United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 394_93_2110

Appeal No. EAT/394/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 October 1994

Before

HIS HONOUR JUDGE J HULL QC

MR P DAWSON OBE

MISS D WHITTINGHAM

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MR M WILLIAMS          APPELLANT

BRITISH COAL CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR NICHOLAS COOKE

(of Counsel)

Messrs Robin Thompson & Partners

1 Fitzalan Place

Newport Road

Cardiff

CF1 1US

For the Respondents MR T KEITH

(Of Counsel)

Messrs Nabarro Nathanson

City Place

2 Pinfield Street

Sheffield


 


JUDGE HULL QC: In this case Mr Williams, the Appellant, was employed by British Coal Corporation at their Taff Merthyr Colliery in Trelewis. His employment began in 1979 and he became a very trusted and apparently excellent employee by the time when the events occurred in 1992, which I shall refer to. He was an FSV driver, that I believe stands for Free Steering Vehicle, no doubt even more responsible underground than driving a heavy vehicle on the surface and he was employed in that capacity, as I say, and was a trusted man. There was no blemish on his record whatever. He was a family man. He lived at home with his wife. They had one child who most unhappily suffered from asthma or some other breathing complaint, which caused him anxiety and loss of sleep and his wife was expecting another child.

Unhappily, the pit was apparently in financial difficulties, with some geological difficulties (they may be routine) but the fact was that economic circumstances made it convenient, if not absolutely essential, for a good deal of overtime to be requested by the management to try to make the pit, if not profitable, then at any rate less loss-making than it was.

So in addition to the matters I have mentioned, Mr Williams was asked to do overtime and because he was in this specialised position of being a driver of these vehicles that led to more overtime than there would be for the average person. And so of course, he was entitled from time to time to be tired.

The crux of the matter is that on 23 July 1992 he was found asleep down the pit. This is regarded by the employers as a very serious matter and not without reason; a coal mine is a dangerous place. Anybody who sleeps down the mine is imperiling his own safety and that of his colleagues. One does not need to use one's imagination very much to think how that may be.

That is the view taken by the employers and, indeed, so far as we can judge there really is no doubt about it. It is assented to by the trade union and by the employees themselves. There is with our papers a copy of a poster which was exhibited and was known to all concerned here, it puts the matter very shortly. There is a graphic picture and the poster goes on to say:

"Sleeping underground is not only dangerous, it is illegal under Section 9(3) of the General Duties and Conduct Regulations. It is an offence to sleep underground. This year there have been a number of accidents where the victim was probably asleep, one was fatal.

Under British Coal's disciplinary procedure sleeping underground constitutes gross misconduct and the penalty is instant dismissal. This is what will happen at Taff Merthyr Colliery. `YOU HAVE BEEN WARNED'".

That is dated 26 March 1992. A quite clear warning had been given by management of the consequences, without any qualifications, "the penalty is instant dismissal".

In addition, we have seen among the papers a letter which was written on 13 March 1992 to all Colliery Managers by Mr Wheatley, who is a Director:

"I am writing to you about employees found sleeping underground in the mine. Sleeping underground is dangerous. There have been a number of incidents including one fatal ....

It is therefore an offence for which dismissal is an appropriate remedy".

And then he encloses copies of two recent Industrial Tribunal Decisions. Certainly, speaking simply for myself, I think I have seen two such Decisions in which dismissal was upheld as being fair in such circumstances. The letter goes on:

"In the past men found sleeping underground have not always been dismissed. In some cases for example fines have been imposed.

My purpose in writing to you now is to remind you that in accordance with British Coal's Code of Conduct and Disciplinary Procedures the normal penalty imposed on men found sleeping underground should be dismissal. Penalties less than dismissal should not be imposed unless there is substantial mitigating circumstances. It is for Colliery Managers to considers case by case, whether such circumstances exist, but they should not impose a penalty less than dismissal without first consulting me, or in my absence the Assistant Director.

The Group Employee Relations Manager will be distributing posters in the course of the next two weeks for display at every colliery together with other initiatives designed to highlight the consequences of sleeping underground.

Thereafter, will you please confirm that the disciplinary consequence of sleeping underground be made known to all the workforce at your colliery so that no employee can cite ignorance as an excuse in the future if they are caught asleep".

Nobody reading those matters could be in any doubt about the seriousness with which British Coal Corporation regarded this, not, of course, in their own interests. It was in the interests of every single person, in every single pit, that it should be taken seriously. It was a matter potentially, at any rate, of life and death.

