Appeal No.	 EAT/380/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1998

Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MR R N STRAKER

LONDON SWIMMING POOL CO LTD	APPELLANTS

MR R GARNER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR J HAWTHORNE
(Solicitor)
Messrs Whitham Weld
Solicitors
70 St George’s Square
London
SW1V 3RD	

	JUDGE PETER CLARK:	This an appeal by the respondent employer against a decision of the London (South) Industrial Tribunal, upholding the applicant employee’s complaint of unfair dismissal. The tribunal went on to find that the applicant, Mr Garner, had contributed to his dismissal to the extent of 50%. Extended reasons for that reserved decision were promulgated on 19th January 1998.

	The issue in the case involved the applicant’s claims for expenses, particularly in relation to items for his motorcycle and petrol expenses, including petrol used on a holiday in Scotland.

	By a letter dated 5th March 1997 the applicant was called to a disciplinary meeting to be held by a director of the Company, Mr Line, on 7th March. Following that meeting the applicant was summarily dismissed for gross misconduct.

	The Industrial Tribunal found that the reason for dismissal was the respondent’s belief that the applicant had, deliberately in some cases and perhaps inadvertently in others, claimed reimbursement for expenses to which he was not entitled. That was a reason relating to conduct and was a potentially fair reason for dismissal.

	However, the tribunal went on to find that in the circumstances of the case dismissal was not a reasonable response. They found particularly, for the reasons set out at paragraph 19 of their extended reasons, that the respondent’s disciplinary and dismissal procedures were inadequate. Although finding that the applicant had contributed to his dismissal, no additional reduction should was made on the basis that a fair procedure would have led to a fair dismissal under the so-called Polkey principle.

	Having considered the submissions made by Mr Hawthorne on behalf of the respondent employer at this preliminary hearing, we have concluded that the matter should proceed to a full appeal hearing on the following questions:

(1)	did the Industrial Tribunal implicitly find that the respondent employer had “passed the Burchell test”, referred to in paragraph 17 of their reasons;

(2)	if not, were the admissions made by the applicant such as to render such investigation unnecessary. See RSPB v Croucher [1984] IRLR 425.

(3)	were the reasons stated in paragraph 19 for finding the procedure so inadequate as to render the dismissal unfair such as to make that conclusion a perverse one in law?

(4)	was there a breach of natural justice in the Industrial Tribunal failing to give the parties an opportunity to make submissions on, in the case of the respondent employer, the issue of the Polkey deduction; and, we anticipate, it may be said on the other side in relation to contribution, before determining those issues; the question of remedies having been adjourned at the end of the first day of hearing.

	We direct that for the purposes of the full appeal hearing the case be listed for half a day; Category C; that skeleton arguments should be exchanged between the parties and copies lodged with this tribunal not less than 14 days before the date fixed for the full appeal hearing. We shall give no direction as to the Chairman’s Notes of Evidence at this stage. 

	It is to be hoped that the parties can agree on any matters of evidence to which reference is sought to be made. Failing such agreement, a further application may be made in writing directed for my attention.

	Finally, I will consider any further application by Mr Hawthorne to amend his Notice of Appeal in the light of our adjudication today; such draft amended Notice of Appeal to be lodged, again marked for my attention, within 14 days of today.