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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> White v Michelin Tyre Plc [1994] UKEAT 320_92_1904 (19 April 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/320_92_1904.html
Cite as: [1994] UKEAT 320_92_1904
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I N T E R N A L
At the Tribunal
Before
HIS HONOUR JUDGE J PEPPITT QC
MRS M L BOYLE
MISS A MACKIE OBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR D READINGS
(OF COUNSEL)
Messrs Wooliscrofts
8 Broad Street
Hanley
Stoke on Trent ST1 4EU
For the Respondents MR G BRAITHWAITE
(OF COUNSEL)
Solicitors Department
Michelin Tyre Plc
Campbell Road
Stoke on Trent
ST4 4EY
JUDGE J PEPPITT QC: This is an appeal from a majority decision of the Birmingham Industrial Tribunal, promulgated on the 10 March 1992. The majority held that the Applicant before them, the Appellant before us, had been fairly dismissed. The Appellant now appeals against that finding.
He was employed as a rubber worker at the Respondents' Stoke factory. He had been in their employment since November 1978. In March of 1991 he was engaged upon a process involving the retreading of used rubber tyres. The process was highly technical. The retreading procedure was stringent, not least because any defect in the tyre so retreaded was liable to become a source of danger to the road user. It follows that the Respondents' in those circumstances had to repose a high degree of trust in their retreading operatives, and it is noteworthy that they were only able to check some 10% of the retreaded tyres.
On the 1 March 1991 tyres were discovered with blisters in their side walls. That could only have arisen as a result of a deviation from the specified retreading procedure. The defective tyres were traced to three retreading operatives, the Appellant Mr White, and two others, Mr Vickers and Mr Cartwright. There followed disciplinary proceedings against all three. Mr Vickers and Mr Cartwright admitted their fault at an early stage and were given a final warning, transferred to another Department, and suspended for one day. The Appellant denied the offence, went through the various stages of the Respondents' disciplinary procedures, and was eventually found guilty of gross misconduct and was dismissed.
The reason for the dismissal was the offence which the employers found proved. The question before us is whether the employers were entitled to treat that reason as a reason for the Appellant's dismissal, having regard to the provisions of Section 57(3) of the Employment Protection (Consolidation) Act 1978. Mr Readings rightly submitted to us that the question the Tribunal had had to ask itself was whether the employers had a rational basis for distinguishing as they did between the Appellant on the one hand, and the Messrs Vickers and Cartwright on the other. He submitted that in reality there was no true distinction between the three operatives, who each had committed a substantially similar offence. Accordingly, he said, they should have been visited with the same penalty.
The approach which we should adopt when having regard to comparable offences, he submitted, was that adopted by this Tribunal in Proctor v British Gypsum Ltd [1992] I.R.L.R. 7, a decision under the Chairmanship Mr Justice Wood. In the course of his judgement Mr Justice Wood said at paragraph 27 on page 10:
"As in so many aspects of industrial relations a reasoned and reasonable balance must be sought. This is emphasised in Hajioanou. Before reaching a decision to dismiss an employer should consider truly comparable cases of which he knew or ought reasonably to have known".
and later at paragraph 30:
"Whatever the relevant factors, the overriding principles must be that each case must be considered on its own facts and with freedom to consider mitigating aspects. The dangers of a tariff and of untrue comparability are only too obvious. Not every case of leniency should be considered to be a deviation from declared policy".
We must in those circumstances consider the respects in which the employers considered that the Appellant's case could, and should, be distinguished than that of Messrs Vickers and Cartwright, and then go on to consider the approach of the Tribunal to that decision.
The first distinction which the employers drew was that Messrs Vickers and Cartwright admitted their fault from the start, expressed contrition, and stressed that what they had done had been accidental and not deliberate. The Appellant denied that he had been responsible for the faulty tyre attributed to him, told, as the employers and the Tribunal found, a number of differing stories as he passed through the disciplinary procedure and expressed no contrition. The employers disbelieved him. The affect of the Appellant's conduct was two fold. First of all, said the employers, they could not in future put any trust in him as an employer whom they had found to be dishonest. Secondly, they were unable to consider any mitigating factors in his case for the best of all reasons, that none had been offered.
It seems to us that in those circumstances there was a material and important distinction between the Appellant's case, and the case of the two other men, which the employers were entitled to take into account. The second point of distinction, which the employers had regard to, concerned the Appellant's past record. Their conclusion was that it was worse that the records of the other two men.
We have been helpfully provided with a bundle of documents which was before the Tribunal, which indicates that the previous year the Appellant had twice been involved in breaches of discipline. For the first an unofficial stoppage, he had received a final warning on the 30 May 1990, and for the second, deviation from working practices, he had received a warning letter on the 24 October 1990. It is apparent from the same bundle that Mr Vickers had been in some sort of trouble in the past, but apart from the fact that he said it did not relate to the quality of his work, we know neither what the offence was nor when it was committed. There was no evidence before the Tribunal that Mr Cartwright had other than a good working record.
Those facts seem to us to justify the conclusion reached by the employers that the Appellant's disciplinary record was worst than that of the other two men, and that too in our judgement was a perfectly legitimate distinction which the employers were entitled to take. This Tribunal has no power to interfere with the decision which the employers took if it could be said to have been reached on a rational basis.
The Tribunal considered this and the majority expressed a view that the employers decision was based on reason. The relevant findings are paragraph 17 and 18 of the decision, which reads as follows:
"The employer was affected firstly because Mr White did not have a clean record; there was a warning on that record of some months duration, and secondly he had been untruthful during the whole of the investigation and because of this attitude and his general behaviour, he had been other than contrite. The respondents did not feel that they could in future put any trust in him as an employee. They thus drew a comparison between him and the other two".
"The majority members of the tribunal considered this point and concluded that it was a valid one and the general conclusion arrived at by the majority members was that dismissal was within a range of reasonable responses for an employer under these circumstances. The majority finding therefore was the dismissal was fair".
In our judgement, that decision, or the decision reached by the majority, was the only decision which the Tribunal could have reached in the circumstances which I have sought to outline. We deal finally, with a subsidiary argument which Mr Readings, in the course of his very attractive address, advanced. He said that whereas it might have been legitimate for the employees' to have scaled down the punishment in the case of Messrs Vickers and Cartwright, because of the way they had behaved in the course of the disciplinary enquiry, it would be quite wrong for them to have scaled up the punishment in the case of Mr White because he denied the offence and expressed no contrition.
We do not think it really matters which way the employers approached the question, but the evidence before us suggests and suggests clearly, that what the employers did was to start from a belief that dismissal was prima facie justified and mitigate that position in the case of Messrs Cartwright and Vickers. We say that because the employers came to the conclusion that what had occurred in the case of each of the men was gross misconduct and gross misconduct ordinarily bears the sanction of dismissal. It is not without significance that both Mr Cartwright and Mr Vickers expressed their gratitude not to have been dismissed when the punishment which they received was communicated to them.
For all those reasons in our judgement the majority decision of the Tribunal was right and this appeal must be dismissed.