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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ullah v United Glass Ltd [1994] UKEAT 317_92_0906 (9 June 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/317_92_0906.html
Cite as: [1994] UKEAT 317_92_906, [1994] UKEAT 317_92_0906
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At the Tribunal
HIS HONOUR JUDGE LEVY QC
MR D O GLADWIN CBE
MR J H GALBRAITH CB
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MS T GILL
(OF COUNSEL)
Messrs Whiskers
Gate House
The High
Harlow
Essex CM20 1LW
For the Respondents MR P SALES
(OF COUNSEL)
Messrs Allen & Overy
9 Cheapside
London EC2V 6AD
JUDGE LEVY QC: At approximately 5 am on the 25 February 1991, a fight took place at the work premises of the Respondent. At the premises, glass manufacture took place. The fight itself took place near machinery and glass. The participants to the fight were a Mr Khan and the Appellant. After a full and proper disciplinary hearing the Respondents were unable to determine who instigated the fight and they dismissed both employees. The disciplinary hearing took place pursuant to a discipline procedure agreement between the Respondents and the General Municipal Works Union, which had amongst it provisions, those which are found at pages 32 and 33 of our bundle. So far as offences are concerned there is this heading at page 32, under the heading 'Offences':
"Breaches of discipline fall into three categories:
A. Very Serious Offences:
e.g. Stealing
Wilful damage
B. Serious Offences
e.g. Fighting
Smoking in kitchens/main warehouse
Unauthorised clocking of time cards."
Then under the heading "Penalties":
"Penalties will depend on the circumstances surrounding the alleged offence.
CATEGORY A
-a full investigation will be carried out into the circumstances surrounding a very serious offence.
-there will be joint consultation in regard to the manner of investigation and the need if necessary for Police assistance.
-dependent on the results of the investigation, dismissal action may be taken, legal proceedings may also be instigated.
CATEGORY B
1.In the first instance SUSPENSION
2.A second occurrence may result in dismissal if the offence is a repeat of a Category B offence.
3.Dismissal in blatant cases."
Then there is a paragraph about Category C offences which I have not mentioned, which ends with this sentence:
"A flagrant recurrence of Category C offences could result in dismissal."
Pursuant to this procedure there was a full and proper disciplinary hearing, the result of which I have stated. Subsequently the Appellant took the matter to the Industrial Tribunal and his IT1 appears in our bundle at pages 8 and it is dated the 9 May 1991. The answer is also in our bundle, as is the Decision. The full reasons of the Decision have been gone into in some measure during this hearing, and there are some paragraphs which I must read.
"2.The Applicant was employed by the Respondent from 23 May 1973 to 26 February 1991. His job title was bottle selector/packer. He complained of unfair dismissal. He was summarily dismissed after a fight with another employee, Mr Khan.
3.At the hearing Mr R W Marshall, shift controller, and Mr A P Clark, personnel manager, gave evidence for the Respondent. The Applicant gave evidence on his own behalf. Some documents were also put in.
4.No criticism was made of the Applicant's performance or conduct before the incident which gave rise to his dismissal. He had received no warnings, formal or informal.
5.It was Mr Khan who first reported the fight to his superintendent. He was apparently covered in blood and was taken to hospital. He told the superintendent that the Applicant wad struck him. The Applicant, with his shop steward, Mr Smith, was called to a preliminary investigation and admitted that a fight had taken place after an argument. Two witnesses, Mr Afzal and Mr Akram were also interviewed. Mr Hoffman suspended the Applicant pending a hearing with the process manager, Mr Jakes, at 2.30 pm on Monday 25 February."
Then there is another paragraph dealing with the investigations and what witnesses said.
"7.We are satisfied that every effort was made to establish who had started the fight - if, indeed, the participants did not start it simultaneously. In the event it proved impossible to say that either party was blameless in the matter, for example, acting purely in self defence. Each man blamed the other."
So we have an important finding by the Tribunal that it was impossible to say that either party was blameless.
"8.Mr Jakes saw the Applicant at 9 a.m. on Tuesday 26 February, for a disciplinary hearing and dismissed him. The Applicant appealed and appeal hearing took place on 27 February in the presence of the factory manager, Mr Mair and the personnel manager, Mr Clark. The Applicant was accompanied by Mr Smith and his senior steward, Mr Dunham. Mr Dunham accepted that the disciplinary hearing had been fair and that the fighting amounted to gross misconduct."
