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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dent v. Budgens Stores Ltd [2001] UKEAT 1137_00_1603 (16 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1137_00_1603.html Cite as: [2001] UKEAT 1137__1603, [2001] UKEAT 1137_00_1603

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APPEARANCES

 

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED


 


MR RECORDER LANGSTAFF QC

1. This matter comes before us by way of a Preliminary Hearing in an Appeal by the employee against a decision of the Employment Tribunal sitting at Bradford which was promulgated on 9 August 2000. The employee had claimed both unfair dismissal and breach of contract.
2. At the conclusion of the hearing the Extended Reasons of the Employment Tribunal show that they dismissed both his claims for unfair dismissal and for breach of contract. By consent, the Respondent employer was to pay the Applicant the sum of £120 in respect of outstanding wages and the Appellant's claim for the production of an itemised pay slip was withdrawn.
3. The outstanding appeal therefore is in respect of the unfair dismissal and breach of contract claims. In the Extended Reasons at paragraph 19 the Employment Tribunal set out the essence of the case. They say:

"The Applicant claims that the principal reason for his dismissal was that he had asserted or at least attempted to assert a series of statutory rights prior to his dismissal. We have no doubt at all that many of the complaints raised by the Applicant did constitute at least an intent to assert a statutory right. It is not for us to comment at all on the validity of his complaints but complaints they were. (I pause there to note that the Appellant has complained that in those three sentences the Employment Tribunal had disparaged his complaints of a breach of his statutory rights. That is not the way in which the wording appears to us) They related to various statutory rights such as his working hours and rates of pay. If the Respondents simply used the opportunity on 21^st December 1999 to dismiss the Applicant as a result of raising those grievances he would succeed in his claim that the principal reason for his dismissal was his attempts to assert his statutory rights. This is strongly denied by the Respondents. In particular it is denied by the two people who made the decisions namely Miss Ryan and Mr Calder. They state that the reason and sole reason for the Applicant's dismissal was his failure to follow procedures relating to two periods of absenteeism."

4. The Tribunal then continue and make their finding upon those claims at paragraph 20 and they say this:

"In reaching our decision we have carefully considered all of the evidence and the documents referred to us. We have found the evidence of Miss Ryan and Mr Calder to be persuasive. They were, to us, truthful witnesses. We place emphasis on their very strong personal denials that there was any other reason for the Applicant's dismissal other than his failure to follow procedures. The burden of proof is upon the Applicant to show to us that the principal reason for his dismissal was in fact his assertion to pursue his statutory rights. We are not satisfied on the balance of probabilities that the Applicant has overcome that burden of proof."

5. Accordingly, the decision of the Employment Tribunal on the principal issue of fact which had been joined, which was what was the reason for the dismissal of the employee by the employer, was that he had been dismissed not for asserting his statutory rights but, they thought, for misconduct.
6. Mr Dent did not appear but sent us a detailed skeleton argument in addition to the Notice of Appeal. In his skeleton argument to us a number of points are taken. In particular he asserts that the decision of the Tribunal was perverse and the manner in which the Chairman conducted himself was entirely inappropriate involving both bias and insulting comments. He makes a number of detailed complaints of fact and in particular what seems to have concerned him was that the way in which he had been treated by his employer was he thought unreasonable. He asserted for instance to the effect that he could not have been dismissed for misconduct because amongst other things the procedures which ought to have operated within the Respondent had not operated. He suggested it was foolish for the Employment Tribunal to believe and consider that the witnesses were truthful. He pointed out that the misconduct identified, which was persistent and deliberate disregard of company rules of procedure, was not in the circumstances capable of amounting to gross misconduct.
7. We have considered the case in two stages. First, even if one were to assume for the moment that the Tribunal had not proceeded in accordance with the way in which Mr Dent wished them to and which they should have done [may I say that we did not accept that is the case] the difficulty in which the employee would have been is that he had been employed for less than a year. The issues that he raises are issues essentially of fairness.
8. Because he did not have the qualifying period to claim unfair dismissal (and that was of course the basis for the Employment Tribunal considering whether or not he had been dismissed for asserting a breach of statutory right) he could not claim unlawful dismissal.
9. At common law his breach of contract is faced the problem that unless he could show a contractual right to be treated reasonably in the respect about which he complains he could have no complaint which would succeed. The common law may be harsh but it is well recognised that an employer may dismiss for any reason or none, whether the reason is good or bad, providing that appropriate notice is given.
10. There is no evidence from the findings of the Employment Tribunal that this employer was in breach of contract in so doing. Accordingly, whatever the faults there may have been of the procedures before the Employment Tribunal the decision could not have been any different from that which it was.
11. The second matter which we have to consider is the conduct of the Employment Tribunal. It suffices to say that the matters in respect of which the Appellant complains have been the subject of a letter in response from the Chairman. We do not think that in the end having considered everything which the Appellant has written to us, the documents before us and the response of the Chairman, that the Appellant would succeed before a full tribunal in making out any successful case of bias so as to affect the conclusion of the Tribunal. For these reasons we do not think that there is here any arguable ground of appeal and it follows that this Appeal must be dismissed.