MR S G THORPE v COUSINS & SHARPE (A FIRM) [1999] UKEAT 476_99_3006

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 476_99_3006Case No Appeal No. EAT/476/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S G THORPEAPPELLANTCOUSINS & SHARPE (A FIRM)RESPONDENT
Before
His Honour Judge Peter Clark Mr L D Cowan Mr S M SpringerDate 30 June 1999
[1]APPEARANCES For the Appellant MR R C D REES (of Counsel) Messrs Cauthery Waterman & Cheetham Solicitors 4 Church Street Peterborough PE1 1DJ JUDGE PETER CLARK : The facts of this case may be shortly stated. In August 1992 the appellant, Mr Thorpe, commenced employment with the respondent as an HGV fitter in their service shop. We note from his written statement, put before the Employment Tribunal Chairman, that part of his duties involved testing the smaller goods vehicles on the road.[2]On 17th March 1998 he was convicted of an offence of driving with excess alcohol and disqualified from driving. Thereafter, the respondent terminated his employment by notice effective on 5th May 1998. Th reason given for his dismissal was his disqualification from driving. The appellant did not then believe that he had grounds for bringing a complaint of unfair dismissal. Time for doing so expired on 4th August 1998.[3]On 30th October 1998 the foreman of the service shop in which the appellant had worked, Mr Haddon, was convicted of a similar drink-driving offence. He was not dismissed.[4]On 9th November 1998 the appellant learned of Mr Haddon's conviction and his retention in the respondent's employment. He promptly then presented an Originating Application to the Employment Tribunal on 10th November 1998. The respondent resisted the claim, inter alia, on the basis that it was time-barred.[5]The limitation issue came before a Chairman, Mr D R Crome, sitting alone at Bury St Edmunds on 28th January 1999 for preliminary hearing. By a decision promulgated with extended reasons on 16th February 1998 that Chairman dismissed the application.[6]Having been referred to the relevant authorities, including the Court of Appeal decisions in James Cook v Tipper [1990] ICR 716 , Machine Tool Industry Research Association v Simpson [1998] ICR 558 and Marley (UK) Ltd v Anderson {1996] IRLR 163 , the Chairman concluded:(1) that the after-acquired knowledge by the appellant of Mr Haddon's case did not indicate that the employers reason for dismissal was false, and(2) that no case of inconsistent treatment was effectively now raised. It could not be said that it was not reasonably practicable to present the claim within the three-month primary limitation period.[7]That finding is now challenged on appeal.[8]In his skeleton argument Mr Rees, on behalf of the appellant, submitted that the Chairman appeared to be satisfied that:(1) It was reasonable for the appellant not to have been aware of the new fact, Mr Haddon's non-dismissal after the drinking driving conviction, at the time of his dismissal.(2) That the knowledge was reasonably gained.(3) That the knowledge was important in changing the belief of the appellant from a belief that he did not have a case to a belief that he did have a case.[9]As to the first two propositions. We accept that they are supported by the Chairman's reasons.[10]The third and we think crucial one, is not.[11]We have been referred to the appellant's written witness statement in which he said in terms, that he submitted that his alleged incapacity to do his job was not the real reason for dismissal and that he was therefore unfairly dismissed. He bases that submission on the fact that Mr Haddon's conviction for drink driving without being dismissed.[12]Mr Rees also relies on paragraph 10 of the reasons. He submits that there the Chairman has misunderstood the nature of the appellant's case in saying:
"The knowledge which he came by subsequently was not that the stated and accepted reason at the time was for some reason a false reason, and it was not that the basis of the employer's decision when the employer took the decision had been arrived at in any way in an underhand way or based on false information, for instance that the conviction itself was somehow unsound."
[13]We have been troubled by this submission, but our conclusion is that in paragraph 10 the Chairman has rejected the appellant's case that he had passed what is described in Marley as the "changed belief" test. That is to say that the new fact is significant in changing his belief at the time of dismissal that he had no claim into a belief, whether well founded or not, that he had a good claim.[14]It seems to us that this is unlike the redundancy cases where the employee has subsequently discovered that the employer has recruited staff in circumstances where it was said at the time of dismissal that there was a diminution in the requirement for employees to work of a particular kind. In this case the fact that Mr Haddon was not dismissed may of course be explicable on the basis that as foreman he was not required to do driving duties. But it seems to us that it was open to the Chairman to conclude that the new facts did not bring the appellant within the changed belief requirement under the authorities.[15]So far as inconsistency of treatment is concerned, Mr Rees acknowledges his difficulty in seeking to mount a claim of unfair dismissal on the basis of inconsistent treatment post dismissal. We think that that is the effect of the Court of Appeal decision in Post Office v Fennell [1981] IRLR 221 . It would be otherwise if the appellant had learned after his dismissal of an employee who had been more favourably treated prior to dismissal. That is not this case.[16]We bear in mind the approach of the Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 , that questions of reasonable practicability are essentially a question of fact for the Employment Tribunal. We are not persuaded that the tribunal Chairman fell into error in applying the cases to which we have referred in considering whether or not the appellant had passed the "changed belief" test.[17]In these circumstances we have concluded that the appeal raises no arguable point of law and must be dismissed.