Appeal No.	 EAT/501/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 November 2000

Before
SIR CHRISTOPHER BELLAMY QC 
MR T C THOMAS CBE
MR G H WRIGHT MBE

MR M SAUNDERS	APPELLANT

L & TI BROCK & CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR STEPHEN SIMBLET
(of Counsel)
Instructed by Coventry Law Centre
The Bridge
Broadgate
Coventry CV1 1NG	

SIR CHRISTOPHER BELLAMY QC

1	This is an appeal which comes before us today by way of an ex parte preliminary hearing from the decision of the Employment Tribunal sitting at Birmingham, which was sent to the parties on 9 March 2000.  By that decision, the Tribunal held that the dismissal of the Applicant, Mr Saunders, by the Respondent, L & TI Brock & Company Ltd was not unfair.  The question for us to decide at this stage, is whether there is a reasonably arguable point of law on this appeal, such as to justify the case going forward to a full hearing.  

2	The matter turns on the events of 31 August 1999.  The Applicant was dismissed as a result of being absent from his workplace on that day and the case for the Respondent Company before the Tribunal, as set out in paragraph 2 of the Tribunal’s decision, was that the Applicant, because of the holiday arrangements of senior members of the company’s management, had been in sole charge of the shop floor and production on 31 August, and that to leave the premises, without prior authority or proper notice for the greater part of the working day, amounted, in those circumstances, to gross misconduct for which they were justified in dismissing him.  

3	It is right to say that that dismissal, which took place after a short disciplinary procedure to which we will refer in a moment, came after the Applicant had been working for the company for 27 years.  The Tribunal found the following facts, which are most relevant for present purposes, in paragraphs 4 (d) and following of their decision:-

“(d)    On 31 August 1999 (the day after the Bank Holiday) the Respondent’s Managing Director and one of the other two directors and the Works Manager were all on leave and the Applicant was therefore in charge of the shop floor on that day; the firm’s Commercial Director was also on duty at the company’s premises;

(e) At about 10 o’clock that morning the Applicant left the Respondent’s premises; there was some conflict of evidence as to how this came about but the Applicant maintained that he had been called by his wife using his mobile phone to be told that his 5 year old son had had an accident and needed to be taken into hospital; his wife was unable to do this as she had to take their other child, aged 3 and disabled, to a medical appointment; the Applicant tried without success to have his absence authorised by the Commercial Director as an emergency; he was unable to contact the director so he told a junior colleague that he would be leaving at 10.00 am and would try to return that day but might not do so; that applicant, who did not own and was not able to drive a car, did not ask for a lift home left his workplace quickly and on foot;

(f)    Realising that this was not in accordance with the company’s procedures, the Applicant tried twice to contact the Commercial Director by telephone to tell him the reason for his absence, but the calls were not answered.  

(g)    The Applicant admitted that he returned home after taking his younger son for his medical check, at 3.30 pm; he lived within 25 minutes (walk) of his place of work, but he did not go back there to lock up or to explain the events of the day;  

(h)     Shortly after the Applicant had left his place of employment, the Commercial Director was informed of the fact; he checked to see whether the Applicant had returned by 4.15 pm to lock up the works and found that he had not;”

4	The Commercial Director then spoke to one of the other Directors of the company, and the following day, 1 September, the Commercial Director interviewed the Applicant and suspended him on full pay until 7 September.  According to paragraph 4(j) of the Tribunal’s decision, the Applicant asked the reasons for the suspension and was told that:
“at that stage there were none”
On 1 September the Applicant then sent a letter to the company which, according to paragraph 4(l) of the Tribunal’s decision related that:
“(l) …….. on the morning of 31 August, his eldest son had fallen from a climbing frame.  The Applicant’s wife phoned him at the workplace to tell him the boy might have broken his ankle; the Applicant had left work immediately to look after his younger boy to take him to a medical appointment - he had told a colleague to tell the Commercial Director that he had “had to go out and would not, possibly, be back;” he claimed to have telephoned the company at 1.30 pm and 2.00 pm without getting a reply and had decided to explain the situation the following morning, and went on to describe his interview with the Commercial Director and his suspension from the 1 September”

