misconduct in breaching the Respondent’s no-smoking policy.  The Tribunal then went on to consider the question of reasonableness under section 98(4) of the Employment Rights Act 1996, reminding itself that it was not for the Tribunal to substitute its view of the appropriate penalty for that of management, but to decide whether dismissal fell within the range of reasonable responses.  It decided that it did, and accordingly the complaint was dismissed.

The Appeal

	Mr Rees acknowledges that the sole basis on which this appeal can be pursued is that of perversity, in the sense or senses identified by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440.

	He has taken us through some eight mitigating factors which go to the severity of the penalty of dismissal, accepting that each relevant factor was taken into account, both by the employer and the Industrial Tribunal in reaching their respective conclusions.

	We have asked ourselves whether in all the circumstances it can be said that there is here an arguable case of perversity.

	With some sympathy for the Appellant, who gave nearly 18 years unblemished service to the Respondent, we have concluded that there is not.

	Accordingly, this appeal must be dismissed.

	Appellant’s legal aid taxation.