Appeal No. UKEAT/0679/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 January 2004

Before
HIS HONOUR JUDGE PROPHET
MS N SUTCLIFFE
MRS C BAELZ

BAE SYSTEMS (OPERATIONS) LIMITED	APPELLANT

MR A J KIRKHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS D ROMNEY
(Of Counsel)
Instructed By:
Messrs McDermott Will & Emery
7 Bishopsgate
London
EC2N 3AR	
For the Respondent	MR IVAN WOOLFENDEN
(Of Counsel)
Instructed By:
Messrs E A D Solicitors
127 Pickton Road
Liverpool
L15 4LG	

HIS HONOUR JUDGE PROPHET

1	Mr Bancroft and Mr Kirkham were both long serving employees.  Both were dismissed by the employer for alleged gross misconduct and submitted complaints of unfair dismissal to the Manchester Employment Tribunal.  Their cases were combined and heard on the merits by an Employment Tribunal sitting at Manchester under the chairmanship of Mr Coles with Mr Riley and Ms Ensell as the lay members on 12-14 May 2003 and subsequently on 2 June 2003.

2	The Tribunal then reached a unanimous decision in favour of the two Applicants i.e. that they were both unfairly dismissed, although with a finding of a contribution of 25% by Mr  Kirkham.  The consequent matters of remedy were adjourned to 30 September 2003.  

3	The employer submitted a Notice of Appeal in respect of both Mr Bancroft and Mr Kirkham dated 13 August 2003.   However a settlement on remedy in respect Mr Bancroft caused the employer to write in to withdraw the appeal in respect of him.  For the record therefore, that appeal is now formally dismissed pursuant to that withdrawal.

4	In the answer to the Notice of Appeal there was indicated on Mr Kirkham’s behalf a cross appeal in respect of the finding of 25% contributory conduct on his part and we also have to deal with that today.  Representing the employer at today’s full hearing is Ms Romney of counsel and, for Mr Kirkham, Mr Woolfenden of Counsel.

5	The facts found by the Employment Tribunal in respect of the alleged misconduct were not seriously in dispute since Mr Kirkham accepted that he had falsified records and not followed laid down procedures.     
6	Although the extended reasons in this case are set out in a way which is easy enough to follow, it is perhaps a little unfortunate that the Employment Tribunal did not follow the modern practice of setting out in an early stage of the reasons the issues which it was required to determine.  If it had done that it would no doubt have stated that the employer had to satisfy them as to the reason for dismissal, which was of course conduct. However more importantly it would have stated that the Employment Tribunal had to apply the wording of section 98(4) of the Employment Rights Act 1996 to that reason.  The later mention of section 95(4) in paragraph 23 of the Employment Tribunal reasons was no doubt a slip.   But even if it had correctly stated section 98(4) it gave perhaps the appearance of being an after thought.

7	Mentioning that issue at an earlier stage would also have been a good opportunity for the Employment Tribunal to have indicated from the outset that it had reminded itself of the importance of not substituting its own views for that of a reasonable employer.   The reference in paragraph 19 of the reasons to “what the Tribunal considered to be an extremely harsh decision by Mr McComasky” gives weight to Ms Romney’s submission to us that the Tribunal fell into the trap of substituting its own views for that of a reasonable employer.  

8	However, the Tribunal does appear to have saved itself at paragraph 22 of the reasons by specifically mentioning there the band of reasonable responses test, even if again that may have appeared as a somewhat late reminder.  It is therefore, we feel reasonable to assume that the Employment Tribunal had the correct test in mind at all relevant times.

9	Ms Romney has also indicated some criticism of the Tribunal’s reasons for not specifically mentioning the tests in the well known Burchell case.  However it has to be remembered that that case can be over rated in importance and is not necessarily crucial in all misconduct cases.  The correct approach for an Employment Tribunal in a normal unfair dismissal case is to apply itself to the statutory wording in section 98.  In this particular case issues such as whether there was reasonable belief in the conduct or any alleged procedural short comings were not to the fore.  Indeed there is no criticism at all from the Employment Tribunal of the employer’s disciplinary procedures and how they were carried through in this particular case.  

10	What is clear from a reading of the reasons is that the Employment Tribunal was weighing carefully in the balance such matters as the seriousness of the misconduct as seen by the employer,  that the employer was entitled to expect to have its internal rules and procedures followed by its employees but also from the point of view of the employees the motive for the misconduct in relation to their understanding as to what was necessary for the effective running of the department, and the previously long record of unblemished service by Mr Kirkham.   Also in the balance was the Employment Tribunal’s factual view as to whether the employer, although withdrawing an earlier allegation of theft, still had that factor in mind when taking the eventual decision to dismiss Mr Kirkham.

11	We can see that Ms Romney has a fair point when she says that the nature of the misconduct in this case seen as a whole might well have led an Employment Tribunal to have found a fair dismissal.   However the Employment Tribunal in this case weighed up properly relevant factors and then reached a decision which in our view they were entitled to reach.  It is of course immaterial whether we would have reached a similar decision. Consequently our unanimous conclusion is that this appeal in respect of Mr Kirkham is dismissed.

12  	So far as the cross appeal is concerned it was for the Employment Tribunal to decide whether Mr Kirkham’s conduct could be classified as culpable and blameworthy. Clearly they were entitled to find that it was, and again that is not a matter that we would wish to interfere with.  From that point it was for the Employment Tribunal to determine whether it was just and equitable to reduce any award by a proportion.  Their assessment of 25% was essentially a matter for them and cannot be said to be inappropriate.  Consequently we also dismiss the cross appeal.