Appeal No.	 EAT/1041/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 1996

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR D J HODGKINS CB
MRS P TURNER OBE

MR G A BEECH	APPELLANT

PATHFINDER MENTAL HEALTH SERVICES	RESPONDENTS
NHS TRUST

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	

			MR JUSTICE LINDSAY:   We have before us an appeal by Mr Beech who appears in person.  Mr Beech was the Applicant before the Industrial Tribunal under the Chairmanship of Mr N A Halton.  The Respondent to the Industrial Tribunal was Pathfinder Mental Health Services NHS Trust.  The date of the decision against which Mr Beech appeals is the 17 September 1996.  

	Mr Beech had provided long service to the Respondent, from 1983 until April 1995.  His final position was director of estates of the Respondent.  He was suspended in January 1995 because doubts had been raised as to private commercial activity by him and another during working hours and at the premises of Pathfinder, and, in some cases it was thought, using material that belonged to Pathfinder.  There was a disciplinary hearing spread over some two or three days to the 12 April 1995.  The finding of that disciplinary hearing included that there had, indeed, been commercial activity during working hours; that there was use of the Respondent’s equipment and supplies, and that there had been actual as well as potential conflict of interest between Mr Beech in this activity and the best interests of Pathfinder.  Accordingly, on 12 or 13 April 1995, Mr Beech was dismissed.  

	There was a full hearing by way of a disciplinary appeal and that dismissal was upheld.  Before the Industrial Tribunal Mr Beech accepted that he had run a commercial activity.  The Industrial Tribunal held that there had been a copious and objective investigation by Pathfinder of the complaints against Mr Beech.  They found that the reason for Mr Beech’s dismissal was the Respondent’s perception that Mr Beech had been carrying on commercial activities in conflict with his responsibilities to Pathfinder.  They found that the Respondent had acted reasonably and they heard an argument that there was a disparity in treatment between the way that Mr Beech had been treated and the way that another, Mr Lewis, had been treated.  The Industrial Tribunal found that the Respondent had carefully analysed each separate case and held that the fact that the decision differed in the two cases did not make Mr Beech’s dismissal unreasonable.

	Mr Beech appears before us asserting chiefly two points.  First, he says that the Tribunal acted on the footing that there was actual conflict between his private activity and his duties to Pathfinder, whereas the letter of dismissal had referred only, he said, to potential conflict.  There is no question here, as it seems to us, of the Industrial Tribunal substituting its own opinion for the opinion upon which employer had acted because the disciplinary hearing itself has its findings set out in paragraph 8 of the Industrial Tribunal’s decision which runs as follows:
“(e)  that the Applicant failed to review with his line manager his commercial interests, and the actual and potential conflicts of interest which arose between these and his position as an employee and director of the Respondent”

	So the disciplinary hearing itself had found actual conflict as well as potential conflict.  The Industrial Tribunal in referring to actual conflict was thus not replacing what the employer had found, but was accepting it as fact.  

	Another head of complaint that Mr Beech raises before us is inequity of treatment, in the sense that he was treated, he says, more harshly than Mr Lewis had been.  He draws attention to the case of Post Office v Fennell [1981] IRLR 221, but that case indicates that there is a degree of latitude that is appropriate in dealing with different individuals that have been responsible for similar but not necessarily absolutely identical matters.  The employer has a degree of latitude in responding differently to different cases.  Here the Industrial Tribunal indicates in their own conclusions that the Respondent, Pathfinder, had made a careful analysis of the particular circumstances of each individual case and the conclusion of the Industrial Tribunal was that the disparity did not lead to unreasonableness.  That is essentially a finding of fact.  We have no material to suggest that there was no basis for that finding of fact.  Mr Beech has to recognise that we are not able to disturb matters of fact, at all events if the Industrial Tribunal comes to a conclusion which such a Tribunal properly addressing itself to the matter before it could have come to.

	So far as we have been able to discern from the papers and from Mr Beech’s argument, there is here no error of law and we are therefore not in a position to assist him.  The case therefore does not go further forward.