5	There was then on 7 September a formal disciplinary interview conducted by the Director of the Respondent Company. The Tribunal says at paragraph 4(m):
“(m) …..it is not entirely clear whether he”,
that is the Applicant,
“had been told that it was a disciplinary interview but it is significant that he took a witness into the interview with him; at the interview (variously called “disciplinary hearing” and “investigation”) the presiding director indicated the seriousness of the Applicant’s actions in not informing the management that he was leaving the premises on the 31 August, and noted that he had just left by the rear door without asking for assistance to get home quickly and without calling at the Commercial Director’s office, the Applicant’s response was to apologise and to explain that he had been distressed by the news of his son’s accident;”

6	The Tribunal found at paragraph 4(n) as follows:-

“(n)     After the interview, the three directors of the company discussed the matter and concluded that the Applicant had behaved irresponsibly, that this was not the first occasion that he had taken time off with minimal notice, that he had only expected that management would be told that he had gone if they specifically asked, that he may not have had a mobile phone on the 31st, that his explanations were unconvincing and were not accepted, that he had absented himself from a position of total responsibility for the shop floor, that this was gross misconduct and that he was to be summarily dismissed;”

The Applicant subsequently abandoned a possible appeal and shortly afterwards presented an application to the Tribunal.  

7	The Tribunal first of all directed itself in law, the state of the law at the time being represented notably by the case of Haddon v Van Den Berg Foods Limited [1999] IRLR at page 672 which we will mention again in a moment.  At paragraph 8, giving its reasons, the Tribunal said as follows:
“8     The nub of this case can be shortly stated: a long term employee in a position of responsibility and trust, absented himself from work at a time when his supervisory duties were most needed, for reasons which his employers were not prepared to accept.  There was no suggestion that the Respondent company actually suffered any material detriment as a result of the Applicant’s absence, but they did lose their trust and confidence in the Applicant.”

8	After discussing, in paragraph 9, the question of what was the principal reason for the dismissal, the Tribunal went on in paragraph 10 - 15 as follows:

“10     Having found that the reason for dismissal was one relating to the Applicant’s conduct, the Tribunal examined what that conduct had been and how it had been regarded by the respondent company.  First, it was clear to us that the Applicant’s duties were particularly important at a time when most senior management of a small firm were on holiday; we also believed that he realised that and, by the number of times he professed to have tried to contact the works during the day, he was aware that he had left his post in contravention of the company’s practice.

11   The Tribunal considered that the company was entitled to expect a high degree of responsibility in the conduct of one of its managers, particularly bearing in mind that he was (on 31 August) solely in charge of 14 employees on the shop floor.  Whilst the company had for nearly three years been aware of the possibility that the Applicant might require time off occasionally to take his younger son to attend medical appointments, and appeared to adopt a sympathetic attitude to this, they did expect to be given reasonable notice of absence; the Tribunal thought this was fair enough.

12     As far as procedures adopted by the company in dealing with the Applicant’s absence were concerned, the Tribunal found them to be reasonable, though capable of improvement.  Quite why the Applicant should not have been told the reason for his suspension from 1 to 7 September is difficult to understand, but this did not, in our view, invalidate the procedure.  In any event, whether specifically told that his interview on 7 September was to be a formal disciplinary one or not (and in reply to cross-examination the Applicant said he had realised he was to attend “some sort of disciplinary meeting”) he had by then written to the directors with his explanation of the events of 31 August and appeared to be ready, with a witness, to attend the interview without reservation or objection.   

13     It seemed to the tribunal that both before and at the disciplinary interview, the applicant had omitted to take steps that could have strengthened his case.  First, he could have returned to work on 31 August (he was back home at 3.30 pm according to his own account) to explain his absence personally to the Commercial Director; and he could at the hearing have produced his mobile phone and offered corroborating evidence of the medical appointment which his son had to attend on the 31st.  His employees also found his conduct in leaving the premises on 31 August, in failing to find the Commercial Director before he left, and in apparently being unable to make alternative arrangements within the family that would have enabled him to return to work, to be unsatisfactory elements which damaged the credibility of his explanation. 

