United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 277_94_1411

Appeal No. EAT/277/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 November 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T S BATHO

MISS A MADDOCKS OBE

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DR B DALGARNO          APPELLANT

UNITED KINGDOM ATOMIC ENERGY AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Dr B.G. Dalgarno against the unanimous decision of the Industrial Tribunal held at Reading on 10, 11, 12, 13 and 14 January 1994. In his dispute with his former employers, the United Kingdom Atomic Energy Authority, Mr Dalgarno claimed that he had been unfairly dismissed. The Tribunal found in Dr Dalgarno's favour on that allegation, but decided he had contributed to his dismissal to the level of 80%. It is that part of the decision which Dr Dalgarno appeals against by his Notice of Appeal dated 10 March 1994.

This is the preliminary hearing of the appeal. The purpose of the preliminary hearing is to decide whether the Notice of Appeal raises an arguable question of law. This Tribunal only has jurisdiction to hear appeals against decisions on grounds that there is a question of law, that the Industrial Tribunal made a legal error in coming to its conclusions. We emphasise that this is not an Industrial Tribunal. An appeal to this Tribunal is not a re-hearing of the original complaint.

The grounds of appeal are helpfully summarised by Dr Dalgarno who is now conducting his own case. At the beginning of his Notice of Appeal he states five grounds. First, that the decision of the Tribunal to attribute 80% contributory fault to him was perverse. Secondly, that that decision was one which no reasonable Tribunal could have reached. That is a slightly different way of alleging "perverse decision". Thirdly, that the Tribunal conducted the hearing in a way that was contrary to the principles of natural justice. Fourthly, that the Tribunal did not investigate or address a number of key matters in issue that were part of the proceedings and, finally, that the Tribunal took an erroneous view of the evidence.

The grounds of appeal are explained in a number of detailed particulars. The attack on the decision of the Tribunal, made in the Notice of Appeal and in his oral submissions to us this morning by Dr Dalgarno is mainly on two fronts. The first is that the Tribunal did not conduct the proceedings properly or fairly and secondly, that the decision they arrived at was a perverse one. We will bear both of those points in mind in examining his criticisms of the Tribunal.

First, however, it is necessary to fill in some of the background to the dispute. Dr Dalgarno presented his complaint to the Tribunal on 14 November 1992. He complained that he had been unfairly dismissed from his position as Higher Scientific Officer with the Atomic Energy Authority, by whom he had been employed since the end of October 1985. He was dismissed with effect from 1 September 1992. In his Originating Application he traced the events which led up to his dismissal beginning with an incident which occurred on 19 September 1991. He reported the incident which involved a fellow employee, Mr Wood, to his immediate superiors Drs Ambidge and Hislop. He found himself blamed by them for the incident. He traces the complaints that he made about the way in which the disciplinary matter was dealt with leading to the next crucial date which was a letter of 5 May 1992, written by Dr Rae, requiring Dr Dalgarno to write a letter of apology to Drs Ambidge and Hislop. Dr Dalgarno refused to write the letters of apology as instructed by Dr Rae. This led to a charge of misconduct. The matter came before a board. The decision taken was that he was to be dismissed. He appealed against his dismissal. The appeal panel found that dismissal was the appropriate remedy.

That is an outline of the complaint made by Dr Dalgarno. The grounds on which the Atomic Energy Authority resisted the complaint was that the grievance procedure, which had been invoked by Dr Dalgarno following the incident in September 1991, was applied fairly and reasonably; and that the instruction given to Dr Dalgarno from his Chief Executive, Dr Rae, to apologise, was a proper and reasonable executive action to resolve a managerial situation perceived as being intolerable, managers' veracity having been called into question.

It was alleged that Dr Dalgarno not only refused to comply with the instruction; he did so in terms indicative of an unreasonable and intransigent attitude which made clear that the situation could not be satisfactorily resolved within the context of existing managerial arrangements. The Authority contended that the decision to dismiss Dr Dalgarno was a penalty for refusing to comply with the instruction and was reasonable in the light of the history of interpersonal difficulties involving Dr Dalgarno; of the practical impossibility of re-employing him in other work in another part of the organisation and of the unacceptable effect on efficiency of the Authority's business, which had resulted from allowing the existing situation to continue.

Those were the broad issues which came before the Tribunal in January 1994. At the hearing Dr Dalgarno was represented by solicitors and counsel. The Tribunal dealt with the evidence in detail and came to the conclusion that the failure of Dr Dalgarno to obey the reasonable instruction of Dr Rae did amount to misconduct and was an admissible reason for dismissing him.

The Tribunal went on to consider whether dismissal was appropriate. They expressly found that it was within the authority of Dr Rae to issue the instruction. They found that he was the line manager of Dr Dalgarno. They did not find, however, that it was a reasonable instruction issued by a reasonable employer in the circumstances. They found that dismissal was outside the band of reasonable responses of a reasonable employer and thereby concluded that the dismissal would have been unfair. They came to the question of contributory conduct. On that question they found, as a fact, that the allegations of dishonesty made by Dr Dalgarno against Drs Hislop and Ambidge following the initial investigation by Dr Rae, had been thereafter unreasonably made by him. They found that, on the evidence, Dr Dalgarno simply could not entertain the possibility of a mistake on his side or of a genuine mistake on the part of Drs Ambidge and Hislop. They found his attitude to be unreasonable and the effect of that attitude was clear, namely a breakdown in trust between Drs Hislop, Ambidge and Dalgarno. That had very serious consequences at the time and would have had very serious consequences for the future. They went on to make other findings of fact in relation to a letter written by Dr Dalgarno to Mr Hills. They commented that his behaviour caused a breakdown of trust. They found that he had not made the best of the circumstances in which he found himself. They make comments in paragraph 24 of the decision about the attitude adopted by Dr Dalgarno in this unfortunate dispute. The crucial paragraph for the purposes of this appeal states:

"25 We have considered the weight to be placed upon contributory conduct of this nature. We have listened to the evidence of four days and have had the advantage of seeing Doctor Ambidge and Doctor Hislop and indeed Doctor Dalgarno in the witness box. We have had an opportunity of measuring the weight that all three individuals placed on allegations of dishonesty and we are satisfied that it would not have been possible for those individuals to work together whilst those allegations remained and because of the allegations and the conduct associated with them, we regard it as a very serious matter indeed and on that basis estimate the level of contribution at 80%".

Questions of contribution and the consequent effect on compensation are covered by Section 74(6) of the Employment Protection (Consolidation) Act 1978. That provides as follows:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding".

Dr Dalgarno submitted to us that he wishes to pursue this appeal with the object of reducing the decision on 80% contribution to nil per cent contribution. He says, with some truth, that his success at the Tribunal in establishing unfair dismissal was a Pyrrhic victory in the light of the ruling on contributory conduct. He finds himself on the scrap heap of the unemployed. He has tried unsuccessfully to get other work and he has tried unsuccessfully to get taken on again by the Authority.

As to the specific item on the appeal the first head of complaint is about the conduct of the hearing. He submits that it was a mistrial, that matters which should have been brought out in the evidence to the Tribunal were not brought out; and that other matters which should have been investigated by the Tribunal were not investigated. He has given, as an important example of this, the factual conclusion of the Tribunal that Dr Rae was his line manager. He says that on that point Dr Rae committed perjury. He was not his line manager. He complains that he was not given an opportunity at the hearing to give evidence contrary to Dr Rae on that point.

It is, however, clear to us from the documents before the Tribunal, that there was an issue of fact on the question of Dr Rae's authority. In his own Originating Application Dr Dalgarno had clearly taken the point that Dr Rae was not part of his line management. He says, (page 29(B) of our bundle at paragraph 8(b), of his grounds):

"With regard to the specific charge of refusing to carry out a line management instruction, the Disciplinary Board insisted that I must recognise Dr Rae as part of my line management and that I must recognise Dr Rae's instruction as a line management instruction. In fact, Dr Rae was not part of my line management. Dr Nelson and Mrs Bowen, and Mr Maltby were informed of this in my two appeals respectively".

It was clearly the position of the Atomic Energy Authority, as appears from paragraph 4 of the Notice of Appearance, that the instruction given by Dr Rae was within his authority. He is referred to as "the Chief Executive" and it is clearly a part of their case that there was the necessary authority for him to give the instruction that Dr Dalgarno refused to obey.

The Tribunal in their decision made a finding of fact in the knowledge that there was a dispute between the parties about the authority of Dr Dalgarno. There is no question, as far as we can see it, of the Tribunal having failed to conduct the hearing properly. One of Dr Dalgarno's further criticisms was that the Tribunal had not dug deeper into the facts and investigated points which should have been investigated before coming to their decision. This, in our view, is a misunderstanding by Dr Dalgarno about the proper function of the Tribunal. The function of the Tribunal is to make decisions on facts in dispute, having heard evidence given in-chief and tested in cross-examination and, having made clear findings of fact, to apply the law to them to reach a result.

It is not part of the duty of a Tribunal to carry out its own investigations into areas of factual dispute. The Tribunal is dependent on those who are presenting the case on each side to make sure that all the relevant facts are before them and that there are any appropriate challenges to the other side's evidence when there are disputed facts.

We are unable to find in the conduct of the Tribunal any failure to comply with the normal standards expected of a Tribunal for a just and fair hearing. As to the second criticism, that the result is a perverse one on the evidence before the Tribunal, it appears to us, having heard Dr Dalgarno's submissions this morning, that he is reliant in large part for this part of his case on saying that evidence given on behalf of the Atomic Energy Authority was perjured. He submitted that Mr Beackon had committed perjury before the Tribunal in his evidence relating to the disciplinary report; Dr Rae had perjured himself in giving evidence to the effect that he was Dr Dalgarno's line manager; and Dr Ambidge had also perjured himself.

We are not in a position, as an Appeal Tribunal with jurisdiction only on legal points, to entertain an appeal which is based on allegations of perjury. It is for the Industrial Tribunal, having heard all the evidence, to decide who they believe and who they do not. It is no error of law on the part of the Tribunal to accept evidence contrary to the evidence given by Dr Dalgarno or his witnesses.

The test of perversity is whether, having read this decision, one's reaction is that no reasonable Tribunal could have come to this decision on the facts before them. Having read the paragraphs of the decision which relate specifically to contributory conduct against the whole background of the dispute set out in other detailed paragraphs of the decision, we are unable to conclude that the decision is perverse, that it is irrational or is so surprising that we doubt the correctness of it.

We find no arguable questions of law in the submissions made by Dr Dalgarno orally this morning or in his detailed grounds of appeal. It appears that what he is seeking to do, not surprisingly in view of his circumstances, is to run a repeat of the unsuccessful hearing before the Industrial Tribunal on the question of contributory fault. We are unable to afford him another hearing on such a general ground.

For those reasons we are not satisfied there is any arguable legal point in this appeal. It will be dismissed.