I should pause there by saying that Ms Gill, who appeared for the Appellant today, submitted that that last finding in the Industrial Tribunal's Decision was not one which was open to the Tribunal on the evidence, but that had not been made a point in her Notice of Appeal. She was given the opportunity to seek an adjournment to amend her Notice of Appeal, which, if granted, would inevitably had led to an adjournment; Ms Gill very wisely did not seek an adjournment, but we have approached this case on the basis, although Mr Sales says we should not do so, that those words may be per incuriam; in our judgment those last words would not have affected the decision below and will not affect ours one way or another.
I return to paragraph 8 of the reasons.
"The Applicant's case was that he had not started the fight, and that in any event he should not be dismissed in view of his long service with the Respondent. The management took the view, however, that it was impossible to establish who had started the fight and whether either men were blameless. The appeal was dismissed.
I now move to paragraph 12:
"For the Applicant, Mr Siddle contended that the Respondent, had adopted a rigid policy of dismissing automatically for fighting and had failed to take individual circumstances into account. Although some answers given by Mr Clark in cross-examination may have given this impression, we are satisfied on the totality of his evidence that there was no such rigid policy."
We too have looked at the evidence which was available on this matter and we are satisfied also that there was no rigid policy and although it may have happened, that when there was fighting which resulted in that disciplinary hearing, those who were involved in it were summarily dismissed, that does not amount a rigid policy and we agree with the Industrial Tribunal's finding.
Continuing paragraph 12:
"He accepted that fighting was a "category B" offence under the Respondent's disciplinary procedure, so that on the face of it summary dismissal was not the inevitable result. The procedure contemplated suspension for a first offence and dismissal was appropriate only in "blatant" cases. He also accepted that as a matter of history all persons found to have been fighting were dismissed: this was because in those cases and in the present case the offence was blatant. He stated that the Applicant's long service and clean record were taken to account. We accept his evidence."
Clearly the Tribunal were entitled to accept Mr Clarke's evidence and by so doing did not act perversely.
Paragraph 14 of the Reasons is in these terms:
"In the abstract, we are all agreed that summary dismissal is not unreasonable punishment for fighting, particularly where, as in the present case, it takes place in the neighbourhood of machinery and glass."
In the context of a person who is in fact wholly innocent of any criminal offence such agreement by the Tribunal may be considered odd. However, an employer does not carry out a criminal investigation and often cannot determine, or be expected to determine, the innocence of one employee or of another. In that context the agreement is readily explicable, though hard on an employee, in fact innocent, who nonetheless is penalised.
"15.We find that, in accordance with decided cases, it is open to an employer who cannot identify the perpetrator of an offence to dismiss those reasonably suspected of it, even though one or more of those dismissed may in fact be innocent. By the same token, it was open to the Respondent in the present case to dismiss both participants in the fight, even though there was a possibility that the Applicant was innocent, in the sense that he might have been acting in self defence.
16.The above findings are unanimous."
We then come to the passage in the Tribunal's full reasons which has largely led to this appeal.
"17.The Tribunal was divided on the question whether the Respondent breached its own disciplinary procedure, thereby rending the dismissal unfair. The minority finding is that the Respondent's procedure provided for suspension for a first offence of fighting (as this was). The procedure was part of the contract of employment. Dismissal was accordingly a breach of the contract and ipso facto reasonable, unless the fighting was, in the words of the rule, "blatant". This term [and this is the minority's holding] should be construed against the Respondent as meaning an exceptionally serious fight, for example, a premedicated one where weapons were used. The majority finding is that - despite the difficulty of the word "blatant" - the intention of the rule was to differentiate between a trivial or momentary fight causing no damage and a relatively serious one. In other words the intention was simply to leave it open to the Respondent to dismiss, where appropriate, for a first offence of fighting. It is impossible to say that the Respondent breached its own rules. The Respondent judged the case on its merits and decided that dismissal was the appropriate response in the particular circumstances of the case. The majority cannot find that dismissal was outside the range of reasonable responses open to an employer in the Respondent's position."
So far as the word "blatant" is concerned we refer to the Appellant's skeleton argument which has been used as a basis for the case Ms Gill has pressed on us and it reads:
"1.As held by the Employment Appeal Tribunal in the Judgment on the Preliminary Hearing, the proper construction of the disciplinary hearing and in particular the meaning of the word "blatant" is a matter of law."
The reference to the Employment Appeal Tribunal in the Judgment on the Preliminary Hearing, is a reference to the order of the judgment of his Honour Judge Peppitt, before whom there was a preliminary hearing on the 19 April 1993, and he said this:
"The proper construction of the disciplinary agreement and in particular the meaning of the word "blatant" are matters of law. If the Tribunal misdirected itself, an appeal will accordingly lie. We do not propose to enter into the arena of construing the word "blatant" save to say that one view at least would be that the adjective as to be applied to the blameworthiness if any, of the employee under investigation but we are quite satisfied that in the absence of any evidence of the start of the fight, the Appellant has an arguable point that his participation could not be regarded as blatant."
