Appeal No.	 EAT/738/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
HIS HONOUR JUDGE J HICKS QC
MR D A C LAMBERT
MISS D WHITTINGHAM

MR C BANNISTER	APPELLANT

G HUNTER t/a FRANK NASON & CO.	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

	JUDGE HICKS QC:		Mr Bannister, the appellant in this appeal, was employed by the respondent employers, Frank Nason & Co., of which the firm’s principal was Mr Hunter, from January 1985 until his dismissal on 30th August 1997. The employers carried on a business which is not precisely defined in the reasons of the tribunal, but it was broadly in the nature of Estate Agency; they dealt with such matters as valuations for Building Societies, Property Management and so on. Although Mr Bannister was not professionally qualified he seems to have played a full part in all those activities. Where professional qualification was needed for a valuation, his valuations were countersigned, presumably after being vetted, by Mr Hunter.

	The reason for his dismissal was that in early May 1997 he told Mr Hunter that he had been stopped by the Police and served with a summons for a drink/driving offence. In the event, when that summons was heard on 5th June, he was disqualified for a period of 12 months, but meanwhile Mr Hunter, by notice served on 30th May 1997, dismissed him. The notice expired on 30th August 1997, but the decision had been taken on 30th May 1997. However, it is not a ground of appeal that the fact that at the date of the notice Mr Bannister had still not technically been disqualified is of any significance.

	The reason why the employer dismissed Mr Bannister in those circumstances was that he was provided with a motor vehicle for the better performance of his duties. That had certainly been the situation for many years, although the exact date on which it started is not stated. It may indeed been so from the outset of his employment. The employer, as the tribunal find, formed the view that it would impracticable and uneconomical for Mr Bannister’s employment to continue if he could not use the vehicle for the purposes of carrying out his duties.

	The tribunal makes a number of findings as to the extent of the need for a car. For example, in paragraph 2.3 it finds that Mr Bannister was involved in a number of Building Society valuations and that the employer produced his diary for the period January to August 1997, which showed numerous entries for outside visits, all of which would have been made by car. Again, in paragraph 2.5, it finds that in carrying out his property management duties, he would frequently go to sites.

	On the basis of the evidence before it, the tribunal first considered the question what was the true reason for Mr Bannister’s dismissal, and found unanimously that it was due to incapability, the incapability being related to the inability to drive a car during the expected period of disqualification. There is no appeal against that finding.

	The tribunal then went on in this way at paragraph 3.2:

“3.2     However, the tribunal has to go further and decide whether the respondents behaved reasonably in treating such incapability as a sufficient reason for dismissing the applicant. In tandem we need to consider the questions “did the employer act reasonably in reaching his decision?” and “was dismissal within the band of responses open to a reasonable employer?”. A majority of us came to the conclusion, albeit with some reluctance it has to be said, that all these questions could be answered in the affirmative. This conclusion was reached upon the basis that the employer, having provided the employee with a vehicle for the better performance of his duties, then finding that the employee was not able to use that vehicle, came to the conclusion that this could lead to potential economic damage to the respondents by reason of the disqualification’s impact on the effectiveness and efficiency of the employee.”

Then there is a minority view to the opposite intent. But that is the way the majority expressed themselves. In our judgment the majority at that point asked themselves the right questions and therefore did not err in law in that respect.

	It is against that background that we look at the skeleton argument on behalf of the appellant, because the appellant does not appear before us but has asked us to deal with the matter on the basis of that argument.

	Leaving paragraph 1 of the skeleton aside for the moment and turning to paragraph 2, there are first a number of objections which, in our view, show no error of law because they simply amount to submissions that the tribunal ought to have come to different findings of fact or taken a different view of the evidence. They are as follows. First it is said:

“It is not correct to assume that the Appellant invariably travelled by car alone. His journeys were often carried out with his employer in the employer’s car. Every effort was made to travel together in order to save time and expense.”

Secondly:

“The number of valuations carried out by the Appellant has been substantially misrepresented by the Respondent. There were a number of other building societies that the Appellant could not work for.”

Third:

“The Property Management Business took up the majority of the Appellant’s time.”

And fourth:

“The Appellant did not frequently go to sites. This was not necessary other than to read meters on a monthly basis and generally keep an eye on things. The Respondent has grossly exaggerated the necessity for site visits.”

All those matters, it seems plain to us, are attempts to appeal on issues of fact. The truth is that our jurisdiction is only to entertain appeals if they raise questions of law.

