United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 638_93_0410

Appeal No. EAT/638/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 October 1994

Before

HIS HONOUR JUDGE J HULL QC

MR A C BLYGHTON

MR J H GALBRAITH CB

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NORTHERN AGGREGATES LTD          APPELLANTS

MR J LAWSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR B LITTLE

(Employee Relations Manager)

RMC Group Services

41 Moss Lane

Altrincham

Cheshire

WA15 8HL

For the Respondent MR A GLENNIE

(Of Counsel)

Christopher Wright & Co

22 Richmond Road

Catterick Garrison

North Yorkshire

DL9 3JD


 


JUDGE HULL QC: This is an appeal to us by Northern Aggregates Ltd against a Decision of an Industrial Tribunal sitting at Newcastle upon Tyne under the chairmanship of Mr Emmitt, with two Industrial Members. They sat in March 1993 and the Decision was promulgated in July.

In their Decision they held that Mr Lawson, the Respondent to this Appeal, had been unfairly dismissed but they found that he was in contribution to the extent of 75%.

What happened was this. Mr Lawson is an experienced quarry man and the Appellants are in that way of business, they have I think six or eight quarries in the North East of this country, and their Head Office is at Yarm in Cleveland. Mr Lawson is now aged 55 and he was, at the material time, Foreman at one of the quarries, Witton Park which is near Bishop Auckland. His employment by the Appellants began in June 1978. He had three men under him. Matters had not been very happy shortly before the events which I am coming to. The quarry together with another quarry called Catterick quarry had been under one Manager and Mr Lawson was the Foreman at Witton Park, and it was then decided, no doubt for excellent reasons, by the Company that they would introduce a new Manager who would be simply the Manager of Witton Park. That, in effect, appears to have meant a down-grading, though not in any way a diminution of rewards, for Mr Lawson. He apparently went from being a salaried employee to being paid at an hourly rate and it does appear that this change was of some significance to him, and was aggravated by the fact that he did not apparently get on with the new Manager who was introduced, in effect perhaps a fresh layer of management, a Mr Marr. There is no general complaint against Mr Marr, he was a qualified man, qualified in the responsibilities and duties of a quarry Manager, but it was said by Mr Lawson that he felt he was not being treated properly by Mr Marr and he felt indeed that Mr Marr "had it in for him".

Management told Mr Marr that they wanted some measurements, time particularly, taken. There was a drag line which extracted material, and there were dumper trucks that were loaded, and there was a face shovel which was operated by Mr Lawson himself, all large mechanical equipment. And the employers wanted Mr Marr to take some timings. On the day in question, which was 29 October, Mr Marr was engaged in taking timings and Mr Lawson got the idea, possibly wrongly, that Mr Marr was surreptitiously timing him in carrying out his duties and he felt very upset. One can certainly understand that, because of course a conscientious and hard worker in a responsible position may feel that he is doing his very best and that it is invidious to time his efforts. Looking at it from the point of view of management, it may be essential to see how long the job takes so that they can plan all sorts of matters. I should add in justice to Mr Marr that he was clearly of the view that he had informed Mr Lawson that he was going to take some timings and so far as he was concerned there was apparently nothing underhand about it.

That was how the situation arose, and as with all such situations to an outsider it might seem that these were really rather small matters; but to those actually engaged in the unpleasant and difficult work of quarrying, they might seem very important matters and they did apparently seem so to Mr Lawson. He behaved in a way which was quite uncharacteristic. There had been no complaint against him in the course of his career with the Appellants up to that point. He drove up beside Mr Marr's car, he banged the shovel of his machine down, he came across to Mr Marr and an altercation developed in which, I am sorry to say, Mr Lawson grabbed the manager by the lapels and pushed him against the car. He then called, apparently, a strike. He called the other men off duty. Everybody involved in the story, the employees, Mr Lawson and Mr Marr went into a shed near by. Mr Lawson was so upset and angry that he actually pushed his fist into or through the wall of the shed. Mr Marr said, not unreasonably, that he had had enough of this. He went back to his car and there then followed a further deplorable scene in which Mr Lawson came out, tried to lift the car by the wheel arch and actually threatened to kill Mr Marr; though there is no suggestion that that threat was intended to be serious, or anything of that sort.

