National Society For The Prevention Of Cruelty To Children v Cole [1996] UKEAT 818_96_2111

EAT
National Society For The Prevention Of Cruelty To Children v Cole
[1996] UKEAT 818_96_2111 · 1996-11-21

JUDGE D M LEVY QC :

Mrs H G Cole was a long-serving member of the staff of the Respondent charity NSPCC. A time came when the Society found it necessary to dismiss her; they alleged that her conduct as an employee amounted to fraud. She complained to an Industrial Tribunal.There was a hearing of her complaint on 15 April and 13 and 14 May 1996. The decision of the Industrial Tribunal was sent to the parties on 17 June 1996. The unanimous decision of the Tribunal was that the Applicant (the Respondent here) was unfairly dismissed.There was a further finding that she contributed to her dismissal and it was just and equitable that the compensatory award be reduced by 40%. Then the figures were set out and it was stated that the Recoupment Regulations did not apply. From that decision, the Respondent charity (the Appellant here) wishes to appeal.There are two substantial grounds on the appeal. First of all there is an appeal against the holding that the Appellant was unfairly dismissed. What is said by Mr Cottle, both in the Notice of Appeal and in the Skeleton Argument and before us orally this morning, in terms is what the Tribunal has done is to substitute its own views for that of the employer charity and that is not something it is entitled to do.On that ground we have considered carefully all that is said in the Skeleton Argument and in the Notice of Appeal and by Mr Cottle orally, but we are not convinced there is a point to go forward here.In every case where there is misconduct by a employee, we are aware therefore that the sanction of dismissal is within the bounds of what an employer can do. There is always an exception as to whether the sanction of dismissal can properly be carried out. A Tribunal is always reluctant to interfere with the decision of a responsible employer, as this employer clearly was, but having looked at the findings of fact made by the Industrial Tribunal and the conclusion they came to, we can well understand that, on the facts as they found them, the Tribunal were able to come to the decision, as they did in paragraph 28 of the Extended Reasons, as follows:
"28. The Tribunal considered carefully whether the summary dismissal of the Applicant after 17 years service, on grounds of her gross misconduct because of fraud, was within the range of responses of a reasonable employer. We find that it was not and we find that the dismissal was unfair. ..."
One can well understand that the charity believes that the Tribunal has wrongly substituted its own opinion, but when there has been a hearing of this length and the facts have been meticulously analysed, it seems to us that this is a decision the Tribunal could well have come to and therefore, it would be wrong to allow the appeal to go forward on this ground.We are however, satisfied unusually that an appeal should go forward on compensation. It is clear to each of us that the way in which the assessment was carried out below raises questions which can properly be the subject of an appeal.