Appeal No. EAT/0406/01

EMPLOYMENT APPEAL TRIBUNAL
COURT NO 76, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 19 September 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MISS D WHITTINGHAM

MR W WINNARD	APPELLANT

DANIEL THWAITES PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED	

JUDGE PETER CLARK

1.	This is an Appeal by Mr Winnard, the Applicant before the Manchester Employment Tribunal (chaired by Mr D A Leahy) sitting on 16-17 January 2001, against that Employment Tribunal’s decision, promulgated with Extended Reasons on 5 February 2001, dismissing his complaint of unfair dismissal brought against his former employer the Respondent Daniel Thwaites Plc.

2.	This is a Preliminary Hearing, held to determine whether or not the appeal raises any arguable point(s) of law.  The Appellant has notified the Employment Appeal Tribunal, by letter dated 30 August, that he is unable to attend the hearing due to work commitments.  We fully understand.  In these circumstances we have considered the matters on the papers, taking into account particularly the grounds of appeal contained in the Appellant’s Notice dated 6 March 2001 and the further written representations in his letter of 30 August.

3.	The background, as found by the Employment Tribunal, is that the Appellant commenced employment with the Respondent on 1 August 1988.  At all relevant times his immediate line manager was Mr Michael Lockwood.

4.	The Appellant was summarily dismissed on 30 March 2000 on the ground that he had, over a period of time, submitted fraudulent expenses claims.  It was the Appellant’s case both at the initial disciplinary hearing and on appeal internally that he had merely followed the system laid down by his manager, Mr Lockwood.  Mr Lockwood was also summarily dismissed, for fraudulent conduct relating to his expenses, on 27 March 2000.

5.	Both men presented complaints of unfair dismissal to the Employment Tribunal.  On 4 July 2000 the Employment Tribunal proposed that the 2 cases be combined.  Mr Winnard objected to joinder by letter dated 6 July and on 20 July a Chairman directed that the 2 cases be heard separately.

6.	On 16 October 2000 a directions hearing was held before a Chairman, Mr J R Beaumont, who, having heard submissions from all parties, revoked the earlier order of 20 July and directed that the cases be combined.

7.	Thus both Applicants came before Mr Leahy’s tribunal on 16 January 2001.

8.	It seems, from a letter from that Chairman to the Registrar dated 18 May 2001, that on the second day of hearing, Mr Lockwood and his representative were warned by the Chairman that his case was arguably a borderline frivolous case.  In the event Mr Lockwood withdrew his claim, leaving Mr Winnard to continue with his case alone.

9.	By their decision the Employment Tribunal concluded that the Appellant’s dismissal was fair.  He had been dismissed by reason of his conduct; the Respondent acted reasonably in dismissing him for that reason.  They were, in the Employment Tribunal’s view entitled to conclude following a proper investigation, that the Appellant was a party to a fraudulent scheme.

10.	In this Appeal Mr Winnard takes the following points.  First, that in pressuring Mr Lockwood to withdraw his complaint, the Chairman had undermined this Appellant’s case; leaving him no alternative but to refrain from calling Mr Lockwood to give evidence on his behalf because his credibility was destroyed by the Chairman’s indication.  It is also submitted that the Respondent failed to carry out a reasonable investigation by not contacting Mr Lockwood in connection with the Appellant’s disciplinary hearing and appeal.

11.	We can find no force in those submissions.  It was a matter for the Appellant to decide whether or not to call Mr Lockwood to give evidence.  He was not prevented from doing so.  It may well be that he concluded that Mr Lockwood’s evidence would not assist his case.  If so, he was probably correct in so concluding.

12.	As to the Respondent’s investigation, they plainly interviewed Mr Lockwood.  He had been dismissed before the Appellant’s disciplinary hearing took place.  It was difficult to see what more they could be expected to do in the context of the Appellant’s position.

13.	Secondly, it is contended that the Employment Tribunal applied the wrong test in determining the Appellant’s claim of unfair dismissal.  We disagree.  It seems to us that the Tribunal properly directed themselves as to the law and reached a conclusion, particularly that the Respondent had carried out a reasonable investigation, which was properly open to it.

14.	In these circumstances we have reached the firm view that this appeal raises no arguable point of law.  Accordingly it must be dismissed.