As a result of this, when Mr Williams was found sleeping underground he was sent out of the pit straight away and told that the matter was a serious matter and there were disciplinary interviews. There were three days of disciplinary interviews, eventually in front of the Mines Manager and those again are with our papers. Mr Lewis, the Manager, investigated the matter.

On 24 July there was a disciplinary interview. It started at the Manager's office and that is at page 30 of our papers. Among many other matters that were put before Mr Lewis, Mr Williams said he had not seen the Code before, but he confirmed that he had seen the notices which were posted.

Mr Symmons, who was the Deputy Manager, said that if the case was proven, the consequences would be very serious and he asked Mr Williams if he wanted to say anything. Mr Williams was there with two representatives of the Union, the Chairman and Vice- Chairman, and among things which were said we see at page 31 that Mr Williams said, we are sure truthfully, "I assure you I did not intend falling asleep although it appears I must have nodded off". He said it was totally out of character and Mr Line who was the Chairman of the Union said that it was generally agreed that this man was recognised as one of the best FSV drivers in the pit and he had always co-operated with his officials and under managers. He stated there had been a number of problems with FSV drivers in the past, but Mr Williams was one of the most supportive and had given total co-operation. He went on to say that there were "mitigating circumstances" in this case and asked Mr Williams to outline some of them.

Mr Williams then put the matters which have been referred to by Counsel, which were relied on in mitigation. All the overtime which he had been working, perhaps excessive; he had been missing some of his rest at home because his son suffered with a chest condition; and his wife's condition; and the Chairman of the Union mentioned that demands were being made to work long hours, and so on.

So it could hardly be said that those matters were not before the Colliery Manager and it appears to us that it could not be said that they had been rejected out of hand. Then at page 33 there is the meeting on Monday, 27 July, the adjourned meeting. Again, Mr Williams was there represented by two experienced members of the Union, including Mr Line. Mr Yoxall, the Lodge Secretary, mentioned on his behalf the conditions in the particular part of the mine where he was working, hot and humid he said, as well as other matters.

Then over the page on the 28th, the meeting having again been adjourned, Mr Lewis, the Manager again asked if there were any further comments to be made. Mr Yoxall, the Lodge Chairman, asked if all mitigating circumstances had been taken into consideration before a decision was arrived at? And Mr Lewis said that had had looked hard and long at all the circumstances and given the whole case a great deal of logical and personal thought before coming to a decision. We have no reason whatever to think that that was not a completely sincere statement and that he had, indeed, done what he said.

It was particularly put by Mr Yoxall - when one looks at the next page, 34(A) I think it is called - in the middle of that page he complained that British Coal had promised that the Code would be used fairly, yet it would appear that this case had not been treated on its merits, but on an all-encompassing net for anyone who fell asleep below ground, irrespective of the mitigating circumstances.

So that too was put to Mr Lewis and Mr Lewis again said, and this is at the bottom of the page, "that all the points raised would be noted, but his decision to dismiss would stand". And the decision letter, page 35, signed by Mr Lewis, the Colliery Manager says:

"I have listened to the representations and mitigating circumstances made by yourself and your Trade Union representatives who were present at the interviews and note that you have not denied the allegations made against you".

And then he goes on, of course, to say that this was gross misconduct and that his decision was to dismiss, but he said "I have listened to all the representations and mitigating circumstances made by yourself and your representatives". It appears to us that that was said sincerely and was accepted in due course by the Industrial Tribunal as having been said sincerely.

In due course, the matter was considered on appeal. It was heard by another gentleman, Mr Clifford Jones who was appointed Chairman of the Appeal Tribunal. He is a Manager of another colliery, Bettws Colliery and his note starts at page 54. He says that he was assisted by a Mr Idris Jones and a Mr David Hart of the Employee Relations Department. Mr Williams was represented by Mr George Rees, General Secretary of the National Union of Mineworkers and, again, by Mr Yoxall and by Mr Glyn Moss. And he asked Mr Rees on what ground the appeal was lodged and Mr Rees read him a prepared statement which he appended:

"My understanding of the NUM's point, `he said', was that they wished to prove Mr Symmons and Mr Grandin could not have discovered Mr Williams at the time they gave in their original statement. However, since none of the witnesses had a watch nothing conclusive can be proved".

So nothing turned on that. And then he went on to consider the mitigating circumstances:

"The mitigating circumstances as I understand them are:

(a) Mr Williams' domestic circumstances;

(b) the environmental conditions at Mr Williams' place of work and

(c) the amount of overtime worked by Mr Williams.

I have considered each of these circumstances in turn:

(a) domestic circumstances ...".

