United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R ASCOUGH (Regional Staff Officer) GMB 205 Hook Road Chessington Surrey KT9 1EA
For the Respondents	MR P G SCHOFIELD (Senior Legal Adviser) EEF Broadway House Tothill Street London SW1H 9NG


 


JUDGE PUGSLEY: In this case the appellant appeals from the decision of the Industrial Tribunal sitting at Exeter. The factual background may be briefly set out, as it summarised in paragraphs 2 to 6 of the Industrial Tribunal's reasons, from which we quote in their entirety:

"2 The circumstances leading up to the applicant's termination of employment can be summarised shortly. On 17 January 1995 the applicant and others were working aboard a nuclear submarine HMS Turbulent. Two employees Mr McKnight and Mr Davis were clearing the inside of a cooling tank. A third employee Mr Parsons, was standing guard at the entrance of the tank to ensure the safety of the men inside. The applicant came to do some work nearby. He then decided to remove a flexible pipe known as a "Clima Vent" which was in use ventilating the tank whilst the two employees were inside.

3 There followed an exchange of abusive language between Mr McKnight and the applicant. The abuse become personal, the applicant calling Mr McKnight "a four eyed twat" (he has some trouble with his sight) and Mr McKnight calling the applicant "a cripple" (he has a slight limp). In the event the evidence is that the applicant came up behind Mr McKnight and put his arm around his neck in an arm lock. Mr McKnight was in some distress as a result and had to force the applicants arm off his neck. He suffered some soreness as a result.

4 Following an investigation a disciplinary haring was held on 27 January to consider the allegation that the applicant had physically assaulted a fellow employee and was therefore guilty of gross misconduct. The applicant was represented at the hearing and had the opportunity to question witnesses. In the event the applicant was dismissed by reason of his conduct and at an appeal hearing held on 17 February the decision to dismiss was upheld.

5 The respondent's relevant evidence in brief is that their investigation showed some provocation on both sides in addition to the use of not uncommon "dockyard language"; that the applicant had assaulted Mr McKnight and there had been no retaliation; that the nature of the assault had been confirmed by those employees present at the time; that there was no substantive evidence to support the applicant's allegation that Mr McKnight had a knife in his hand. In the event, however, no metal objects were allowed for his particular job. The respondents say that the assault was serious in that it happened in the very confined spaces of a submarine and as such the consequences could have been far worse. The applicant's length of service and good record were considered and the respondents took account of the degree of provocation and also the applicant's domestic circumstances. In response to his plea in mitigation the respondents decided to make a payment in lieu of notice. They nevertheless still considered his actions as gross misconduct.

6 The applicant's evidence in summary is that the Clima Vent was more suitable for his work that for ventilating the cooling tank. He had used it the previous day but someone had removed it. He had told Mr Parson that he needed the equipment. he accordingly removed the Clima Vent with the result that Mr McKnight became very abusive and stood in front of him in an aggressive pose holding a knife. The applicant denies holding him around the neck. He admits that he grabbed him around the top of his shoulders with his left arm but it was not his intention to cause him any harm/ He complains that no investigation took place about the removal of the Clima Vent or to establish the facts about the knife. Insufficient account was taken of his length of service, his good record and the degree of provocation that he endured."

The tribunal then go on in the remaining paragraphs (we note that there are two paragraph 6 in the decision) to set out there conclusions which were that the tribunal found that the reason for the dismissal for the purposes of section 57(1) and (2) of the Employment Protection (Consolidation) Act 1978 did relate to the conduct of the applicant and was a potentially fair reason for dismissal. The tribunal also said at paragraph 9 that they were:

" ... satisfied as to the sufficiency of that reason in accordance with the criteria in section 57(3) of the Act in that the respondents dealt with the matter in accordance with an adequate procedure, that the penalty of dismissal was within the range of reasonable responses and that they acted as any reasonable employer would have acted in all the circumstances."

Before us there are three grounds of appeal. The first two were contained in the original grounds. The first is that the tribunal reached a perverse decision to conclude in the light of the evidence regarding Mr Bettinson's previous unblemished record that the penalty of dismissal was within the range of reasonable responses. The second ground is that the tribunal were referred to a number of authorities in particular, Parsons & Co v McLoughlin [1978] IRLR 65 and it is contended that the tribunal failed to address these points in its decision.

By leave of the Employment Appeal Tribunal a further ground was added namely that the tribunal failed to consider that in Mr Hunt's evidence he indicated he saw assault as gross misconduct and therefore a penalty of dismissal as being mandatory and automatic without consideration of the seriousness of the incident and the circumstances of the case in particular Mr Bettinson's long service and unblemished record.

We now have pursuant the Notes of Evidence of the Chairman, and it is clear from the Notes of Evidence that whilst it is true that in one part of his evidence Mr Hunt did say "Yes, fighting leads to dismissal", it is also true that he went on to say "Each case dealt with on merits", and earlier in his evidence he said that he had been involved in one case of fighting years ago where there was no dismissal. We do not, on the basis of the Notes of Evidence, consider that Mr Hunt's evidence was that he failed to exercise his discretion, as suggested in that third ground of appeal. The Notes of the Evidence suggest that he felt he had a degree of discretion. In cross-examination, Mr Hunt adverted to the fact that he was aware of the applicant's long service, that he had certain domestic problems at home and the fact that he was a man who had never been subject to any disciplinary procedures before.