Then paragraph 2 of the Appellant's skeleton argument reads:
"2.In the context of the Disciplinary Rules where suspension was to apply "in the first instance" and dismissal was reserved for "blatant" cases it is submitted that "blatant" should be construed as requiring that the fighting was serious and the conduct blameworthy.
3.Further or in the alternative, the definition given in the Concise Oxford Dictionary, is firstly, "flagrant, unashamed", secondly, "offensively noisy or obtrusive". It is submitted that in common parlance the word blatant has the connotation of given in the first definition."
We asked Ms Gill to show us the edition of the Oxford Concise Dictionary book from which she had taken this definition, but she had not brought it. We have been provided with copies of both the sixth edition and of the seventh edition of the Oxford dictionary, which could readily be found in Audit House. Both define "blatant" as follows:
"a - adjective - noisy, vulgarly clamorous; flagrant, palpable; obtrusive, conspicuous; unashamed;"
We do not know from which edition Ms Gill took her words. However that may be, we do not think it is helpful in the context of these proceedings to go into dictionary definitions. We have helpfully been referred to a decision of the House of Lords in Edwards v Bairstow & Another [1956] AC 14 which investigated the meaning of the phrase "an adventure in the nature of trade". In that context we have been referred to the speeches of Viscount Simonds and Lord Radcliffe. At [1956] AC at page 33 Lord Radcliffe says:
"My Lords, I think that it is a question of law what meaning is to be given to the words of the Income Tax Act "trade, "manufacture, adventure or concern in the nature of trade" and for that matter what constitute "profits or gains" arising from it. Here we have a statutory phrase involving a charge of tax, and it is for the courts to interpret its meaning, having regard to the context in which it occurs and to the principles which they bring to bear upon the meaning of income. But, that being said, the law does not supply a precise definition of the word "trade": much less does it prescribe a detailed or exhaustive set of rules for application to any particular set of circumstances. In effect it lays down the limits within which it would be permissible to say that a "trade" as interpreted by section 237 of the Act does or does not exist.
But the field so marked out is a wide one and there are many combinations of circumstances in which it could not be said to be wrong to arrive at a conclusion one way or the other. If the facts of any particular case are fairly capable of being so described, it seems to me that it necessarily follows that the determination of the Commissioners, Special or General, to the effect that a trade does or does not exist is not "erroneous in "point of law", and, if a determination cannot be shown to be erroneous in point of law, the statute does not admit of its being upset by the court of appeal. I except the occasions when the commissioners, although dealing with a set of facts which would warrant a decision either way, show by some reason they give or statement they make in the body of the case that they have misunderstood the law in some relevant particular.
All these cases in which the facts warrant a determination either way can be described as questions of degree and therefore as questions of fact. In this, I am only saying what was said by Lord Sterndale in Currie v Inland Revenue Commissioners' and repeated by Lord Justice Atkin in Cooper v Stubbs. And in Scotland, Lord Sands says the same thing in Inland Revenue Commissioners v Livingston. I agree with them."
So what he says there, is that is a matter of looking at the facts that decide what is there in a particular case. In this disciplinary code, we have the words to which I have referred; namely, when it comes to penalties in the first instance, suspension, two, a second occurrence may result in dismissal if the offences are a repeat of a category B offence, three, dismissal in blatant cases. As a matter of clear construction it is open to an employer to dismiss first time round on what is a blatant case. It is a matter for the employer, having investigated fully the circumstances to decide whether a case is blatant or not. In the particular circumstances of this case, the employer has decided that the incident fully investigated was a blatant case of misconduct. In those circumstances after a full disciplinary hearing in the terms of the Code, the Employer came to the decision that dismissal was an option open to it and a dismissal followed.
We do not think the employer can be criticised in reaching that decision, nor do we think the majority of the Court below can be criticised for supporting it in one way which they expressed in their reasons, with which we agree, in paragraph 17.
Ms Gill has impressed on us that in none of the cases where dismissal of a possibly innocent person was upheld did the Court have to construe a contractual agreement such as that before us; but there is dicta in all those cases which would justify the finding by the Industrial Tribunal to which I have referred. In particular we refer to the decision of Parsons v McLoughlin [1978] IRLR 65 where Mr Justice Kilner Brown giving the judgment of the Industrial Tribunal said at paragraph 3:
"All instances of fighting in factories raise very grave problems for the employer. There was made at one stage a point that there was nothing in the contract to prevent fighting. Some companies do have rules which specifically forbid it. All three of us here are unanimously of the opinion that in these days it ought not to be necessary for anybody, let along a shop steward, to have to have in black-and-white in the form of a rule that a fight is something which is going to be regarded very gravely by management."