And he sets them out, I think substantially as I have. He goes into details and they show that Mr Williams was going out from his home after getting up at 5.00 am, picked up by taxi at 5.20 am and not getting back until 11.00 pm. Anybody reading that would have a great deal of sympathy for Mr Williams in the sense that these were long hours indeed, although not all of it, of course, would be spent strictly working. And about that, so far from saying, "this is quite incapable of being a mitigating circumstance, I reject it out of hand", Mr Jones said: "I feel that Mr Williams has control of these circumstances and if he felt unable to sustain a home life because of excessive overtime, then he should have let his immediate superiors know that he was not available for overtime of the degree which was expected of him". With regard to the environmental conditions at his place of work Mr Jones says that he himself took the trouble to go down and inspect the place and he said that although the humidity and temperature were high, the quantity and velocity of the ventilating current were also high: that is to say a velocity of five metres a second, that would be about ten miles an hour I suppose or a little more. "There is not, as I first imagined, a warm humid atmosphere, which could induce drowsiness". So again, he has investigated it and not treated it as a matter which cannot be a mitigating circumstance.

Overtime. And then he goes into the overtime. He says, "Although overtime is voluntary it should be recognised that current philosophy encourages earnings to be made up of elements other than basic wages". This might suggest that overtime is not exactly voluntary, a point which is made to us very forcefully for Mr Williams. If this is true, then the amount of overtime worked by Mr Williams might be an amount expected of him to meet the pit's aspirations and, therefore, a genuine mitigating circumstance. "I sought legal advice from Mrs Brooks-Shanahan at Hoburn House on this matter. Her view is that overtime is voluntary".

Conclusions. "I am satisfied that Mr Williams was in the state of not being awake when seen by Mr Terry Symmons and Mr John Grandin on the morning of 23 July. The only way in which the dismissal could be withdrawn and some other form of action taken would be to disprove the allegation that he was asleep or that his state of not being awake was caused by matters beyond his control, e.g. medication, drug-abuse, illness, accident etc. I have investigated all these and found that none apply. Safety is paramount. The purpose of the letter (and he refers to the letter which I have read) sent to all Managers in the Midlands and Wales Group regarding sleeping underground in the mine by the Group Director, was to save human life". That was the way in which Mr Jones saw it and he therefore dismissed the appeal. That was his view.

It is right to refer, as Mr Cooke did refer us, to parts of the evidence which was given. Mr Symmons and others gave evidence and their evidence has all been set out and all was called for and furnished to us by the Tribunal; and we can see there, that witnesses were cross-examined as to what was capable of being "a mitigating circumstance". It was put to them, for example, that a man's long and good record was capable of being a mitigating circumstance; but the fact that he had worked very long hours overtime might lead to drowsiness, could not that amount to a mitigating circumstance? There were his domestic circumstances. Could those not amount to a mitigating circumstance? And it is right to say that in general the witnesses who replied to that said, "No". These, of course, were witnesses who are skilled mining engineers or have other skills in management and so forth. They are not lawyers. To a lawyer there is a great difference between saying that something is capable of being a mitigating circumstance and saying it is a mitigating circumstance. To a lawyer of course good character, painful domestic circumstances and other circumstances surrounding the offence, such as humidity and long hours and so forth, are all capable of being mitigating circumstances; whether they are actually treated as mitigating circumstances in the particular circumstances of the case will always be a question of degree or fact, but any court or tribunal which says straight away, "these are quite incapable of being mitigating circumstances, they ought not to be put forward by counsel or solicitors. We reject them out of hand. We must keep our attention on relevant matters" would be in danger of being told by a court of appeal in due course "you were mistaken. You should not have said this was incapable of being a mitigating circumstance" and Mr Cooke has erected his argument on that basis.

He says that here, looking at the evidence, the true view is that British Coal were simply incapable of considering these matters, for they ruled them out of hand. Indeed, he says "it is all added to by the answer given with regard to drugs". They said that perhaps if a person was dabbling in dangerous drugs that might be a mitigating circumstance and it would be dealt with, of course, under other provisions relating to drugs. It might make a person go to sleep, that might be a mitigating circumstance. He contrasts that with the answer given shortly afterwards by one of the witnesses, when he said that if Mr Williams had been working too hard, for too long hours, not getting his sleep, that would not be a mitigating circumstance.

The question of what to make of these answers was a matter for the Tribunal. The Industrial Tribunal heard the case, saw the witnesses and was expressly charged with the duty of finding whether these employers had dealt fairly with their employee, whether they acted reasonably and fairly in treating that as a reason which in fact led them to dismiss. That was the duty of the Tribunal and what is said to us now by Mr Cooke is that when you look at the Decision of the Tribunal itself, that shows that they themselves were falling into the same trap and saying that all these matters were quite incapable of being mitigating circumstances.

