United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 80_93_3110

Appeal No. EAT/80/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31st October 1994

Judgment delivered 12 June 1995

Before

HIS HONOUR JUDGE J BULL QC

DR R GRIEVES CBE

MR R TODD

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MR K WILLIAMS          APPELLANT

TAFFY'S CARPETS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR N MASON

(of Counsel)

Messrs Allington Hughes

10 Grosvenor Road

Wrexham

Clwyd LL11 1SD

For the Respondents MR DAVID N BERKLEY

(of Counsel)

Messrs Graham Leigh Pfeffer & Co

672 Bolton Road

Pendlebury

MANCHESTER M27 2SH


 


HIS HONOUR JUDGE J BULL QC This is the appeal of Kenneth Williams against the decision of an Industrial Tribunal sitting at Shrewsbury on 3rd and 9th November 1992 under the Chairmanship of Mr R J Kelly whereby it unanimously decided that his application that he had been unfairly dismissed, failed. The full reasons were sent to the parties on 14th December 1992.

Mr Williams was employed as Manager of the Respondent's carpet shop in Wrexham, one of 16 in the North of England and Wales. Mr Myerson was the Managing Director of the Respondent company and a man whose management style the Industrial Tribunal found to be "autocratic and forceful". On 14th January 1992 Mr Myerson made a surprise inspection of the shop which the Appellant managed at a time when he was attending a funeral. After the visit Mr Myerson sent a letter dated 15th January 1992 detailing his findings and ending by giving a written warning to the Appellant that unless he ran the shop properly he would be replaced. The Tribunal found that the letter was factually correct. The Tribunal reached the conclusion, having seen the witnesses and heard the evidence that the Applicant "simply could not take any criticism of his performance". The Appellant, having sought other advice first, finally instructed a solicitor who upon the Applicant's instructions wrote two letters to Mr Myerson. These letters, the Tribunal found, refuted each of the findings in the warning letter and imposed conditions as a prerequisite of Mr Williams' return to work. There followed a telephone conversation between the solicitor acting on behalf of the Appellant and Mr Myerson, and the Industrial Tribunal found that in the conversation Mr Myerson was pressed for an answer to the question whether Mr Williams "is or is not" dismissed to which Mr Myerson responded that the Appellant was dismissed. Thereafter a dismissal letter dated 23 January 1992 was written which contained this paragraph:-

"Up to receiving these communications I had no intention whatsoever of taking this matter further than your warning letter but, after noting the contents of the letters, I feel that it would be hard for you and I to have a normal employer/employee relationship."

The Industrial Tribunal unanimously reached the conclusion that the reaction of the Appellant to the warning letter was out of all proportion to the circumstances, and that the relationship between employer and employee had completely broken down almost entirely due to the Appellant's conduct, so that in their view, no reasonable employer would have taken any steps to mend matters. They therefore found that the employer had shown within the context of S.57(1)(b) of the Employment Protection (Consolidation) Act 1978 that there was "some other substantial reason of a kind such as to justify the dismissal of the employee holding the position which that employee held."

The grounds upon which the appeal is brought are that the Tribunal made errors of law in finding that the solicitors' letter imposed conditions upon the Respondent as a prerequisite of the Appellant's return to work, similarly that his seeking legal advice was out of all proportion to the circumstances, further, that in responding to a formal disciplinary warning by way of two solicitors' letters the Tribunal erred in law in finding that this was a confrontational attitude such as to destroy the relationship of employer and employee and that they similarly erred in law in finding that the Respondent acted reasonably in dismissing the Appellant when it was open to him to suspend for further consideration. Further criticism is made of the decision upon the grounds that the Industrial Tribunal were perverse in finding that the dismissal was not a permissible option or a conclusion to which a reasonable Industrial Tribunal could come. In support of these arguments we were referred to Turner v. Vestric Ltd [1980] ICR 528 which establishes the proposition that before deciding whether a dismissal is fair it is necessary to ascertain whether the employers had taken reasonable steps to try to improve the relationship, and similarly there is an onus upon employers to demonstrate not only that there had been a breakdown of the working relationship but that such breakdown was irremediable. In our judgment, the Industrial Tribunal in paragraphs 3 and 4 of their reasons demonstrate that they considered whether there were any further reasonable steps which the employer might have taken to seek to improve the relationship, but concluded that the relationship had completely broken down.

