Appeal No.	EAT/1173/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 April 1998

Before
HIS HONOUR JUDGE D M LEVY QC
MRS T A MARSLAND
MR K M YOUNG CBE

J T DOVE LTD	APPELLANTS

MR B HOWIE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P JACKSON
(Representative)
Shaun Gunn Ltd
Eaton Place
114 Washway Road
Sale
Manchester M33 1RF	
For the Respondent	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE RESPONDENT	

	JUDGE D M LEVY QC:     This is an appeal by an employer, J.T. Dove Ltd (“the Employer”) against a finding of an Industrial Tribunal which sat at Newcastle on 6, 7 and 20 May and 3 June 1997.  On 16 June 1997 it deliberated about its decision which was promulgated on 24 July 1997.

	The conclusion of the Tribunal was that the Applicant, Mr Brian Howie (“Mr Howie”) was unfairly dismissed but that he had contributed to his dismissal; the percentage reduction ordered was 75%.  From that decision the Employer appealed by Notice dated 31 July 1997.  An application for a review of its decision was refused by the Industrial Tribunal.

	At the preliminary hearing which took place on 27 November 1997, having heard from Mr Jackson, who represented the Employer below and on the preliminary hearing, this Tribunal gave leave for the appeal to proceed to a full hearing on an amended Notice of Appeal.

	The Notice of Appeal was amended on 10 December.  It stated two grounds of appeal against the finding that the dismissal of Mr Howie was unfair, namely that further investigations could not have made any difference to the decision to dismiss and secondly, that the Tribunal’s decision that further investigations were necessary was perverse.

	Mr Howie has not appeared before us today, but has sent a skeleton argument dated 14 April 1998 which we have considered at the same time as we have heard submissions from Mr Jackson.

	The gravamen of the Employer’s complaint was that on many instances Mr Howie’s conduct had been unsatisfactory.  The Employer’s business was that of selling building materials from eight depots in the North of England; Mr Howie was one of its drivers to deliver goods to customers.  Paragraph 15 the Extended Reasons read as follows:

“15  The applicant also suggested that he would not have been subject to disciplinary action of this nature had he not, on the days in question, been unable to complete his delivery rounds.  What was clearly established by the meticulous exercise undertaken by Mr Jackson and Mr Edgar was that the applicant could have completed his delivery rounds on a number of occasions when he had failed to do so.  He had been warned on a number of occasions about his failure to make deliveries, and indeed had received a final written warning on 31 March 1995 (A19).  The applicant made clear his attitude in response to Mr Burness’s letter in July 1996

Reference is made to what he had said earlier which was:

“3 (h)  If paid overtime was available and providing I am given adequate notice and have no other commitments all deliveries would be done.  However if you are not prepared to pay me overtime to complete all deliveries then my work should be arranged so it can be done on time and without breaking road traffic and tachograph law.”

	These findings were then made:

“We are satisfied that the applicant could have made deliveries which he failed to make on:
21 May 1996, when after a similarly late start, he failed to make deliveries at Lowick and Tweedmouth;
18 June 1996, when after a late start (9.30 or 9.45), he failed to make deliveries at Walk and Norham;
25 June 1996, when he failed to make a delivery at Spittal, where he had been in the morning, and which is in any event close to the depot;
3 July 1996, when he failed to make a delivery at Tilmouth, although his return journey took him within a few hundred yards of the site.”
(We have amended the sequence so it can be read in chronological order).
	Paragraph 15 continues:

“These were occasions when, to give him the benefit of any doubt, he would have returned to the depot shortly after 4.00 pm, which, along with his apparent slowness in loading and organising his vehicle, and the inevitable uncertainties in timing a run, clearly establish that he was not co-operating with his employer, and showing scant regard for the requirements of the business and its customers.  His attempts to justify his conduct are merely sophistry.  We assess the contribution as 75%.”

	The reason that the Tribunal found the dismissal unfair was because of the way the disciplinary process was carried out.  In particular, they referred in paragraphs 12 and 13 of the Extended Reasons to matters concerning tachograph readings and the fact that on some occasions when the Employer alleged errors by Mr Howie, the Tribunal were not satisfied the allegations were substantiated.

