MR I SAGOO v WEATHERSEAL HOLDINGS LTD [2001] UKEAT 0742_01_2610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0742_01_2610Case No Appeal No. EAT/0742/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR I SAGOOAPPELLANTWEATHERSEAL HOLDINGS LTDRESPONDENT
Before
Mr Justice Wall Mr I EzekielLord Gladwin of CleeDate 26 October 2001
[1]APPEARANCES For the Appellant MR S P QUANT (a friend) THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of Mr Sagoo's appeal against the unanimous decision of the Employment Tribunal sitting at Reading on 9 April 2001, which was in these terms:
"The unanimous decision of the Tribunal is that the applicant was an employee of the respondent with not less than one year's continuous service who was unfairly dismissed on 30 June 2000 (the effective date of termination) and that the respondent shall pay forthwith to the applicant compensation in the sum of £1,340."
[2]It is not, however, the Respondent employer who appeals from that decision but Mr Sagoo. The reason for that is that although the Tribunal found that the Appellant's dismissal was procedurally unfair, it nonetheless decided that despite the procedural unfairness of the dismissal it was not otherwise unfair; indeed it was appropriate, for reasons for which we will return to in just a moment.[3]A substantial part of the Tribunal's reasons is of course given up with the question which they answered in the decision, namely the one years' continuous service. No issue arises in relation to that. The issue which arises relates to the summary dismissal by the Respondent of the Appellant. The reason for that, and I am not going to go into the facts in any detail, was that the Respondent found, in the company car which the Appellant had been using for his work, an invoice of a rival company on which was written the mobile 'phone number of the Appellant. The Appellant's contact with that company was that he had loaned its managing director some money in return for which the gentleman in question had, it would appear, made the Appellant a director of the company. The Appellant's case was that the presence on the invoice of his mobile telephone number was entirely innocent and that he was in no sense in competition with his employer and working for a competitor.[4]Unfortunately however, the employer adopted a very abrupt method of dealing with the matter once the invoice had been discovered. The Appellant was called to a meeting on 30 June 2000. He was given no notice of what it was to be about. He was not invited to be accompanied by a representative. No notes or other records were kept of the meeting. The Appellant was invited to give an explanation as to why his mobile 'phone number was on the document. The Appellant says that in the heat of the moment and in the circumstances of the confrontation he was unable to do so. He was then dismissed.[5]The Tribunal came to the conclusion that, in relation to the fairness of the dismissal, it was, of course, procedurally unfair. They pointed out, as was self evident, that no disciplinary procedure existed or was followed. The Appellant had been given no notice of matters to be raised at the meeting at which he was dismissed. They then go on to make this statement, which is effectively the subject matter of the Appellant's attack:
"We have, however, considered the substance of the respondent's complaint and we are persuaded that in the absence of any explanation by the applicant of the appearance of his mobile telephone number on the purchase order of Seabird UK Ltd, the respondent's managers were entitled to find, as they did, that he was in breach of his fiduciary duty to the respondent and that dismissal was a reasonable response. Indeed, we consider that summary dismissal was appropriate as the apparent breach in working for a competitor, could properly be regarded as gross misconduct."
[6]The consequence was that when they came to consider remedy they assessed it on the basis that the dismissal was procedurally unfair only, and that accordingly compensation should be limited to the basic award. The total of £1,340 was thereby calculated. Mr Sagoo sought a review of that decision which was dismissed on 11 June 2001.[7]We have come to the conclusion that there is an arguable point here under the decision of Polkey vAE Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd. Whilst the issue plainly goes essentially to the reasonableness of the employer's state of mind and belief, the Tribunal, having found that the decision to dismiss was procedurally unfair, then went on to speculate what may or may not have happened had the employer followed appropriate procedures. On any view it is arguable that the appropriate procedure could and should have had an effect on the employer's mind and the reasonableness of the employer's actions. On that basis it is arguable that Mr Sagoo is entitled to be treated as though he had been appropriately dismissed with full notice. We think that point arguable. Accordingly we propose to allow the case to go to a Full Hearing.[8]It is however (and this is no criticism of Mr Sagoo) the fact that his Notice of Appeal is home-made, and whilst it refers to the relevant authorities, it does not, we think, address the issues with the precision which would help the Employment Appeal Tribunal hearing the case in due course. We therefore propose to give Mr Sagoo permission to amend the Notice of Appeal to identify the issues with greater precision and clarity. We are told that with the assistance of Mr Quant, who has ably represented him this morning, he will be able to do that within 14 days from today.