Appeal No.	 EAT/802/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1999

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MISS A MACKIE OBE

MR A PLASKETT	APPELLANT

MULTITONE PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

	JUDGE PETER CLARK:     This is an appeal by Mr Plaskett, the Applicant before the Norwich Employment Tribunal sitting on 7 and 8 April 1998, against that Tribunal’s decision, promulgated with Extended Reasons on 5 May 1998, upholding his complaint of unfair dismissal but awarding no compensation and dismissing his complaint of breach of contract.

	The Appellant commenced employment with the Respondent, manufacturers of electrical components, as Quality Assurance Manager in March 1995.  He was a member of the management team.

	The Tribunal found that the Appellant was perceived to be arrogant, over-bearing, intransigent and inflexible by his management colleagues.  He was thought to be uncooperative and difficult to work with.

	From May 1997 onwards the Appellant’s attitude to his colleagues was a cause of concern to the Production Manager, Dr Thomas.  The Tribunal accepted that Dr Thomas spoke to the Appellant informally on a number of occasions about his behaviour.

	During September 1997 three Managers, Mr Pichon, Mr Clark and Mr Miles each made separate complaints about the Appellant’s behaviour.

	The final straw, so far as Dr Thomas was concerned, occurred on 6 October 1997.  On that day a meeting took place attended by Dr Thomas, the Appellant, and Messrs Miles, Pichon and Clark.  At that meeting reference was made to the possibility of a new employee being engaged at a salary higher than that enjoyed by Mr Miles.  The Appellant then suggested that Mr Miles should resign from the Company and then apply to be re-employed at a higher salary.

	The remark upset Mr Miles, and his colleagues, particularly Mr Pichon, who complained to Dr Thomas, thought that the Appellant had gone too far.  Later, Mr Miles went to see the Appellant to discuss his earlier remarks.  The Appellant then compounded the matter by again suggesting that Mr Miles should resign and added that if he did not do so he, the Appellant, would no longer have respect for him.

	Dr Thomas decided that enough was enough and without more wrote to him a letter dated 6 October 1997, summarily terminating his employment and offering compensation for loss of office equivalent to 13 weeks gross salary plus outstanding holiday pay.  

	The Appellant commenced these proceedings by an Originating Application presented on 6 November 1997.

	The Tribunal found that the reason for dismissal related to the Appellant’s conduct.  It was procedurally unfair, in that the Appellant was given no prior warning of dismissal, nor was he given an opportunity to be heard at a disciplinary hearing.

	Nevertheless, the Tribunal found that had a disciplinary hearing been held the result, dismissal, would have been the same a little later.  Further, they found that the Appellant’s conduct had contributed to his dismissal to the extent of 100 percent.  Both the basic and compensatory awards for unfair dismissal were reduced to nil.

	As to the claim of wrongful dismissal, the Tribunal found that the Appellant was in breach of his duty of good faith owed to the Company entitling the Respondent to summarily dismiss him.

	A subsequent review application was dismissed by the Chairman under Rule 11 (5) of the Employment Tribunal Rules of Procedure by a decision dated 2 June 1998.

	This appeal was first listed for preliminary hearing on 19 October 1998.  On 20 September 1998 Mr Plaskett faxed the Appeal Tribunal, indicating that he did not wish to put in a separate skeleton argument, but would rely on the grounds of appeal contained in his Notice dated 14 June 1998.  He then applied for and was granted an adjournment of the hearing fixed for 19 October.  The case was re-listed for 10 February 1999;  again he applied for and was granted an adjournment.  On 11 February 1999 Notice of Hearing was sent to the Appellant’s home address, listing the case for today.

	Nothing further has been heard from Mr Plaskett.  He has not appeared today.  In these circumstances we have considered the case on the papers.

	By his grounds of appeal Mr Plaskett contends that the Tribunal erred in law in concluding that dismissal, rather than a lesser sanction, such as a formal written warning, fell within the bounds of reasonableness.  Next, he submits that there was no evidence that Mr Miles was humiliated, or of the Appellant’s alleged disruptive behaviour, as the Tribunal found.  Accordingly the Tribunal was wrong to find that the Appellant had contributed to his dismissal to the extent of 100 percent.

	We bear in mind that the assessment of the level of contribution attributable to an Applicant’s blameworthy conduct is essentially a question of fact for the Employment Tribunal:  Hollier v Plysu Ltd [1983] IRLR 260.  In our judgment there are no grounds in law, on the facts permissibly found by the Tribunal, for interfering with the assessment of contribution in this case.  Nor can we say that the Tribunal erred in holding that the Respondent was entitled to dismiss the Appellant at common law for breach of the duty of good faith.  In these circumstances the appeal is dismissed.