Appeal No. UKEAT/0743/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2005

Before
HIS HONOUR JUDGE PROPHET
MS K BILGAN
MRS J M MATTHIAS

MR G T BARLOW	APPELLANT

EXEL FREIGHT MANAGEMENT (UK) LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant	
For the Respondent	MR R HIGNETT
(of Counsel)
Instructed by:
Exel plc Legal Department
Ocean House
The Ring
Bracknell
Berkshire
RG12 1AN	

SUMMARY

Unfair Dismissal

Straight forward case on challenge to Employment Tribunal judgment that Claimant not unfairly dismissed – appeal dismissed.

HIS HONOUR JUDGE PROPHET

1.	On the 17 June 2004 followed by a hearing in Chambers on the 15 July 2004, an Employment Tribunal sitting at Manchester heard an application by Mr Barlow in respect of a complaint of unfair dismissal and also of unauthorised deduction from wages.

2.	The complaint of unauthorised deduction from wages was dismissed at the hearing on withdrawal by Mr Barlow.

3.	At the Tribunal, Mr Strang, an employment law Consultant, represented Mr Barlow, and the employees were represented by Mr Bertolis, from the employer company. It seems that Mr Bertolis had his name incorrectly spelt in the judgment of the Tribunal.

4.	So far as the complaint of unfair dismissal was concerned, that was found unanimously not to be well founded by the Employment Tribunal. The Employment Tribunal was chaired by Mr Wardle and the lay members were Mrs Dunn and Mrs Warrington.

5.	The Decision by the Employment Tribunal to dismiss the complaint of an unfair 		dismissal was followed by the preparation of Extended Reasons following the 		Chambers discussion on 15 July 2004, and their Extended Reasons were sent to the 		parties on the 5 August 2004.
6.	Essentially what the Tribunal found had happened was that Mr Barlow had been dismissed for misconduct in respect of an incident involving loading pallets on to a vehicle on the 10th December 2003.

7.	An important matter that fell for consideration by the Employment Tribunal, was that Mr Barlow had been asserting to his employers that in doing what he did he was  following some custom or practice. It was therefore part of the duty of the employers to look into this matter and to ascertain whether there was any evidence of such a practice, bearing in mind that the management were not aware of it.

8.	Mr Strang submitted a Notice of Appeal to this Tribunal in a document dated 26 August 2004, but which appears to have been stamped as received here on the 14 September 2004. On the 5 October 2004 His Honour Judge McMullen set the case down for a full hearing before this Tribunal.

9.	We are constituted today to conduct that full hearing. Mr Strang has written to us to say that his client i.e. Mr Barlow, will not be attending the hearing, but wants the Tribunal to consider the case by the papers. Thus, there has been no attendance here either by Mr Barlow, or his representative. Mr Hignett of Counsel represents the employer.

10.	Turning to the Notice of Appeal from Mr Strang there are two grounds. The first of those is that the Respondents failed to comply with their own disciplinary procedure, which is clearly set out in the employee handbook. the Employment Tribunal accepted that the Respondents actions were at variance with the company procedure: see paragraphs 5.9 and 5.11.

11.	The Respondent failed to inform him of his legal right to be represented by a trade union official. In fact he asked the question at the disciplinary hearing, but was wrongly informed that he could not have the union representative as there was no agreement. As Mr Strang put it in his letter which accompanied the Notice of Appeal 

“As a result my client was prejudiced by the refusal of the chosen representative. It was clear he did have a union official who wanted to assist, and this can be seen at the appeal hearing when Mr Hulse from Amicus was allowed to attend. As a result Mr Barlow did not receive the very least he could have expected from the company, that being they would comply with their own rules in the employee handbook as well as the Employment Relations Act.”

12.	There was not before the Employment Tribunal, any complaint under sections 10 and 11 of the Employment Relations Act 1999, on the matter of the right to be accompanied at disciplinary hearing. What the Employment Tribunal did, as Mr Hignett has drawn to our attention this morning, was clearly to recognise the areas in which there were justifiable complaints that the employers did not follow their own disciplinary procedure. The question then for the Employment Tribunal was whether as a consequence of that, the dismissal of Mr Barlow could be said to be unfair.

13.	Having set out what the defects were, the Tribunal appear to have correctly directed themselves in paragraph 18 of their reasons as follows:

“We have to ask ourselves if the failure in this regard had the effect of vitiating the fairness of the dismissal.”

Thus the Tribunal was considering, whether such procedural defects as may have occurred had the effect of making the dismissal unfair, and their conclusion clearly was that it did not.

14.	At the disciplinary hearing, Mr Barlow had outside the hearing Mr Hulse who is a trade union official, but it is clear from the judgment of the Employment Tribunal that he did not specifically ask for Mr Hulse to be allowed to accompany him at that time.

15.	 Mr Hulse was however allowed to attend at the appeal hearing, and as the Employment Tribunal indicate any matters that Mr Barlow may have wished to indicate to the disciplinary hearing were put forward in similar vein through Mr Hulse at the Appeal.

16.	Consequently we are not persuaded that the ground of appeal in respect of any failures by the employer to comply with their own disciplinary procedure can justify this appeal being allowed.

17.	The second ground of appeal refers to an allegation that the employers did not attempt during their investigations into the matter which caused Mr Barlow’s dismissal to contact or interview the driver, Mr Bedford, who subsequently gave evidence to the Employment Tribunal, and as a consequence the investigation was not as thorough as it might have been.

18.	However, as Mr Hignett has indicated to us this morning, the employers did carry out substantial investigations particularly in regard to the argument put forward by Mr Barlow that there was a custom or practice which had justified him loading the pallets onto the vehicle as he did, but they were unable to find any evidence of that.

19.	We agree with Mr Hignett that there was no obligation on the employers necessarily to have called Mr Bedford in the particular circumstances of the case, which is what the Tribunal itself concluded.The Employment Tribunal was entitled to find that that did not cause the dismissal to be unfair. Consequently that ground of appeal also fails. 

20.	Overall therefore, this  appeal is dismissed.