M H Bingham Caterers v. Chappell [1999] UKEAT 318_99_2505

EAT
M H Bingham Caterers v. Chappell
[1999] UKEAT 318_99_2505 · 1999-05-25

JUDGE HAROLD WILSON :

This is the preliminary hearing of the proposed appeal against the reserved decision and review decision of the Employment Tribunal in this matter. The relationship between the applicant and the respondent Company was quite a lengthy one overall. The complaint is made that although it was a reserved decision the remarks made and contained in the review decision give cause for concern and that the appeal should be allowed to go forward for the reasons raised in the skeleton argument and in the amplification from Mr Wilson on behalf of the respondent Company this morning.The fundamental question before the tribunal was whether the dismissal was within the range of reasonable responses in all the circumstances of that case. The complaint is made that it is not apparent from the decision that the right approach was made by the tribunal and that it is not acceptable to use a review hearing as a vehicle to correct extended reasons which have already been given.We agree without reservation that it is not desirable for this practice to be developed, but in this particular case, we find that the review does not correct extended reasons but rather amplifies them. We note what is contained in paragraphs 2, 8, 9 and particularly 14 of the extended reasons. We note also what is said in the review decision in paragraph 8:
"We considered that this was one of those cases where a warning should have been given and a period left to elapse. We considered that a fair period to have given the applicant after the warning would have been three months. By contrast the facts were that the first disciplinary hearing arose in the middle of June, a letter of complaint early in June, followed by two disciplinary meetings on 15 th and 22 nd , the second of which the applicant was dismissed."
In paragraphs 10 and 11 the tribunal said:
"10. The Respondent said, and we accept, that there were failings in the operation at Shoreham Airport … . However, we find that some of the problems were due to the hours at which employees were employed compared with the opening hours of the establishment, and the Respondents' attitude to staffing levels and their overall control.
11. The Respondents say, and we accept, that the Applicant bore a measure of responsibility for such failures and they attribute the difference in his level of performance towards the close of his employment compared with that before to the different nature of the operation …"Mr Wilson complains today that this applicant had been at the airport for 10 months. The fact remains that no disciplinary action had been taken against him at any time during their whole relationship which was on and off for seven years. Accordingly the tribunal found quite clearly, although they do not use the statutory words, that the decision to dismiss was not within the range of reasonable responses by a reasonable employer. There is no obligation to use the precise words of the statute, but it is quite clear that that is what is being said in both the reserved extended reasons and the subsequent review hearing.In this case we do not consider that, if the matter were to go further forward to a full hearing, it would have any reasonable prospect of success. The review decision itself recognised that the applicant was partly to blame and reflected that in their original finding of 50% contribution which was not of course objected to. They went on in paragraph 8 of their review decision to amplify what they had said previously, that:
"… the chance of the employee improving his performance to a sufficient level within that period [ three months ] so as to retain his position to have been nil. This was the basis upon which we said the compensation should be limited to three months."
Accordingly, there being no reasonable prospect of success on full argument, this appeal is dismissed.