Appeal No.	 EAT/587/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR R JACKSON
MR B M WARMAN

A W BARKER LTD	APPELLANTS

MR P CORDY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellants	MS SARAH MOOR
(of ELAAS)
A W Baker Ltd
197 Kings Head Lane
Uplands
Bristol BS13 7BN	

	MR JUSTICE MORISON (PRESIDENT):  Despite the arguments of Ms Moor on the ELAAS scheme, to whom we are extremely grateful, and to the scheme itself, we have to say that we are not satisfied that there has been shown to be a reasonably arguable point of law arising out of a prospective appeal against a decision of an Industrial Tribunal held at Bristol on 10 January 1997.  Their decision is contained in a written decision running to 17 paragraphs, dated 17 March 1997, when it was sent to the parties.

	The Applicant, Mr Cordy, had brought a complaint against his former employers, A W Barker Ltd, that he had been unfairly dismissed.  The reason for his dismissal was that he had absented himself for work pretending that he was off sick when, in fact, he was working for somebody else for a period, I think, of two days.  That was discovered by his employers, who confronted him with it and, as we understand the evidence in paragraph 9, the Applicant admitted when he had been challenged again about it, that he had been working for somebody else on that week and that he had lied about being sick.

	Mr Barker, the employer, so the Tribunal found, said he could dismiss the Applicant for gross misconduct but when challenged as to whether, in fact, he was dismissing him, Mr Barker said that he would think about it because he was going on holiday to Spain for a week.  He went on holiday and during that week the Applicant continued to work for the Company.  After Mr Barker returned from his holiday, he paid the Applicant his wages on the Tuesday of that working week.  For the next week the Applicant worked for the Company and on the Thursday the Applicant spoke on the telephone with Mr Barker, who told him to come round to his house at 5.30 pm on the Friday.  He went round, there was nobody there, and he was asked to go round on 26 October, a Saturday, which he did.  He was then sent a letter dated 29 October confirming his dismissal as from 26 October for gross professional misconduct.

	The Tribunal correctly approached the questions which then confronted them and they asked themselves what was the reason for the dismissal and they clearly identify the reason for the dismissal as falling within subsection 2(b) of s.98, namely, a reason relating to the conduct of the employee.  They then refer to s.98(4) of the Act, which is drafted in general terms and they seek to give their decision in paragraph 13 as to why they have concluded that the dismissal was unfair.

	The way they have expressed themselves may not be as clear as one would have wished but, as we understand what they are saying it is that if the Company was of the view that this was serious and gross misconduct, then it defied belief that they should have allowed the Applicant to work for two weeks before summarily dismissing him.  In other words, as we read what they are saying, they are saying that this was not, as the employers were suggesting, a matter of gross misconduct, which warranted dismissal.  

	We are encouraged to take that view because that is entirely consistent with the way that they approached the question of compensation.  They limited the compensation which was awarded to the contractual period of notice to which the employee would have been entitled if he had not been guilty of gross misconduct.  If he had been guilty of gross misconduct, then he would not have been wrongfully dismissed.  Because he was not guilty of gross misconduct, in the Tribunal’s judgment, accordingly, he was entitled to his notice period.  

	Accordingly, it seems to us that it is not fair to suggest that the Industrial Tribunal were saying that it would have been fair for him to have been dismissed when he first admitted his lie.  What they are saying is that the circumstances surrounding the dismissal were such as to render it not a reasonable response from an employer given all the circumstances including, in particular, the time lapse between the date of the offence and the date of the dismissal.  That is a matter which they are entitled to take into account and we think that there is nothing wrong with paragraph 13 of the decision although, we have indicated, it may not have been particularly well expressed.

	In our view what the Tribunal has done, therefore, is to recognize that the Applicant was greatly at fault and contributed to his dismissal to such an extent that he was not entitled to any compensatory award.  What he was entitled to receive was the contractual monies due to him under his contract of employment, there being no grounds for dismissing him summarily.

	The apeal is dismissed.