MR S DARE v SYMONDS HYDROCLEAN RETAIL MAINTENANCE LTD [2001] UKEAT 1287_00_0504

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1287_00_0504

Case No Appeal No. EAT/1287/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S DAREAPPELLANT

SYMONDS HYDROCLEAN RETAIL MAINTENANCE LTDRESPONDENT

Before

Mr Recorder Langstaff

Date 5 April 2001

[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED MR RECORDER LANGSTAFF QC This case comes before us by way of Preliminary Hearing from a decision of the Employment Tribunal sitting at Southampton on 23 August 2000. The Appellant is not before us today. We have accordingly proceeded to hear the appeal and to determine it in his absence.

[2]It is of importance to note that the Tribunal sat on 17 November and on 11 January before having discussions as to its judgment which was reserved. By that judgment they held the Appellant was unfairly dismissed because the dismissal was procedurally unfair but dismissed his breach of contract claim. Despite the fact that he succeeded in the event upon his claim the Appellant has chosen to appeal. As we understand it this is essentially because the basis upon which the Tribunal reached its conclusion is one which will act unfavourably toward him in the issues of compensation which have yet to be determined.

[3]He was alleged, putting it shortly, to have had the responsibility of doing work as an engineer on supermarket trolleys which came from Sainsbury's at Bletchley. His employers became aware that defects were apparent in a batch of such trolleys with whose welding he had been concerned. Accordingly, they raised the quality of the welding and the way in which he had discharged his duties with the Appellant and concluded that he had been guilty of misconduct.

[4]At paragraph 42 of the reasoning the majority concluded that the employer had reasonable grounds following a reasonable investigation for its belief that the Appellant had been guilty of the misconduct alleged. Further the sanction of summary dismissal was a reasonable decision for the employer to take in all the circumstances given its reasonable conclusion that the employer's conduct had threatened the safety of the public and supermarket's staff and jeopardised the continuation of its contract with Sainsbury's.

[5]They went on to say however, that there were procedural irregularities which were inconsistent with the duty imposed upon the employer by section 98 (4) of the Employment Relations Act 1996 to act fairly and reasonably in relation to the disciplinary proceedings. The Appellant, they said, should have been given proper notice that a disciplinary hearing was to be held instead of having to face one at short notice. That therefore would have meant that he would have had five working days further in the employer's service.

[6]The Appellant after the conclusion of the evidence but before the decision had been reached by the Tribunal raised the question of whether he ought to be permitted to give further evidence. The Tribunal deal with it in this way at paragraph 32 of their decision:

"The Applicant's solicitors wrote to the Tribunal by letter dated 14 th January 2000 applying for the hearing to be re-opened to enable the Applicant to give further oral evidence. The basis of the application was that, following the conclusion of the hearing, the Applicant had noticed that one of the colour photographs of the trolleys, which appeared in the agreed bundle, showed that the trolley had a red plastic handle, as used on Tesco's trolleys, rather than the orange coloured handle used on Sainsbury's trolleys. He wished to give further evidence as to the source of that particular trolley. By letter dated 18 th January 2000 and 21 st January 2000, the Respondent's solicitors vigorously opposed the application. They argued that the evidence had always been there but it was not noticed by the Applicant previously and that the Applicant should not be allowed to have another "bite of the cherry"

. At its first Reserved Decision meeting, the Tribunal considered carefully the written submissions made on behalf of both parties and concluded unanimously that there were no good grounds for allowing the Applicant to give further oral evidence following the conclusion of the hearing. The further matter upon which he wished to comment could have been, but was not, raised by him or his solicitor at any appropriate stage during the hearing. Furthermore, both the trolleys and the photographs taken by the Respondent were inspected by the Applicant at the meeting on 1 April 1999. The Applicant stated in evidence that he looked at each of the photographs at the meeting. He suggested neither then nor during the disciplinary hearing that one of the trolleys could be identified as one that had not come from a Sainsbury's store."

[7]The Tribunal therefore concluded that what was said to be new evidence was matter which was or should have been within his knowledge during and they considered it neither equitable nor reasonable to re-open the hearing to enable him to give such evidence.

[8]We consider that whether or not to permit further evidence to be given after the conclusion of the hearing was a matter which fell within the discretion of the Employment Tribunal. There does not seem to us to be any wrong basis upon which that discretion was exercised in the event.

[9]Accordingly, there seems to us to be no error of law. A point is taken by the Appellant that there should have been an oral hearing in the light of the letter from the solicitor. We disagree. We think that how the Tribunal chose to deal with this application was a matter for them. The essential point in justice was that having had the application from the Appellant they afforded the employer a chance to respond.

[10]The arguments were given to the Tribunal in writing. There is no material to suggest that there was anything in the writing which would have been amplified significantly by an oral hearing. In short there is nothing in this ground at all. In our view this appeal is unarguable. It must be dismissed.