Then in paragraph 7 there is this passage:
The Court of Appeal, moreover, said that there were certain circumstances in which an employee could be dismissed without warning; in other words, that in some cases the employer is entitled to say, 'I cannot suspend, I cannot warn. This is in my view sufficiently serious for me to impose dismissal upon both the people who were involved in a fight in the factory.' If it had been approached in that way, there is in our judgment only one answer, and that is the answer to which the minority member came. It seems to us quite plain upon the evidence here that if the proper tests had been applied, if ever there was a case in which the employer had shouldered the burden it was this. The mere fact of a fight, whoever starts it, is a very serious matter indeed. We do not need to get involved in an exegesis upon what is 'gross' and what is not. There was a very pragmatic and, in our respectful view, sensible approach to this question expressed in the judgment of the Employment Appeal Tribunal in Greenwood v H J Heinz & Co Ltd. In that case the Employment Appeal Tribunal said 'These are essentially matters for the employer to make up his mind about, not necessarily in the heat of the moment but after pause for reflection and after investigation.' We cannot do better than use some of the words of Mr Justice Bristow towards the end of that judgment:
"It seems to us it is quite wrong to say that a management faced with fighting, even of a very modest nature, in a workplace where there is a large amount of machinery would be perverse in deciding what whoever started the fight must be dismissed. The potential for danger which any degree of violence involves in close proximity to machinery is blindingly obvious. It is difficult enough sometimes to keep people who have to operate machines safe from hurting themselves in the machinery even in the absence of any violence at all. Add some violence; the risk of serious injury to other people, let along severe interference with the work, is clearly great. Whilst circumstances must of course vary infinitely, in our judgment it certainly does not go without saying that to dismiss by reason of one blow, even by reason of the threat of a blow, is by itself plainly wrong. It may be in some circumstances wrong. It may well be a perfectly proper thing for management to do."
We also referred to the Scottish case of McPhie & McDermott v Wimpey [1981] irlr 316 which is to do with dishonesty and it was impressed on us that that was a case of carelessness or not doing their job properly by people who were then dismissed. We were referred to the well known decision in Parr v Whitbread & Co Plc [1990] ICR 427 where Mr Justice Wood, giving the judgment of the Court showed that in cases of dishonesty, even those whose dishonesty cannot in fact be proved can be dismissed. But he said at page 432 F:
"In an attempt to analyse the Monie principles where dishonesty is involved together with the Whitbread principles where mere incapability was involved, we ourselves would suggest that a possible approach is as follows, and in setting it out I have had the benefit of the view of the industrial members with their experience. If an industrial tribunal is able to find on the evidence before it: (1) that an act had been committed which if committed by an individual would justify dismissal; (2) that the employer had made a reasonable - sufficiently thorough - investigation into the matter and with appropriate procedures; (3) that as a result of that investigation the employer reasonably believed that more than one person could have committed the act; (4) that the employer had acted reasonably in identifying the group of employees who could have committed the act and that each member of the group was individually capable of so doing; (5) that as between the members of the group the employer could not reasonably identify the individual perpetrator; then provided that the beliefs were held on solid and sensible grounds at the date of dismissal, an employer is entitled to dismiss each member of that group."
Putting those cases together, we come to the conclusion that in this case notwithstanding the fact that the employer was not able to decide or determine who started the fight, on a true construction of the disciplinary code the decision to dismiss was properly taken.
We do not think it necessary to attempt a definition of "blatant" as we were invited to do. We do think however that a dictionary definition is not of help to an Industrial Tribunal and we do accept the submissions, made on behalf of the Respondent by Mr Sales, that when he says that both majority and the minority in the Tribunal considered the word "blatant" contains a degree of seriousness. We fully accept his further submissions that the disciplinary code should be construed in its particular context; the code governs conduct at a factory where there is glass and machinery in the vicinity, where safety of employees must be of paramount concern and where fighting, even if unpremeditated and without weapons, might involve substantial risk of injury to participants and possibly other employees.
In that context the construction of the word "blatant" by the majority of the Tribunal makes considerably more sense than the construction of the minority and it is one that the majority were entitled to make and one which we think should be followed. In these circumstances, having considered her submissions for which we thank Ms Gill, we dismiss the appeal.