Author: Joe

Appeal No. EAT/430/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th December 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS A MACKIE OBE

	MR R TODD

BARROW-IN-FURNESS BOROUGH COUNCIL	APPELLANTS

ALLAN JAMES McMURRAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A CREAN
(Of Counsel)
The Solicitor
Town Hall
Duke Street
Barrow-in-Furness
LA14 2LD

For the Respondent	MISS B LANG
(Of Counsel)
Whittles
Pearl Assurance House
23 Princess Street
Albert Square
Manchester
M2 4ER

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was dated 8th November 1991, Mr Allan James McMurray, who was a Market Superintendent in the local market, alleged that he had been unfairly dismissed by his employers, the Barrow-in-Furness Borough Council.

	His application came before an Industrial Tribunal sitting at Carlisle under the Chairmanship of Mr Charlesworth on the 12th March 1992.  The Tribunal found in his favour, namely that he had been unfairly dismissed.  They started on that day to consider the question of remedies and re-instatement or re-engagement were being put forward.  An application was made by the Borough Council for an adjournment and it was granted.  The adjournment was granted until the 20th March.  On that day the parties reassembled, remedies were considered and the Tribunal unanimously decided to re-instate Mr McMurray as a Senior Market Attendant. 

	Thereafter, a third hearing took place on the 2nd November 1992.  He was not re-instated and compensation was assessed in the sum of £15,599.19.

	During the hearing of the remedies issue, that was on the 20th March, it is said that the learned Chairman had said this to the Solicitor representing the Borough Council, and I quoting now from a letter dated 13th August 1992, in which this comment is set out, the note was made at the time by Mr Howes, the Solicitor for the Borough Council and it is suggested that the learned Chairman on the 20th March said this:
"`If he (Mr McMurray) had hit the market trader then we would have found that he had been fairly dismissed but there was no evidence before us (the Tribunal) to justify the conclusion that he had hit the market trader.

If we (the Tribunal) had believed that Mr Dobson had been hit then that would have made the dismissal fair despite the procedural defect.'"

Relying upon that comment it is suggested that the reasoning given by the Tribunal on the liability issue which had been heard on the 12th March was flawed legally in that, the Tribunal had directed themselves that they must believe or disbelieve that a particular incident had occurred, which was the conduct upon which the employers relied in dismissing the Applicant, rather than looking at it through the eye of the employer and judging it whether or not it was reasonable on the evidence for the employer to reach the conclusion and honestly believe that the conduct had taken place.  It is therefore submitted that there was an error of law and this matter should be returned for a further hearing before a different tribunal.  That being the issue it is necessary to look at the history of the matter to see what happened.  

	The Applicant, in the course of his employment, had to ensure that the stalls in the market were properly laid out.  He was also required to keep order, when necessary, and on frequent occasions as the Tribunal found, when there had been trouble, he frog-marched people out of the market.  The incident which founded this whole issue took place on Wednesday 25th September 1991.  Mr McMurray had a dispute with a stall holder called Mr Dobson.  Mr Dobson, who sold carpets, had apparently found a stall next door to him selling almost identical goods and had accused Mr McMurray of accepting bribes for market pitches.  The Applicant objected, they shouted at each other and in order to settle the matter Mr Dobson was removed out of the market by Mr McMurray by getting hold of the neck of his shirt and the seat of his trousers and pushing him off the market.

	The matter was reported to Mrs King, the acting Market Manager.  She reported, in due course, to her superior Mr Kilday, who himself took advice from Mr Bright, the Personnel Manager.  It was decided that Mr Dobson should be interviewed.  Mr Dobson was invited into the office and he said he had accused Mr McMurray of accepting bribes for market pitches.  Mr Kilday asked whether Mr Dobson wished to allege that the Applicant had assaulted him.  Mr Dobson said, "yes, he did".  But when he was asked to send a written statement, he refused and said he did not want the Applicant to lose his job.  His only complaint at the time had been that he had been frog-marched.  No further enquiries were made and Mr Kilday saw Mr McMurray, gave him a warning, which he regarded as an informal and unrecorded form of discipline, and Mr Kilday regarded the matter as closed.

	Some two days later, on the 27th March, Mr Kilday was told by Mrs King that Mr Dobson had changed his mind and he had made out a written statement claiming that Mr McMurray had flung him against the wall and proceeded to punch him in the face.  Mr Kilday notified Mr Bright and Mr Bright arranged an investigatory hearing.  That was heard on Friday 4th October, and was conducted by the Director of Operations, Mr Campbell together with Mr Bright.  They had received written statements from Mr Finlay and subsequently they interviewed Mr Smith and Mr Rowlands. Notes to that effect were available and have been available to us.

