Appeal No.	 EAT/558/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MISS C HOLROYD
MRS T A MARSLAND

MR D RICKARD	APPELLANT

ROADFERRY TRANSPORT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	Miss L Warren 
(of Counsel)
ELAAS	

	JUDGE JOHN BYRT QC:		This is a preliminary hearing in an appeal against a decision promulgated on 25 June 1997 of an Employment Tribunal sitting in  Manchester, whereby they held that the employee, Mr Rickards, had been dismissed unfairly, but they found contributory conduct to the tune of 100% and accordingly they awarded no compensation.

	Mr Rickards appeals the finding relating to the contributory conduct and today we are grateful for the help we have had from Miss Warren who has argued the case on his behalf as a representative of ELAAS.

	The Respondents are a substantial road transport company and Mr Rickards  was employed by them since 1991 as a HGV driver.  He also at some stage became the health and safety representative of his union.  There were three incidences about which the employers complained.  The first was on 3 March 1996, when at a rather delicate stage in negotiation between management and union, Mr Rickards put up an unsigned notice in the canteen area which to say the least was calculated to undermine the negotiations.  On 22 March of that year, the Respondents called him into a disciplinary hearing and as a result they gave him a written warning.  

	The second incident was in June 1996 when he was advised the day before about an appointment at a regional centre in Atherstone.  He had to be there strictly at the time of 9.00 am, otherwise all sorts of complications would arise such as losing his place in the queue and so on.  In any event he arrived 40 minutes late with the consequence that he did lose his place in the queue.  This disrupted his planned schedule and put at risk the Respondents’ relationship with the customer.  Again he was called to a disciplinary hearing and was issued with a final written warning.

	The third incident related to his tachograph.  This was monitored and it was found he had driven in excess of the regulation hours and therefore in breach of the regulations.  The Employment Tribunal investigated this matter and came to the conclusion in paragraph 7 of their extended reasons that there was no need for this excess hours, and Mr Rickards had given no explanation.

	In the result , the Respondents were at risk of prosecution because of what he had done, and they called him in to a disciplinary hearing on 9 July.  As a result of that incident, coupled with the previous warnings he had had, they decided that dismissal was their only choice.

	Mr Rickards appealed.  That appeal hearing was on 15 July and was presided over by the managing director of the company, a Mr McGhee.  It was because he had presided at the appeal hearing , that the Tribunal came to the conclusion the procedural steps taken for the hearing were unfair.  The reason for that was that Mr McGhee was very much of a hands-on managing director.  He had participated in correspondence with Mr Rickards over the course of time, had had much to do with him during those course years Mr Rickards had been with the company.  Indeed he had attended several of the preliminary hearings, allegedly as an observer.  In fact he had participated extensively in the questioning of Mr Rickards.  Whether justice was done might seem to be beside the point.  Justice was not seen to be done in having him as the Chairman of the appeal hearing.  Accordingly the Tribunal came to the conclusion that the dismissal was procedurally unfair.

	The Tribunal carried out an exhaustive enquiry which went on for three days into the main complaints the Respondents had against Mr Rickards, and they came to the conclusions set out in their reasons. In particular, with regard to the tachograph incident, they said he had not given any explanation for the breaches of the Regulations, and there was no need for what had happened.

	We have allowed Mr Rickards this morning to tell us what his explanation of the tachograph breaches was and he indicated to us that he had told the Tribunal what it was.  Unhappily, one of the findings of the Tribunal is that:

“.......having had the advantage of hearing all the evidence and perusing the extensive documentation and, on the balance of probabilities, we strongly preferred the evidence of the Respondents’ witnesses to that of the Applicant .......” 

They went on to say  

“...... - particularly relating to the notice board, appointment in Atherstone and tachograph matters - and found the facts to be in accordance with their evidence.” 

that is, the evidence of the Respondent witnesses.

	Those are all matters of fact for the Tribunal to decide and they led them to the conclusion that Mr Rickards was really the author of his own misfortune to the extent of 100%.

	As we have explained and I am quite certain Miss Warren has explained to Mr Rickards before, this Tribunal can only interfere with the decision of an Employment Tribunal on a question of fact where their findings are perverse.  There is nothing in the facts we have reviewed which suggests that the Tribunal has come to a perverse finding. Whilst we might well have come to a different decision, that is not the point.  The question here is whether a substantive point of law has been raised by Mr Rickards in arguing his appeal.

	We have considered this matter with care and have to say that we cannot identify any point of law.  We cannot find that the Tribunal has been guilty of any error of fact or law.  In the circumstances we have no alternative but to say we are not going to let this case go through to a full hearing before the Employment Appeal Tribunal.  If we were to take any other course, we would merely be giving Mr Rickards false hopes that at the end of the day he might succeed, and as I have already indicated, we can find no grounds upon which he could possibly succeed.  It is better that we stop this appeal here and now.  Accordingly, we do so.  This appeal is dismissed.