A W Barker Ltd v Cordy

EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 10 October 1997 Before

MR JUSTICE MORISON (PRESIDENT) : Despite the arguments of Ms Moor on the ELAAS scheme, to whom we are extremely grateful, and to the scheme itself, we have to say that we are not satisfied that there has been shown to be a reasonably arguable point of law arising out of a prospective appeal against a decision of an Industrial Tribunal held at Bristol on 10 January 1997. Their decision is contained in a written decision running to 17 paragraphs, dated 17 March 1997, when it was sent to the parties.

The Applicant, Mr Cordy, had brought a complaint against his former employers, A�W�Barker Ltd, that he had been unfairly dismissed. The reason for his dismissal was that he had absented himself for work pretending that he was off sick when, in fact, he was working for somebody else for a period, I think, of two days. That was discovered by his employers, who confronted him with it and, as we understand the evidence in paragraph 9, the Applicant admitted when he had been challenged again about it, that he had been working for somebody else on that week and that he had lied about being sick.

The Tribunal correctly approached the questions which then confronted them and they asked themselves what was the reason for the dismissal and they clearly identify the reason for the dismissal as falling within subsection 2(b) of s.98, namely, a reason relating to the conduct of the employee. They then refer to s.98(4) of the Act, which is drafted in general terms and they seek to give their decision in paragraph 13 as to why they have concluded that the dismissal was unfair.

The way they have expressed themselves may not be as clear as one would have wished but, as we understand what they are saying it is that if the Company was of the view that this was serious and gross misconduct, then it defied belief that they should have allowed the Applicant to work for two weeks before summarily dismissing him. In other words, as we read what they are saying, they are saying that this was not, as the employers were suggesting, a matter of gross misconduct, which warranted dismissal.