United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 515_93_1212

Appeal No. EAT/515/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 December 1994

Before

HIS HONOUR JUDGE BYRT QC

MR J D DALY

MR T C THOMAS CBE

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BUCKLE FARMS          APPELLANTS

MR B G MUNSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M LANE

(of Counsel)

Messrs Marshall Sutton Jones & Son

9 Trinity Street

Colchester

Essex CO1 1JN

For the Respondent MR J McMULLEN QC

Messrs Pattinson & Brewer

30 Great James Street

London WC1N 3HA


 


JUDGE BYRT QC: This is an appeal from a decision of an Industrial Tribunal sitting at Bury St Edmunds on 15 January 1993. By that decision unanimously reached they found that the employee, Mr Munson, had been unfairly dismissed.

Mr Munson was employed by the Appellants as a stockman at their farm called Bridge Farm, situated at Chelsworth, near Ipswich. He had been in employment with them for just over two years. His prime responsibility had been to look after approximately 110 cows and 30 ewes. He ordinarily worked standard hours between 8 am and 1 pm and between 2 pm and 5 pm. He was expected to do overtime during the lambing and calving season and the harvest season. Each year the flock of sheep increased and in time during his employment the 30 ewes had increased to 90. It is said that Mr Munson did not like looking after sheep, that he was negative about them and his attitude in that respect was different from his approach to looking after cattle.

The employers had a number of complaints about him. In November 1991 Mr Munson sold some 60 lambs without authority, that is, without the authority of the farm manager, Mr Buckle. Mr Munson said that he thought he had the permission of Mrs Buckle to sell them. In fact, Mrs Buckle says that she had picked him up in her car on one occasion. Mr Munson had explained to her that he was thinking of selling off some ewes and she had said she thought that that was a good idea. However she said that nothing was further from her mind than that she was giving permission for him to sell. In fact, as a result of that discussion it seems Mr Munson had sold off the sheep by next morning.

In any event, he was tackled about this by Mr Buckle who, though expressing the view that he thought it was a good idea, told him that it was wrong for him to do it without his authority and Mr Munson promised that it would not happen again.

Another complaint by Mr Buckle was that Mr Munson was taking too long to feed the cows, calves and sheep. This was his job on Saturdays and Sundays and although there is no express finding by the Tribunal about it, it would seem that it was taking him up to four hours, whereas it was contended by the employers it should have been done within two to three hours. Mr Munson's answer to that was that taking any less time would result in sacrificing the welfare of the stock.

The third complaint was that during the harvest of 1991 the employee was taking a mid-day break between 1 and 2 o'clock, as was his custom ordinarily. That meant that the two combine harvesters being used for the harvesting stopped working and this generally upset working schedules.

The fourth complaint: it was said that Mr Munson was at one particular stage using the farm petrol account for his private vehicle, a Mini Pickup. He would take stock to Bury St Edmunds in his vehicle and apparently this was something that he should not be doing. This was raised with Mr Munson by Mr Buckle in March 1992. He said that he knew that Mr Munson was using his vehicle but thought the amount of petrol he was using was exorbitant. This time Mr Buckle, senior, that is, the father of the manager, told Mr Munson that it should not happen again or he would be sacked and the evidence was that Mr Munson did not use company petrol again in his vehicle.

In April 1992 Mr Munson, when in charge of two assistants, was engaged in the process of de-horning the cattle. It was reported to Mr Buckle that Mr Munson had broken the de-horning instrument over a fence and this, apparently, had to be replaced at the cost of some £75.

The sixth complaint, was that in March 1992, Mr Munson became involved with Mrs Buckle in argument about some subject to do with the ewes. It was said that Mr Munson was aggressive and foul in his language.

Seven: Mrs Buckle made another complaint, namely, that when a vet had called at the farm to carry out pregnancy tests on certain of the cattle, one was found to be missing from a group of 20, the cattle being worth some £500-£600. She asked Mr Munson what he had to say about it and he replied that he thought it was stolen, whereupon she blamed him for that because, as stockman, he was in charge of the cattle.

On 11 May 1992 Mr Munson was dismissed. The Tribunal, in its reasons, only reports the evidence of Mr Munson about his dismissal. His evidence was that he was told by Mr Buckle that he, Mr Buckle, would like him to finish working for the company, and he received a letter confirming that on the next day, 12 May. We do not have a copy of that letter.

Notwithstanding being given notice on 11 May, he continued working for the employers until 30 May. He left their tied accommodation on 4 August.

Mr Munson gave evidence and he was cross-examined. All this was set out in the reasons of the Tribunal. It is clear from what they record that Mr Munson was able to recollect most of the incidents. He advanced in evidence various arguments in mitigation and sometimes he admitted the fault and had an explanation as to how it had occurred. So far as the petrol was concerned, he said the only warning he had was a verbal warning. It was the only warning he had during his time of employment with the Appellants and, as a result, he had complied with Mr Buckle's instructions. So far as the allegations about the mid-day break when harvesting, he says he could not recall taking a break but that he wanted that particular topic sorted out. As far as the sale of the sheep is concerned, he said that he had been given authority to sell in the market. However, on this particular occasion, there was no haulier, and so he did the best he could. He sold the stock to the farm at which he had been recently employed. He thought it was in the best interest of the farm. In any event, Mr Buckle, he says, could have stopped the sale.

He accepted that he had used unseemly language to Mrs Buckle but for that he apologised. So far as the length of time he took over feeding, he denied that he was slow and said that this particular matter had never been raised as an issue by the employer.

So far as the de-horner instrument is concerned, he accepted that he had broken that but he said that it was already broken when he hit the fence with it. So far as the missing calf is concerned, he remembered the incident but says it was never reported to the police and nothing was done about it.