	The Tribunal correctly addressed itself on the section of the 1996 Act on unfair dismissal.  It held that in all the circumstances the Employer had not acted reasonably within the provisions of section 98 (4).  Having regard to the findings of fact which were made and having regard to the findings that the Industrial Tribunal preferred the evidence of the Employer to that of Mr Howie, we think that further investigations would have added nothing to the employee’s position and, indeed, could not have altered the decision of the Employer in any way.  

	When leave for this matter was given for it to go forward the Employment Appeal Tribunal identified the issues as these:

“We think that, having looked at all the matters, there are only two bases upon which we can go forward.
First of all, that it would make no difference if further investigations had been carried out, and secondly, upon the basis that the decision that there ought to have been more investigations was not a decision that the Tribunal could reasonably have reached.”

	We are satisfied that any further investigations would not have revealed anything to the employee’s advantage in the matters on which he was being investigated.  Having regard to their conclusion, in our judgment the Tribunal should not have concluded that more investigations were needed.  We can see why the Tribunal fell into what we consider is an error because it seems to stem from a letter, dated 11 September 1996 to Mr Howie, which commences thus:

“We are writing to confirm the decision taken at the Disciplinary Hearing held on 11th September 1996 that you be summarily dismissed without notice or payment in lieu of notice in accordance with the Company Disciplinary Procedure.  As you know we have considered all aspects of your case regarding the inconsistencies of your working practices in particular the failure to deliver orders and the discrepancies between the tachograph records and your daily delivery sheets.  Such matters constitute both unsatisfactory job performance and action detrimental to the smooth running of the Company.  Despite a number of requests to improve and warnings you have chosen to ignore them.  You are well aware that as a service industry in a most competitive and difficult trading environment we must always ensure that the needs of our customers are met.  In view of the seriousness of the aforementioned matters your employment with the Company can no longer continue and your last day of employment will therefore be 11th September 1996.  Any money due to you will be forwarded by our Wages Department.”

	The Employer’s Disciplinary Procedure provides thus under “Summary Dismissal”:

“This is an extreme measure resulting in job loss without notice or payment in lieu, and loss of holiday pay.  It may be applied only be Directors according to the circumstances, examples of which are:-
Theft, dishonesty or involvement in same,
Extreme misconduct (assault, obscene language, gross insubordination, drunkenness).”

And under Dismissal Procedure
“(a)  Under 24 months’ service
We regard this as probationary period and ...
(b)  Service of 2 years and over.”

Of Dismissal Procedure for service for under 2 years or more this is what is stated:

“It is not Management policy or desire to terminate employment - indeed quite the contrary - our Company Staff strength has increased significantly in recent years and we are fully alert to the importance of job security.
Unfortunately it can be necessary to dismiss staff for reasons, examples of which are:-
c.  Unsatisfactory job performance and/or action detrimental to the smooth running of the Company or injurious to its reputation.
In the first instance an employee will be warned verbally by the Branch or Divisional Manager concerned and a note will be made in his/her personal file.  If the offence or a related or a new offence is repeated within the next 3 months a letter will be given to the employee defining the complaint and warning of possible dismissal [warning of possible dismissal is highlighted].  If within the next 3 months a further repetition of the offence or related offence occurs dismissal will be notified by the Divisional Manager in a letter stating the reasons for such actions and this letter will be countersigned by the Director responsible.
If in a period of 12 months after any warning there has been no further cause for complaint all previous warnings will be regarded as null and void.”

	The Industrial Tribunal seem to have felt that this dismissal procedure had not been properly followed in the case of Mr Howie, but having regard to the findings of fact which were made, we cannot think any errors made would or should have made any difference to the decision taken by the Employer.  In the circumstances, after careful consideration, we conclude that on the facts found, it was perverse of the Industrial Tribunal to hold that Mr Howie’s dismissal was unfair.  If we are wrong on that we would have concluded on the findings of fact which the Industrial Tribunal made, the contribution of Mr Howie would have been 100%.

	In the event we will allow this appeal and, in place of the decision of the Industrial Tribunal, we substitute a decision that the dismissal of Mr Howie was not unfair.