United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 494_93_0302

Appeal No. EAT/494/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR E HAMMOND OBE

MISS D WHITTINGHAM

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MR W L WHITE          APPELLANT

SUMMERFIELD (CONTRACT HIRE) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS H PARKINSON

(SOLICITOR)

Messrs Whittles

Pearl Assurance House

23 Princess Street

Manchester M2 4ER

For the Respondents NO APPEARANCE BY OR

ON BEHALF OF

RESPONDENTS


 


MR JUSTICE WATERHOUSE: This is an appeal by an employee against the unanimous decision of a Tribunal sitting at Liverpool in March and April 1993, whereby they found that the Appellant had been unfairly dismissed but that he had contributed to the extent of 100% to his own dismissal.

We say that that was the decision of the Tribunal with some hesitation because, despite those findings, the Tribunal went on to make a basic award of £3,997.50 to the Appellant, together with a sum of £200 in respect of his loss of statutory rights. There is no Cross-appeal by the Respondents in respect of that basic award and we have only had to consider, therefore, the failure of the Tribunal below to make any compensatory award. However, it is clear from the Tribunal's statement of reasons that they considered it "just and equitable" to reduce the compensatory award by 100% because of the appellant's contributory conduct.

Although the reasons given by the Tribunal are said to be full reasons, they are stated with regrettable brevity. All that is said about the history is that the Respondent employers had no complaints against the Appellant prior to December 1991. It appears from the documents before us that he had been employed as an HGV driver at Sandbach in Cheshire, undertaking administrative and supervisory duties as well as the work of an HGV driver, for a considerable time. The statement of reasons continued:

"Since then [that is, since December 1991] they had a number of complaints against him arising out of his capability, that is the demolition of a fuelling cistern; the separation of the tractor and trailer unit before he uncoupled the air and electrical connections thus parting them; and failure of a driving assessment.

The employers dismissed him by letter dated 12 June 1992, setting out the reasons based on those incidents.

That is all that was said in the statement about the facts of the case before the Chairman set out the Tribunal's findings on the specific issues arising under Section 57 of the Employment Protection (Consolidation) Act 1978. They accepted that the dismissal was for a reason related to the capability of the applicant for performing work of the kind which he was employed by the employer to do, justifying the dismissal within the provisions of Section 57(1)(b) of the Act of 1978. The findings of the Tribunal on the issue of fairness were then set out in paragraph 7 as follows:

"We conclude that they have not so satisfied those requirements [that is, the requirement of establishing fairness] because (1) according to Mr Waterman's evidence, Mr Hagan at the meeting on 1 April 1992 effectively coerced the applicant into signing the acknowledgement of the final written warning. We were impressed by Mr Waterman as being a very credible witness; (2) on 12 June 1992 which was the occasion of the next and final meeting between the applicant and Mr Hagan and when the applicant was dismissed the respondents, through Mr Hagan put to the applicant the driving assessment report and the conclusion that they had no alternative but to terminate his employment. Bearing in mind his long and unblemished record prior to December 1991 and his proximity to retirement, we conclude that dismissal was not within the band of reasonable response to the situation in the circumstances of this kind and that the respondents should have dealt with the situation other than by dismissal."

In the absence of any cross-appeal in this case it is unnecessary for this Appeal Tribunal to consider the factual basis on which those findings were made. The appeal turns on bald statements contained in the concluding paragraph of the statement of reasons on the question whether or not the compensatory award to the Appellant should be reduced by reason of his contributory conduct. Paragraph 8 reads:

"We consider it just and equitable to reduce the compensatory award in the circumstances of this case by 100% because of the applicant's contributory conduct. Whilst there are other reasons, we have been highly influenced by the applicant's refusal to take the full opportunity offered by the respondent of the second driving [assessment] (being an independent one). In relation to the conflict of evidence between the applicant and the respondent on the opportunity, as the respondents put it, given to the applicant and on the request as the applicant put it, for a second driving assessment, we preferred on a balance of probability the evidence of the respondent."

We should comment at once that it is difficult to understand, in the light of the reasons given by the Tribunal for the finding that the dismissal was unfair, how they arrived at a conclusion that the mere refusal by the Appellant to take the opportunity offered to him of a second driving assessment could be regarded as contributing to the extent of 100% to his dismissal.

