United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 173_95_1306

Appeal No. EAT/173/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 June 1995

HIS HONOUR JUDGE J HULL QC

DR P D WICKENS OBE

MR G H WRIGHT MBE

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D KITCHING T/A CHRIS RICHARDS (PLANT HIRE) & HAULAGE          APPELLANTS

MR T A BELL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR J WINTERBOTTOM

Mr J Winterbottom & Partners

Employment Law Consultant

2 South View

Wath

Nr Ripon

North Yorkshire

HG4 5EU


 


JUDGE HULL QC: This is an appeal to us by Mr Kitching, trading as Chris Richards (Plant Hire) & Haulage, from a decision of the Industrial Tribunal, sitting under the chairmanship of Mr Worrall with two members at Leeds on 23 November 1994. The complaint which was made to them by the employee (Mr Thomas Arthur Bell) was that he, having been employed as a lorry driver by the Appellant ("the employer") since 1989 had been unfairly dismissed.

The circumstances were that he had (as I say) been employed for some years and he had had the misfortune to be involved with his lorry in three accidents in the course of about six months. The Industrial Tribunal set them out in their decision. He was in a collision with a car driven by a lady and damaged her front bumper bar. The Tribunal could not find any evidence - there was no evidence called before them - as to who was to blame for that.

Then "In October 1993, he had another accident with a car". It sounds, from the description, as though it was in no way his fault. "He was turning right to go on to a site when a car approached on his near side as he was turning. He turned and the back end of his vehicle hit the car". It sounds from that as though the driver of the car was to blame. There was a bill of £800 for that. It was passed to Mr Kitching and the bill was paid, so evidently the underwriters were not troubled with that.

Then "At the beginning of December there was a third incident. The applicant was trying to drive his vehicle to a wagon to load and there was a transit van parked with a blue beacon light on it". And some part of Mr Bell's lorry struck the blue beacon light on the parked vehicle. It does not sound as though it was at all a serious matter.

In those circumstances, two letters were written by the brokers to the employer. The first one on 1 December records that there had been two incidents. It talks about "the frequency of claims involving the above driver" and the insurers "are considering withdrawing cover should there be any further incidents for which he may be held responsible". It is not clear to us that these were incidents for which he was "held responsible" except in the sense that he was there in his lorry. "We are sure you will agree the importance of your drivers taking all due care, as these occurrences will lead either to cover being restricted or greatly increased premiums ... . I hope you will relay our fears to your driver, in a hope that more care will be taken in future".

Then there was this third incident with the blue lamp and the brokers write again.

"Further to our letter dated 1st December 1993 .... . We have been informed that on the 3rd December 1993 this driver was again involved in an accident with a Ford Transit .... owned by Rovas Light & Power Co., .... which may result in a further claim being made against your insurers."

They were not waiting to see whether one was made.

"In view of this situation and due to the fact that the insurance company underwriters are looking at the renewal of your fleet policy on the above date, they have indicated to us that no cover will be offered in respect of this driver with effect from 1st January 1994.

We regret having to impart this information to you. .... ."

When that was received the employer apparently sent Mr Bell home. He went home at Christmas and, apart from being given certain unsatisfactory indications that it was not able yet to tell him what the situation was, the employer kept him in suspense. He, in the view of the Industrial Tribunal, in due course was entitled to regard the way he was treated, with his pay stopped, as being a dismissal, and he did eventually so treat it and complained that he had been unfairly dismissed.

The employer, having treated him like that, then proceeded to tell the Industrial Tribunal in form IT3 that it had not dismissed him and put its case on that basis:

"Due to Mr Bell's accident record, the insurance company took the view that as from 1 January 1994 no cover would be issued for this driver - see copy letter. Copies of these letters were forwarded to Mr Bell at the time."

The employer did not give any particulars of its denial of dismissal and the Industrial Tribunal, as I say, heard the case. I have already read part of their decision. They say:

"4 .... No formal words of dismissal were used but when the applicant made enquiries he was not given any definite answer but told his position would be made clear eventually - It never was but, he received a message from Mr Kitching referring to the fact that his employment was in jeopardy [and so he was sent the letter]. .... We are satisfied from the surrounding circumstances that a reasonable employee would have considered himself dismissed and so there was a dismissal and we have to go on to decide whether it was fair within the terms of the Employment Protection (Consolidation) Act 1978.

