THE S L PARTNERSHIP v MR A NURSE [2000] UKEAT 1395_99_0903
[1]APPEARANCES For the Appellant Mr D Bradshaw (Ref –SL/000001/DB) Premier Consultants 70 Carlisle Road Worcester WR5 1HZ JUDGE COLLINS CBE: This is an appeal against the decision of an Employment Tribunal sitting at Norwich. There extended reasons having been promulgated on 1 November 1999. The Tribunal decided that the Respondent was unfairly dismissed but that his compensation should be reduced by 15% on the ground of his own contribution. What had happened was that the Respondent was an Accounts Clerk. He is now 55 years old and he started as an Accounts Clerk with the Appellant Accountants at the age of 15. He worked for them for 36 years, although Mr Bradshaw tells us that those dates are incorrect, the employers say that they are correct in their Notice of Appearance and the Tribunal appears to have proceeded on the basis that he was an employee of 36 years standing. After 36 years in the employment of the Respondent/Appellant accounts, he was earning about £10,000 p/a and his charging out rate at £22.00 an hour, assuming he was charged out to clients for a typical working year would be at the rate of about 3x his annual salary.[2]Now what happened was this. The Respondent was doing some rather junior work at a client, checking their bank ledger and he thought that the work shouldn't be done, who was charging £22.00 an hour but the work was appropriate was a junior clerk of £6.00 p/h and accordingly charged himself out at £6.00 an hour, which meant a loss to the employers of about £300-400. When this came to light after an investigation and disciplinary procedure, the employers dismissed him. The Tribunal concluded after examining the procedure that the sole matter relied upon was the deliberate attempt to conceal the facts by dishonestly entering false information into a record. The Tribunal decided that Mr Nurse was obviously wrong in what he did. He had no business making the decision that his time should be charged at less than £22.00 an hour; it was a matter between the firm and the client. Although Mr Bradshaw concedes in his skeleton argument that the Respondent thought he was morally justified in his stance, he had of course no legal justification, whatsoever. There is no doubt that the reason, which the Appellants had for dismissing, was an admissible reason. The question is whether they acted reasonably in all the circumstances of the case in treating that as a ground for dismissing him. The Tribunal draw attention to the fact that in, and it is conceded by Mr Bradshaw today that in the whole of his employment, the Respondent had never before, so far as the Appellants know, undercharged himself to a client and loss in overall terms was a comparatively small one. Not the slightest suggestion that any of this money, of course, went into Mr Nurse's own pocket.[3]Under those circumstances the Tribunal took the view that no reasonable employer would have dismissed him. He would have had a stern warning but after 36 years, that should have been considered sufficient and it seems to us that there is possible point of law arising out of decision. It was a decision to which the Tribunal was perfectly entitled to come. A secondary point was raised by Mr Bradshaw has argued this appeal valiantly on behalf of the Appellant is that the decision to limit the contribution of the Respondent's 15% was perverse. In our judgment the contribution was entirely a matter for the Tribunal to decide. A 15% contribution in these circumstances is low but it certainly not so low that we could possibly take the view that the Tribunal was perverse in coming to its judgement. So for those reasons we dismiss this appeal.