United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 571_95_2010

Appeal No. EAT/571/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 October 1995

HIS HONOUR JUDGE J HULL QC

MR J R CROSBY

LORD GLADWIN OF CLEE CBE JP

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MR J C PEARSON          APPELLANT

TAMESIDE METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


JUDGE HULL QC: In this case, Mr Pearson appeals to us against the decision of the Industrial Tribunal sitting in Manchester on various dates in 1995. They sat for eight days in January and March 1995 and, as they said, heard a very great deal about the facts and, finally, the decision was promulgated on 6 April 1995.

They found that Mr Pearson had been unfairly dismissed. There were two grounds for that. They also found that he was 50 percent to blame for the dismissal and that it was right to reduce his award by 50 percent, taking into consideration his behaviour.

He was first employed by the Tameside Metropolitan Borough Council or their predecessors on 1 April 1974 and the Tribunal set out their findings of fact in considerable detail. They say that he commenced his employment then.

"He was employed as a computer programmer in the Information Technology Department. However at various times during his employment he has been seconded to the post of Branch Secretary of his trade union, NALGO. In particular he last held this post from November 1990 to November 1993."

They say that their enquiry into the facts was much longer than necessary because neither side was prepared to make any concessions, even when it seemed entirely sensible so to do. One is very sorry to see that, particularly as each side was represented by Counsel and we would infer that if Counsel had been able to, on their instructions, they would have agreed matters which were not in dispute. They record a large number of unhappy events connected with the trade union activities of Mr Pearson and alleged refusals by him to behave reasonably when his employers wished to take certain steps; when appointments were fixed and he refused to attend or failed to attend. All sorts of matters like that. But nonetheless, in spite of those criticisms of Mr Pearson, they found that on the essential matters he was right. First of all, they found that under an agreement which had been reached he was, indeed, entitled to insist on certain rights with regard to his employment. I am not going to go into all the details because of the nature of the appeal. Secondly, they found that he had been treated unfairly. They said that there was unfairness in two important respects. They said that, first of all, he had been misled about the identity of a person who was going to conduct a disciplinary hearing. It was a person who was, in fact, empowered to dismiss him and did dismiss him. Secondly, it was unfair because of the composition of the appeal panel, which heard his appeal. It included councillors who previously sat on the local joint committee and one of them, at least, had expressed very strong views adverse to Mr Pearson on other occasions.

There they were, wholly in favour of Mr Pearson on the issues which he raised, namely, that he had been, first of all, treated unlawfully. The employers had not correctly understood the contractual position but he had. Mr Pearson was correct in asserting his rights. Secondly, that the employers had behaved unfairly towards him.

Those were strong findings which they were fairly entitled to make on the evidence. There was no appeal against those, of course, by the authority. However, they made some findings very unfavourable to Mr Pearson. I will not go into it all but they used very strong language, as strong as any I have ever seen used by an Industrial Tribunal. They said that he behaved in a way which was culpable and blameworthy, unreasonable, perverse, foolish and bloody-minded. They said that was how his behaviour could properly be described. They had spent eight days hearing the case and if anybody would be entitled to criticise anybody else in those very strong terms, they must have been.

The facts were for them. They were entitled as a matter of law to reach that view. Whether that view of Mr Pearson is correct or otherwise is not for us to say, nor is it for us to say whether we would have formed such a view or whether a different Tribunal would have formed such a view; but this Tribunal, having devoted all that time, did form that view of the parties' respective merits and demerits. I need hardly say that they were not uncritical of the employers, either, in the way which they had handled the matter and I have set out the findings of unfairness which they make. They then say, having regard to these matters they find that Mr Pearson is 50 percent to blame for what had occurred and his compensation must be reduced accordingly.

Again, on the face of it, that is a pure decision of fact. If somebody has been unfairly dismissed, then it is entirely for the Tribunal to say, when considering what compensation they should receive, that it should be reduced by reason of their own conduct and contribution to what has happened. That was their finding.