	The question of the disciplinary hearing took place on that 4th October but it became clear that there was a conflict between two statements given by Mr Finlay.  In one he had said "no blows were struck" in another he said "blows were struck", and therefore the matter was adjourned and further investigation took place. He explained that he had been asked by Mr McMurray to sign the first statement saying no blows had been struck but that he had changed his mind and his second statement was true.  At the disciplinary hearing Mr McMurray was accompanied by his Trade Union representative;  he denied that he had struck Mr Dobson.  The situation therefore, if one can summarise it, was that Mr Dobson had made a statement in which he alleged he had been struck.  There were notes from Mr Rowlands and Mr Kilday, and there were the notes on the file on the investigation.  The decision was that the conduct namely, a blow in Mr Dobson's face had, in fact, taken place and that Mr McMurray should be dismissed.  He gave notice of appeal.  The appeal was heard by three counsellors, they upheld the decision to dismiss him.

	Before the Tribunal Mr Bright gave evidence for the Borough Council.  The first issue for the Tribunal was whether it was reasonable for the Borough to decide that the blow had taken place, namely, that the conduct which was the reason for the dismissal had occurred; whether they had a reasonable belief;  whether that was based on reasonable grounds.  Therefore, the Tribunal looked first at the reasonable belief, they had no difficulty about that, but then they had to look to see whether there were reasonable grounds upon which the Borough, acting reasonably, could have reached the conclusion that the incident occurred as alleged.  We have not in this judgment reviewed every single facet of the evidence that was available to the Borough Council, but of course that was something that it was the duty of the Tribunal to carry out. 

	Miss Lang in her submissions to us has pointed out a substantial number of matters which it was open for the Tribunal to review, but she prefaces her remarks about these matters by indicating, as indeed the Tribunal found, that this was a somewhat unusual case because at phase one there had been no allegation by Mr Dobson and he had changed his mind so that the matter was being re-opened after it had initially been dealt with simply by a warning.  The Tribunal emphasise the importance of this in paragraph 8 of the first decision, when they say:
"At that time there was no allegation that Mr Dobson had been struck in the face by the applicant.  Hitting him in the face would be a serious matter and if he had done this it would be reasonable to re-open the disciplinary proceedings.  A most careful enquiry, however, would be necessary in these circumstances."

That was a view they were perfectly entitled to take. 

	There are a number of matters which were raised by Miss Lang, they are not all of them matters which the Tribunal could have considered but they certainly consist of a number of them.  First of all, she remarks, that Mr Dobson had made no complaint in say, being frog-marched in his first interview.  Secondly, he had alleged, on a second occasion that he had been flung against a wall and struck in the face by the Applicant.  There was no evidence, she says, of anyone having seen an injury to Mr Dobson's face although he had been interviewed by Mrs King and Mr Kilday, but they of course had not given evidence before the disciplinary hearing.  The key witness, Mr Finlay, had given two contradictory statements and they ought to have been examined that with the greatest care.  Throughout the Applicant denied hitting Mr Dobson.

	On the basis of those matters coupled with other matters which were pointed out to us, namely, there were minor inconsistencies in the statement of Mr Preston, Mr Finlay's two statements and Mr Dobson.  It was the view of the Tribunal that the matter had not been sufficiently investigated under what is called the rule in British Home Stores v. Burchell [1980] ICR 304, to use a phrase used by Miss Lang in her submissions "there was good reason to suppose that the evidence was suspect".  That is clearly the view taken by the Tribunal, because they review a number of matters in paragraph 8 of the first decision, and I now turn to the various matters upon which the Tribunal comment.  They say first:
"Mr Dobson made no allegation originally that he had been hit in the face.  The applicant is a large man, bigger than Mr Dobson, and it is most unlikely that if he had so been hit Mr Dobson would only have complained of being frog-marched."

That is the first comment that they make.  Then secondly, they say:
"It is also probable that Mrs King and Mr Kilday would have noticed some injury to his face when they interviewed him on 25 September.  They did not do so.  There was no evidence at all that anyone had seen an injury to Mr Dobson's face.  When we asked Mr Bright he said that a witness had noticed a red patch of his neck.  This would be consistent with the frog-marching, but not with a blow to the face."

pausing there in the comments made by the Tribunal it is interesting to note that in his statement Mr Dobson indicates a really rather violent attack.  He describes the altercation:
"On saying that he lost control of himself, grabbed hold of me around the neck and flung me against the wall shouting and screaming at me he then proceeded to punch me in the face . . . a bump on the head from where he threw me against the wall."

