Appeal No.	 EAT/776/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 1999

Before
HIS HONOUR JUDGE H WILSON
MR D J HODGKINS CB
MR N D WILLIS

MR S A G HALL	APPELLANT

SOUTHERN CO-OPERATIVES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr S A G Hall
(In person)

JUDGE WILSON:
1	This is the preliminary hearing of the proposed appeal by the appellant before the Employment Tribunal, against their finding that he was not unfairly dismissed.  Mr Hall has submitted a skeleton argument and a bundle of papers to which we have had regard, and we have also listened with care to what he has said in amplification of that documentary evidence.  

2	What happened was that he was dismissed from his job as a Branch Manager, on the grounds of gross misconduct, because £1000 was unaccounted for in funds which should have been banked by him.  

3	The Tribunal found facts which are set out in Paragraphs 7 to 16 of the decision and thereafter the Tribunal refers to the three questions they have asked themselves, in accordance with guidance in the cases.  Mr Hall contends before us today that the Tribunal failed to consider procedural fairness, because Mr Carroll, who was the Manager on behalf of the Respondent who carried out the investigation, was also the Manager who took the decision that Mr Hall should be dismissed.  

4	Mr Hall also complains that, he was at no stage told that the purpose of the medical consultation with the Respondent’s medical advisors was to ascertain his fitness to attend disciplinary hearings.  

5	A further complaint concerns the lapse of time between the early September, and the date of his dismissal in December.  Finally, according to Mr Hall, on the 7 September, Mr Carroll knowing all the facts upon which he later dismissed him, told him that he was satisfied that he, Mr Hall, had not misappropriated the money.  

6	We have had regard to those submissions in the light of the decision, and have reminded ourselves that it is not for us to go behind findings of fact by the Tribunal providing they are made on a proper legal basis.  We find that the Tribunal properly directed itself in law and they answered the three questions in the course of the decision, beginning with Paragraph 19.  In that paragraph they deal with the missing amount of £1,000 and they said:-

“It is not for any Tribunal to seek proof of who misappropriated the missing £1,000 but only to determine whether or not Mr Carroll had a genuine belief that Mr Hall had been responsible for the deficiency.  We find that such evidence was sufficient to justify his belief at that stage.

We then went on to ask whether the investigation carried out was a reasonable one in all the circumstances”.

7	In paragraph 20 the Tribunal found:-

“The respondents by 5 October had ample evidence of a possible offence of gross misconduct which clearly required the disciplinary hearing.  However, Mr Hall left that day, not to return to work and submitted a medical certificate the following day that he was off sick with stress for 2 weeks.  He subsequently informed the Respondents that he would not attend any disciplinary hearing until he was signed back and fit for work.  The Respondents wishing to bring the matter to a conclusion sought the opinion of their own Occupational Health Adviser, who, after speaking with Mr Hall, advised the Respondents that he was fit to attend the disciplinary hearing which the Respondents fixed for 16 December.  The Respondents were informed by Mr Hall’s Union representative, Mr Morton, that he could not attend and asked for the case to be postponed until Mr Hall’s GP had produced a medical report, but the Respondents refused and wrote to Mr Hall stating that the hearing would proceed and would be held in his absence should he not attend.  Mr Hall contends that he was told by Mr Morton that the Respondents had agreed that the hearing could not take place in his absence and had they given that assurance and then proceeded with a disciplinary hearing, this would have made the procedure fundamentally flawed.   However, we  are satisfied that no such assurance was given by the Respondents.  The Discipline Code allows hearings to be held in an employee’s absence and had they agreed, it would certainly have been confirmed by letter, but no such letter exists.  Mr Morton’s statement was produced by Mr Hall and although it records the contents of a telephone conversations between himself and the Respondents, it makes no reference to the Respondents, in the name of Ms McCutcheon, agreeing not to proceed with the disciplinary hearing on 16 December.  Mr Morton however made it clear that he would not attend in the absence of Mr Hall.  Although by this time, Mr Hall had seen his own GP, neither he or Mr Morton made any attempt to obtain a report from him for submission to the Respondents.  Whilst it is preferable for an employee to be present or represented at a disciplinary hearing, it is difficult to see what else the Respondents could have done with the refusal to attend both by Mr Hall and his Union Representatives to proceed with the matter in the belief that Mr Hall was fit to attend the meeting and without any evidence to the contrary from Mr Hall’s GP.  They could not allow a situation to continue where Mr Hall decided when he was willing to attend the meeting”.

8	We find no ground upon which to criticise that analysis and reasoning by the Tribunal, nor their final answer to the final question, which was to express their satisfaction that the main reason of his dismissal was for gross misconduct:-

“We then asked ourselves one further question; was the decision to dismiss that of a fair and reasonable employer?  We find the decision falls within the band of reasonable responses of a fair employer and therefore the application is dismissed”.

9	Mr Hall has urged no matter of law, which lead us to find any fault or error on the part of the Tribunal and accordingly this appeal could not succeed even if more fully argued and must be dismissed at this stage.