United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 580_93_0612

Appeal No. EAT/580/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 December 1994

Before

HIS HONOUR JUDGE H J BYRT QC

MRS M L BOYLE

MISS C HOLROYD

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MARLEY (UK) LTD          APPELLANTS

S DUCKWORTH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR D RICHARDSON

(OF COUNSEL)

Argles & Court

12 Mill Street

Maidstone

Kent ME15 6XU

For the Respondent MR A SENDALL

(OF COUNSEL)

Sparkes & Co.

24-28 Forest Centre

Bordon

Hants GU35 0TW


 


JUDGE BYRT QC: This is an Appeal against the Industrial Tribunal's decision made when it was sitting at Ashford in Kent, on 10 March 1993. On that occasion they came to an unanimous decision that the employee (the Applicant) had been unfairly dismissed. Mr Duckworth, the employee, had worked for the Appellants since 30 January 1989 as an analyst programmer. In June of 1991, he got promotion and became a senior analyst and at the time of the offence in this case in March of 1992, was working at the Appellants' group head office.

On 5 March of 1992, he was summarily dismissed on the grounds of gross misconduct and the burden of his offence was that he had used his office telephone excessively for making private telephone calls. Between 3 December of 1991 and 25 February 1992, he had made telephone calls lasting 5 hours and on 2 March of 1992, he made a telephone call (a single telephone call as I understand it) which lasted a further 43 minutes.

On 17 February of 1992, there was a random check carried out by Mr Duckworth's employers and as a result of that, this situation came to light. Mr Duckworth was called before a Disciplinary Hearing on 5 March and as a result of that Hearing, he was summarily dismissed in accordance with the Company's Disciplinary procedures; he had a right of Appeal which he exercised and that Appeal was heard on 24 April. The result of that decision was to uphold the dismissal.

Before the Hearing on 5 March, the employers had carried out a check on who was at the other end of these telephone calls and had ascertained that the numbers used by the employee were known as "entertainment numbers" of a pornographic nature and the telephone charges for such calls were at prime rates. At the Hearing before the Disciplinary Committee, Mr Duckworth did not dispute the facts alleged by his employers, but in mitigation said that he was suffering considerable stress at the time. He was going through a divorce; he was moving home and also suffering medical problems. He went on to describe how these telephone calls had become a form of addiction. They brought him comfort and cheered him up.

At the Hearing, he expressed regret and remorse and offered to pay. The employers were represented by Mr Roy, a manager and before the moment of dismissal, the proceedings were interrupted whilst he consulted the Personnel Manager and later, the Head of Administration and Finance. As a result of that, he learned that there were precedences. On two occasions, other employees had been summarily dismissed in similar circumstances. Mr Duckworth had not known this until the actual Hearing itself.

At the end of the Hearing, before the Industrial Tribunal, Mr Roy of the employers, agreed there was no written or published policy of the Company about private telephone calls. He accepted that the Company permitted employees of a certain rank and grade such as Mr Duckworth was, to make a limited number of social telephone calls. Telephone calls to one's wife saying that one was going to be home late because of work or something of that sort was what to be expected but the Company argued in justification of their summary of dismissal, that Mr Duckworth had in effect, stolen Company time and abused the facilities provided him in his office. Further, they said he had abused his position of trust, automatically accorded to him because he worked on his own and furthermore, they argued that by any test or yardstick, the calls that Mr Duckworth had made were excessive. They rejected any suggestion that they had been overly moralistic.

It was argued on Mr Duckworth's behalf that his conduct merited merely a warning and not summary dismissal. It was stressed that there were no company policy on these calls and so employees did not really know the position. No steps had been taken to ban such calls, at least not until 26 February 1992, when telephone calls to one particular number were banned. The telephone call made by Mr Duckworth on 2 March was to a second telephone number which it was not possible for the Company to ban because the dialling code for that number also related to other legitimate numbers used in the course of Company business. However it was alleged that the Company was slack in doing something about banning such calls. It was argued that there was no yardstick by which anybody could judge for themselves, whether the calls they were making were excessive. There was no evidence what calls were being made by other employees. There was no consideration as to the proportion of time spent on these telephone calls, as compared to the time that was spent working for the Company and further, it was stressed that there was no element of dishonesty as in the case of theft.

Such were the arguments advanced before the Tribunal. The Tribunal considered the case and thereafter directed itself on the Law. The directions are set out in paragraph 10 of their reasons and it is accepted by the Appellants that the directions they gave themselves were well neigh impeccable. Mr Sendall for the employee had a certain caveat to enter about the directions they gave themselves, but by and large, there has been no dispute in this Hearing before us to the effect that there was any substantive error in Law in what they set out for themselves.

When they came to make their findings in paragraph 11, they found:

"...that the dismissal was unfair because what the applicant did was not gross misconduct..."

The Tribunal then went on to stress that the investigation, conducted by the Employers, was biased because of the pornographic nature of the telephone calls. A combination of these factors resulted in the Tribunal finding that the dismissal was unfair.

