Appeal No.	 EAT/689/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 2000

Before
SIR CHRISTOPHER BELLAMY QC
MR A E R MANNERS
MR S M SPRINGER MBE

RETIREMENT CARE GROUP LTD	APPELLANT

MRS DIANE GREENER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR IAN KAY
(Representative)
Balmoral Consultants
11 Balmoral Court
Wembley Park Drive
Wembley
HA98JQ	
For the Respondent		

SIR CHRISTOPHER BELLAMY QC

1	This is an appeal of the decision of the Employment Tribunal sitting at Ashford, Kent on 28 March 2000, the extended reasons for the Tribunal’s decision being sent to the parties on 27 April 2000.  In that decision the Tribunal held that the Applicant had been unfairly dismissed, and that it was just and equitable to reduce the basic and compensatory awards by 50%.  

2	There then followed a second procedure in front of the Employment Tribunal, to determine the quantum of the compensation and that led to a decision of the Tribunal which heard the case on 5 May 2000.  

3	A second decision was sent to the parties on 19 May 2000, and in that decision the Tribunal adhered to its view that it was just and equitable to reduce the basic and compensatory awards by 50%, and awarded the Applicant a total compensation of £7,928.75.  

4	The general background to the case as it appears from the Tribunal’s decisions  was that 
there had been apparently:

“4….. some complaints from about 1996 onwards that the Applicant had been drunk or under the influence of alcohol, while on duty or on call.”

at the home for elderly residents in Sidcup, Kent, of which the Applicant was the resident manager.  

5	The Respondent sent the Applicant three written warnings as stated in paragraph 5 of the reasons, but had not taken any further action as regards those complaints. On 8 October 1999, Mr Devonald, on behalf of the Respondents, arrived at the residential home, and found the Applicant apparently drunk.  He formed the opinion that that was so, and the Tribunal indeed found as a fact that he (Mr Devonald) genuinely believed that the Applicant was drunk.  The Tribunal rejected the Applicant’s evidence that she was not drunk: that is at paragraph 16 of the Tribunal’s first decision where the Tribunal held:

“16… From the evidence that we have heard, it is our view that the Applicant was under the influence of alcohol on 8 October in the course of her employment.  In our view, that is plainly blameworthy conduct and it is also clear that this behaviour caused her dismissal.”

6	The Tribunal nonetheless held that the Applicant’s dismissal, which also occurred on 8 October 1999, was unfair in that Mr Devonald had not conducted a reasonable investigation; that a reasonable employer would not, according to the Tribunal, on those facts have dismissed that Applicant on that occasion, but would have given her a final written warning: and because there was no right of appeal against the decision to dismiss.  Those findings are set out in paragraphs 10 -12 of the Tribunal’s first decision.  The Tribunal then looked at the question of whether it would be just and equitable to reduce the compensatory and basic awards, and came to the conclusion that the awards should be reduced by 50%.  

7	Among a number of arguments, the Appellant’s main arguments on this appeal are that the Tribunal was in error in finding that the dismissal was unfair on the procedural grounds set out in paragraphs 10-12; and, perhaps more importantly, that in all the circumstances the Tribunal should have reduced the basic and compensatory awards to nil or at least no more than a nominal amount since, according to the Appellant, the Applicant before the Tribunal had brought the matter entirely on her own head by reason of her drunkenness.  

8	We consider that these submissions do disclose two arguable points of law: the first point of law is whether the Tribunal erred in law in holding that the dismissal was unfair, by reason of the procedural considerations out in paragraphs 10 - 12  of their decision.  The second point of law is whether the Tribunal erred in law in not reducing the compensatory and basic awards to nil or to some nominal sum, by reason of the Respondent’s own conduct, which led up to her dismissal.  

9	On those two grounds we propose to allow the appeal to go forward to a full hearing.  The case is to be designated as a category C case, the time estimate half a day, skeleton arguments to be exchanged in accordance with the practice directions in the normal way.  

We think it is unnecessary to order production of the Chairman’s Notes in this case and unnecessary to pursue the other arguments that were put forward in the skeleton arguments