Armitage Walker Ltd v Mortimer [1993] UKEAT 298_91_2001

EAT
Armitage Walker Ltd v Mortimer
[1993] UKEAT 298_91_2001 · 1993-01-20
MR JUSTICE KNOX: There is no appearance before us on this appeal on either side, but we have the appeal before us, and we propose, therefore, to deal with it.The appeal is brought by the employer Armitage Walker Limited from a decision of the Industrial Tribunal sitting at London (North) on the 13th March and 5th April 1991 and sent to the parties on the 25th April 1991 whereby the Tribunal decided unanimously, first, that the Applicant before them, a Mr Mortimer, was unfairly dismissed and secondly that they would reconvene later if there was not agreement on questions of compensation. It appears that the employer, which I will call "the Company" has gone into administrative receivership because this Tribunal has received a note dated the 17th December last saying that the Joint Administrative Receiver, a Mr Manning does not intend to be present at the hearing and Mr Mortimer is not either present or represented before us.The Notice of Appeal by the Company claims that:
"The tribunal misdirected itself and misapplied the law in that in paragraph 15 of the full written reasons of the tribunal the tribunal clearly placed themselves in the role of a jury in the criminal courts. They asked themselves the question `do we think the employee acted fraudulently?'"
and the Notice of Appeal suggests that the proper approach would have been to follow the guidelines in the well known decision of BHS Limited v. Burchell [1978] IRLR 379 . It is also said:
"As a result of applying the wrong test, the tribunal concluded in paragraph 16 of the tribunal decision that `we do not think that the Applicant was guilty of gross misconduct'. Again this indicates that they [the Tribunal] asked themselves the wrong question."
Finally, it said that evidence that the Tribunal had which might have satisfied the test in Burchell if it had been correctly and properly applied.In our view that is a misconceived criticism of the Industrial Tribunal's decision. The passages that are criticised in the Notice of Appeal were directed to, what was undoubtedly the subject of investigation before the Industrial Tribunal, namely whether or not Mr Mortimer had been guilty of fraudulent conduct in putting in his expense claims. He had been employed as a Sales Director by the Company and he subsequently was appointed Managing Director, so he was a senior official and before the Tribunal there was an issue as to whether or not his expense claims were properly put in. But one does not get as far as applying the test in Burchell's case unless one has arrived at the conclusion that the real reason, or the principal reason, for the dismissal was one in relation to which Burchell's case is applicable, and in this case there are specific findings by the Industrial Tribunal as to the real reason for the dismissal of Mr Mortimer. That was the correct approach for the Tribunal to adopt because in applying Section 57 of the Employment Protection (Consolidation) Act 1978 the Industrial Tribunal has first to identify, and the onus is on the employer in relation to this, what was the reason for the dismissal, or if there was more than one, the principal reason. Secondly, that it was a reason falling within the specific grounds mentioned in subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held. That is what the Industrial Tribunal, in our view, did although it is true to say that they did it in a later stage of their decision than the stage in which they expressed the view that is quoted with disapprobation in the Notice of Appeal that Mr Mortimer did not act fraudulently. What the Industrial Tribunal found was the real reason for the dismissal is stated in paragraph 20 of their decision when they say:
"We find that the Applicant was dismissed unfairly and that the real reason for that dismissal was the breakdown in the relationship between Mr Mortimer and Mr Armitage. We find that the dismissal was unfair in that there was no proper discussion, consultation or indeed justification for the dismissal."
and in the preceding paragraph they had found in terms, conversely, that the real reason for the dismissal of Mr Mortimer was not his alleged fraudulent expense claims. So that they had found that the Applicant was dismissed unfairly and in doing that they had properly applied the tests set out in subsections (1) and (2) of Section 57. When it became necessary to look at subsection (3) in relation to the real reason for the dismissal, there really was no issue with regard to applying Burchell's test because the real reason was one to which that sort of test is obviously wholly inapplicable.For those reasons it seems to us that the criticism of the Industrial Tribunal in the Notice of Appeal is misplaced and on that basis this appeal fails and we dismiss it.