Then turning to the Tribunal's comments again, they go on further, they said:
"Mr Bright did not interview Mrs King at all, or ask her about this, or about what enquiries she had made.  Mr Dobson was not interviewed.  His statement was taken apparently at face value.  There were minor inconsistencies with the statements of the witnesses Mr Campbell and Mr Bright had interviewed so that it was most unsatisfactory they were not asked to go through and sign these statements."

pausing there, it is not always necessary for statements to be signed, but where you have some inconsistencies it is perhaps, desirable, that the individual should be asked whether the statement is an accurate account of what may have been taken down verbally.  The Tribunal go on:
"In addition, they claimed that Mr Dobson had been pushed against rubber doors, whereas he claimed in his second statement that he had been pushed against a wall.  The disciplinary hearing relied upon these statements.  It was not made clear to the applicant that some of the statements had not been seen by the witnesses concerned.  The applicant throughout denied that he had struck Mr Dobson in the face.  We find that there was an insufficient investigation and that the applicant was unfairly dismissed."

and then they deal with the appeal.  Pausing there, if that had been the end of the matter this appeal would probably, never have reached this Court, because what has happened there is this, that the Tribunal have found that the evidence was clearly suspect and in the light of the particular circumstances which occurred here, namely, a change of mind by Mr Dobson a most careful enquiry was necessary and they were satisfied that that necessary, close enquiry, had not been carried out, and indeed, that in the somewhat unusual circumstances and the inconsistencies, a reasonable employer would want to have delved further before reaching a conclusion that there were sufficient and proper evidence upon which they could found the belief that that blow had been administered;  they therefore found the dismissal unfair.

	At the hearing on the 20th March different issues were relevant.  The Tribunal in deciding whether to re-instate or re-engage would have had to consider the provisions of Section 69 of the Employment Protection (Consolidation) Act 1978.  In particular, they are required by subsection (5):
"In exercising its discretion under this section the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account the following considerations, that is to say -

(a)whether the complainant wishes to be reinstated;  [he did]
(b)whether it is practicable for the employer to comply with an order for reinstatement;
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement."

It is clear, therefore, that practicability and what is commonly called, contribution, were in issue.  At the stage of remedies the Tribunal are perfectly entitled to make their own findings of their own view of the situation and what occurred.  It is therefore open to them, on the evidence before them, to reach a conclusion which might have been different from a conclusion that they had reached on the liability issue.

	The Respondents called no further evidence at the hearing and that is apparent from paragraph 2 of the second hearing, the remedies hearing, where the Reasons read:
"At this present hearing the respondents called no witnesses.  They were again represented by their solicitor, Mr T Howes."

The Applicant, Mr McMurray, had in fact represented himself throughout.  So that on the issue of contribution the only evidence upon which the Borough were relying was the evidence that had been before the Tribunal on the 12th March. 

	The Tribunal had to decide whether they accepted that Mr McMurray had struck Mr Dobson and no doubt that was a matter which was being argued and no doubt it was being argued that on the previous evidence the only proper finding by the Tribunal should be that he had done so.  So, there was the issue, were the Tribunal to find that they were satisfied that Mr McMurray had struck Mr Dobson?   They could only do that on the evidence that they had heard on the 12th.  Thus, it is on the 20th that the remark which is set out in the letter to which we have already referred of the 13th August was made.  We are not clear nor was there any evidence before us as to the precise context in which that remark was made.  But it may have been that the remark was made in the context of an argument whether or not the Tribunal themselves accepted that the blow had been administered.  Looked at in that light then the remark referring only to the evidence on the 12th is more readily understandable because they say, probably in argument, we do not think that he struck that blow, and indeed, had we ourselves thought so it is almost certain that we would not have found it unreasonable for an employer to take the view that he had, but we do not and therefore that is the issue before us at the moment.  It is clear that the phraseology used is capable of being misunderstood but it seems to us that what is being said is, you are asking us, the Tribunal, to find on the evidence which was before us on the 12th March, that this blow was struck.  We do not accept that, we do not accept that there is any sufficient evidence before us to justify that conclusion, and indeed, had we thought so then it is likely that the decision might have been different on the 12th March.  It seems to us therefore, that the matter explained in that way is understandable.  Moreover, in his letter of the 23rd June 1992, the learned Chairman, in answer to a letter from this Court asking whether he wished to make any comments on the Notice of Appeal which raised this matter, says this:
"The Tribunal found that the dismissal was unfair for the reasons given in paragraph 8 of the Decision relating to the Hearing on 12 March 1992.  This was not based on whether or not the Tribunal believed that the applicant had struck Mr Dobson."

Then he goes on to say that issue arose at the remedies hearing.  We should add this to that letter because on the 9th October in a second letter from the learned Chairman he makes it quite clear that although brief reasons for the decision were given verbally on the 12th March, the Full Reasons were drafted and prepared before the hearing on the 20th March and therefore the issues on the 20th March were different from those on the 12th.

	We can understand that anxiety was caused in the minds of the Borough Council, in particular in the mind of their Solicitor, from that comment that was made but it seems to us that without knowing more about the context and indeed construing the context on the documentation as best we can that it was not an indication, especially in the light of the assurance of the learned Chairman, that there was any error in the approach made to the liability issue on the 12th March.  We would simply add that we have not found this an easy case at all.  We are very grateful to both advocates for the admirable way in which the issues have been presented.  We take the many points that have been made, we have not covered every single point, but we hope we have restricted our comments and our findings sufficiently for an understanding of the reasons why we dismiss this appeal, which we do.

© Copyright 1992

EAT/430/92

EAT/430/92

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