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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pace Setters (Stoke) Ltd v Edwards [1993] UKEAT 268_92_0102 (1 February 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/268_92_0102.html
Cite as: [1993] UKEAT 268_92_0102, [1993] UKEAT 268_92_102
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I N T E R N A L
At the Tribunal
THE HONOURABLE MR JUSTICE KNOX
MR R H PHIPPS
MRS P TURNER OBE
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellants NO APPEARANCE BY OR
ON BEHALF OF THE APPELLANTS
MR JUSTICE KNOX: This is an appeal by Pacesetters (Stoke) Ltd, which I will call "the Company" from a decision of the Industrial Tribunal sitting at Birmingham on the 22nd January 1992 and sent to the parties on the 26th February 1992, when it was held that the Applicant before the Industrial Tribunal, Mrs Edwards, was unfairly dismissed but with a finding of 70% contributory fault.
We have been notified by a letter dated 15th January 1993 that the Company is or was due to be placed into liquidation with effect from the 21st January and that that meant that the company describing itself as Business Counsel, which had been representing the Company to date, would not appear before this Tribunal. Since this is a preliminary hearing there is no appearance on behalf of Mrs Edwards either. We therefore have had no assistance from either side.
The Industrial Tribunal's decision was based on a fairly lengthy review of the facts which led it to the conclusion that there was here an unfair dismissal but that the employee, Mrs Edwards, had been guilty of contributory fault in a number of respects.
The grounds of appeal in the Notice of Appeal go into a very large number of detailed issues of fact. The basic ground of appeal is stated in paragraph 6 of the Notice of Appeal in the following terms:
"The grounds upon which this appeal is brought are that the Industrial Tribunal erred in law in that its decisions were patently unreasonable and such that no reasonable tribunal could have reached them."
It is therefore placed squarely on the basis of perversity and that is reinforced by a notification that was received by this Tribunal by letter of 29th January, by fax, in which it was stated that had there been an appearance on behalf of the Company there would have been citation to this Tribunal of East Berkshire Health Authority v. Matadeen [1992] IRLR 336, Neale v. Hereford & Worcester County Council [1986] IRLR 168 and Council of Civil Service Unions v. Minister for the Civil Service [1985] IRLR 28. The first two of those three cases are well known decisions in relation to the limits, which are very strict, on the ambit of this Tribunal's jurisdiction to reverse decisions of Industrial Tribunals on grounds of perversity. Neale's case has the famous encapsulation of the proper test by May LJ "my goodness, that must be wrong" and Matadeen has Mr Justice Wood's review of the authorities culminating in Piggott Brothers & Co Ltd v. Jackson & Others [1991] ICR 85. Council of Civil Service Unions v. Minister for the Civil Service is less obviously of significance here since that was a case concerned with judicial review of the decision of the Minister for the Civil Service and dealt with reasonable expectations and their disappointment by administrative action, and we are unable to see that that authority of the House of Lords, authoritative though of course it is, is of any significant help in this case.
The main grounds upon which it is sought to attack the findings of the Industrial Tribunal in this case seem to us to be as follows. First of all it is stated that the Industrial Tribunal was wrong and unreasonably placed itself in the shoes of the Company in its criticism of Mr Springhall as the proper person to handle the disciplinary enquiry. This is a case where Mr Springhall, who was a Director of the Company, himself dealt with a disciplinary matter in which he was very closely involved, notably, in that criticisms were being made of his relationships, on a sexual basis, with another employee. The Industrial Tribunal came to the conclusion that he was not a proper person to conduct that enquiry. We are unable to see that there was no material upon which that conclusion could be reached, it obviously is a matter of judgment but there was material upon which, as we see it, the Industrial Tribunal could come to that conclusion.
Secondly, the Industrial Tribunal did find that the switch from an investigation to a disciplinary meeting in the course of what was, effectively, one meeting was unduly quick and that there should have been more time given between the two stages. Here again, this seems to us to be a matter of pure judgment, upon which there was material upon which the Industrial Tribunal could come to the conclusion that it did in fact reach. The same criticisms of the grounds of appeal, in our view, can be raised in relation to the other two matters that are raised on the factual aspect, one that the suspension that was directed to supplant the original decision to dismiss Mrs Edwards was something which, far from exacerbating the situation rather ameliorated it. We feel that that is, in any view, of marginal significance to the fairness or unfairness of the decision to dismiss.
Finally, it is said that in making the criticism that the final hearing was no more than a confirmation of the original decision, without further hearing, the Tribunal made various errors in failing to take account of certain pieces of evidence that had been given before it. We are not convinced that that is an adequate ground on which to found a finding of perversity.
There are also two general grounds advanced that the Industrial Tribunal failed to apply the principles in Polkey v. A E Dayton Services Ltd in a proper or reasonable manner. That is unexplained in the Notice of Appeal and we have been unable to see in what respect the Tribunal thus failed. It seems to us that due regard was paid to those principles and we simply do not agree with the proposition that in assessing contributory fault at only 70% the Tribunal fixed a percentage which was patently irreconcilable with its own findings of fact and previous conclusions. There is, of course, no basis upon which one can in such a Tribunal as this, with jurisdiction only on questions of law find whether any specific percentage of contributory fault is justified on the evidence. This is essentially a matter for the judgment of the Industrial Tribunal and we are quite unable to see that the figure 70% is so far removed from the correct figure as to fall within the category of perversity.
For all those reasons we have been unable to discern a basis for finding that this Industrial Tribunal was perverse in its conclusions and the appeal will therefore be dismissed at this stage.