MR T A ELLIOTT v GAMBLE KITCHEN RENTAL LTD [2000] UKEAT 877_00_1711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 877_00_1711Case No Appeal No. EAT/877/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T A ELLIOTTAPPELLANTGAMBLE KITCHEN RENTAL LTDRESPONDENT
Before
His Honour Judge H Wilson Mr P M Smith Mr R N StrakerDate 17 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE WILSON : This is the preliminary hearing concerning the appellant's proposed appeal against the decision of the Employment Tribunal sitting at Leicester on 25th and 26th May 2000 that the appellant's dismissal by the respondent company was not unfair. The appellant was represented before the Employment Tribunal by his solicitor and the respondent company was also represented by solicitors.[2]On 10th July 2000 a Notice of Appeal was received on behalf of the appellant setting out various grounds of appeal. On 6th November 2000 the Employment Appeal Tribunal received from the solicitors who had appeared on behalf of the appellant a signed notification that the appellant did not intend to be present at the hearing today.[3]We have accordingly considered all the papers including the proposed grounds of appeal to decide the matter before us.[4]The issues between the parties were quite shortly to be stated. The appellant had worked for a firm called The National Hire Service of Calor Gas for a number of years. It was taken over by the respondent, Gamble Kitchen Rental Ltd, with effect from 1st May 1999. The appellant's employment was continued with the new owners and quite early on the appellant told his line manager that he would like his hours and duties to be defined (as set out in paragraph 4(e) of the extended reasons). This was because with Calor Gas the appellant had held a supervisory position and he wished to have his status confirmed with the respondent's employees. He also wanted a pay rise, as he believed he was doing a lot of overtime for which he was not being paid.[5]Following that finding of fact, the Employment Tribunal went on to say in paragraph 4(f):
"A meeting was held with Mr Gamble, the respondent's managing director, on 12 August 1999 in order to deal with these matters. They were resolved to the applicant's satisfaction. Mr Gamble sent a letter to staff which stated that the applicant's role was that of yard manager. A letter was also sent to the applicant which set out his duties and which stated that his basic hours were to be 45 per week and that he was to be paid at the overtime rate for additional hours. Other matters including pension rights were also dealt with in the letter."
[6]It is clear from that finding of the Employment Tribunal that the variation of the terms of employment was consensual. In those circumstances the reference in the grounds of appeal to authorities for the submission that the company had no right or authority to change the terms of employment becomes irrelevant. It might have been more prudent for the tribunal to have stated at the end of subparagraph (f) that by reason of their findings of fact those authorities were not of help, but the fact remains that it is implicit that that must have been their reasoning.[7]Following that clearing up of matters in August, there came a time when the respondent's managing director became concerned about the applicant's time sheets because they did not tally with the times recorded on the security gate.[8]On 15th November 1999 the respondent's managing director had a meeting with the applicant at which he put four allegations of specific discrepancies to him. He adjourned the meeting for the applicant to go away and think about the discrepancies with a view to giving an explanation and enlarged the time at the applicant's request. Meanwhile, Mr Gamble wrote to the applicant stating that he needed specific explanations for the four discrepancies and mentioned in the letter that there were other matters which he needed to discuss with the applicant. These were particularised in the letter. The applicant was warned in the letter that in the absence of any explanation for the four discrepancies he could be found guilty of gross misconduct and liable for dismissal.[9]At the resumed meeting detailed explanations were given in the shape of a letter compiled by the applicant with the assistance of his daughter and dated 21st November 1999. He said that he had never received any documentation to notify him of any variations to the terms and conditions of his signed contract of employment.[10]Mr Gamble considered the contents of the letter and thought it needed further investigation and in due course he replied to the applicant's letter on 23rd November giving reasons for not accepting the applicant's explanations.[11]As there was no satisfactory explanation, as the tribunal found in paragraph 4(q), Mr Gamble considered that dismissal was an appropriate sanction. Falsification of entries on a timesheet was regarded as gross misconduct especially as the applicant held supervisory status within the yard. Taking into account the applicant's age, his service with the company and the fact that he was within three years of retirement, and would find it difficult to get another job, Mr Gamble proposed that the applicant instead of being dismissed be demoted to hire assistant and be given a final written warning.[12]The applicant refused that offer of demotion and was accordingly dismissed.[13]The tribunal were satisfied that the reason for dismissal was a belief that the applicant had falsified his timesheets, which they found to be an admissible reason within section 98(2) of the Employment Rights Act 1996 .[14]The tribunal went on to consider whether the respondent acted reasonably in treating the matter as a sufficient reason for dismissal. The tribunal said in paragraph 7 of the decision that they were satisfied that a full and careful investigation had been carried out and that Mr Gamble's conclusion was that the explanations were unsatisfactory. They were satisfied that he was entitled to come to that conclusion. They were also satisfied that the dismissal was not an unfair sanction because of the applicant's supervisory position and his knowledge of the need to keep accurate records and also of course because the timesheets were the basis for calculating overtime to be paid to the applicant. In all those circumstances, including the fact that another employee had not been dismissed for a similar offence, in which case they found that that employee was a student employed in a temporary capacity with no supervisory duties, and in which case there was only one incident of a time being wrongly entered, the tribunal concluded that the dismissal was not unfair.[15]We have considered the other grounds of appeal set out in the Notice of Appeal dated 7th July 2000 and we have concluded that even were they to receive full argument they would have no prospect of success. Accordingly we dismiss this appeal at this stage.