Mr Mason who conducted this appeal with skill and vigour has supported the grounds of appeal urging us to find that the Tribunal were in error in concluding that the Appellant's reaction to the warning letter was out of all proportion to the circumstances, that they were further in error in finding that Mr Myerson had no option but to dismiss, and similarly in error in finding that he was not able to take steps which would mend the relationship with the Appellant. It is, however, important to stress again the nature and role of this Court upon appeal, and we adopt respectfully the judgment of Lord Justice Dillon in Gilham & Ors v. Kent County Council [1985] ICR 233 at 243.

"It is of fundamental importance to the understanding of these proceedings to keep firmly in mind that this court, and the appeal tribunal, only have power to set aside a decision of an industrial tribunal if it is shown that in reaching its decision the industrial tribunal have erred in law. If the issue is only one of fact, this court has no power simply to substitute its own interpretation of the facts for that of the industrial tribunal. This is to a lawyer established law, but it is worth re-stating yet again, because many who are not lawyers find it difficult to grasp the concept of the limited function of the court, and therefore have difficulty in understanding decisions of the court.

In the present case, the key question which arises under section 57(3) of the Employment Protection (Consolidation) Act 1978 as amended, and which is under that subsection to be determined in accordance with equity and the substantial merits of the case, is whether i n all the circumstances the employers acted reasonably or unreasonably in treating their ground for dismissal as a sufficient reason for dismissing these employees.

Whether something is reasonable or unreasonable is a question of fact. This court cannot therefore simply substitute its own view of the facts for that of the industrial tribunal, and consider whether, in the view of this court, the employers acted reasonably or unreasonably in all the circumstances. This court has to consider whether the industrial tribunal erred in law; in practice that means, in this case, considering whether the industrial tribunal either (a) misdirected themselves in law in that they misconstrued their function in considering the question of reasonableness, or (b) reached a conclusion, in holding that the employers had acted unreasonably in dismissing these employees, which no reasonable tribunal, properly directed in law could have reached."

So far as the issue of perversity is concerned we remind ourselves of the well known case of Piggott Bros. & Co Ltd v. Jackson [1991] IRLR 309 at 312, where Lord Donaldson, MR gave guidance upon the approach of an appellate court:

"It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self misdirection in law by the industrial tribunal. If it cannot do this, it should re-examine with greatest care its preliminary conclusion that the decision under appeal was not a permissible option as to be characterised as "perverse"."

We have examined the arguments with care, and have been taken through the Notes of Evidence kindly provided in this case but we are unable to accept the argument that there was any material finding of fact relied on by the Tribunal which was contrary to the evidence which was put before them. Further, we in no way agree with the arguments that this decision was perverse: we are unable to identify findings of fact which are unsupported by the evidence, and there is not demonstrated to us any self-misdirection in law. It is for the Tribunal to hear the employers establish, if they can, the cause of the dismissal. It is for the Tribunal to find on the facts whether the employers have behaved reasonably or unreasonably, fairly or unfairly, for that is laid down by the statute and the statute says that we are only to consider questions of law, not facts - there is no appeal upon the facts.

This Industrial Tribunal had the privilege, which is completely denied to us because we are a tribunal of law and not of fact, of seeing the witnesses give evidence, hearing their evidence tested and considering the demeanour of the witnesses whilst they gave such evidence. In those circumstances it would be quite idle for us to say that we have a better view than that of the Industrial Tribunal. We can detect no error of law in this Industrial Tribunal and most certainly we cannot say that in any of the respect which are put forward or indeed, any other respect which occurs to us, that this Industrial Tribunal acted in a way or reached a conclusion which no reasonable tribunal could have done.

It follows therefore that there is no point of law here and the appeal must be dismissed.