The Tribunal, in its reasons, follow up that narrative in the evidence given by the employers, on the one side and Mr Munson, on the other, by recording the fact that Mr Munson had been dismissed his employment on 11 May. It stated he was dismissed because of alleged misconduct, gross misconduct and lack of capability.

The Tribunal then proceeded to consider the employer's dismissal procedure. It stated that they were not surprised that there was no written code but they found fault that there had been no written warning to Mr Munson before his dismissal. They record the fact that Mr Munson admitted he had received the one oral warning in relation to the use of petrol in his Mini Pickup. They also record the fact that Mr Buckle said that there were other oral warnings, too. The Tribunal found that these oral warnings or warning, whichever it was, was insufficient and found that the lack of written warning made the dismissal unfair. They went on to stress at some length that had a written warning been given, it might have enabled Mr Munson to adjust his approach and so continue in employment.

When it came to the question of contributory conduct they expressed the view that the employers had allowed their irritation with Mr Munson's conduct to build up over the course of time but, one way or another, they could have avoided any one of the incidents becoming an issue. At the end of the day, they found Mr Munson guilty of no contributory conduct.

Mr Lane, who appeared on behalf of the employers, made a number of criticisms of the Tribunal's decision and the reasons they gave for it. The first point he made was of a general nature and that was that the Tribunal had singly failed to find appropriate facts. They had recited the evidence, but had made no firm findings. The only findings which seem to have been made were those which the parties were left to infer. Reasons are based on findings of fact. With no facts found, it is difficult to justify or, indeed, for any of the parties to check out the reasons. Without reasons being specified, it is difficult for the parties or, indeed, this Tribunal, to be satisfied that the appropriate statutory tests required by s.57 have been complied with. That was Mr Lane's first submission.

His second submission was that there was no indication the Tribunal had, in fact, applied the tests of s.57. There was no clear or express reason stated for Mr Munson's dismissal. It was to be inferred he had been dismissed because of misconduct. When Mr McMullen, who appeared on behalf of Mr Munson, came to deal with this point, he points out the Tribunal's findings as to the reasons for dismissal as being contained in paragraph 24 where it is stated that Mr Munson was dismissed because of misconduct, gross misconduct and lack of capability. If that was an express finding by the Tribunal on this important aspect of this decision it overlooked, that the employer had, at the outset of the hearing withdrawn the allegations that Mr Munson had been guilty of gross misconduct or had shown lack of capability. Thirdly, Mr Lane complains that the Tribunal did not address the issue whether the employer had acted reasonably or unreasonably. He says that, of course, not having found expressly a reason for dismissal, it was difficult for them to do so.

Four; as the Tribunal proceeded straightaway to consider the fairness of the dismissal procedures, they failed to make any express finding about what warnings there were or the terms in which they were given. There was a conflict of evidence, for instance, between Mr Munson, who stated that he had received one oral warning only and that of Mr Buckle, who referred to there being other oral warnings. When considering the terms of the warning given on the employer's case, the EAT found itself inappropriately inviting Counsel to describe the sort of warning it was contended had been given, and it was doing so because the Tribunal had made no express finding of fact on that matter.

Mr McMullen sought to demonstrate how, on perusing the decision of the Tribunal, one might infer the findings of fact which would provide the answers to the statutory tests. We are mindful that we should not be overcritical of a Tribunal's formulation of its reasons (for to be so would impose too much of a burden upon the Tribunals when drafting their reasons). However we are of the view that the shortfall here by reason of their failure to find facts and to make express findings about the statutory tests, go beyond the minor difficulties which an EAT is capable of overlooking. We cannot be sure that the statutory tests have been applied. We cannot be sure what their findings were about the crucial issue of warnings and, accordingly, we must conclude that the appeal has to be allowed. The question is then, what directions should we give? We are mindful of the attendant expense and the delay which will be involved in remitting this case for a further hearing but it is our view that there is no shortcut that we can take. We think the appropriate direction is that this matter must be remitted for a rehearing before a new Tribunal.

Criticism was made by Mr Lane about the Tribunal's assessment of Mr Munson's contributory conduct. In view of the decision that this case should be put back before another Tribunal, it is not appropriate for us to deal with that aspect here.

There was also a further criticism made of the basis upon which the Tribunal had proceeded to assess the compensation payable to Mr Munson. It was alleged that Mr Munson had failed to mitigate his loss by assiduously striving to obtain further employment. That submission was accepted by the Tribunal who, as a result, decided to reduce the compensation payable to Mr Munson by 25%. Mr Lane submitted that to adopt a percentage figure, was contrary to the ratio of the decision in Peara v Enderlin Ltd [1979] ICR 804. That decision decided that a percentage calculation for the assessment of a discount in such a situation was wrong. Mr McMullen submitted that that decision was appropriate only on the basis of the facts of that particular case where the employee had failed to mitigate his loss by going to find alternative employment. He was not as assiduous as he might have been. Mr McMullen says that in this case there is a second factor to be taken into account. Not only did the Tribunal find Mr Munson had failed to look for work but they also took into account the difficulties of finding jobs in the current labour market and, he said, where there were two such concurrent factors to be taken into account the Tribunal did not err in applying a percentage calculation.

We take the view that the circumstances of this case cannot be distinguished from that of Peara. First it is to be noted that Peara has stood the test of time since 1979. Second, the Tribunal, according to that decision, has to find a date when the employee should have been able to find employment had he applied himself. The fact that the Tribunal also has to take into account the added difficulties of finding a job in the current labour market, we do not see as a distinguishing factor. It is merely an additional factor the Tribunal has to take into account in making its assessment of the date when the employee should have been able to obtain alternative employment. In those circumstances we cannot see any distinguishing factor and we feel that the case of Peara would govern this case. That is the decision of this Tribunal.