Express Newspapers Ltd v Hill [1996] UKEAT 1374_95_2305

EAT
Express Newspapers Ltd v Hill
[1996] UKEAT 1374_95_2305 · 1996-05-23

JUDGE K BASSINGTHWAIGHTE:

Mr John Hill complained of unfair dismissal in his Originating Application filed on 30 November 1993 by Express Newspapers - which we shall call "the Company" in this decision - effectively from 13 September of that year.The Company, by its Notice of Appearance which was dated 6 January 1994, resisted the complaint stating that the dismissal had been on account of alleged gross misconduct and had been fair.The Industrial Tribunal sitting in London (South) heard the complaint over five days from 11 to 15 September 1995. They concluded that Mr Hill had been unfairly dismissed but that he had contributed to that dismissal to the extent that any award of compensation would be reduced by 35 per cent.This case has come before us for preliminary hearing, our task being to decide whether the Company's appeal discloses a fairly arguable case, that is of course on a point of law.The brief facts of the case were not largely in dispute. Mr Hill was a design editor for the Company under a contract of employment, which contained a relevant clause, and here we quote from paragraph 9 of the Industrial Tribunal's decision, which in extended form was promulgated to the parties on 21 September 1995:
"9. ... It is a requirement that your entire services are to be devoted to the interests of the company, its parent, subsidiaries and associated companies. You should not engage in work outside which might conflict with your obligations to the company or render you unable to fulfil your duties without obtaining prior written permission from the company."
It seems that Mr Hill became involved in another company not linked with Express Newspapers in a similar capacity to that which he occupied with the latter company, although, as the Industrial Tribunal found, that work did not effect what he did for the company: to adopt their phraseology at paragraph 15:
"There was no evidence that he had short changed Express Newspapers."
Mr Hill's employers did however, come to learn of his other involvement and that situation obviously caused some concern. The Industrial Tribunal found that Mr Hill had not been entirely frank with his employers with regard to that involvement.There was some seeking of information about Mr Hill's other activity, in consequence of which he was suspended, after a discussion with him on 10 December. The disciplinary interview was held on 13 December, as a result of which Mr Hill was dismissed because, as the Industrial Tribunal found at paragraph 19 of their decision, the dismissing manager, Mr Honeywell, believed that Mr Hill had been in breach of the clause of his contract which we have quoted.An appeal was held on 17 December (the decision in paragraph 20 probably mistakenly records the date as 17 September) which did not change that decision.The Industrial Tribunal's decision about the fairness of the dismissal is very concisely stated in paragraph 29:
"29. ... Express Newspapers carried out one of the worst investigations we have seen. They relied upon the third hand evidence of a disgruntled employee and bits of gossip passed over lunch. They failed to interview Sarah Reynolds and they took no written statements. They clearly read Clause 3(2) in a manner which was not sustainable upon any objective analysis. In those circumstances we had little difficulty in finding that the dismissal was unfair, in the Burchell sense."
Their reference to the Burchell case is of course the well known case of British Home Stores Ltd v Burchell [1980] ICR 303 , a case which still quite properly guides Industrial Tribunals in applying the provisions of Section 57 of the Employment Protection (Consolidation) Act 1978 , to which the Industrial Tribunal made reference and in particular, in considering the processes by which a reason for dismissal is formulated.This Industrial Tribunal found that Mr Hill had been dismissed primarily because the employer believed him to be in breach of his contract of employment, and noted that they made that finding in the context of Mr Hill being untruthful to them. The Industrial Tribunal found that the dismissal was unfair, largely because of an inadequate investigation, as they judged it, and because of what they termed "an unsustainable interpretation of the contract of employment".Mr Conlin, by means of ingeniously constructed argument, has sought to persuade us that this Industrial Tribunal should have made far more detailed findings of fact than it did, that it should have given more explanation and that it should have indicated what it did and did not take into account when reaching conclusions.This Appeal Tribunal has said on many occasions, guided by the Court of Appeal, that it will not go through decisions of Industrial Tribunals with a fine tooth comb. This Industrial Tribunal's decision records that it reached conclusions, with some of which we might take issue, had we been the Tribunal of first instance, but that is not a proper ground upon which we can interfere. From the decision we clearly understand, and we suggest most people would understand, what this Industrial Tribunal decided was the principal reason for dismissal. They also made that finding in the context of the Company's expressed additional reason for dismissal and we do not see any indication in the Tribunal's decision that they neglected to keep the whole of their factual findings in mind when they decided whether the dismissal was fair or unfair. Their conclusion that the dismissal was unfair, for the reasons which, albeit somewhat tersely, they gave, was a conclusion open to them, as was their finding of substantial contributory conduct.In our judgment there is no arguable point of law in this Appellant's appeal. We therefore dismiss it.