Appeal No.	 EAT/332/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 June 2000

Before
HIS HONOUR JUDGE DAVID WILCOX
MRS T A MARSLAND
PROFESSOR P D WICKENS OBE

MR JAMES LEONARD BURGESS	APPELLANT

GARDINER SONS & CO LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C BURGESS
(Father)	

	JUDGE DAVID WILCOX:	

1	This is an appeal against a decision of an Employment Tribunal held at Bristol on 13 December 1999.  The unanimous decision of the Tribunal was that the application should be dismissed.

2	The application was a claim for unfair dismissal and, as the Tribunal themselves said right at the beginning of their reasons, this a very sad case because it is where matters of employment, long service got mixed up with matters emotional and led to the dismissal of the Applicant who had, as the Tribunal found, a long and distinguished career with the Respondents, having been there for over 15 years.  He was in a managerial position and he had, over some period of time, an affair with his Assistant Manager.

3	It is clear that the Appellant had warnings.  He accepts that the warnings were appropriate.  He was represented before us by his father and I must say we were impressed with the succinct way in which the arguments were presented and, in terms of presenting the arguments to us, how realistic both the Appellant and father had been as to various parts of the case, particularly as to the warnings.  That prompts the observation that I now make.  It was accepted that they were absolutely appropriate and fair.

4	It seems that the principal complaint of the Appellant as to the Tribunal’s decision revolves round the events of 24 June.  We have had the very full account given to us on behalf of the Appellant.  It was the account presented to the Tribunal and the account that we note was presented also to the Disciplinary Appeal Tribunal.  The Tribunal considered the initial enquiry, and all the facts were gone into in very great detail both in the disciplinary procedure and by the Employment Tribunal.

5	A word or two about the Employment Tribunal.  The Employment Tribunal is presided over by a lawyer, but it does essentially comprise lay persons in majority.  A helpful way of sometimes describing the task of an Employment Tribunal is to use the analogy of jury, they are an industrial jury.  You have a complaint that is made, a complaint about employment or procedures in relation to disciplinary matters.  It then goes before the industrial jury and it is the industrial jury who have the burden of investigating the matter and coming to conclusions about the facts.  They have an advantage that we cannot have as an Employment Appeal Tribunal.  We do not see the witnesses, we do not hear the witnesses and we do not have that first-hand impression of witnesses that essentially an Employment Tribunal does.  Our role as an Appeal Tribunal is a very limited role.  We cannot review the case and say, “Well we think that would have been fairer or that would have been better” because that would be to put ourselves in the position of a Tribunal who heard the witnesses and that would be utterly wrong.  In fact Parliament has said very clearly there are two bases only on which we can interfere with a decision below, that is a clear error of law or what is called “a perverse finding” and a perverse finding does not mean to say we would have found differently.  We have to come to the conclusion that the Tribunal below, hearing the facts and properly directing itself, could not have come to that conclusion, it is so utterly wrong.  It is that sort of broad test. 

6	We looked at paragraph 5 of the Extended Reasons and there is clearly, it seems to us, an error as to who made the telephone call and we have had to ask ourselves, does that error upset the factual matrix, the whole balance of the case if it was decided the other way?  It is clear to us that the Tribunal below were wrong in finding that it was the Appellant who made the telephone call.  It was Mrs Coombes clearly, but in response to the request of the Appellant that she telephone him because he was required to make contact by virtue of the direction of a senior member of the staff.  We take that on board and we have put it into the equation.

7	We come to this conclusion.  The gravamen or the seriousness of the telephone call is not who made it; that is a historic fact, it is what happened and who persisted in it and really, standing back, I think the Appellant would come to the conclusion, despite as we understand it he was in an emotional relationship.  He ought to have gently said, “I’m not going to continue this” and put the telephone down.  The fact is he did not.  The fact is that that was the matter that the Tribunal took account of against the background of all the other facts and matters, in the statements of the other witnesses that showed that the relationship between the Appellant and Mrs Coombes was in fact (I will not say persisting) but the difficulties were persisting and the conduct of the Appellant was culpable.  That is not to say, of course, that the conduct of the other employee was not culpable in some way but that is not a matter that we properly have to focus on today.  

8	We have come to the unanimous but firm conclusion that on the evidence before the Tribunal, it was a competent finding, they were entitled to come to the finding that they did.  There is no error in law disclosed and we regretfully have to dismiss this appeal and we do.