So there it was. Mr Marr, not surprisingly, was alarmed and frightened and told the managers so. Mr Lawson was suspended and disciplinary proceedings began. Mr Barker, the Operations Manager for the Company, held an enquiry. He had Mr Horne, another Manager, with him who knew Witton Park Quarry. That enquiry, having heard all these matters, found the facts which I have mentioned. It was conducted perfectly fairly.

The decision was taken, after hearing Mr Lawson, who came accompanied by a friend, that he should be dismissed. He had been guilty of a serious breach of the rules, among other things, although it is hardly necessary to say that such conduct must be a breach of the contract of employment.

Then Mr Lawson appealed to a senior Manager, Mr Davies the Divisional and General Manager; he again heard Mr Lawson, so far as Mr Lawson wished to address him, and Mr Lawson again attended with a friend, so he was not without assistance. Mr Davies was sorry to hear that there was no expression of regret for what had happened and he decided to uphold the decision.

Mr Lawson then complained to the Industrial Tribunal. They heard evidence of the matters which I have referred to. They found, among many findings in their very careful and detailed Decision, that this was serious misconduct. They found that there had been a careful and proper enquiry, there was no criticism of that, and they found that all procedurally was in order so far as the employers were concerned. Then they went on to say as follows:

"25. However we judge that in the particular circumstances of this case the respondents stepped beyond the band of reasonable responses by imposing the penalty of dismissal and on that basis the dismissal was unfair. In reaching that conclusion we were influenced by the following factors. Mr Lawson had served the company for 14 years and was acknowledged by all the company's witnesses as an excellent worker and a valued employee. There was no previous history of physical threats or physical damage or damage to property. His uncharacteristic behaviour on 29 October was caused by a genuine perception that his work, and that of his colleague, was being timed by the Quarry manager and his deeply felt resentment at being timed when he worked so hard for the company. The company's response that Mr Lawson had committed gross misconduct to the extent that they could no longer be expected to retain him in their employment was not in all the circumstances reasonable".

"26. Mr Lawson was nevertheless guilty of a high degree of blameworthy conduct. He was, or should have been aware, that the respondents had the right to manage their business in the way they considered best, and however strong his sense of grievance he was seriously at fault in re-acting in the way he did".

They found that he was 75% to blame for his dismissal.

It goes without saying that in general an assault on a fellow-employee (and this was, at any rate technically, an assault on Mr Marr), a fortiori, an assault on a Manager who is endeavouring to do his duty, will always be regarded, both in industry and of course by Industrial Tribunals, as a serious matter. Very commonly, an employer having arrived at a just view of the facts, and having heard the employee, will decide that dismissal is the only option. It is for the employer in general to answer the question; for him to say how he conducts his enquiry and for him to say what action he is going to take. The employer is entitled to say how he is to run his business and how serious any misconduct may be, having regard to circumstances of which he is the best judge. But those rights of the employer are not absolute.

The Industrial Tribunal is charged with deciding whether the employer has behaved fairly in conducting his enquiry and arriving at his conclusion, and the Industrial Tribunal is then under a duty to go on and say whether that conclusion falls within the band of reasonable responses of an employer in those circumstances. Some employers might say one thing and some, another. So the employer has in the nature of things a considerable degree of autonomy and the Industrial Tribunal is entitled to interfere and say that the response of the employer is outside the band of reasonable responses only if they are satisfied that a reasonable employer would not have reacted in this way whatever view he took.

