United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 625_93_0806

Appeal No. EAT/625/93


 


I N T E R N A L

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th June 1995

Before

HIS HONOUR JUDGE SMITH Q.C.

MR R H PHIPPS

MS D WARWICK

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MR M YOUNIS          APPELLANT

FINE LADY BAKERIES LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR K KNIGHT

(of Counsel)

Leport & Co

Lincoln Chambers

Market Place

Banbury

Oxfordshire

OX16 8UA

For the Respondents MR J GIBSON

(of Counsel)

Wilson Browne

60 Gold Street

Northampton

NN1 1RS


 


JUDGE SMITH Q.C.: This is an appeal by Mr Younis who was the applicant before the Industrial Tribunal against the decision of an Industrial Tribunal sitting at Reading on 30th April 1993, when it held that Mr Younis had not been unfairly dismissed by Fine Lady Bakeries Ltd the respondent employers.

The dismissal was in respect of an allegation of gross misconduct, namely an allegation that the appellant had engaged in fighting with a fellow employee, one Mr Hussain, at the appellant's work place at the Banbury site of the respondents, during a time when the appellant was on duty as a charge hand on 16th September 1992.

It was conceded by Counsel for the appellant in his skeleton argument that the respondents had reasonable grounds for believing that the appellant had been involved in a fight. It was further conceded by Mr Knight, Counsel for the appellant, in his skilful address before us today, that he could not go behind the finding of the Industrial Tribunal that the respondents in fact had a rule which was understood by union and employees alike, including the appellant, to amount to a standard procedure that the penalty for fighting at work was dismissal.

We pause to mention the clear importance of there being such a clear rule and of it being clearly understood by all, was rightly stressed, in our respectful judgment, in the case of Meyer Dunmore International Ltd v Rogers [1978] IRLR 167 by Phillips J.. Fighting in the workplace is rightly regarded, in industrial relations law, as a very serious matter of misconduct, but it is also clearly of great importance that everyone should know that they risk summary dismissal if they indulge in fighting, and that such would be the usual result.

The point taken on this appeal is a point which Mr Knight candidly accepts was not directly raised in argument before the Industrial Tribunal, and is as follows: It is his submission, that looking at the evidence which was before the Industrial Tribunal, the Industrial Tribunal, it is submitted, must have, through no fault of their own, as it was put, misdirected themselves. It is his submission that had their attention been specifically drawn to certain minutes recorded by Mr Roberts, the production director of the respondents, who conducted the disciplinary investigation into this matter, and another document placed before them, the Industrial Tribunal would have been bound to come to a conclusion that the respondents had in fact applied the sanction of dismissal quite automatically without any consideration being given to such matters as the appellant's length of service and unblemished record.

We should mention here that it was common ground that the appellant had worked at the bakery for 17 years or more, and had an unblemished work record.

The submission made to us was that had the Industrial Tribunal followed the trail, which is was alleged was blazed by those documents, they would have been bound, having referred themselves to the case of Taylor v Parsons Peebles NEI Bruce Peebles Ltd [1981] IRLR 119, to have concluded that the respondent employers had acted unreasonably, having regard to equity and the substantial merits of the case as per Section 57(3) of the 1978 Act. Mr Knight relied particularly upon statements at page 34 of the bundle placed before us, namely a record of Mr Roberts attributing to Mr Street, the managing director of the respondents, a statement where Mr Street informed Mr Khaliq, the union representative, representing the appellant, two days after the dismissal, that:

"... Fine Lady policy on fighting would always be adhered to, the dismissal was automatic."

It should be observed that that statement was made in response to a suggestion by Mr Khaliq, the appellant's trade union representative, that management's attitude had not been consistent on the point. There is then a further reference made by Mr Knight on page 34 to Mr Roberts having recorded himself as informing a Mr Round of the Citizen's Advice Bureau that:

"... Company policy was always dismissal for both parties when fighting."

Reliance was also placed on a document at page 65 in the bundle, dated 22nd March 1991, recalling an "Aerosol can Incident", where in the course of an argument between two employees one threw an aerosol can at the other cutting his lip and it is recorded at page 65 that "both parties were dismissed".

The submission is accordingly made to us that the Industrial Tribunal must have overlooked these matters, and that had they looked at these particular matters they would have been bound to conclude that the respondents had simply implemented their policy of automatic dismissal without paying any regard to the length of service and good conduct of the appellant. Thus it is said they misdirected themselves by not concluding that the employers had acted unreasonably under Section 57(3) of the 1978 Act.

That in outline is the submission that is made to us on behalf of the appellant.

Mr Gibson, Counsel for the respondents, seeks to answer that submission in two ways.

Firstly, he submits that the reality here is that the appellant is seeking to raise a new point of law, namely a misdirection by the Industrial Tribunal on the evidence before it with regards to Section 57(3) arising from the automatic policy argument. A point of law which he submits could have been, but was not, raised before the Industrial Tribunal. He reminds us, quite correctly in our judgment, that it is in only very limited circumstances indeed, that this Employment Appeal Tribunal would consider such a new point of law, especially where, if it were to be upheld, the case would have to be remitted to the Industrial Tribunal to hear further evidence which would be the case here. He refers us to Harvey Tab T. 1602 and the authorities there cited. In our judgment, there is considerable force in this submission, but for reasons that we give below we do not need to decide that point.

