Appeal No.	 EAT/73/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 April 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR R JACKSON
PROFESSOR P D WICKENS OBE

MR F DEVAUX	APPELLANT

SECURICOR GROUP PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

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

	JUDGE PETER CLARK:   This is an appeal by the applicant before the Stratford Industrial Tribunal, Mr Devaux, against a majority decision of that tribunal sitting on 6th November 1996 that he was not unfairly dismissed by his former employer, Securicor Group Plc. Extended reasons for that decision are dated 23rd November 1996.

	Notice of this preliminary hearing was sent to the appellant’s solicitors, Messrs Douglas & Co. of 234-244 Stockwell Road, London SW9 on 5th March 1997. No response was received to indicate whether or not the appellant would appear today or be represented. The case was listed for hearing at 10.30 a.m. today; there was no appearance. A member of the tribunal staff telephoned those solicitors to be told by a receptionist that no one was available to answer her query. That was followed by a faxed message stating that if no indication was given by 11.20 a.m. as to whether or not the appellant would be represented today, the case would be heard and determined by the appeal tribunal. No such communication has been received. That time is now passed, and we shall proceed to consider the case on the papers.

	The material facts are these. From 27th April 1987 until his dismissal effective on 17th May 1996 the appellant was employed by the respondent as a cash in transit driver.

	On 24th April 1996 an incident occurred during a delivery made by the appellant to Lloyds Bank. He was asked for an identity card and an altercation ensued. The bank complained to Mr Morrell, the respondent’s manager at their Rifle Street branch. He carried out an investigation which included interviewing the appellant on 30th April. As a result Mr Morrell awarded the appellant a final written warning which was to remain on his file, under the respondent’s disciplinary procedure, for a period of 12 months. The appellant did not appeal against that warning.

	On 9th May 1996 the respondent’s Mr Belorn instructed the appellant to attend at Catering & Allied near Tower Bridge as his first job of the day. The appellant said he did not know where Catering & Allied’s office was situated. Another manager, Mr Jude, became involved, and the appellant told him that he would do the job when he got there. A third manager, Mr Gibbs became involved and the upshot was that the appellant was suspended.

	He was seen the next day by Mr Morrell. He decided that a disciplinary interview should take place. That happened on 17th May. Present were Mr Morrell, the appellant and his trade union representative, Mr Keane. Mr Morrell took into account the earlier final written warning and decided to dismiss the appellant for refusing to comply with a reasonable management request.

	Against that decision the appellant appealed, first to Mr O’Sullivan, the Assistant Area Director, and then to Mr Johnson, Head of Operational Support. In the case of the latter appeal the appellant raised his medical condition, which caused Mr Johnson to adjourn and seek advice from the Company doctor. In the event both appeals were dismissed, although Mr Johnson did offer the appellant re-employment as a new starter on flexible working conditions or an ex gratia payment of £1,876 equivalent to nine weeks pay. Both offers were unacceptable to the appellant.

The Industrial Tribunal decision
The tribunal unanimously found that the reason for dismissal here related to the appellant’s conduct. However, in considering the reasonableness of the dismissal they parted company. The majority concluded, for the reasons more particularly set out in paragraph 22 of the their reasons, that dismissal fell within the range of reasonable responses; the minority member found, for the reasons set out at paragraph 24, that dismissal fell outside the range. Accordingly, the majority view prevailed and the complaint was dismissed.

	This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law.

	The first grounds of appeal, advanced on behalf of the appellant in the Notice of Appeal, is that the tribunal misapplied the statutory test contained in s.98(4) of the Employment Rights Act 1996 by adopting the band of reasonable responses test.

	We believe that in due course it may be that the House of Lords will be asked to consider the correctness of the band of reasonable responses test. However, the current position is that we, like the Industrial Tribunal, are bound by the reasoning of the Court of Appeal in British Leyland (UK) Ltd v Swift [1981] IRLR 91, and subsequent cases in which the test there propounded has been consistently followed. We are not prepared to depart from that well-established line of authority. Accordingly the first ground of appeal is rejected.

	Secondly, it is contended that the majority’s conclusion is perverse. Having considered the majority’s reasoning, and the arguments advanced in the Notice of Appeal on behalf of the appellant which repeat the minority member’s reasoning, we are unable to say that this is a case in which any arguable perversity ground is raised. We cannot say that the majority’s decision was an impermissible option. On the contrary, it is on issues just such as this that an Industrial Tribunal may reach a range of decisions, that is a matter for the industrial jury, both decisions in favour and against an applicant’s claim may be permissible. 

	In these circumstances, we shall dismiss appeal.