This Industrial Tribunal in the course of this, as it seems to us, very careful enquiry mentioned all the circumstances and they came to the conclusion in paragraph 25 which I have already read. Their conclusion is criticised by Mr Little for the Appellants. He says, first and foremost, that it appears from reading that that the Tribunal were taking upon themselves a duty which they did not have, and substituting their own judgement for that of the employers, and saying what they would have done in the circumstances. He made a great many comments on particular parts of the Decision designed to show us that that was so. He said, among other things, that they had not referred to the band of reasonable responses by a reasonable employer, and he pointed out that they had reached their conclusions by referring to certain matters favourable to Mr Lawson, but omitting other matters. The fact is that all through their Decision it appears to us that they were rehearsing matters which were highly material to their decision and there is nothing pointed out to us of materiality which is omitted from their decision. It seems to us quite extraordinary that when a Tribunal are saying what their decision is and saying what they have particularly borne in mind, it should be assumed that they have put out of their minds, or failed to give proper weight to, what they have deliberately cited already in the Decision. We find the textual criticism, and the inferences which Mr Little asked us to draw from it, insupportable on the best consideration we can give it. It appears to us that this Tribunal were addressing their minds correctly, first of all to material matters and secondly, to the test which they had to apply.

Now it is suggested, and it has been suggested from the start, although not put at the front of Mr Little's argument, that this Decision is on a true view perverse, and he points out to us that there are many, many Decisions in which it has been held that an employer who finds that an employee has been guilty of violence, violence which causes alarm or damage to others, is entitled to dismiss such an employee, even if that employee has not been guilty of previous misconduct. Violence on the shop floor may be very dangerous. It may, whether it is dangerous or not, be utterly destructive of discipline and it may be that an example has to be made and the employer is determined to make such an example. Dismissal will normally follow acts of violence. But that is not something which is writ in stone or some inflexible rule of practice. It must always be for the employer to say how he will react to a particular incident of violence and it must always be the right of an Industrial Tribunal to say whether that response falls in their view, as an Industrial jury, within the reasonable range of responses of an employer.

Here we are not entitled in any way to substitute our view for that of the Industrial Tribunal. We have to remind ourselves that not merely are they the Industrial jury who have heard the witnesses and who know all the conditions, or should know the conditions, industrially, commercially and so on in their own district, but they will be familiar with the manners and habits of people living in that part of the country. In addition to that, it is their duty to form a view of the facts and it is not our duty to do so but only to interfere if we feel that the decision of the Industrial Tribunal is so far from reason that we have to say that it must have been reached by ignoring some essential principle of law or simply by overlooking the evidence; or is simply capricious and without any foundation whatever. We would remark here, having said all that, that the Tribunal quite rightly, in our view, referred to the fact that Mr Lawson was a trusted employee. For 14 years he had been an excellent worker, and there had never been anything of this sort before. They were also entitled to have regard to the fact that Mr Lawson had felt himself gravely provoked by what had happened, and there was a history of Mr Lawson being very unhappy with certain matters. They were also entitled, no doubt, to take account of the fact that although the conduct was very alarming, Mr Marr was not harmed. It may very well be that many employers and many Industrial Tribunals would not regard all those circumstances as sufficient to interfere with the normal course of events which an employer might follow and which an Industrial Tribunal might feel bound to uphold as being within the range of reasonable responses. But we feel quite unable to say that this Tribunal was perverse in reaching that Decision. I have already mentioned most of the factors which we have to bear in mind. They saw these various people concerned in this story and they were able to form an incomparably better view than we could possibly, if we were to set ourselves the task of reconsidering the matter. In particular, they saw and heard Mr Lawson. They were able to judge the seriousness of what happened far better than we can at this distance and they heard the employers endeavouring to justify their decision. They felt obliged, we are quite sure as an exceptional matter, to say that this fell outside the range of reasonable responses. They certainly did not underrate the seriousness of it. They held Mr Lawson 75% to blame. We find that there is no error of law shown here; neither in the way in which they describe their duty and define the task which they have undertaken, nor in the Decision itself, is there to be found any error of law and accordingly, in spite of what has been pressed upon us by Mr Little, this appeal must be dismissed.

We would just add that although we are very grateful, as we always are, for skeleton arguments, to receive them as we did in this case only 20 or 25 minutes before the hearing is due to start means that we cannot do full justice to them. We understand that this case may have found its way into the list belatedly and so it may well be that there is no blame for that.