Secondly, and substantively so to speak, he submits that, looking at the Industrial Tribunal's decision, it is in every way consistent with the Industrial Tribunal having taken properly into account all the evidence before them including the materials specifically referred to by Mr Knight. It is of course common ground that this material was before the Industrial Tribunal. He submits that the findings of the Industrial Tribunal, particularly in paragraphs 13 and 15 of the full reasons, are the clearest possible indication that the Industrial Tribunal was satisfied that, in the particular circumstances of this dismissal, the respondents had not applied an automatic or "closed mind" approach to the issue whether to dismiss in this particular case for fighting. He submitted that it is quite apparent from the Industrial Tribunal's reasoning in both those paragraphs, that the Industrial Tribunal were satisfied that the respondents had in fact taken all relevant factors into account, whether for or against the appellant, in arriving at their conclusion.

We accept fully that if an employer has adopted a "closed mind" approach to the particulars circumstances of any incident of misconduct, and applied rigidly an automatic policy in regard thereto, so that he has not taken into account mitigating factors, such as length of service and good record of the employee concerned, it is very likely indeed, save perhaps in wholly exceptional circumstances, that he would not be acting reasonably in accordance with Section 57(3). Nevertheless, we do not construe the case of Peebles as establishing any rule of law to the effect that, once there is evidence of an automatic policy to dismiss, it automatically follows that an Industrial Tribunal is bound to hold a dismissal unreasonable and in contravention of Section 57(3). What happened in Peebles, as appears from the judgment, was that the Employment Appeal Tribunal held that in that particular case the Industrial Tribunal had there applied the wrong test altogether. As Lord McDonald put it at page 120 at paragraph numbered 5:

"The Tribunal have expressly stated that they were satisfied that the policy of the respondents was that in such circumstances the only possible penalty was dismissal and that this penalty was justly enforced when they dismissed both the appellant and Henderson. So expressed this does not in our view state the proper test. The proper test is not what the policy of the respondents as employers was but what the reaction of a reasonable employer would have been in the circumstances. That reaction would have taken into account the long period of service and good conduct which the appellant was in a position to claim. It is not to the point that the employers' code of disciplinary conduct may or may not contain a provision to the effect that anyone striking a blow would be instantly dismissed. Such a provision no matter how positively expressed must always be considered in the light of how it would be applied by a reasonable employer having regard to circumstances of equity and the substantial merits of the case. In the present case the Tribunal do not seem to have approached the problem from this point of view. They have been apparently influenced by what they held to be the policy of the respondents and left the matter at that."

In our judgment, the approach of the Industrial Tribunal in the instant case was in very marked contrast indeed to the approach of the Industrial Tribunal in the case of Peebles. It is quite clear, in our judgment, that far from applying the wrong test, the Industrial Tribunal here applied precisely the right test in paragraph 15 of its decision, and particularly in paragraph 15 the Industrial Tribunal identified a number of powerful factors in favour of the reasonableness of the respondents' decision to dismiss, namely that the appellant was in a position of a charge hand, thus in a position of responsibility, and that he had chosen not to be open and straight about the matter, but instead to tell lies about the events of 16th September 1992. The Industrial Tribunal went on to say, clearly in reference to the respondents' decision to dismiss, that:

"... Had he not done so [i.e. that he had not told lies] then the outcome may have been different."

Additionally, it is clear from paragraph 13 of the Industrial Tribunal's decision that the Industrial Tribunal having, we must assume, considered all the evidence before it, concluded that the respondents had indeed taken into account the appellant's long service, personal circumstances, and inferentially, his unblemished record.

Accordingly, we do not consider that it has been established in any way before us that the Industrial Tribunal did in fact overlook what Mr Roberts recorded at page 34 or the document at page 65, or that it misdirected itself in regard to that aspect of the matter.

In our judgment, it is plain from the Industrial Tribunal's decision that it had fully in mind that the respondents' "standard procedure" as it called it, was to dismiss for fighting. Since it expressly referred to that in paragraph 12 of its decision. Thus the Industrial Tribunal plainly appreciated it was considering the reasonableness of the respondents' action in dismissing in the context of an unwritten rule that fighting would result in dismissal. It is, in our judgment, a very short step from that to "an automatic policy" to dismiss. In our judgment, what matters at the end of the day is whether in fact the employer has "closed his mind" to the individual circumstances of the particular incident he is dealing with, i.e. the circumstances of the case, and the circumstances of the employee concerned. Unlike the Industrial Tribunal in Peebles who are reported as in effect saying because it was company policy it must be just to dismiss, this Tribunal, in our judgment, looked at all the relevant factors and thereby applied the proper statutory test under Section 57(3).

There was, in our judgment, no requirement of law for the Industrial Tribunal to state in terms that it had taken specifically into account the statements made at page 34 or the document at page 65. Obviously, in our judgment, the proper weight to be given to those documents and statements would depend very much indeed on the effect of all the evidence before the Industrial Tribunal, including the evidence given by Mr Street and Mr Roberts, both of whom gave evidence at the hearing before the Industrial Tribunal.

The Industrial Tribunal of course had the opportunity of making its assessment of the thoroughness and fairness of the enquiry carried out by the respondents after seeing and hearing those witnesses giving evidence.

In our judgment, there is no reason whatsoever to believe that the Industrial Tribunal did not look at the particular matters relied upon by Mr Knight in the context of all the evidence before them.

We consider that the Industrial Tribunal's reasoning in paragraph 13 to 16 of its decision cannot be faulted and we must reject the submission that they misdirected themselves in the manner alleged by the appellant or at all.

Accordingly for those reasons we must dismiss this appeal.