The Tribunal found that the pornographic element in the calls was a factor the Tribunal should have taken into account in favour of the employee, as in fact it amounted to confirmation in the employee's case that these telephone calls amounted to a form of addiction, a form of sickness rather than misconduct. The Tribunal found that they were suggestive of a nervous breakdown. They went on to state that, in their view, the employers should have shown a degree of understanding and tolerance which they had totally failed to do. They concluded that the employers had shown an attitude which was outside that band of reasonable responses one would expect of a reasonable employer.

In the second part of paragraph 11, the Tribunal dealt with the issue of the alleged dishonesty. Mr Richardson who argued this case here on behalf of the employers, suggested that the allegation that Mr Duckworth had stolen his employers' time by making these telephone calls was but a metaphor. Unhappily, the allegation seems to have taken up a certain amount of time in the Tribunal's deliberations. They decided that the employers had mislead themselves by going down this avenue. They said that the employers would have had to find an element of dishonesty before they could find the employee guilty of anything of the nature of theft. They found that the employers could not reasonably have concluded that there was such an element of dishonesty in Mr Duckworth's conduct. They went on to find that he may have been silly and indeed, that he was sorry. They concluded that had the employers given him a warning, that would have been sufficient to have stopped him and that all that was really necessary.

At the end of their decision, having found that Mr Duckworth's dismissal was unfair, the Tribunal held that his own conduct had contributed to his dismissal in that he could have done more to help himself. As a result, they said that any award given to Mr Duckworth for unfair dismissal, would have to be reduced by some 50%.

This case has been argued in front of us by Mr Richardson on behalf of the Company and Mr Sendall for the employee very much along the same lines as before the Tribunal. Mr Richardson, says that whilst the Tribunal impeccably directed themselves as to the law, it is quite apparent when one examines their reasons in paragraph 11, that they failed to apply it, and in so failing, they usurped the function of the employers and substituted their own views as to how this matter should have been dealt with. Mr Sendall attached considerable importance to the first part of paragraph 11, where the Tribunal states that in their view what the Applicant did was not gross misconduct. Further, he says that when dealing with the pornographic element of the telephone calls, the Tribunal again was developing a thesis of their own. Instead they should have been asking themselves the crucial question whether the employers had a belief in the facts upon which they were acting at the time they dimissed Mr Duckworth, and whether their decision to dismiss was reasonable or within that broad band of reasonableness of the reasonable employer. Mr Richardson submits that had the Tribunal approached the issue of pornography in that way, they would not have come out with the positively eccentric views which they do in the first half of that paragraph. He submits that in so doing, the employers misapplied the law they had earlier stated correctly.

Mr Richardson's next criticism is of the finding of the Tribunal that the employers could not have reasonably have concluded that there was an element of dishonesty in Mr Duckworth's conduct. He argues that, quite plainly, the latter's misconduct did contain an element of dishonesty and to have come out with a conclusion that there was no such element was again substituting their views for those of the employers whose responses were within that broad band of a reasonable employer. Again, he says the Tribunal was misapplying the law upon which it has correctly directed itself.

The Tribunal ends paragraph 11 with the statement that:

"...It was a situation for which the obvious and only reasonable response would be a written warning..."

Mr Richardson says that this firm conclusion once more demonstrates that the Tribunal failed to put the correct question as to whether the decision the employers made, was one which was within that broad band of reasonable responses of a reasonable employer.

Mr. Sendall, in his argument, relied on the fact that throughout that paragraph 11, the Tribunal had referred frequently to what the reasonable employer would have done. He stressed that, in the paragraph, there is every indication that the Tribunal were correctly applying the law. He asserted that the giving of a warning would have been a reasonable course for the employers to have taken in all the circumstances of the case. He then set out a list of matters where the employers were at fault, or arguably at fault such as in not making proper investigation about the number of calls made by other employees and so on. Mr Sendall ended by quite rightly warning this Tribunal against substituting it's own views for that of the Industrial Tribunal.

Having regard to the matters which I have already alluded to, we accept the submissions advanced by Mr Richardson. We think this is a case where the Tribunal formed a very clear and decided view as to how the delicate issue of the pornographic nature of the telephone call should have been taken into account and as a result of that, came up with a concluded view of their own as to how the case should have been handled. Notwithstanding the language they used from time to time in paragraph 11, we are of the view that they clearly substituted their own views for that of the employers. It is always somewhat dangerous for a Tribunal to culminate its decision with positive assertions as to what should have happened when the correct approach is for it to focus attention on the employers' decision and to ask itself as to whether their approach was reasonable.

Mr. Richardson also argued on behalf of the Appellants that the Tribunal's findings were not only contrary to Law, but perverse. In our view, this is not a case where we would find the Tribunal's decision perverse. Before coming to such a finding, this appeal Tribunal would have to find that there conclusions were illogical and not a permissable option in the circumstances of the individual case. We do not find that the Tribunal's reasons and conclusions were of such a nature and therefore decline to make such a finding.

Having, however, found that they mis-applied the Law to which they had directed themselves, it necessarily follows that we must allow this Appeal. The question then is as to whether to substitute a finding of our own to the effect that the dismissal was fair, or as to whether we should remit this case to another Tribunal to consider this matter afresh. It is argued that remission would not be the appropriate course. The facts in the case are essentially not in dispute and we are in as good a position to form a view about this matter as any new Tribunal which reheard it. We accept that submission, and instead of remitting, we substitute our own finding that the dismissal was fair.