Appeal No.	 EAT/458/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 June 1999

Before
HIS HONOUR JUDGE WILKIE QC
MR D J JENKINS MBE
MR P A L PARKER CBE

LONDON BOROUGH OF ENFIELD	APPELLANTS

(1) MR J W ARNOLD (2) MR E C RUSKIN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR KEITH BRYANT
(of Counsel)
Instructed by:
Mr J C Cawston
Head of Legal Services
London Borough of Enfield
PO Box 50
Civic Centre
Silver Street
Enfield
Middlesex
EN1 3XY	

	JUDGE WILKIE QC:	This is an appeal by the London Borough of Enfield against a decision of the Employment Tribunal on 27th January 1999, that it unfairly dismissed both Mr Arnold and Mr Ruskin and on that occasion made awards to Mr Ruskin of a basic award and maximum compensatory award and a similar order in respect of Mr Arnold.

	We have already indicated to Mr Bryant, who appears for the appellant, that we agree that the appeal should go forward to a full hearing in so far as it is an appeal against both elements of the award to Mr Arnold, i.e. the basic award and the compensatory award.

1.	As far as the appeal against the substance of the finding of unfair dismissal is concerned. The decision of the employer was in two parts. There was a first instance decision reached by the line manager, Mr Gardner, who decided to dismiss on the basis of his acceptance of the truth and accuracy of a report made to him by another Council employee, a Mr Bryan, to the effect that both Mr Ruskin and Mr Arnold had been directly involved in loading a substantial number of flat and cardboard boxes being commercial waste onto their lorry in the course of their making a round collecting domestic waste. That was in the context of a specific letter of warning, to the effect that that would be regarded as gross misconduct and could or may result in a dismissal. The tribunal found that both Mr Ruskin and Mr Arnold were aware of it and, indeed, Mr Arnold had been involved in representing certain Council employees who had been found guilty of a similar offence a matter of weeks before. Mr Gardner had held a hearing at which Mr Bryan had given his report and Mr Ruskin and Mr Arnold had given their account of the events of that day. Mr Ruskin’s account was that he had not been involved in loading any commercial waste on to his lorry but rather was in the chemist’s shop having parked up his lorry in the alley way near to where the collection was to be made. Mr Arnold did acknowledge that he had collected a small quantity of commercial waste, namely some six polystyrene fish trays which were located on top of domestic waste. Mr Bryan’s account, therefore, differed very widely from that of both Mr Ruskin and Mr Arnold as to their respective roles and indeed as to the nature and extent of the commercial waste loaded. Mr Bryan in his notes had described those whom he had seen he said engaged in that unauthorised collection. His description was wholly different from the appearance of Mr Arnold and Mr Ruskin. Notwithstanding that fact and the other discrepancies in their accounts, Mr Gardner decided to accept the accuracy of what Mr Bryan had said and to act on it by way of dismissal.

2.	The Employment Tribunal concluded that Mr Gardner did not have reasonable grounds for his honest belief in the misconduct upon which he had acted citing the three instances of discrepancy and in particular the misdescription.

3.	It seems to us that matters of description and identity are highly important when it comes to assessing the accuracy of a person reporting on an instance of misconduct. Particularly where, as here, it appears that there was a degree of vagueness as to the time at which these two bin men were said to have conducted an unauthorised collection. It is not for us to speculate on what may or may not have been seen by Mr Bryan or was reported by Mr Bryan, suffice it to say that we can see the basis upon which the Employment Tribunal properly decided that this was not a question of substituting their view of the evidence for that of the employer but rather was a case where they were entitled to say that there were no reasonable grounds upon which an employer could have accepted the accuracy of Mr Bryan’s account. It therefore follows that we see no error in the approach of the Employment Tribunal on this issue. Therefore, in so far as the appeal against the finding of unfair dismissal on both of these men is on that basis we are of the view that this appeal has no reasonable prospect of success and therefore should not go forward.

4.	However, the disciplinary proceedings before the employer went on to a second stage, namely an appeal stage, conducted by a councillor, Mr Fenton. Although it was open to him, and he had initially intended to deal with the appeal by way of an entire rehearing, he chose not to do so. He chose not to do so explicitly because it appeared to him that Mr Arnold had on his own account admitted taking some commercial waste and he therefore acted, in effect, on that basis as being the minimum factual basis for any decision on the future of Mr Ruskin and Mr Arnold. On that basis he decided to affirm the decision to dismiss Mr Ruskin and Mr Arnold.

5.	The Employment Tribunal in paragraph 18 of their reasoned decision, found that the employer acted unreasonably in treating the taking of six polystyrene trays by Mr Arnold as a sufficient reason for dismissing both these employees, i.e. both Mr Ruskin and Mr Arnold.

6.	Mr Bryant, in our view, sensibly has conceded that he cannot argue against that conclusion of the Employment Tribunal in so far as it addresses the decision to confirm the dismissal of Mr Ruskin. Because on the face of it the facts which informed that decision of the employer did not involve Mr Ruskin’s action in any way as part of this collection of unauthorised commercial waste.

7.	However, Mr Bryant in the Notice of Appeal, attacks the Employment Tribunal’s decision that no reasonable employer could have dismissed Mr Arnold for that degree of misconduct as a reasonable response to those circumstances. He says that this does amount simply to the Employment Tribunal, notwithstanding their warning to themselves to the contrary, substituting their judgment for that of the employer.

8.	We have been persuaded by Mr Bryant that that is an arguable point and one which should be ventilated at a full hearing. Therefore, as far as paragraph 6(c) of the Notice of Appeal is concerned that should go forward to a full hearing.

9.	As far as the award to Mr Ruskin is concerned, Mr Bryant accepts that although his Notice of Appeal may disclose points which are arguable, in point of fact the maximum award given to Mr Ruskin could have been arrived at without the inclusion of those allegedly erroneous bases of calculation and therefore there would be no point in a successful appeal on those points. That being the case, we do not propose to allow the appeal on the compensation to Mr Ruskin to proceed to a full hearing.

10.	By parity of reasoning, it seems to us that as we are allowing Mr Arnold’s matter of compensation to go forward to a full hearing, there is no benefit to either side in the question of any adjournment, which was apparently refused by Employment Tribunal, being ventilated at a full hearing. The question of the correctness or otherwise of the calculation concerning Mr Arnold will be sufficient unto itself and therefore we do not allow the adjournment point to go forward to a full hearing.

11.	It therefore means that of the Notice of Appeal the grounds which are contained at paragraph 6(c) and (h) go through to a full hearing and we dismiss the appeal in so far as they set out at grounds (a), (b), (d) to (g).