Harvey v ECC International Europe [1998] UKEAT 1071_97_1901

EAT

Harvey v ECC International Europe

[1998] UKEAT 1071_97_1901 · 1998-01-19

JUDGE C SMITH QC :

This is an application made by Mr Harvey. We have had the benefit of hearing from his representative, Mr Harrison. Mr Harvey was the Applicant before the Industrial Tribunal and he is asking for leave to proceed to a full hearing of an appeal against the decision of an Industrial Tribunal held at Truro in Cornwall on 18 April 1997, when the Industrial Tribunal unanimously decided that the Applicant, Mr Harvey had been fairly dismissed.

We want to say straight away that, as we made clear to Mr Harrison and, of course, as he fully understands, we have a very limited role as the Employment Appeal Tribunal. We can only allow a matter to proceed to a full hearing if it raises an arguable point of law. In particular, we cannot allow matters of fact which were within the wide discretion of the Industrial Tribunal to be reopened before us. That is absolutely clear from our jurisdiction.

We simply have no jurisdiction to deal with anything other than arguable points of law. We lay emphasis on that in this particular application, because there is no doubt that there are unfortunate features of this case in the sense that Mr Harvey had a long employment record with the Respondents, English China Clay International (Europe) Ltd. He had been employed from 1978 and also there are personal circumstances relating to Mr Harvey's situation which clearly can only fill everybody with sympathy.

But the position is this, looking at it from our limited standpoint and through our blinkered eyes (I say blinkered because we must only look to see if we can find any arguable point of law) the position is this. As appears from the findings of fact of the Industrial Tribunal the Applicant had been employed as a process operator. Part of his duties involved the operating of machinery and the driving of fork-lift trucks. Unfortunately, as appears from the findings of the Industrial Tribunal, Mr Harvey was stopped by the police on 9 November 1996, and breathalysed when he was driving a motor vehicle and he was charged with and convicted of driving with excess alcohol. On that particular evening he was, in fact, due on the night shift which was to start about 8.30 pm but, of course, because he had been stopped by the police he could not report there and, in fact, he was not able to be released by the police until about midnight and then he reported for work at 12.30 am. Those were the facts that were found by the Industrial Tribunal.

Then there followed the disciplinary investigation. It did not begin for a week because it is clear it only started on 15 November and it was brought, in accordance with Part B of the procedure, under the heading of "Gross Misconduct", that is to say, turning up for work under the influence of alcohol.

One of the points made forcefully to us by Mr Harrison was that that was a change, because it had originally been in Part A which dealt with lesser matters of misconduct that could be dealt with by way of a warning. The point is made to us that really nobody understood or appreciated (so it was argued) that this was under Part B, the much more serious matter of gross misconduct, where summary dismissal could be sanctioned. Nobody appreciated that, so it is argued before us, until right at the hearing which ultimately took place, as we said, under the auspices of Dr Barnes, the process development manager on 19 November.

But with regard to that matter, we must faithfully follow the findings that were made by the Industrial Tribunal and what they find as a fact is that the change had not been agreed with trade union representatives; they do say that. But what they go on to say is this:

"It was imposed, but we find that it was notified to lay delegates and shop stewards by a memorandum on 3 October 1995, so well over a year before the matters with which we are concerned. We find that that was a reasonable change for the respondents to have made in the disciplinary code."

We cannot possibly go behind that finding.

The Industrial Tribunal then went on to consider the nature of the investigation that was carried out, the disciplinary hearing that was carried out and the conclusions that were reached by Dr Barnes at the disciplinary hearing and they rehearsed all those matters in paragraphs 4, 5 and 6 of the decision. Here again, in our judgment, it was within the discretion of the Industrial Tribunal to reach the conclusion that the Respondents did form an honest view, after reasonable investigation of the matter, that the Applicant had been guilty of gross misconduct. That was a matter which was within the right of the Industrial Tribunal to conclude.

There is no doubt at all that Mr Harrison firmly disagrees with that conclusion that the employers reached and, no doubt, so does Mr Harvey, if he had had a chance to express himself, but fortunately Mr Harrison made all the necessary arguments for him. Mr Harrison firmly disagrees with that approach and thinks that it is very unfair, but this must be a matter of fact for the Industrial Tribunal, sitting as an industrial jury to decide and does not give rise to a point of law.

Part of Mr Harrison's very cogent address to us this morning was that a lot of other people were "getting away with it" at English China Clay and it was very unfair that because Mr Harvey happened to have been stopped by the police and breathalysed, bearing in mind particularly that you can get breathalysed when you have probably only had about two pints or so, whereas people in his experience, had turned up, as he put it colloquially, "blotto" at English China Clay and not been the subject of this procedure and it was all very unfair.

There is no doubt that could raise a point of disparity between the way in which the Respondents had treated various employees but again, if one looks at paragraph 7 of the decision of the Tribunal, they rehearsed the arguments that were addressed to them and concluded that the Respondents had applied a consistent approach in the case of work-related drinking offences. Mr Holford apparently had told them that since 1990 about nine employees had been dismissed for having been on the premises under the influence of drink and no employees, in fact, who had been found guilty of offences of that sort had been dealt with by any lesser disciplinary sanctions such as a warning. So there it was, that again is a finding of fact which we cannot go behind.

Then there is an argument relating to the long record of the Applicant but again, all that was taken into account by the Tribunal in paragraph 8 and they reached conclusions they were entitled to reach with regard to that.

There is no doubt at all that very shortly, after the disciplinary hearing, on about 4 or 5 December, the employers did pay by way of an ex gratia payment, as it was described, a sum of £2,000 and very strong criticism is levelled by Mr Harrison against the impropriety of, not the payment, but the condition that was imposed in relation to it, namely that Mr Harvey was not to appeal against his dismissal or pursue any claim to an Industrial Tribunal, if such a payment was made.

It must be noted in relation to that that Mr Harvey did have the benefit, although I put "benefit" in quotes because it is certainly the view of Mr Harrison that it was a dubious benefit, of being represented by the Lay Delegate, Mr Cann of the TGWU Union and it does appear from the terms of the ex gratia payment that that was a request made by Mr Cann to the company on behalf of Mr Harvey.

We find that the Industrial Tribunal were entitled to reach the conclusion they did in paragraph 9 in relation to that payment. So that for all those reasons which we have tried to state as fully as we can, we regret that we cannot see any grounds for appeal arising from the way in which the Industrial Tribunal dealt with the matter.

There is an additional point and it is an unfortunate matter. It relates to a suggestion, in an affidavit by Mr Harvey and it is really based on, no doubt, advice given by Mr Harrison, that unfortunately the Industrial Tribunal did not allow Mr Harrison properly to develop his argument, on behalf of Mr Harvey, and there is a suggestion that they, in some way, may have treated Mr Harvey's application lightly. This is always a very sensitive area.

We have had carefully to consider what is in the affidavit and we have also very carefully considered the matters raised in answer by the Chairman in his letter to the Registrar of the Employment Appeal Tribunal. There is no doubt at all that this was, to some extent, a quite emotional experience, this hearing, although Mr Harrison is very experienced in these matters. He, himself, unfortunately, due to the emotional pressure, did break down for a time during the course of the hearing and there had to be a short adjournment.

In all those circumstances we do not consider that there is any point here that should be given consideration by the Appeal Tribunal relating to the conduct of the Industrial Tribunal. It is easy to misconstrue such matters when one is under the pressure of a hearing such as this and accordingly, for those reasons, this application will have to be dismissed.