A tribunal has, of course, to consider not only the question of blameworthiness but also the question of causation in making an assessment under this head. There is no finding by the Tribunal that the Appellant would have inevitably have passed such a second but independent driving assessment but it is difficult to see how the Tribunal could have concluded that the failure to take the opportunity of such an assessment contributed to the extent of 100% unless it was their view that the dismissal would have been averted by the assessment. It is, of course, open to a tribunal to make a finding of 100% contribution, but it is obvious that it is only in an extreme case that such a high degree of contribution can be appropriate, if the assessment is made in accordance with correct legal principles. For our part, without in any way prejudging the matter as it may emerge when a rehearing takes place, we are not able to understand the process of reasoning by which the tribunal in the instant case, arrived at an assessment of 100%.

Quite apart from that comment upon the percentage degree of the assessment, the statement of reasons is defective because the Chairman expressly refers to other reasons that led the Tribunal to make their assessment but those reasons are not specified and there are no other findings of fact from which this Appeal Tribunal could confidently draw inferences. It has been said repeatedly by this Appeal Tribunal that an Industrial Tribunal must make adequate findings of fact and state their reasoning in such a way that both the parties and this Appeal Tribunal can appraise the decision properly. That was a point that was made as long ago as 1977 by Mr Justice Phillips, as President of the Appeal Tribunal, in the case of Parkers Bakeries Ltd v. R E Palmer [1977] I.R.L.R.215. At page 217 he said:

"It is totally unsatisfactory to say, 'We also find that the applicant by his behaviour should make a contribution to his loss which we estimate at 10%.' ... Industrial Tribunals must specify the behaviour, action or conduct which they are taking into account under that head."

It is, of course, true that in the present case the statement of reasons on this issue is not as defective as it was in the Parkers Bakeries case because the Tribunal have referred specifically to the refusal of the Appellant to take the opportunity of a second driving assessment but the reference to other reasons influencing the assessment is wholly unsatisfactory, particularly when it is considered in the context of the earlier paragraphs of the statement, which contain only the barest findings of fact.

The question whether an assessment of compensation on the basis of contribution to a dismissal by an employee is fair or not will very frequently involve issues that relate solely to the detailed evidence and to findings of fact made by an industrial tribunal. It is rare for this Appeal Tribunal to accept that a particular assessment involves a question of law because the assessment is usually essentially one of fact within the exclusive jurisdiction of the industrial tribunal. It is, however, necessary that an industrial tribunal should follow a proper procedure in making its assessment of contribution, if such a contribution is justified by the evidence. The assessment can only be made properly if there are detailed findings of fact in relation to the material events, coupled with an indication of how the tribunal considers that the relevant conduct on the part of the employee is or was linked, in terms of causation and culpability or blameworthiness, with the dismissal itself. Without that basic material it is impossible for the parties or the Appeal Tribunal to reach a conclusion as to whether in reality there has been an error of law on the part of the industrial tribunal.

In the light of those rather obvious principles, we have looked again at the statement of reasons in this case and have been compelled to the conclusion that they are seriously defective. It is virtually impossible to make any evaluation of the reasons on the basis of what is stated in the eight short paragraphs before us. In order to understand the history, it has been necessary to go to other documents placed before us, which give part of the history, but it should be unnecessary for the Appeal Tribunal to carry out that exercise in order to understand the statement of reasons. Moreover, the reduction of the compensatory award by 100% on the ground of the appellant's contributory conduct without any consideration of, or comment upon, the relationship between sections 73(7) and 74(6) of the Act of 1978 suggests persuasively that the Tribunal below misdirected themselves in law.

We have been told that the Chairman of this Tribunal has now retired and it is not practicable, therefore, to remit the case to the Tribunal that heard the matter for a fuller and better statement of their reasons. The only alternative open to the Appeal Tribunal is to remit the assessment of the amount of the compensatory award to this Appellant for his unfair dismissal for rehearing before a freshly constituted Tribunal. That rehearing will, of course, require full consideration of the evidence about the Appellant's dismissal in order to determine whether or not a reduction should be made because of his alleged contribution to his own dismissal in accordance with the provisions of 74(6) of the Employment Protection (Consolidation) Act 1978. It will be for the Tribunal to decide whether any reduction is appropriate on their findings of fact in this case and, only if they are so satisfied, should they then go on to consider assessment of the extent of the contribution by the Appellant to his own dismissal. In that context, they will no doubt have in mind the guidance given, in particular, by Lord Justice Brandon (as he then was) as to the proper approach in Nelson v. British Broadcasting Corportion [1980] ICR 110.

The order of this Appeal Tribunal, therefore, is that the case be remitted to a freshly constituted Tribunal for rehearing on the assessment of any compensatory award to be made to the Appellant in accordance with the provisions of Section 74 of the Act of 1978, including the provisions of section 74(6).