	Then, omitting another ground to which I shall return later, the skeleton argument proceeds with other matters which again we consider are matters of fact and not of law. There is a submission that the evidence of a witness, Mr Merrick:

“... does not appear to have been taken into account properly by the tribunal. He was surely in a better position to show how the Appellant managed his time than the Respondent and basically let the Appellant get on with his job.”

That again is a pure matter of fact and the tribunal’s assessment of the evidence. They did refer to Mr Merrick. There is absolutely no ground for supposing that they did not take his evidence into account. The conclusions which they reached on it were entirely a matter for them.

	There is then a reference to some evidence which is referred to by the tribunal that during the period of Mr Bannister’s notice, which he worked out, Mr Hunter’s daughter drove him to valuation surveys and any other occasion when he would have needed normally to go himself by car.  The criticism of the way that matter is dealt with by the tribunal is also, in our view, an attempt to appeal on questions of fact and on the tribunal’s assessment of the evidence, and fails for the same reason, as does the next point, which is a submission that the appellant maintained that he did his job perfectly adequately during that notice period. 

	The next and final item in that list is concerned with the last two weeks of Mr Bannister’s employment, when it said that new management business was taken on and Mr Hunter, himself, took Mr Bannister to the necessary meeting by car. All those matters, therefore, are not grounds of appeal which we can entertain, because they concern findings of fact by the tribunal on evidence which was before them and do not raise any question of law.

	The third main paragraph of the argument begins:

“The Appellant feels that the Respondent acted entirely unreasonably, without any consideration for the years service that the Appellant had given to him. ...”

The reasonableness of the employer’s conduct was of course a matter which the tribunal had to consider and had they failed to do so that would have been an error of law but, as is apparent from the extract from their reasons which I have read, they did address the question whether the employer acted reasonably and reached a conclusion on it. There is no basis upon which we can interfere with that conclusion if they directed their minds to the correct question in law, as we find that they did.

	That brings us back to paragraph 1 of the skeleton and paragraph 2.7, which amount to submissions that the consultation between Mr Bannister and Mr Hunter concerning the practicability of his continuing employment without the ability to drive a car was of such a kind as to amount to unreasonable conduct on the part of the employer, a lack of fairness, and whether that disabled the tribunal from reaching the decision which they did reach that the employer acted reasonably and that the dismissal was within the band of responses open to reasonable employer. Those criticisms centre on paragraph 2.7 of the tribunal’s reasons, which is as follows:

“2.7     Following receipt of this information [that is the information about the summons], Mr Hunter gave consideration to alternative roles to the applicant but concluded that it would be impracticable, and potentially uneconomical, for the applicant’s employment to continue and accordingly he dismissed him by notice on 30 May 1997, such notice expiring on 30 August 1997. It would appear that the discussion between the applicant and Mr Hunter about the possibility of his using public transport was not explored in any depth. Mr Hunter concluded that this would be wholly impracticable. Consideration was also given to providing the applicant with a modem link at his home, and also the possibility of doing subcontract work on the property management side. However these possibilities were not pursued.
2.8	It is the applicant’s case (supported to a certain extent by Mr Merrick) that his was mainly a desk bound job and he argues that the disqualification need not necessarily have impeded him carrying out his normal functions.”

	So the tribunal recite the considerations on each side. They pay attention to and take into account the extent of the discussion, and the highest at which this point can be put, it seems to us, is to suggest that the findings that the question of public transport was raised but not, as they say “explored in any depth”, the fact that consideration was given to a modem link and to doing subcontract work on the property management side but not pursued - that those phrases “not explored in any depth” and “not pursued” - make it impossible for a tribunal, properly directing itself in law, to reach the conclusion they reached. In our view, that is a proposition that cannot be sustained. It is the mark of a properly reasoned decision that it sets out the matters that can be aired on both sides before arriving at its own conclusion. The fact, therefore, that some of the matters mentioned there were plainly capable of giving rise to arguments, and no doubt did give rise to arguments before the tribunal, that the employer was unreasonable in the paucity of the attention which he gave to the possibility of public transport, modem or subcontract work, does not of itself show that the tribunal erred in law. On the contrary, it shows that the tribunal took those matters into account before it reached its conclusion, which was a matter for it - provided it had first correctly directed itself in law, that the employer had acted reasonably and that the response at which the employer arrived was within the band of responses of a reasonable employer. We therefore come to the conclusion that that ground, which is in our view the only ground of any substance raised in the appeal, still does not establish that the tribunal erred in law and the appeal must therefore be dismissed.