Appeal No.	 EAT/756/00

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 28 September 2001

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR K M YOUNG CBE

MR N D SUTTON	APPELLANT

HMG HOLDINGS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	Ms M P Kirk
Representative

JUDGE PETER CLARK

1	This is an appeal by Mr Neil Sutton, the Applicant before the Stratford Employment Tribunal principally against the decision of a full Employment Tribunal chaired by Mr S M Duncan sitting on 7 April 2000, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent, HMG Holdings Ltd.  That decision was promulgated with Extended Reasons on 11 May 2000.  There is no appeal against that Chairman’s subsequent review decision, dated 30 May dismissing the Appellant’s review application.

The facts
2	The Appellant commenced employment with the Respondent, then Henlys Limited, now HMG Holdings Ltd, on 24 October 1994 as a mechanic at their Romford premises.  

3	On Friday 8 October 1999 a customer, Ms Stevens, was driving her Suzuki motor car when the left rear wheel and brake drum fell off causing the car to crash and Ms Stevens to suffer injury.  The vehicle had been maintained by the Respondent and had been last serviced by the Appellant.  

4	That same day the vehicle was transported to the Romford garage, where it was inspected by Mr Pembroke, the After Sales Manager and Mr Underhill, the Workshop Manager.  Having examined the vehicle they concluded that the hub nuts on the relevant wheel had not been properly tightened when the car was last serviced.  Mr Pembroke is a qualified metallurgist and Mr Underhill a qualified senior technician.

5	The Appellant was identified as the mechanic responsible for carrying out the last service from records, a fact which he admitted.  He further admitted that he had used an air gun to tighten the wheel nuts instead of a torque wrench which, the Tribunal found, the Appellant was aware was the tool specified for that task.  The reason for that specification was that torque wrenches were regularly calibrated so that the mechanic could make sure that the nuts were tightened to the correct level.  The same is not true of an air gun.  

6	Mr Pembroke asked the Appellant how he thought the accident occurred, but he was unable to offer an explanation.  He did not feel that he was to blame.  

7	Thereafter the Appellant was suspended on full pay by Mr Pembroke pending further investigations.  

8	On Monday 11 October Messrs Pembroke and Underhill carried out a further examination of the stripped components and concluded that the sole cause of the accident was the failure sufficiently to tighten the hub nuts at the last service carried out by the Appellant.  

9	As a result, by letter delivered to the Appellant at 10.15 am that morning, Mr Pembroke required him to attend a disciplinary hearing at 4 pm on the same day.  He was informed of his right to representation by a work colleague or union official.  The Appellant made no complaint as to the short notice of hearing. 

10	At 4 pm he attended before Mr Pembroke, accompanied by his father.  Since the latter was neither an employee or a union official another employee, Mr Russell, was also called in.  Mr Sutton senior tape recorded the meeting with the consent of the Respondent.  

11	The Appellant adhered to his earlier admissions, but denied responsibility for the accident.  Mr Sutton senior suggested that Ms Stevens might have tampered with the wheel in order to make a personal injury claim; Mr Pembroke rejected that idea.  It was also pointed out that the vehicle had covered 3000 miles since the last service eight weeks earlier.  

12	During the hearing Mr Pembroke offered the Suttons the opportunity to have the parts examined by an independent engineer, e.g. from the AA or RAC, but that was not taken up.  At the close of the meeting Mr Pembroke indicated that he would consider the matter and reach a decision.  

13	The decision was communicated to the Appellant by letter from Mr Pembroke, hand delivered the following day.  It was that the Appellant had been “grossly negligent” in carrying out his duties.  He was summarily dismissed.  

14	The Appellant was advised of his right of internal appeal.  No appeal took place but, as the Tribunal record at paragraph 10 of their Reasons, nothing turned on that.  

The Tribunal Decision

15	Based on the facts as found the Tribunal concluded:
(1) the reason for dismissal related to the Appellant’s conduct, a potentially fair reason for dismissal, Employment Rights Act 1996 Section 98(2)(b).  In so finding, at paragraph 15 of their Reasons, the Tribunal drew particular attention to the Appellant’s admission that he had used an air gun to tighten the nuts, as opposed to the torque wrench, which was the correct practice in the workshop.

(2) As to fairness under Section 98(4) of the Act, the Tribunal applied the test laid down in British Home Stores v Burchell [1980] ICR 303 and found:
(a) the Respondent’s belief as to the misconduct alleged was genuine;
(b) they carried out a reasonable investigation;
(c) there were reasonable grounds for that belief;
(d) there was no procedural unfairness, despite the shortness of the notice of disciplinary proceedings and the absence of an independent report on the cause of the wheel coming off Ms Stevens’ car;
(e) the penalty of dismissal fell within the range of reasonable responses open to the employer, given that an incorrect procedure by a mechanic could lead to a fatal accident.  

The Originating Application
16	By his Originating Application, presented to the Tribunal on 5 January 2000, the Appellant complained of:

(1)  Unfair dismissal.
(2)  Breach of Health and Safety Regulations.
(3)  Imposition of a fine as a disciplinary measure, that is unlawful deduction from wages.  

17	At the substantive hearing held on 7 April 2000 the Appellant’s representative, Ms Kirk, accepted that the Tribunal had no jurisdiction to deal with a complaint under the Health and Safety Regulations and further that the unlawful deductions claim was out of time and, it having been reasonably practicable to present it within time, she withdrew it.  Accordingly the sole complaint before the Duncan Tribunal was that of unfair dismissal.  

