Appeal No.	 EAT/995/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 January 2001

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MR J C SHRIGLEY

MR L HORVATH	APPELLANT

BUTTERLEY ENGINEERING LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	SALLY ROBERTSON
(Of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

JUDGE PETER CLARK

1.	This is an appeal against a decision of the Nottingham Employment Tribunal, promulgated with extended reasons on 27 June 2000 following a 2 day hearing by which, whilst upholding his complaint of unfair dismissal against his former employer, the Respondent, Butterley Engineering Ltd, the Employment Tribunal went on to award the Applicant no remedy.  It is against that latter conclusion that this appeal is brought.

2.	The facts are set out in some detail in the Employment Tribunal’s reasons.  We shall not repeat them.  It is sufficient for our purposes to summarize the relevant findings of the Employment Tribunal in this way:

(1)	the Applicant, Mr Horvath was employed by the Respondent in a managerial position between January 1994 and his dismissal on 11 May 1999.

(2)	whilst off sick during April 1999 he was found to have taken an unauthorized holiday in Portugal and was seen walking about the town when he was supposed to be unfit for work due to an injured foot.

(3)	he was seen on 10 May 1999 by managers and dismissed in circumstances which amounted, the Tribunal found, to procedural unfairness.  The dismissal was unfair.

(4)	subsequent to the dismissal the Respondent discovered that he had misled them as to his qualifications at the time when he first obtained the employment.

3.	In these circumstances the Employment Tribunal concluded:

(a)	that by taking sick leave when he was fit for work and taking an unauthorised holiday he had contributed to his dismissal such that he should not receive any compensation for his unfair dismissal and 

(b)	by materially misleading the Respondent as to his qualifications which in fact he did not possess the Respondent would have been entitled to dismiss him summarily had they learned of his deception before the actual dismissal.

4.	Accordingly he was not entitled to any compensation.

The Law

5.	By s122(2) of the Employment Rights Act 1996 an Employment Tribunal may reduce or extinguish the basic award for unfair dismissal to such extent as would be just and equitable in the light of the Complainant’s pre-dismissal conduct, even where the knowledge of the conduct is acquired after the dismissal.  of Devis v Atkins (1977) ICR 662.

6.	By s123(1) of the Act, the amount of any compensatory award for unfair dismissal shall be such amount as the Employment Tribunal considers just and equitable having regard to the loss sustained by the Complainant.  Further, by s123(6) the Employment Tribunal shall reduce the amount of the compensatory award by such proportion as it considers just and equitable where it finds that the dismissal was caused or contributed to by any action of the Complainant.

The Appeal

7.	Ms Robertson has appeared on behalf of Mr Horvath under the ELAAS Pro Bono Scheme but makes no submissions in addition to those which are contained in Mr Horvath’s skeleton argument.  He takes essentially 3 points:

(1)	that the Respondent and in turn the Employment Tribunal failed to consider his ability to return to work following the reported injury to his leg in March 1999.  We are not impressed by that submission.  It seems that the Respondent’s investigations showed that the Appellant was not as incapacitated as he claimed.  That view was accepted as a matter of fact by the Employment Tribunal (see their reasons paragraph 26).

(2)	that although he provided incorrect information as to his qualifications when joining the Respondent, that would not necessarily have resulted in his dismissal, had the Respondent discovered the truth earlier, or if it would have done, there would have been a period of investigation and disciplinary proceedings which is not reflected in the Employment Tribunal’s decision to make no award of compensation in this case.

We are even less impressed by that contention.  The Employment Tribunal was perfectly entitled to find that the Appellant should not profit from a double deception, first the misleading information which he gave in his job application before starting employment and secondly by maintaining the deception until after his employment had been terminated for other reasons.

(3)	the Employment Tribunal has failed to give a clear explanation for its decision at paragraphs 32 and 33 of their reasons.  We disagree.  It is clear to us that the Tribunal declined to award any compensation in accordance with the statutory provisions as we have set them out, for 2 reasons, singly or cumulatively:

	(a)	his absence from work when he was not as incapacitated as he made out and

(b)	his deception in obtaining what he describes in his Originating Application as a Senior Manager’s position by misstating his qualifications and maintaining that pretence throughout his employment.

8.	In these circumstances we can see no grounds in law for interfering with Employment Tribunal’s decision.  Accordingly this Appeal must be dismissed.