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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cross v. London Symphony Orchestra [2001] UKEAT 57_01_0905 (9 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/57_01_0905.html Cite as: [2001] UKEAT 57_01_0905, [2001] UKEAT 57_1_905

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APPEARANCES

 

For the Appellant	MISS NICOLA BRAGANZA (of Counsel) Instructed by: Messrs Atkins Hope Solicitors 74-78 North End Croydon CR9 1SD


 


SIR CHRISTOPHER BELLAMY QC

1. This is an appeal from the Decision of the Employment Tribunal sitting at London Central dated 13 November 2000 whereby the Tribunal decided that the Appellant, Harriet Cross, had not been unfairly dismissed by the Respondents, the London Symphony Orchestra Ltd. The appeal comes before us today by way of an ex-parte preliminary hearing in order to determine whether the appeal discloses a reasonably arguable point of law.
2. The essential point of law advanced on behalf of the Appellant is that in the circumstances of this case no reasonable Employment Tribunal could have decided that the dismissal of the Appellant fell within the range of reasonable responses available to the employer, and that the Tribunal consequently misapplied the provisions of Section 98(4) of the Employment Rights Act 1996.
3. The facts, as found by the Tribunal, are set out in its Decision, but essentially the reason for the dismissal was that the employer considered that Miss Cross had been drinking too much on the night of a gala concert being held by the Respondents on 17 February 2000, an event that was a particularly high profile event and the most important event in the LSO's year.
4. The employer apparently took into account two matters: first that Miss Cross had had too much to drink on that evening, particularly in the period after the interval, between 9.30 pm and 11.15pm, and secondly that according to the employer, she had given an inconsistent account as to how much she had in fact had to drink that night. The Tribunal in fact found that she had had some eight or nine glasses of champagne, which she had later admitted, and it is accepted on behalf of the Appellant that she had drunk too much while on duty.
5. The five factors that Ms Braganza, on behalf of the Appellant, invites us to take into account are in summary as follows: first the Respondents had no disciplinary code, whether written or oral.
6. Secondly, the Appellant had never had communicated to her the possibility that drinking too much would have the consequence of summary dismissal, and that she had consequently had no idea that she risked summary dismissal on this occasion, particularly for a first offence of drinking.
7. Thirdly, that this was a one-off incident of drinking; there was no other complaint about her drinking, and fourthly that the Tribunal failed to take into account matters what any reasonable Tribunal would have taken into account; namely that no harm was caused on this particular occasion; that no consequences flowed to the LSO, or damage to its fund raising activities; that the drinking that is criticised had not taken place in front of or with guests; and that on the contrary, the Appellant had performed her duties that evening, in entertaining two particular potential sponsors and in assisting with the escorting of the conductor Mr Rostropovich, she had performed those duties perfectly adequately. It may be that she was talking too loudly, but there was, according to the Appellant, no evidence that she had in any way jeopardised the Respondents' fundraising. In any event and finally, this incident had taken place in the post-interval period, particularly in the period between five past eleven and eleven fifteen, at a time when the Appellant had already carried out her main duties.
8. In addition to all those factors, the Appellant relies in particular on the Decision of this Tribunal in Lock v Cardiff Railway Co Ltd [1998] IRLR 358 in which the employer in that case was strongly criticised for not having a code of conduct, and secondly for not following the provisions of the ACAS Code of Practice, and in particular, in not specifying what offences would be regarded gross misconduct justifying dismissal for a first breach.
9. The ACAS Code, of course, provides that summary dismissal for a first breach should not occur unless the offence is one of gross misconduct. The point that is made on behalf of the Appellant is that although the Tribunal refers to the case of Lock at paragraph 27(b) of its Decision, it does not explain why it has departed from the guidance that the Lock case gives.
10. The Appellant also refers to two other authorities Dairy Produce Packers Ltd v Beverstock and W Brooks & Son v Skinner which are authorities for the proposition that employers should communicate to employees the consequences that would follow from certain kinds of misconduct so that employees know whether or not they risk summary dismissal in the particular circumstances identified by the employer.
11. The essential point that is made, is that although non-compliance with the ACAS code is not, in itself, a reason to find that the dismissal was unfair, the absence of any communication to the Appellant of the circumstances in which she risked summary dismissal, and the absence of a code, does tip the balance in her favour in this particular case, having regard, notably, to the five factors that I have already mentioned.
12. In the light of those arguments we have come to the conclusion, albeit with some hesitation, that it cannot be said there is no arguable point of law in this case, and that in those circumstances we are prepared to allow this appeal to go forward to a full hearing on the basis of the point of law that I have already identified, whether this is a decision that no reasonable Tribunal, properly directing itself to the relevant facts and law could have reached.

Directions are Category C, half a day.