Interlocutory proceedings
18	On 5 February 2000 an unidentified chairman, not Mr Duncan, gave certain directions for the conduct of the case, which was to be listed for one day.  In due course the hearing was listed for 7 April 2000.  

19	On 5 April 2000 the Respondent’s solicitors applied for a postponement of the substantive hearing, on the basis that the Appellant had not provided a copy of the tape recording of the disciplinary hearing held on 11 October 1999, nor a transcript thereof, as requested by the Respondent’s solicitors in letters to Ms Kirk dated 30 and 31 March.  

20	Asked for her comments on that application Ms Kirk vigorously opposed an adjournment, by fax to the Tribunal the same day.  As to the transcript and tape recording she said this:
“Whilst the recording of the meeting held on 11 October 1999 was authorised by the Respondent, no authorisation for a copy to be taken of that meeting was given.  Accordingly, I would have been acting in an unauthorised manner should I have forwarded a copy of the tape recording of that meeting.”

Having considered both sides’ representation a chairman, we are told by Ms Kirk,  Mr Howard, refused to grant the postponement and the hearing went ahead.  

The appeal
21	We remind ourselves that our jurisdiction on appeal is limited to correcting errors of law by the Employment Tribunal.  Accordingly our task at this preliminary hearing is to consider whether the grounds advanced by Ms Kirk in support of the appeal, both orally and in writing, disclose any arguable point or points of law which ought to proceed to a full hearing with the Respondent present.  The points taken appear to be these:

(1)  the Chairman, believed to be Mr Howard, ought not to have entertained the Respondent’s postponement application made on 5 April, but ought to have dismissed it as being an abuse of process.  We cannot accept that submission.  Late adjournment applications are frequently made; the practice is to contact the other side for comments and for the Chairman then to make a ruling.  That is what happened here.  In fact, the Chairman upheld the Appellant’s position and refused the application.

(2) The Appellant was threatened with a costs Order. In refusing the postponement application made by the Respondent the Chairman pointed out the Appellant’s duty to disclose all material documents, including the transcript of the disciplinary hearing and the tape recording; he also acknowledged the fact that either party could renew the application for an adjournment at the hearing on 7 April.  However if a postponement was then ordered, the parties were then further reminded of the Tribunal’s powers to award costs.  

We do not regard that as a threat but as a statement of the realities.  If the proceedings were adjourned because the Appellant had not disclosed a copy of the tape, for reasons which were unsustainable, then he might be at risk of a costs Order; if the Respondent applied for a postponement through no fault of the Appellant, they would be at risk. In the event, the case proceeded.  Insofar as the Appellant was not permitted to adduce the tape recording or transcript in evidence the fault, it seems to us, lay with Ms Kirk’s refusal to provide a copy of the tape on the grounds:
(a) that the Respondent, who had, through their solicitors, asked for a copy, had not authorised a copy to be made, and
(b) she could not physically arrange for a copy to be made. 

In our view no question of authorisation arose in these circumstances and copying tape recordings can be easily and cheaply achieved.   

(3) She complains that the Respondent failed to inform her until too late, that is for her to apply for a witness order, that it would not be calling Mr Russell, the employee who had attended the disciplinary.  We cannot see that this is a proper ground of complaint on appeal.  It is for the parties to arrange the attendance of witnesses they wish to call.  Ms Kirk tells us she did not want to call Mr Russell, but to cross examine him.  As that could only happen if he was called by the Respondent, and they chose not to call him, the opportunity did not then arise.  

(4)  She sought to rely upon the provisions of Section 10, 12, 13(5) of the Employment Relations Act 1999, the right of employees to be accompanied at disciplinary or grievance hearings.  We pointed out that those provisions did not come into force until 4  September 2000, see (SI 2000/2242).  In these circumstances those provisions did not assist the Appellant, who was disciplined in October 1999.  

(5)  She also sought to rely on Section 93(1)(b) of the Employment Rights Act 1996, where there is a complaint of a breach of Section 92 of the Act, that is the duty of employers to give written reasons for dismissal, when asked to do so.  No such complaint was raised in this case, and in our view, that provision is of no materiality to this appeal.

(6)  As to the substantive decision by Mr Duncan’s Tribunal, she submits that that Tribunal  ought to have found that the reason for dismissal was some other substantial reason and not conduct.  We disagree.  The Tribunal had in mind specifically, at paragraph 15 of their Reasons, the Appellant’s failure to follow the Respondent’s practice, known to him that to use a torque wrench as opposed to an air gun for this particular task, that in our judgment takes the case across the line between capability and conduct, in either case, some other substantial reason does not, in our view, arise.  

(7)  She submits the Burchell test was not applied by the Tribunal because the reason shown was an allegation of gross negligence not the fact of such negligence.  In our view the test was correctly applied by the Tribunal.  They asked themselves whether the Respondent had reasonable grounds, following a reasonable investigation for their genuine belief that the Appellant had failed to properly tighten Ms Stevens’ wheel nuts, using the wrong tool, and thereby causing a potentially fatal accident.  They answered that question in the affirmative, and in these circumstances it seems to us that their approach was entirely correct as a matter of law.  

22	It follows that having considered the various ways in which this appeal is put on behalf of the Appellant, we are not persuaded that any arguable point of law is here raised, and accordingly the appeal must be dismissed at this stage.