Appeal No.	EAT/1313/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 July 1999

Before
HIS HONOUR JUDGE H WILSON
MR J A SCOULLER
MR S M SPRINGER MBE

EAST COAST AERIALS LTD	APPELLANTS

MR C PUNNETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

	JUDGE HAROLD WILSON:	This was the preliminary hearing of the appeal in this case which had been lodged by the original respondent. 

	Mr Hackford, on behalf of the appellant had indicated that he did not intend to be present at the hearing. He had previously written on 22nd February 1999 to state that he wished the tribunal to deal with his case in his absence. Accordingly, the appeal was dealt with on the papers by the Judge and Mr Scouller.

	The respondent to the appeal, the applicant in the original proceedings, had worked as a television aerial erector for the appellant firm. He was off sick at a time when an ex-employee of the company wrote to Mr Hackford to tell him that he had seen the applicant selling television aerials from the rear of a company vehicle. The original applicant was dismissed by the company and, when his application was heard by the Employment Tribunal, it found that the applicant was unfairly dismissed and awarded him a sum of compensation. The company appealed from this decision.

	There was a preliminary hearing on 26th February 1999 because there were no extended written reasons served with the Notice of Appeal. The Chairman of the Employment Tribunal had refused to provide extended reasons out of time but the Employment Appeal Tribunal found that the summary reasons were really quite comprehensive enough for the case to proceed on the basis of the summary reasons only. Accordingly the substantive appeal was ordered to proceed to a preliminary hearing on the basis of the summary reasons which had been promulgated on 2nd September 1998.

	The Employment Tribunal found that:

“3 … on Mr Hackford’s own evidence that, although he attempted to sugar the pill by suggesting that the applicant was being dismissed because he was redundant, the reason which was uppermost in his mind at the time when he effected the dismissal was the fact that he suspected the applicant of dishonesty in doing TV maintenance work for one of the respondent’s customers for his own personal account and, in doing so, using materials belonging to the respondent. It is equally clear on that evidence that [Mr Hackford] had not done anything which might reasonably amount to proper investigation of these suspicions and he had not even mentioned them to the applicant, much less invited him to make any representations about the matter: indeed, it was only when the respondent submitted his Notice of Appearance to the applicant’s complaint in July 1998 that he was told that he had been suspected of dishonesty.”

The Employment Tribunal went on to say:

“4	If the applicant had been dismissed after Mr Hackford had made some reasonable investigation of the allegation of dishonesty … and after telling the applicant of the allegation and giving him opportunity to make representations … the respondent would have been acting reasonably and … the dismissal would not therefore have been unfair. However, he did not follow that course and we are of the view that he did not act reasonably in all the circumstances and our finding of unfair dismissal necessarily follows.”

Finally the Employment Tribunal dealt with the suggestion that the applicant had been an unsatisfactory worker. However, the Employment Tribunal found that:

“5 … Mr Hackford has produced no convincing evidence in support of his assertion that the applicant’s work was unsatisfactory and we suspect that the applicant’s absence from work was inconvenient, to put it at its lowest, given that Mr Hackford was having to turn aerial erection work away by reason of the sickness absence.”

Having heard evidence also from the applicant, the Employment Tribunal concluded that he had been guilty of “conduct on his part before the dismissal, which was highly questionable and which makes it just and equitable to reduce by a factor of 50% the amount of the compensation he would otherwise have been awarded in respect of the unfair dismissal.”

	There is nothing disclosed in the grounds of appeal to suggest that, if the matter proceeded to full argument, it would be successful. In particular the fact that the Employment Tribunal refused an application to adjourn its hearing until after a pending court case against the applicant is irrelevant to the matters which were before the Employment Tribunal. On the basis that those proceedings were criminal, had they resulted in an acquittal the company’s position would have weaker than it was in the event; had they resulted in a conviction, that would not have affected the matters which the Employment Tribunal rightly found were relevant to the issue with which they had to deal.

	Accordingly, this appeal must be dismissed at this stage because there is no reasonable prospect of success if it proceeds to full argument.