And therefore, he says, the Tribunal was as irrational as the British Coal Corporation. They too were shutting matters out of their minds which could not be, in justice and in reason, shut out from their minds. It was their duty to consider the fairness of the Coal Corporation's deliberations on this matter; in particular, the decision to dismiss which was made by the Manager, Mr Lewis and upheld by Mr Clifford Jones on appeal. They were not doing their job properly. There is an error of law which is evident on the face of their decision.

So to look at the justice of that we now look at the Decision itself. They record the history of the matter. They record the mitigating matters which were put forward by Mr Williams himself and those who represented him. And they say, and certainly there is evidence to support this:

"12 It is apparent from the notes of the disciplinary meetings and the appeal hearing, which were not disputed, that Mr Williams was represented at all times [and we would add in parenthesis, formidably represented] and was given a full opportunity to state his case based on mitigating circumstances".

Then they come to the contentions and here Mr Cooke comes really to the essence of his argument. The Tribunal go on as follows:

"13 The respondents contend that dismissal was fair on the ground that it was for conduct which was illegal, contrary to the Regulations and which constituted gross misconduct under the Code. They say that as overtime was voluntary individuals were expected to know their own levels of endurance, and that in any event the hours worked by Mr Williams were no greater than those he had worked in the past. They say neither the domestic situation nor the overtime constituted `substantial mitigating circumstance' within the meaning of clause 34 of the Code. They defined substantial mitigating circumstances as circumstances outside the employee's control such as unconsciousness induced by heart attack, a blow on the head or drug abuse, and said that if employees felt drowsy they were expected to keep awake by activity or to speak to their superior and go above ground.

14 Mr Williams does not deny that he was asleep or that sleeping underground constituted gross misconduct. He contends that dismissal was unfair in that his length of service and unblemished work record, as well as his overtime, domestic exhaustion and temperature of the working area were not adequately taken into account in deciding whether there were substantial mitigating factors".

So he was not in terms saying these were rejected out of hand. He was saying they were not adequately considered. As to what is adequate consideration, that is a matter of course for the Tribunal and not for us. Then they go on:

"15 This is rejected. In our view length of service and the consequent increased experience should lead to greater consciousness of dangers and safety requirements and cannot be a substantial mitigation of an offence relating to safety".

That is what the Tribunal say and that is what Mr Cooke relies on. They say:

"...... and cannot be a substantial mitigation [not that it cannot be mitigation] .... With regard to unblemished work record, we find that this cannot be a substantial mitigating circumstance in view of the reservation in clause 10 of the Code of the right to dismiss summarily `regardless of whether or not he has any current disciplinary record'. Nor, in our view, [and this was just their view] do overtime and domestic exhaustion constitute substantial mitigating circumstances in a situation where overtime is voluntary, in that an employee suffering from domestic exhaustion can decide not to exacerbate that exhaustion by doing overtime and, if he feels his decision would be unpopular with management, he can explain the domestic reasons behind it. With regard to the temperature of the work area, if Mr Williams was so conscious of this as to be able to attribute his sleepiness to it, there appears to be no reason why he should not have reported it to his superior and gone above ground".

So there, Mr Cooke says, they are in effect taking the decision themselves that these matters cannot amount to mitigating circumstances. They go on at paragraph 18, really going into the same matter. They say:

"18 It was also submitted that the respondents' interpretation of `substantial mitigating circumstances' as being circumstances outside the employee's control such as sleep induced by heart attack, concussion or drug abuse, was unreasonable in that drug abuse was more controllable than sleep induced by exhaustion."

One would say there was a good deal to be said for that submission. They say:

"19 We do not accept that the interpretation was unreasonable. In our view the respondents had a reasonable explanation for their interpretation in that they said the results of drug abuse can be totally beyond the control of the abuser as can the drug abuse itself, and would be dealt with not as part of a charge of sleeping below ground, but as a separate category of gross misconduct. This was borne out by the wording of the Code which specifies `evidence of drug abuse' as constituting gross misconduct subject to summary dismissal".

One rather regrets that the question of drug abuse was raised because it seems to us first of all, of course, to have nothing to do with the facts of this case and second, to be a subject which would justify a great deal of discussion; and the more discussion there was of that the less attention was likely to be paid to the facts of the present case, but there it is.