14     The company did not accept the Applicant’s explanation as to the reason for his absence; further, after taking into account his long service, work record and previous conduct they found his misconduct on 31 August, in its particular circumstances, to be gross misconduct warranting dismissal.  Indeed once they had found it to be gross misconduct (and the tribunal believed they were able to, despite the offence not being of the type listed as examples in the Respondent’s Disciplinary and Dismissal procedure) their company rules, unlike most, offered no sanction but dismissal. 

15     The employer’s judgment in this instance may appear to have been hard, but the Tribunal did not regard it as unreasonable, having regard to the attendant circumstances and considering the matter in accordance with equity and the substantial merits of the case.  In short, we found that the dismissal of the Applicant by the Respondent company was not unfair”.

9	In considering whether the Tribunal had made an error of law in arriving at the conclusion to which we have just referred, the starting point is section 98 of the Act and the statutory definition of the matters to be determined.  Under section 98 paragraph 4, where the employer has fulfilled the requirements of subsection (i) that is, in this case, to have demonstrated the principal reason for the dismissal, the determination of the question whether dismissal is fair or unfair, having regard to the reason shown by the employer:
a) depends on whether in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, 
and
b) shall be determined in accordance with equity and the substantial merits of the case.

10	At the time the Tribunal’s decision was reached, the interpretation of that section was governed by the decision which we referred to earlier in the case of Haddon -v- Van Den Berg Foods Limited.  However in a more recent judgment in the Court of Appeal, Foley -v- The Post Office reported in The Times, 17 August 2000, the case of Haddon has been overruled, and the Court of Appeal has said that, for the purposes of section 98, the test to be applied is that laid down in Iceland Frozen Foods Ltd -v- Jones [1983] ICR 17, namely to consider whether the dismissal was within the band or range of reasonable responses that a reasonable employer would adopt.  

11	Where dismissal is based on the belief of an employee’s misconduct, the approach to be adopted is that set out in British Homes Stores -v- Burchell [1980] ICR 303, namely to determine whether an employer had reasonable grounds to sustain a belief of misconduct and whether that employer had carried out as much investigation as was reasonable in the circumstances.  
12	The arguments put before us to establish that there is a reasonably arguable point of law in this case can be summarised in outline as follows.  First of all, it is said that the Tribunal erred in law in holding that the conduct for which the Appellant was dismissed was capable of amounting to gross misconduct.  Among the points made in support of this argument are the fact that it is not stated in the relevant disciplinary manual that this is conduct that is capable of amounting to gross misconduct.  It is then said that the decision is perverse, having regard to the length of unblemished service that this Applicant had, and in relation to the circumstances in which he left work on that day.  In particular, attention is drawn to the finding in paragraph 11 of the decision that the company knew that from time to time the Applicant might require time off occasionally to take his younger son to attend medical appointments, and also the fact that, according to the Tribunal’s findings, the Applicant had made attempts to contact the Managing Director.  The argument is also advanced that the question of gross misconduct should be judged in the light of certain suggested weaknesses in the disciplinary procedures that were in use here.

13	We are not able to accept this argument.  The Tribunal finds at paragraph 14 that the employers were entitled to regard this conduct as gross misconduct and it is for the Appellant to satisfy us that that is a conclusion which no reasonable Tribunal could have come to, on the evidence that it heard, and in the circumstances of the case.  

14	In this particular instance, as is apparent in particular from paragraph 8 of the Tribunal’s decision, the Applicant was a long term employee in a position of responsibility and trust, and he did absent himself from work, at a time when his supervisory duties were most needed, and that his employers were unable to accept the reasons that he gave.  It is also right that it emerges from the decision that it is not just a question of whether he absented himself from work in the morning of the day in question, but also that fact that he did not return to work, despite the consideration that he apparently had the responsibility to lock up and he did not return to do so.  The fact that the explanations that he gave were not accepted by the employers, is also in our judgment, a factor that the employer was entitled to take into account, in finding that there was gross misconduct, and one that the Tribunal itself was entitled to consider part of the circumstances, in which the Tribunal believed that the employers were able to come to the conclusion that the conduct in question was gross misconduct.  

