MR P STONE v LARA LATCHKEY [2001] UKEAT 0918_01_1112

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0918_01_1112

Case No Appeal No. EAT/0918/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P STONEAPPELLANT

LARA LATCHKEYRESPONDENT

Before

His Honour Judge D M Levy

Lord Gladwin of Clee

Date 11 December 2001

[1]APPEARANCES For the Appellant MR R THOMAS (of Counsel) Tayo Arowojolu Solicitors Helen House 214-218 High Road Tottenham London N15 4NP HIS HONOUR JUDGE D M LEVY QC This is the Preliminary Hearing of an appeal by Mr P Stone ("the Appellant") against a decision of an Employment Tribunal sitting at London South on 14, 15 and 16 May 2001 which dismissed claims made by him. The Appellant had in his IT1 claimed irregularities in the manner in which his dismissal was conducted and that there had been race and sex discrimination in the manner in which he was treated. The Tribunal was headed by an experienced Chairman and the decision was promulgated to the parties on 11 June 2001. The Notice of Appeal was dated 23 July 2001.

[2]The short ground on which the Appellant was dismissed was that he was working for a charity looking after young children and on an outing it was found that he had:

"…admitted to being 50 to 100 metres away from the children in his charge."

After the incident, which took place on 2 August 1999, the Appellant was called to an investigative interview which eventually took place on 7 October 1999. Then he was represented by his union in the person of Ruth Smith. Having heard his evidence, there was a disciplinary hearing on 5 January 2000; again the Appellant was represented by his trade union when the case was heard by the disciplinary panel. The committee found that the Appellant's admission of supervising, from a distance of 50 to 100 metres behind, the group of 8 children in his charge was a flagrant breach of safety, that his conduct amounted to negligence and failure to follow safety procedures. It was found to be gross misconduct and the decision was for him to be instantly dismissed. That decision was reached on 17 January 2000, which was the effective date of termination. On 20 January 2000 the Appellant lodged an appeal against his dismissal, both on the grounds of fairness but also raising the issues of both sex and race discrimination, comparing his treatment with one Helen Jordan.

[3]At the appeal panel there was a finding that the Appellant had not been discriminated against on grounds of race and gender. They also found that the decision to dismiss was correct and that the incident complained of was sufficiently serious to merit dismissal (and these are the words on which the appeal hinges) when two previous warnings were taken into account for similar neglect of duty. It is clear that the fact that there was a difference between the finding at the earlier hearing and the appeal hearing was a matter which was before the Tribunal.

[4]The complaint which is made is that the decision of the Employment Tribunal is vitiated because it fails to make findings of fact as to the warnings and as to the difference between what happened at the appeal hearing and what happened in the earlier one. In our judgment, given the facts of this case, the Tribunal were entitled to come to a decision, as it did, that what the Appellant had admitted doing was something which amounted to gross misconduct and that it was not something about which a child care worker should specifically need reminding.

[5]In our judgment this is a case which has no chance of success if the matter goes to a Full Hearing. Miss Thomas has said all that can be said for the Appellant and has with vigour and clarity pointed to the disparity between the grounds of dismissal which we have mentioned. Nevertheless we consider that the decision of the Tribunal was one which it was clearly entitled to reach on facts properly found. We therefore dismiss the appeal at this stage.