Mr Cooke says that here the Tribunal were saying that these matters were incapable of amounting to substantial mitigation. Then they go on to their conclusions.

"21 ON THE EVIDENCE we find the following facts: [and I will go straight on to sub-paragraph (iii)].

(iii) a reasonable employer in the circumstances of a mining business involving all the dangers relevant to their business and conscious of the legal prohibition on sleeping underground would have regarded such conduct as `sufficient' reason for dismissal within section 57

(iv) at the time of dismissal the respondents genuinely believed Mr Williams had been asleep underground and in view of the evidence of their own eyes and the lack of denial they had reasonable grounds for that belief

(v) [and this is the vital finding] in reaching their decision to dismiss the respondents [British Coal Corporation] took all relevant mitigating factors into account including the domestic situation, overtime, and the temperature of the work area, and were fully entitled to take the view that all the combined factors were not sufficient to outweigh the requirements of safety, the law and the Code so as to constitute `substantial mitigating circumstances' under clause 34 of the Code

(vi) Mr Williams was given a full and fair opportunity to put his case with representation at the disciplinary meetings and the appeal, and in the conduct of those meetings and appeal and in the investigations into the mitigation made prior to reaching a decision on the appeal, the respondents applied such procedures and made such investigations as a reasonable employer would have done in the circumstances".

Those are their findings of fact. And it appears to us that the reality of the situation made plain by these uncontested notes of what passed before Mr Lewis, the Colliery Manager and Mr Jones who heard the appeal, is that so far from these matters being rejected as inadmissible and incapable as a matter of law and construction of amounting to substantial mitigating facts, they were carefully considered.

It is true that they were rejected on their merits and it is also perfectly true that a number of phrases were used which might lead to a possible conclusion that they had not been considered on their merits; if one looks at the particular phrases used both by the Tribunal and by those who gave evidence before the Tribunal. But the reality of the matter is perfectly obvious in the light of the findings which we have set out. They found that the British Coal Corporation took all relevant mitigating factors into account and it is manifest to us, looking at those notes, that that is exactly what British Coal Corporation did.

It is, of course, for the British Coal Corporation and not for the Tribunal to say whether, the offence being proved, they will consider certain matters as in fact amounting to mitigation and whether they will regard those matters as sufficient to displace the prima facie view which they have given such publicity to, that they will dismiss in such cases. That is entirely a matter for them, not for the Industrial Tribunal and most certainly not for us.

The question for the Industrial Tribunal is whether they considered these matters fairly and properly. The Tribunal found that they did and we think, without wishing to be in the slightest bit offensive about it of course, that what on a true analysis is the nature of the appeal here is essentially playing with words by applying to the language used by lay witnesses the concepts of a skilled lawyer, and ridiculing certain examples which were given. It was not for British Coal to treat the Industrial Tribunal or counsel to an academic lecture on hypothetical situations which they would or would not regard as mitigating circumstances, or substantial mitigating circumstances. It was for British Coal, through their Managers, to say in any particular case whether, what was laid before them was in fact, in their honest view, substantial mitigation and whether, if so, they would give effect to it by mitigating the normal consequences which they had given publicity to.

It appears to us, first of all, that British Coal seems to have done exactly that and secondly, that the Tribunal, without any error of law, has indeed found that that is exactly what they did do; and if anybody says that this was a harsh decision, one would say first of all that that is not for us.

If it can be said that it goes outside the range of reasonable decisions, then of course that might be a matter for the Tribunal and on appeal possibly for us, if it was said that the Tribunal had gone wrong in law. The harshness of the decision is not for us and it is not submitted on this occasion that the response went outside all reason. It has to be remembered in considering that part of the case and the severity with which it was approached, and the way in which these mitigating circumstances were dealt with, that this is, as was set out quite clearly in the poster, in the letter and in the reasons given by the Managers, this was a matter which went to the safety of life and they were therefore well entitled to take the view which they did.

We do not think, having considered it as carefully as we can and of course, Mr Cooke's submissions as carefully as we can, that on a true view, there is any error of law shown in this Decision of the Industrial Tribunal and the appeal therefore falls to be dismissed.

We would say that a question was raised as to whether this appeal was out of time. We have heard it, so to speak, de bene esse; we have already expressed the view that subject to anything further said to us we would, if necessary, have extended time, regarding this as a most important case for Mr Williams and, no doubt, a most important case for the British Coal Corporation. We have heard that if there is lateness, it was due to a misapprehension and a mishap between the solicitors and counsels' chambers, but there it is. If necessary, we will hear further submissions but it appears to us, in the light of our decision, that it will not be necessary for us to do that.