MR M S FLAVELL v CES (UK) LTD [2001] UKEAT 842_01_0511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 842_01_0511Case No Appeal No. EAT/842/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M S FLAVELLAPPELLANTCES (UK) LTDRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR P M SMITHMISS S M WILSONDate 5 November 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant MR COMMISSIONER HOWELL QC In this appeal which is before us today for a preliminary hearing, Mr Mark Stanley Flavell seeks to have set aside as erroneous in law the Decision of the Liverpool Employment Tribunal, which heard his case on 21 and 22 May 2001 and issued a Decision contained in what is in our view an exemplary statement of Extended Reasons issued to the parties on 4 June 2001, at pages 5 - 8 of the appeal file before us. Mr Flavell does not appear before us today but has written a letter dated 24 October 2001 enclosing a skeleton argument and other documents and saying he requires today's hearing to go ahead. In those circumstances we have proceeded to consider the merits of his appeal, and the material he has provided.[2]The unanimous Decision of the Tribunal was that the complaints brought by Mr Flavell against his former employer, CES (UK) Ltd, for unfair dismissal, failed. What gave rise to the proceedings was that Mr Flavell had been summarily dismissed from his employment, according to the Tribunal's findings, on 24 August 2000, for gross misconduct. The particular misconduct for which he had been held responsible (as the Tribunal found, justifiably) by his employer, was harassing a female co-employee.[3]The Tribunal's very clear findings of fact in paragraph 3 of their Extended Reasons show that:
"(a) The respondents supply exhaust systems. They employed the Applicant as a driver from 31 August 1999 until 24 August 2000. Miss Eleanor Smith was another driver they employed. (b) Because their route to and from work overlapped, the applicant and Miss Smith used to give each other lifts. He became very attracted to her but she refused his advances. She had for 5 years lived with another man, …and she wanted to continue to do so. (c) The applicant became obsessive about Miss Smith and plagued her. …….He was always pestering her…." to such an extent that on one occasion the police were involved, and matters spread into the workplace with a loud quarrel at work, resulting in both parties being issued with a warning. After that in the Tribunal's words: "(e) The respondents made efforts to keep the applicant and Miss Smith apart. They forbade him to speak to her. She co-operated with their efforts, trying to keep away from him. He did not. He made strenuous and continuous efforts to speak to her. He got on people's nerves. He plagued Mr Burgess, the team leader, with unremitting requests to be put on the same Saturday morning shift as Miss Smith. Mr Burgess was deliberately keeping them apart. He alarmed them: Miss Duffy stopped seeing him alone when he pestered her; he wanted her to be his go between with Miss Smith. He would not stop talking about Miss Smith and her (as he alleged) ill-treatment of him. They brought back to her reports of threats he uttered against her."
That resulted in a discussion between Miss Duffy, (the Personnel Manager) and Steve Evans, another manager, and again as the Tribunal recorded:
"They rightly recognised that the applicant did not intend to leave Miss Smith alone. They decided that he must be dismissed. The next day they told him so, and they told him why. But they did not write to him to say so." "
The next day", on which Mr Ridge was notified of his immediate dismissal, was 24 August 2000.[4]The issues before the Tribunal, on Mr Flavell's complaint against that dismissal on the ground that it was unfair, were first whether he had the requisite period of one year's continuous employment by the effective date of termination of his employment to bring a claim of unfair dismissal at all, under Section 108(1) of the Employment Rights Act 1996 . The Tribunal determined that against Mr Flavell, on the ground that he had been dismissed summarily on the day the dismissal was notified to him, which was 24 August 2000. That was just under a year from the agreed date of commencement of his employment which had been 31 August 1999.

(c) of their Extended Reasons:

"Thus the respondents were entitled summarily to dismiss the applicant. His dismissal ended his period of service on 24 August 2000. He did not have the requisite year of continuous service."
[5]The second issue was whether if that was wrong, the circumstances of Mr Flavell's dismissal amounted to an unfair or unreasonable dismissal by the employer. Again, this issue was determined against Mr Flavell by the Tribunal on the ground that he had been dismissed for disregarding the express terms of his written warning, and that had been misconduct; and that in the circumstances of the case, the employer had been reasonable in treating that misconduct as sufficient to justify Mr Flavell's dismissal.

(d) of their Extended Reasons:

"The respondents, it was clear, were genuine in their belief that the applicant was disregarding their warning. They had reasonable grounds for their belief. Miss Smith was an object of his importunity, so was Mr Burgess. Notoriously, he plagued his other colleagues with his obsession."
Accordingly, the Tribunal held that, in the circumstances, dismissal had been a reasonable penalty for the misconduct, of which they found as a fact the Applicant had been guilty.[6]However, the Tribunal did also hold that the Respondents had not carried out a reasonable investigation at the time into the evidence, though it was sufficient to show his misconduct.

