MR S COLEMAN v NFT DISTRIBUTION LTD [2001] UKEAT 0389_01_2910
[1]APPEARANCES For the Appellant MR BEN JAFFEY (of Counsel) Messrs Penman Johnson Solicitors 5 George Street Watford WD1 8SQ HIS HONOUR JUDGE J R REID QC This is an Ex Parte Preliminary Hearing of an appeal by Stephen Coleman against a decision of an Employment Tribunal held at Watford on 11 January 2001. The decision was sent to the parties on 5 February. The decision was that the Respondent, NFT Distribution Ltd, did not unfairly dismiss Mr Coleman. It also went on to deal with payment for holiday pay. That latter point is not the point which concerns us.[2]The substance of the appeal relates to the way in which the Tribunal appear to have dealt with the internal appeals' procedures which preceded Mr Coleman's dismissal. The principal difficulty that we find at first reading of the decision is that the decision refers to there having been both an internal disciplinary hearing and an appeal, but then goes on by reference to the initial internal hearing without making further reference to the appeal hearing. This seems to us to give rise to arguable grounds of appeal because it appears from the findings of fact that the appeal hearing took a different view of the incident which resulted in Mr Coleman's dismissal from that taken at the initial disciplinary hearing.[3]In short, Mr Coleman was dismissed as a result of a load of food which should have been chilled on a lorry for which he was responsible being frozen. It had been his job, together with another employee, to check the temperatures on the lorry. The temperature which he had recorded, 3 degrees, was the correct temperature. The actual temperature on the lorry was minus 25 degrees. That was not recorded. The initial disciplinary hearing held that the figures recorded by Mr Coleman had simply been made up. The appeal hearing appears to have accepted that he had not made up the figures but that he had been recording figures called out to him by the other employee. This, it is said, was a method of doing the job of checking temperatures which had not been disapproved, and that in the circumstances he could not be blamed for following inappropriate procedure, nor could he be blamed for the figures being wrong, since he merely recorded what was said to him. A further point is made that it is said that the dismissal proceedings took into account an expired warning contrary to his terms of employment.[4]In our view the Notice of Appeal does raise matters which require to go to a Full Hearing. We do not, however, take the view that it is necessary to have the Chairman's notes. The specific points raised in the Skeleton Argument before us, at paragraph 15, suggesting what would be found in the notes and why the notes are necessary, are unpersuasive. They are all points which can be dealt with perfectly well on the documents which will be before the Employment Appeal Tribunal.[5]In those circumstances we direct that the matter goes for a Full Hearing. Category C. Time estimate, unless it is suggested that it is inadequate, half a day.