MR B FLATLEY v THE SOCIETY OF MOTOR MANUFACTURERS AND TRADERS LTD [2001] UKEAT 919_01_0512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 919_01_0512Case No Appeal No. EAT/919/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B FLATLEYAPPELLANTTHE SOCIETY OF MOTOR MANUFACTURERS AND TRADERS LTDRESPONDENT
Before
His Honour Judge D M LevyDate 5 December 2001
[1]APPEARANCES For the Appellant MR PAUL MICHELL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE D M LEVY QC: This is a preliminary hearing of an appeal by Mr Flatley. It follows his dismissal by the respondents, The Society of Motor Manufacturers and Traders Ltd, in relation to conduct when he was acting for it abroad. There was a hearing at London South on 24 November 2000 and 25 May 2001. The Tribunal decided, by a decision sent to the parties on 11 June 2001, that he was fairly dismissed and that his claim for unfair dismissal failed. He was awarded damages for outstanding notice pay in the agreed sum of £4,740. He had the advantage of a consultant representing him at the hearing below. He appears to have put in his Notice of Appeal without professional assistance. The Notice of Appeal takes certainly grounds of bias at the hearing below which were abandoned at this hearing.[2]Counsel who appears before us this morning for the appellant on the ELAAS Scheme has identified what he submits is an arguable point to go forward and that is this. In various parts of the Extended Reasons, the Employment Tribunal give reasons of serious irresponsibility of the Appellant for finding justification in the decision of the employer to dismiss him for apparently gross misconduct. However, in considering what award should be made for outstanding pay the Extended Reasons at paragraph 16 state:
"We came to the conclusion that for misconduct of this kind in relation to expenses, to amount to gross misconduct for a person of the Applicant's seniority and budget, the Respondents would have to show in effect that there had been deliberate deception or dishonesty. Whilst we accept that there was a degree of evasiveness and unsatisfactory explanation and approach by the Applicant, we were not persuaded that the Respondents had gone sufficiently far in their evidence to establish the level of mens rea to warrant a finding of gross misconduct, and we therefore concluded that the Applicant was entitled to his due notice pay."
[3]It may be that that is a nice point which is right or wrong that the finding at paragraph 16 does not lie well with the decision that the dismissal of the Appellant was justified. Mr Michell has taken us to certain parts of the appellant's contract of employment which may assist if that point is developed. The point which Mr Michell wishes to take is not well set out in the Notice of Appeal as drafted; we think it would be appropriate to grant leave to the appellant to lodge an amended Notice of Appeal to take that one ground, the notice to be lodged within 7 days. It would be open, if they think fit, for the respondent to argue that it was not in the Notice of Appeal and therefore is out of time when the Appeal came on for hearing. We estimate the time of the appeal to be half a day, class C. The normal order will include the exchange of skeleton arguments. It does not seem to us that any further documents will be needed. As so often we were glad we have had the assistance of a member of ELAAS in the hearing of this preliminary appeal.