(e) under the heading "Unfair dismissal" on page 7:

"… he should have been given the opportunity on notice to tell them what he wanted to say about the accusations against him. He was not even given a written notification of his dismissal or the reasons for it."
[7]Nevertheless, the Tribunal held that this did not materially affect their judgment that his dismissal had been a fair one. Even if had the Respondents given the Applicant a reasonable hearing the outcome would have been identical. He was determined not to call off his pursuit of Miss Smith, and they were reasonably entitled to require him to have done so. As the Tribunal recorded:
"Whether it was said that the outcome would have been no different or that his conduct contributed to the extent of 100% (as we thought it did) to his dismissal, no award of compensation (or reinstatement) would have been made."
[8]Finally, the Tribunal dealt with the issue of whether there had been discrimination against Mr Flavell on the grounds of his sex, in that of the two employees involved he had been dismissed and Miss Smith had retained her employment. The Tribunal's succinct, but entirely adequate, grounds for dismissing the complaint on that issue can again be quoted verbatim:
"(a) Did the respondents subject to the applicant to a detriment? They did. They dismissed him. (b) Was there a difference in sex? There was. They did not dismiss Miss Smith. (c) Did the respondents' explanation of the different treatment exculpate them from the accusation of sex discrimination? It did. The applicant disregarded the warning; he was guilty of misconduct. Miss Smith took heed of it and behaved herself. It was their contrasting blameworthiness, and not the sex of either, that occasioned the difference in their treatment."
[9]Against that Decision Mr Flavell sought to appeal on the grounds set out by himself in his Notice of Appeal dated 12 July 2001, at pages 1 - 4 of the appeal file. In particular, he takes the initial point that the Tribunal erred in holding him disentitled to bring proceedings for unfair dismissal at all, on the ground that as he contended he had been given one week's notice on 24 August 2001, and the money in lieu of that notice had in fact been paid to him, his employment ought to have been treated as terminating on 31 August 2000, instead of the previous week. That would just give him one year and one day of continuous employment at the effective date of termination. According to what is asserted in his Notice of Appeal, there had been a preliminary hearing held on 18 January 2001, when he and a representative on behalf of the employer had attended in front of a different Tribunal Chairman, and he understood it had been in his words "agreed by all parties" that he did have sufficient continuous service to bring a claim of unfair dismissal with the result that the case was allowed to proceed to a final hearing.[10]We have seen no previous Decision of the Employment Tribunal on that or any other date, which records that as a concluded Decision on the issue; and plainly the Tribunal on 21 - 22 May did not regard the matter as already decided. We have not therefore been satisfied that that complaint gives Mr Flavell a ground for setting aside the considered Decision of the Tribunal on the substantive hearing in May 2001. In particular, their Decision appears to us to be correct, having regard to their express finding on the evidence that Mr Flavell had been the subject of a summary dismissal on 24 August 2000, notwithstanding that he was paid one week's money in lieu of notice. In our judgment, the Tribunal reached the only conclusion any reasonable Tribunal could have done on that finding. The finding in turn was justified by evidence that the effective date of termination of his employment was in fact 24 August, as expressly alleged in the employer's Notice of Appearance, dated 19 September on page 12. Even though he had been paid a week's money in lieu of notice up until the end of the month, he did in fact cease to work for the Respondents on 24 August, and had gone off within another day or so to other employment, which he started before 31 August.[11]In those circumstances, we have not been satisfied by Mr Flavell's written Notice of Appeal or written Skeleton Argument, all of which we have considered, that any arguable ground is shown for allowing the appeal to go before a full hearing of the Employment Appeal Tribunal on the issue as to the period of continuous employment.[12]Mr Flavell takes further points in which he disputes various matters on the facts, in particular as to whether he was or was not in breach of any warning given him by the employer, but those are pre-eminently matters of fact and degree which are for the Employment Tribunal hearing the actual evidence to determine. They are not matters which give rise to any arguable error of law, or reason for this Appeal Tribunal to interfere with the Employment Tribunal's very clear and express findings having considered the evidence in the case. Accordingly, we do not regard those assertions by Mr Flavell as giving rise to any arguable ground to warrant our directing that the case should go forward.[13]He further asserts that the Tribunal were in error in failing to allow his complaint on the procedural ground which they did find established, that a reasonable investigation had not been carried out by the employer. Again, in our judgment, the Tribunal were entitled to find on the facts, as they did, that in view of the gross misconduct for which Mr Flavell was responsible, the outcome could have been no different. However it is not necessary for us to express a concluded view on that issue in view of our decision on the first question that he was not entitled to bring proceedings for unfair dismissal at all. We have not therefore been persuaded that this gives a separately arguable ground to warrant allowing the appeal to proceed further.[14]That leaves the sex discrimination issue, and on that we can only say that the Tribunal's very clear and well-expressed conclusions appear to be quite unchallengeable as a matter of law.[15]For those reasons, we now unanimously dismiss this appeal.