United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 423_94_2706

Appeal No. EAT/423/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 June 1994

THE HONOURABLE MR JUSTICE MORISON

MR J H GALBRAITH CB

MR D A C LAMBERT

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MR D S MALLI          APPELLANT

GRECO'S BISCUITS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT


 


PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR M MCDONNELL

(SOLICITOR)

Messrs Howard Cohen & Co

Solicitors

3 Park Square

Leeds LS1 2NE


 


MR JUSTICE MORISON: By unanimous decision of an Industrial Tribunal held at Leeds the complaint brought by Mr Malli against his former employers, Greco's Biscuits Ltd, that he had been unfairly dismissed by them was dismissed. That decision was entered in the Register on the 22 March 1994 when it was sent to the parties.

The essential facts underlying this appeal may be summarised in this way. Mr Malli had been employed by the Respondent Company for a period of some fifteen to sixteen years. He was a supervisor acting under another foreman but was in a supervisory capacity, viz a viz Mr Edwards. On the 24 June 1993 an incident took place between Mr Malli and Mr Edwards, in which the latter was struck by the former with sufficient force to require him to need a stitch inserted into the inside of his upper lip.

The matter was reported to management and on the following day, that is the 25 June, the Appellant was interviewed by Mr Hicks, who is the Company Secretary, and was invited to explain his version of what took place at that interview. Having heard his explanation, and it is not entirely clear from the Tribunal's decision whether they interviewed also Mr Edwards, the victim (although that was said to be the case in their IT3) the employers took the decision to dismiss Mr Malli for misconduct. Fighting in the factory context is a serious matter and Tribunals are entitled to reach the conclusion, where satisfied that it has taken place, that those who participate in it should be dismissed. The reasoning behind such a view does not need to be spelt out but access to dangerous weapons and so forth, are all factors which an Industrial Tribunal, sitting as an Industrial jury will well understand and are competent to take into account.

One of the matters which troubled the Industrial Tribunal was the absence of any kind of written procedure for dealing with disciplinary matters of this, or any sort, and the Tribunal directed themselves to that issue in paragraph 8 of their decision. The essence of the Tribunal's reasoning is first of all that they were satisfied that the reason for the dismissal was misconduct, and they then applied the test set out in British Home Stores v Burchell and Weddell v Tepper, and summarised what they had to do when approaching the decision under Section 57(3), that is set out at the end of paragraph 6 of their decision.

Having looked at the procedural matters, to which I have referred in paragraph 8, they then concluded that they were satisfied in the circumstances of this particular case that the procedural matters did not outweigh the other matters which they had to take account of under Section 57(3) and were satisfied that in all the circumstances the decision taken was reasonable and fair. They concluded that the Applicant could have had no doubt as to why he was being interviewed by the Company Secretary, although he was not warned about it in advance, giving the events of the previous day, and given the fact that in that interview he admitted that he had struck his fellow employee. They concluded:

"There is, in our view, little to recommend itself in the employer simply pursuing further lines of investigation for the sake of formality."

It has been argued before us that in effect the Tribunal's decision was perverse, and/or secondly, that they have misdirected themselves as to the various matters they are required to take into account under Section 57(3). In essence, the complaint that is made is that the Industrial Tribunal failed to weigh the extent to which Mr Malli, the Appellant, may have been acting in self defence, and if they had done so, the Tribunal would have concluded, or should have concluded, that further investigation was called for and the Industrial Tribunal would have required additional evidence before it could have been satisfied that the decision of the employer was fair.

In any event, it was said that the R.S.P.B. case, to which reference was made by the Industrial Tribunal in paragraph 9, could not have been applied in the circumstances unless and until the Industrial Tribunal had assessed the relative degrees of blame between the two participants to this fight. It seems to us that there is no substance in either of those two points. This was a very straight forward case, arising out of a familiar type of incident. The Industrial Tribunal were, in our view, fully entitled to reach the conclusion which they did. They correctly addressed themselves in paragraph 6 to the test to be applied. They correctly weighed the inadequacies of the procedure and correctly concluded, if that be the conclusion which they had arrived at, that there was no need to carry out any further investigation than that which was carried out.

In our view, this was a straight forward case, given a straight forward approach by the Industrial Tribunal, who arrived at a decision which they were fully entitled to arrive at. Accordingly, we can see no arguable point of law that has been raised, despite the able submissions of Mr McDonnell in this case, who has argued the two points to which I have referred.

Accordingly, as a preliminary hearing is held in order to determine whether there is a point of law, and having concluded that there is none, the correct course for us to take is to dismiss this appeal.