The main thrust of the appellant's case is that the contention that the tribunal erred in considering that the sanction of dismissal was within the range of response open to a reasonable employer. Mr Ascough, correctly, appreciating the argument that would be raised, sought to forestall those arguments by readily conceding in his skeleton argument, as was wholly appropriate, that the circumstances in which an appellate tribunal can intervene to overrule a decision of an Industrial Tribunal which has had the opportunity of hearing and seeing the witnesses is limited. Mr Ascough has directed at our attention to the case of the East Berkshire Health Authority v Matadeen [1992] IRLR 336, in which at page 342 paragraph 53 Wood J (then President of the Employment Appeal Tribunal) counsels and cautions against the temptation to an Employment Appeal Tribunal to intervene, albeit that members in the Employment Appeal Tribunal feel strongly that the result is unjust. But, says Mr Ascough, it is not unknown for an Employment Appeal Tribunal to take the view that the issue of the sanction being outside the range of responses of a reasonable employer is a matter that can be considered in an appellate tribunal, and he cites before us the case of Taylor v Parsons Peebles NEI Bruce Peebles Limited [1981] IRLR 119. In that case the applicant was a long serving employee and had been involved in a fight with another employer, which led to his dismissal. The Employment Appeal Tribunal (it is a Scottish case) held that the Industrial Tribunal had erred in holding the respondents had acted reasonably in dismissing the applicant in accordance with the policy of dismissing if any other employees struck another. In that decision, Lord Macdonald stated at page 120 paragraph 5:

"... The Tribunal have expressly stated that they were satisfied that the policy of the Respondents was that that in such circumstances the only possible penalty ... 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 respondent 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 employer's code of discipline and conduct may or may not contain the provision in the event 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 in 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 or this point of view, they have been apparently influenced by what they held to have been the policy of the respondents and left the matter at that. We accordingly feel that it is open for us to approach the question or not to regard the history of the appellant a reasonable employer would have dismissed him in the circumstances. Our conclusion is that the he would not. This is not to say that the conduct can be condoned but to apply a rigid sanction of automatic dismissal in all circumstances is not in our view what a reasonable employer would have done."

What Mr Ascough on behalf of the appellant says, is that whilst there were points of issue as to whether or not that the other man at any stage had a knife, and exactly what the nature of the assault was, it was never in dispute that this employee, the appellant, had behaved in a way that would constitute misconduct. He had become involved in a fight. Without suggesting there is a tariff of abuse there was a degree of mutuality in the insults and epithets thrown at each other. Mr Ascough complains that in reality what we are missing from the tribunal's decision is a properly balanced assessment as to whether or not this conduct was within the range of a conduct which would lead to dismissal.

On behalf of the respondents, Mr Schofield, in his equally helpful argument to us, both in his skeleton argument and also in his oral argument, points out that if one looks at the decision in the round, the tribunal has made findings of fact which it would be wrong for this tribunal to impugn. He points out that it cannot be said that this decision is certainly wrong judged by the test formulated in Neale v Hereford & Worcester County Council [1986] ICR 471. There is no misdirection in law or finding of fact unsupported by evidence (Piggott Bros. & Co Ltd v Jackson [1992] ICR 85 CA) and nor is this decision irrational or in defiance of logic, (East Berkshire Health Authority v Matadeen [1992] IRLR 336).

The respondent's case is that the tribunal did direct itself to matters which were within the range of reasonable responses test, and it is not an error on the part of the tribunal to make no reference to the authorities to which they had been referred, and he cites the judgment of Lord Russell of Killowen in Retarded Children's Aid Society Ltd v Day [1978] ICR 437. He says that the fact that the Industrial Tribunal does not mention a point in their decision does not mean that they did not have it mind and he cites to us the case of Lewis v John Adamson & Co Ltd [1982] IRLR 233 at page 235 paragraph 12. Mr Schofield points out that the Taylor case really deals with an issue where the tribunal had misdirected themselves that a dismissal was fair if it conformed to the employer's policy, rather than considering what the reaction of a reasonable employer would be in all the circumstances.

We have to say that we have listed with great care to all the submissions made to us. Industrial Tribunal Chairman face a difficult and time-consuming task. We would deprecate any attempt to fetter the discretion as to the way in which their decisions are formulated and structured. Despite the persuasive advocacy of Mr Ascough, we cannot say that he has been able to point to any error of law in the decision of the tribunal. That tribunal had the advantage, which we do not, of hearing the evidence. It was open to them to decide that the decision to dismiss was within the range of responses of a reasonable employer. They made findings about this case, that in view our view, we cannot impugn.

Without in any way seeking, to fetter that discretion, we do think that it might have been more helpful if the tribunal had dealt in greater length with their view that the decision of the employer to dismiss was within the range of a reasonable response of an employer. It is clear from paragraph 5, that the tribunal recognised that the employer had in mind at the time when dismissal took place the applicant's long service, his unblemished record, his domestic circumstances, and the fact that he had been subject to a degree of provocation. These matters are clearly implicit in the tribunal's decision, but it would perhaps have been more helpful if when they themselves reached their view that the decision of the employer was within the range of option of a reasonable employer, they had explicitly stated those matters to be matters that were operative upon them in coming to the conclusion they did. We do not consider that taking the decision in the round that the tribunal ignored the submissions made by Mr Ascough or the authorities to which he adverted, but we do think it might have been more helpful if they had dealt with the matters in a slightly fuller way.

Nevertheless, for the reasons we have given, in our view, it is right to say that there is no error of law. We believe we should be dealing with this case in a way which has been stigmatised in so many of the cases quoted by Mr Schofield, if we were to seek to intervene. By a myopic concentration of certain matters rather than looking at the whole of the decision in the round we would be disturbing the real import of this decision..

Before we conclude there are two matters we would like to say. The first is no platitude. We are genuinely grateful for the help we have received from both advocates in this case, in both written and oral arguments. It has made our task the more easy because the case has been so well argued on both sides. Secondly, we would like to say that we are very mindful of the sadness of this position for this appellant, who for many years worked with this employer with an unblemished record. We feel it wrong to leave this case without giving some real expression of sympathy for his position.