5. Having decided that there was a dismissal, the ground for dismissal was that the insurance brokers said that the applicant could not be insured for driving [they go into that]. .... So there was a potentially fair ground for dismissal, within Section 57(2) of the Employment Protection (Consolidation) Act 1978. But we have to go on to decide whether in all the circumstances of the case, under Section 57(3) the dismissal was reasonable and we have to decide first whether there was a reasonable procedure leading up to the dismissal. Also under Section  57(3) we have to decide whether the reason for dismissal was sufficient to warrant dismissal. First of all, there was no procedure at all, and therefore the dismissal was unfair. Secondly, although there was a potential ground for dismissal because there was the letter from the insurance brokers regarding insurance, we have to consider whether that ground was sufficient to justify dismissal. We have come to the conclusion that it was not because there was the possibility that other insurance companies would insure the applicant. The applicant had had no convictions, no endorsements on his licence and, therefore, there was no evidence to show he could not be covered by insurance. We have come to the decision that the letter from the insurance brokers was not sufficient to justify or warrant dismissal without making further enquiries as to whether the applicant could be covered by some other insurance company and so for those reasons we find under Section 57(3) that the dismissal was unfair."

They go on to say, they "heard no evidence as to who was at fault" for these accidents and they therefore say that they consider, on balance, that Mr Bell was 10% to blame for what had happened, but they found that the matter was substantially unfair as well as procedurally unfair, because the letters from the insurance brokers were not sufficient in the circumstances in their view to justify dismissal.

So that was the way they saw it. Of course, the employer was not represented. The employer did not put any matters to the Tribunal to suggest that the Tribunal should now embark on what is sometimes called a Polkey enquiry; should decide whether, even if the employer had behaved with perfect fairness, the result might still have been the same, he might still have been dismissed or there was a 50% chance that he might still have been dismissed. If the employer had abruptly changed front like that, and put those matters before the Tribunal, it would, on the face of it, have been a very difficult enquiry for the Tribunal to embark on.

They had heard no evidence about what the employer suggested would have been the result if there had been a fair hearing, about what the employer might have achieved if it had made enquiries of other brokers or underwriters; no evidence of that sort at all. It would be purely speculative for them.

We look at what is said in paragraph (D) 2550 of Harvey on Industrial Relations. There, having referred to Steel Stockholders and the Boulton & Paul case, the editors say in the text:

" .... the EAT held that it is not for the industrial tribunal to embark on an independent investigation of the facts and circumstances in order to see whether the dismissal might be justified if a different approach had been adopted by the employer. It is submitted that these decisions must be correct."

We believe that that does represent the law correctly. Here the employer had behaved unfairly throughout. Indeed, the Tribunal might very well have said that there was a good deal that was unsatisfactory about these letters, bearing in mind that apparently the accidents did not result in claims, or at any rate one of them did not result in a claim on the insurance company. It is rather strange that these letters follow so promptly.

All these matters were not enquired into for the short and simple reason that the Tribunal could see perfectly clearly that this dismissal was both substantially unfair and procedurally unfair. They then, possibly generously to the employer, thought it right to say they thought that the employee was 10% to blame for what had happened. That is, on the face of it, not by any means an irrational assessment. It might have been a different assessment. It does not matter that we might have reached a different assessment ourselves if we had been trying the case on the same material.

The appeal is sought to be made to us and is in our list under our Practice Direction to see whether we think that there is a fairly arguable point of law in the case, because that is the only jurisdiction we have. I have already dealt with the Polkey point. It is said "The industrial tribunal's approach was contrary to principle and authority". We think that it was in accordance with principle and authority from our understanding of the law, and from the submissions made to us by Mr Winterbottom.

The point is made that the employer simply cannot afford to employ someone who makes a mistake. Well, where is the evidence of a mistake? Did the employer make an enquiry to see whether this was a mistake by Mr Bell or whether it was a mistake by the other driver involved in the accident? And then there is criticism of the 10% holding, saying that that is plainly irrational. It appears to us that all these submissions would be perfectly satisfactory in law if they related to very different facts. They do not.

Here, on the facts found by this Tribunal, it appears to us that their decision, although short and to the point, is one which cannot be seriously criticised and does not raise any fairly arguable point of law. They were entitled to find that everything that was done was unfair and they did so. They were entitled then to find that Mr Bell was partly to blame and they found that he was to blame for 10% and they were then entitled to go on and find the loss involved.

It might very well be that if the employer had conducted itself differently then the Tribunal hearing would have gone very differently and there would have been material before the Tribunal which would have enabled them to conduct a Polkey enquiry. That might have persuaded them that there was a prospect that Mr Bell would still have been dismissed if all had been done fairly, and secondly that the assessment of 10% was too low and that in fact Mr Bell was indeed to blame for all three of these incidents. That is entirely beside the point because none of that was done.

All we can do, as a Tribunal purely of law, is to say that it is not made clear to us that there is any fairly arguable point of law here; in those circumstances the appeal must be dismissed at this stage and not allowed to proceed to a full hearing.