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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> ORAC Software Technology TD v Mahoney & Ors [2003] UKEAT 1160_02_2102 (21 February 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1160_02_2102.html Cite as: [2003] UKEAT 1160_2_2102, [2003] UKEAT 1160_02_2102

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APPEARANCES

 

For the Appellant	MR I STEEL


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about unfair dismissal. We will continue to refer to the parties as Applicant and Respondent.
2. This is an appeal by the Respondent in those proceedings against an Employment Tribunal sitting at Reading, Chairman Mr A A Hogarth, promulgated with Extended Reasons on 18 July 2002. The Applicant represented himself. The Respondent was represented by Mr Steele, its leading light who appears today.
3. The Applicant claimed unfair dismissal and a number of other employment protection and contract of employment rights. The case was brought against three Respondents and the first issue was to decide who the correct Respondent was. The conclusion of the Tribunal was that Orac Software Technology Ltd was the correct Respondent. The Respondent denied unfair dismissal and contested some and admitted other claims made by the Applicant.
4. The Tribunal decided that the Respondent unfairly dismissed the Applicant and ordered compensation to be paid, subject to a more detailed assessment. The Respondent admitted or was adjudged liable in respect of a number of other payments. Mr Steele informed us today that none of these payments had been made. This surprised us since many of the claims were admitted. He has assured us that these will be paid forthwith, with interest pursuant to statute.
5. As we have indicated to Mr Steele, we will dismiss the appeal and therefore the arrangements set in place for the detailed calculations by the Employment Tribunal are now to be implemented.
6. The business it is engaged in is computer software. The Applicant was employed by the Respondent (or its predecessor) for 20 years in a managerial position. During 2001 the business was running into serious financial difficulties with a clearly declining workload.
7. On 23 April 2001 there had been a brief meeting between Mr Steele and the Applicant to discuss the future of a particular employee, Mr Spacey. He had worked on contracts for three days a week for the Respondent. At the meeting it was decided that Mr Spacey's working week would be reduced from three to two days and Mr Steele wrote to him in those terms, advising him of the effect. Three employees had already had their employment terminated.
8. Mr Spacey's immediate Line Manager was the Applicant. Mr Spacey spoke to the Applicant about the proposed changes in his contract and pointed out that he was very unhappy with the reduction in his hours. He had checked on the DTI website and, as a result of the description of employment law which he saw there, he considered that the Respondent was not entitled to make the unilateral changes which it did.
9. Mr Spacey told the Applicant this, and the Applicant wrote back:

"I have checked on the DTI website…to check on some of the employment matters you have raised: -

I do agree with you that the company cannot change your agreed hours without your agreement. I think it would be best to wait for the negotiations with the NEC to be completed before re-negotiating employment terms.

I agree that you are almost certainly entitled to paid holidays because of changes in employment law introduced last year.

I also find the current uncertainty in our employment difficult to live with, and understand your concerns and will raise them with Iain (Steele) at the earliest situation."

10. The Tribunal found that it was that letter which amounted to misconduct on the part of the Applicant in the eyes of the Respondent. As a result of the writing of that letter the Applicant was taken through a disciplinary procedure and it was decided that the Applicant was to be dismissed because this letter amounted to gross misconduct.
11. The Tribunal heard a dispute about the role of that letter but came to the conclusion that the Respondent perceived the letter as a deliberate attempt by the Applicant to sabotage what was, in the Respondent's view, a legitimate cost-saving exercise, upon which the future of the company depended.
12. The Tribunal accepted that the reason for the termination of the Applicant's employment related to his conduct in writing a letter. The Tribunal then went on to hold, pursuant to section 98 (4) Employment Rights Act 1996 that dismissal was not even remotely justified for the writing of a letter of this sort.
13. The Respondent contends that the Tribunal failed to pay attention to arguments and evidence put before it relating to what occurred at the disciplinary meeting on 30 April, where it was contended that the Applicant had called the Respondents a liar, as evidenced, at least, in the Minutes of that meeting.
14. It is said in the Skeleton Argument, on behalf of the Respondent, produced by Mr Steele and addressed today, that this amounted to a breach of the essential relationship between an employer and an employee that mutual trust and confidence must be maintained: see Malik v BCCI [1997] ICR 606 House of Lords.
15. That, of course, is a straightforward proposition of law, but it must be recalled how the deterioration in the relationship was said to have started. The Applicant in his Originating Application told the story, at length, beginning and focusing on the letter to Mr Spacey which he had written and to which Mr Steele took exception. In the Respondent's Notice of Appearance, which Mr Steele signed and filed, it is clear that the Respondent accepts the principal sequence of events and the essential focus upon the Spacey letter. In those circumstances it is hardly surprising that the Tribunal itself focused on that matter.
16. The Tribunal found that it was the letter which led to the dismissal and that that was an insufficient reason for dismissing the employee in the circumstances. Mr Steele criticises the Tribunal as having substituted its judgment for that of the Respondent. If it did, that would be an error. He points to one line in the Extended Reasons which reads as follows:

"We conclude that the writing of this letter does not amount to misconduct and that no reasonable employer would consider that it did."

17. In our judgment, there is a potential for an argument on substitution from that sentence read alone. However, it will be recalled that that is the concluding paragraph in relation to the issue of unfair dismissal and is simply a summary of the findings of fact and self-directions made and recorded earlier in its decision. On closer analysis of that sentence on its own, we do not consider that there is even there a substitution of the Tribunal's view. Of course, as a collective of judicial officers, the first person plural is bound to be used. The Tribunal is bound to make conclusions, having heard the evidence and submissions. It is then bound to apply the law and it correctly adopts the objective standard of the reasonable employer expressly in that sentence and therefore we hold no misdirection has occurred.
18. The appeal is dismissed.