15	We are unable to attach importance to the fact that this particular conduct was not mentioned in the Respondent Company’s disciplinary or dismissal procedures; such documents are not able to mention exhaustively all the conduct that could conceivably amount to gross misconduct, and it is, in our view, quite understandable that this particular set of circumstances was not dealt with clearly in the company’s manual of procedure.  

16	As regards the question of disciplinary procedures, we would regard that as a separate issue that does not affect the question of gross misconduct.  Conduct does not cease to be gross misconduct because a subsequent procedure may not be entirely satisfactory.  However, in this case, we would further observe that the Tribunal makes a specific finding of fact at paragraph 12 of the decision that the company’s procedures were reasonable.  Despite various criticisms that can be made of that, the Tribunal is clearly of the view that the Applicant had had the benefit of a reasonable procedure.  We therefore are unable, in this context, to attach importance to the various criticisms that have been made of the reasonableness of the procedures.  Taking the decision therefore has a whole, we cannot find that the Tribunal erred to the necessary level of perversity in finding that the employers were entitled to treat this conduct as gross misconduct.  

17	The next part of the argument is that the Tribunal misdirected themselves in holding that, once such conduct had been characterised as gross misconduct, the employers were entitled to dismiss the Applicant summarily rather than imposing some lesser sanction; in particular, attention is drawn to the last sentence of paragraph 14 of the Tribunal’s decision where they said that once gross misconduct had been found, the company rules, unlike most, offered no sanction but dismissal;  it is said that that was not a relevant consideration to take into account.  

18	Taken alone, we ourselves would tend to question whether the last sentence of paragraph 14 of the Tribunal’s decision was an entirely relevant observation in this particular case, but we are quite unable to take that sentence alone, we have to look at the totality of the decision.  In particular it is apparent from paragraph 15 of the Tribunal’s decision that they were of the view that although this particular decision:-
“15 .…. may have been hard, the Tribunal did not regard it as unreasonable, having regard to the attendant circumstances and considering the matter in accordance with equity and the substantial merits of the case.  In short, they found that the dismissal of the Applicant by the Respondent company was not unfair.”

It is apparent from the wording of that paragraph, in particular, that the Tribunal had well in mind the statutory test that they were obliged to follow in section 98(4) of the Act.  We cannot therefore attach sufficient importance to the last sentence of paragraph 14 to warrant a finding of an error of law on behalf of the Tribunal.  

19	The last substantial argument put to us is that the decision of the Tribunal that the dismissal was not unfair is, at the end of the day, a perverse one.  The matters that are relied on, in particular, are the length of service of the Applicant, his blameless record, some doubt as to the disciplinary procedures, and the question of whether he should not have been subjected to a sanction lesser than that of dismissal.  We have already dealt with the question of disciplinary procedures, and in our view, it is not possible to identify sufficient grounds for criticising the procedures in circumstances where the Tribunal expressly found those procedures to be reasonable.  

20	As regards the other matters that are relied on, of course the Tribunal, at the time, was applying the Haddon test as whether this was conduct of a reasonable employer; the Tribunal found that it was conduct of a reasonable employer.  Now, in the light of the case of Foley, one has gone back to the old test in Iceland as to whether this dismissal was within the band or range of reasonable responses, which a reasonable employer would adopt.  We feel that for the purposes of this appeal, we should follow the test set out in Foley and ask ourselves whether there is any material, in this decision, from which we can say that the Tribunal was wrong in finding, by implication, that the dismissal was within the band or range of reasonable responses a reasonable employer would adopt.  

21	Despite everything that has been ably said on the Appellant’s behalf, we are quite unable to identify any factor that would enable us to say that this employer’s response was outside the range of reasonable responses that a reasonable employer would adopt, and we have not been able to identify any element in the Tribunal’s decision sufficient to establish, at least arguably, that their decision on this point was perverse.  It follows from what we have said that this appeal must be dismissed.