The appeal to us by Mr Pearson is put like this:

"In considering whether the conduct of the Appellant before the dismissal was such that it was just and equitable to reduce the basic award pursuant to section 73(7B) of the Employment Protection (Consolidation) Act 1978, the Tribunal failed to take into consideration the fact that the Respondent was acting in breach of contract in seeking to redeploy the Appellant. In those circumstances, the Tribunal should have considered whether the Appellant was contractually entitled and therefore not acting unreasonably in failing to accept that redeployment or attend meetings to discuss that redeployment.

(d) In considering the amount of the compensatory award payable to the Appellant pursuant to section 74 of the Employment Protection (Consolidation) Act 1978, the Tribunal failed to take into consideration [the same matters]".

That is the essence of it, whether under both the sections they were wrong not to take into consideration that, in law, the employers were in breach of contract in seeking to redeploy him.

But when one looks at the findings of the Tribunal, one sees that they did say that, in fact, he was right about the question of law. They say at page 13:

"Thus we find as a matter of law that the applicant was correct in his interpretation of the facilities agreement, and that in seeking to redeploy the applicant the respondent was acting in breach of contract."

They set that out in paragraph 7. So that had that clearly well in mind. It was a very important part of their decision.

On the next page, in paragraph 8 they say that:

"We consider that the behaviour of the applicant over the relevant period was provocative in the extreme and that his conduct was both culpable and blameworthy. When assessing the extent of the applicant's contribution to his own dismissal we have borne in mind that he believed that he was contractually in the right. We also bear in mind that although the applicant's behaviour was clearly provocative, and in our view intend so to be, he did at least instruct his representatives to enter into correspondence with the respondents at about the same time."

They then assess his contribution at 50 percent.

It is perfectly clear to us that they did have those matters in mind. It has been suggested that they had, in the circumstances, no right to find that he was in contribution as a matter of law. We have a letter before us from the Chairman of the Tribunal, recording his note, Miss Morgan, experienced and capable Counsel, appearing on behalf of Mr Pearson, conceded that even if the Respondent had been acting in breach of contract, the Appellant could still be held to have contributed to his own dismissal. That is based on the Chairman's note and recollection and it is not challenged, although Mr Pearson very fairly says that he cannot remember the exact language of the submission which was made. That, as a matter of law, is not fairly contestable here.

What Mr Pearson does say is: "Look, in assessing this they are only taking into account my belief, what they should have done was to take into account the fact that I was, indeed, right about that, as they subsequently found". That submission appears to us, with great respect, to be quite mistaken. What the Tribunal had to do in judging the party's behaviour at the time was to look at his subjective beliefs and see whether they were reasonable. Here, they had found that Mr Pearson was perfectly right but nobody at the time could have said that. There were two sharply divided views and until it got to a Court or the Industrial Tribunal, nobody could authoritatively say that one was right although various opinions could be held in good faith. What the Tribunal had to do was to consider not whether that view was right but whether it was held in good faith and they found that it was held in good faith by Mr Pearson and strongly held, no doubt. He though he was in the right and, as it turned out later, he was in the right. They were correct in that approach and it was perfectly proper for them to take it into consideration.

What cannot be said, in our view, is that they should then, in assessing the extent of contribution, have based it on whether that view was right or not. They were right to consider whether it was reasonably held but whether it was rightly held would be something which would be going beyond their responsibilities. They had to look at the behaviour of Mr Pearson, as it was at the time, in the light of his state of mind and in the light of all the other circumstances. We can find no error of law. The assessment of the degree of blameworthiness of a person who appears before an Industrial Tribunal is entirely a question of fact and Parliament has said that questions of fact are solely for the Tribunal. We think this Tribunal went about their task entirely lawfully, reached conclusions which are correct in law and, as to the facts, so far from behaving perversely or showing a lack of moderation, they seem to have shown great patience and arrived at the facts in a way which we certainly cannot criticise.

In those circumstances, we cannot find any point of law in this appeal and, having heard Mr Pearson, we have to say that the appeal must be dismissed at this stage.