Rose v Tenco Industries Ltd [1993] UKEAT 137_92_1803

EAT

Rose v Tenco Industries Ltd

[1993] UKEAT 137_92_1803 · 1993-03-18

JUDGE PEPPITT QC :

In this Preliminary Hearing the Appellant seeks our leave to proceed with his appeal from a decision of the Industrial Tribunal at Southampton in November and December 1991, whose finding was that the Appellant's dismissal from his employment by the Respondents was fair.

The Appellant was employed by the Respondents on a five year fixed term contract which would have expired by ex-fluxion of time on 15 July 1992. His dismissal was thus some 12 months or so short of the contractual term of his employment. Behind that bare statement lies a chequered history of the Appellant's employment. He was responsible for the creation and development of a computer software system for use by garages. That project, by the beginning of 1990, turned out to be a disaster. We are not qualified to say why, but the Tribunal found that the Appellant in practical terms, accepted responsibility for the system's failure and there followed between him and his employers an agreement which provided for the Appellant to take steps to find employment elsewhere.

The agreement was made in March 1990 and provided that the Appellant should remain in the Respondents' employment on full salary, but should not perform services for the Respondents. In the meantime he should be at liberty to find other employment. Whilst this arrangement was in operation there were negotiations between the parties to reach final agreement on the terms of their eventual parting. This partially severed relationship between the Appellant and the Respondents continued through 1990 into the spring of 1991 when the Respondents received from Mr Stammers, one of its directors, a full report which for the first time, spelled out the failure of the system. Armed with that report the Respondents on 28 May 1991, wrote to the Appellant summarily terminating his employment on the ground, as they put it, of "grave misconduct and wilful neglect". Those words did not appear in the termination letter by coincidence but because they were the words in the Appellant's contract which provided the Respondents with their only right to bring the contract of employment to an end before its expiry by ex-fluxion of time.

It was admitted, we are told, before the Tribunal, that the Respondents no longer contended that the Appellant was guilty of grave misconduct or wilful neglect but that the true reason for his dismissal was incapability. That indeed was what the Tribunal found.

The only substantial points taken by Mr Stafford in the face of one of the longer decisions of Industrial Tribunals which with my limited experience I have come across, was that his client was given no opportunity to consider, let alone to answer, the complaints contained in Mr Stammers' letter and that the contractual right which he had upon "grievance" - to have the grievance discussed and decided by the Board - was futile because it was the Board which had taken the decision to dismiss him.

The Appellant had had no contact with the project or his employers since March 1990 when he was suspended upon the terms which I have indicated. He says that had he been given an opportunity to consider Mr Stammers' report, whether or not he would have been able to challenge any of its findings, he would at least have taken two steps:(1) he would have reminded his employers that they had no contractual right to dismiss him for incapability and

(2) that whereas at the time of his suspension he had rejected the suggestion that he might do programming because at that stage the alternative to programming was remaining in the Respondents' employment on full pay without working; had he been faced with the alternatives of programming or summary dismissal on the 28th May 1991 he might have taken a different view.

The Tribunal considered that point at page 13 of their Judgment, page 16 of the bundle before us, and came to this conclusion:

"It did not matter that Mr Stammers' report was not discussed with the applicant because the applicant, being in charge of the project, should have had knowledge concerning the project equal to that of any other person. The applicant knew the respondent's concern as to the delivery of the product."

We thank that ordinarily an employee is entitled to be heard as to the reasons for his dismissal unless there is some good reason to the contrary and Mr Stafford reminded us of the well known case of Polkey vAE Dayton Services Ltd

1988 ICR 142

where part of the holding was:

"The question that an industrial tribunal has to consider under section 57(3) of the 1978 Act was whether the employer had been reasonable or unreasonable in deciding that his reason for dismissing his employee was a sufficient reason, not whether the employee would nevertheless have been dismissed even if there had been prior consultation or warning within the code of practice; that whether the employer could reasonably have concluded that consultation or warning would be useless so that his failure to consult or warn would not necessarily render dismissal unfair was a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time when he took his decision to dismiss;..."

We are not deciding this case and we reach no conclusions on the circumstances of the case before us but we are unanimously of the opinion that on that point, if on no other, the Appellant is entitled to have his full hearing and we direct accordingly.