Appeal No.	 EAT/786/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MRS J M MATTHIAS
MR S M SPRINGER MBE

MR B PERROTT	APPELLANT

HEAT RADIATION LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR THOMAS
(of Counsel)
Messrs Battens
Solicitors
2 Mendip House
High Street
Taunton
Somerset TA1 3SX	

	JUDGE JOHN BYRT QC:     This is a preliminary hearing in relation to an appeal against the decision of the Industrial Tribunal sitting at Exeter.  The decision was promulgated on 7 May 1997.  They held that Mr Perrott, the employee, had been dismissed by reason of his conduct and that such dismissal was fair.

	Quite shortly the facts are that Mr Perrott was a plumber/heating engineer employed by the Respondents for 20 years.  In his last six months something seems to have gone wrong with the quality of his work, especially, and in the four months he received five reprimands and one verbal warning.  Those were the findings in any event of the Industrial Tribunal.

	The immediate facts leading to his dismissal, again, as found by the Industrial Tribunal, was that a director of the Respondents, a Mr Stodgell, had been in Taunton mid-day on 20 September and Mr Perrott drew up alongside him at lights, driving the Respondents’ van.  Mr Stodgell immediately wondered what he was doing in that part of the countryside when, in fact, he was scheduled to be employed elsewhere.  Mr Stodgell went back, checked accurately and specifically where Mr Perrott was due to do jobs in the morning and the afternoon, and came to the conclusion that probably, he was driving the van to obtain excess mileage.  Having come to that conclusion, Mr Stodgell drove to the employee’s home and there, at the back of the house, he found the van Mr Perrott had been driving.  As a result of this he concluded that there was additional mileage unnecessarily incurred.  He said nothing to Mr Perrott however, and waited until the following Monday, in order to see what records Mr Perrott put in concerning his Friday’s work, and when he checked the records he came to the conclusion that there was an inaccurate record of both the time sheets and an inaccurate record of the mileage he had travelled the day before.

	The result was that Mr Stodgell (I think together with Mr Gray, another director) summoned Mr Perrott.  He came into his office and, in effect, a disciplinary hearing started.  Mr Perrott had not received any advance warning that this was a disciplinary hearing.  Mr Perrott was not accompanied by any representative, as perhaps he should have been, and thirdly, at that particular stage, Mr Perrott did not really know what he had been brought in for.  He had a shrewd suspicion that he was going to be made redundant.

	In any event, it was against that sort of background that Mr Perrott made certain admissions about the inaccuracy of the time sheets and mileage record.  It was only towards the end of the meeting that he was told that he was in line for being sacked and then his attitude changed.

	The Industrial Tribunal however, thought that it made no difference that he had not been warned that this was going to be a disciplinary hearing because they said that Mr Perrott accepted that he was there for some serious reason.  It was not every day of the week he was taken into the office of Mr Stodgell and he might possibly have thought that he was going to be sacked.  There is no record in the Industrial Tribunal’s findings that he had been offered representation or indeed that he should have been offered representation.  The end of the meeting was that Mr Perrott was dismissed and given 12 weeks’ notice, but he was not in fact warned that there was an appeal process that he could take advantage of.

	One of the factors which the Industrial Tribunal refer to in their decisions, which might well have weighed in the mind of the employers, was the fact that he had been reprimanded some five times in the last four months and that there had been a formal verbal warning at the beginning of September.  Of course, Mr Perrott was not armed, either with the documentation relating to these reprimands or the verbal warning, nor had he the opportunity of calling witnesses to support his side of the argument, but when one looks at the reprimand they seem to relate primarily to poor performance rather than to any quasi dishonest conduct.  Again, if he had been represented by an advocate, one wonders whether points could have been made on this documentation.  

	In all, the Industrial Tribunal came to the conclusion that these obvious failures in the disciplinary procedure made no different and, as a result, came to the conclusion that the dismissal had been fair.

	Mr Thomas addressed us about the importance and significance of each of these failures in the disciplinary procedure and we think that there is an arguable case here to go to a full hearing of the Employment Appeal Tribunal and accordingly, we so direct.