United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 371_95_1202

Appeal No. EAT/371/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 February 1996

HIS HONOUR JUDGE PUGSLEY

MRS R CHAPMAN

MR R SANDERSON OBE

---

METROBUS LTD          APPELLANTS

MRS L HILLMAN          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR GALBERG

(Of Counsel)

A.N. Tzourou & Co

Solicitors

139 Brighton Road

Coulsdon

Surrey

CR5 2NJ

For the Respondent MR S ELLIS-JONES

(Of Counsel)

Messrs Philip Holliday

Solicitors

46 High Street

Swanley

Kent

BR8 8BQ


 


JUDGE PUGSLEY: This is an appeal from a decision of the Ashford Industrial Tribunal, promulgated on 6 March 1995. By Order of the Employment Appeal Tribunal under the new procedure, the decision promulgated in May, was that the matter be allowed to proceed to a full hearing. The decision of the Industrial Tribunal was that the Applicant was unfairly dismissed and she was awarded a total monetary award of £3,472.50.

By a letter dated 17 March 1995, the Appellant's solicitor wrote to the Tribunal, asking the Tribunal to review its decision, under Regulation 11(1)(e) of The Industrial Tribunal Regulations. It was contended in that letter, that Counsel appearing for the employer, specifically requested that in its extended reasons, the Tribunal should give the reason why it considered that no question of contributory fault, or as the letter put it, contributory negligence, applied. By a letter of 21 March 1995, the Regional Secretary of the Tribunals wrote:

"Your application is refused because in the opinion of the Chairman it has no reasonable prospect of success."

We turn now to the factual issues that arise in this case. The employer, Metrobus Ltd, operated a bus business in and around the Orpington area of Kent. It had, at the material time, some 180 staff and 80 vehicles. The joint Managing Director of that company was a Mr Peter Larking. The Applicant was employed as a bus driver and worked for the Respondents from 12 April 1991 to the effective date of her termination 26 August 1994. Her average net wage was £150 per week. It seems from the body of the Industrial Tribunal decision and paragraph 8(6) & (7), that at various stages the Applicant had received certain warnings, one of which involved having the blind not correctly showing the destination of the bus. However, under paragraph 8(7), the Applicant had never received any form of warning for talking to passengers. Nor had she ever had any performance bonus deducted for talking to the passengers. The handbook provided that a bonus deduction constituted a warning.

The events which were at the centre of this case involve matters that took place on 24 and 25 August. On the 19 August 1994, a letter was sent to the company by a Mr Ballinger, who was a passenger on one of its buses. He wrote to complain that on the preceding day (18 August) the Applicant employee had been talking to a passenger for a large period of the journey. Then taking the story up from paragraphs 8(11),(12),(13,14, 15 and 16) what happened was that the Applicant was seen by Mr Larking. He told her that he had received a letter of complaint from a member of the public, who complained that she had been talking to another passenger while the bus was on the move, with other drivers present. He told the Applicant that she would lose her performance bonus and he would be deducting £45 from her wages. The Applicant told Mr Larking she thought it was very petty to make such a deduction in some circumstances, particularly as she had only worked for 4 days. Mr Larking became cross and shouted "How dare you call me petty". The Applicant became upset and ran out of the building. Mr Larking shouted after her "If you go now you are sacked". The Applicant returned. There was some further discussion about proposed bonus deductions. This time tempers were frayed. Mr Larking was to have further time to consider the matter. As a result, he asked the Applicant to come and see him on the following day. He discussed the incident with his co-Director Mr Gary Wood.

On 25 August 1994, the Applicant went into work. She logged onto her module at 2.18 p.m. in readiness to take the bus out. The Applicant went in to the meeting with Mr Larking, Mr Gary Wood was also present. There, the Tribunal note, Mr Wood was not called to give evidence. Mr Larking said he made a decision, he was stopping the £45 from the Applicant's wages, and said "I am terminating your contract as of now because I cannot have anyone working for me who thinks I am petty". The Applicant asked if she was being sacked and she was told that she was. Subsequently she received a letter dated 26 August 1994:

"Further to our discussion yesterday, I now confirm that due to the continual contravention of PSV regulations and your unwillingness to accept instructions given to you, it was decided that the company must dispense with your services. Your decision that this should be immediate rather than after notice is accepted."

In the course of its findings, the Tribunal in terms say that they consider that this dismissal was unfair. They set out in clear and graphic manner, the primary submissions made on behalf of the Applicant at paragraph 9, and on behalf of the Respondent at paragraph 10. They then in their findings go on to say that they have considered the employer, Mr Larking's evidence and his contention the real reason for the dismissal was the Applicant's refusal to obey instructions and to accept the PSV regulations. There there contained these words "We do not accept this." They go on to say that they accept the Applicant's evidence that she did not refuse to obey instructions and the dismissal came about because of the argument over proposed bonus deductions, and the fact that she called Mr Larking's actions "petty". The Tribunal note that Mr Wood was not called to give evidence.

There are various crucial findings by the Tribunal. They rejected the employer's contention that the real reason for dismissal was the Applicant's refusal to obey instructions and to accept the PSV regulations (paragraph 12). The Industrial Tribunal accept the Applicant's evidence that she did not refuse to obey instructions and the dismissal came because of the argument on the proposed bonus deduction and because of Mr Larking's attitude to being called "petty" (paragraph 13). The Tribunal decided the dismissal was unfair, in that the meeting on 25 August was not a disciplinary meeting: with no indication it could lead to a dismissal. There had been no previous warnings about talking to passengers. There had been no deductions in relation to talking to passengers. The Applicant was not given the opportunity to have any friend or colleague there and there was no opportunity for the Applicant to have any proper chance to present her side of the story.

The Tribunal went on to say in paragraph 15:

"The disciplinary process was very gravely flawed and we have no hesitation in finding that the dismissal was unfair."

16 We would also go on to add that in the circumstances of this case and on the facts as we have found them we are quite satisfied that no reasonable employer would ever have dismissed an employee in circumstances such as this and therefore in this case dismissal was outside the range of reasonable responses for a reasonable employer to make."

In terms, Counsel for the Appellant, Mr Galberg, accepts that he cannot challenge that primary finding of liability. The criticisms that he makes in the Notice of Appeal and the helpful Skeleton Argument that has been drafted, are these: he says that at the end of the hearing, the Tribunal orally announced that there was no finding of contributory fault. He says, and we accept, that he asked for extended reasons which dealt with that matter. After receiving those extended reasons he noted, that there is no express reference to the issue of contribution, a letter on his advice was written, to which I have already adverted, seeking a review, which was rejected.

There is a subsidiary ground of appeal, namely, the state of the evidence in relation to the Respondent's failure to mitigate her loss. This is not a matter which Mr Galberg pursued, in view of the attitude exhibited by the Members of this Tribunal. In a nutshell, what is alleged in the ground of appeal is, that the Tribunal erred in the assessment of the Respondent's loss of earnings and the date of dismissal to the date of hearing, in that there was no, or no sufficient evidence upon which the Tribunal could have found that during this period, the Respondent was off sick with a stress-related illness, which was related to and stemmed from this dismissal. Further, or in the alternative, such a finding would again to weight of the evidence, was perverse or was obviously wrong. In support of this ground of appeal, the Appellants submit:

"2(a) The Tribunal's finding of a stress related illness preventing the Respondent from working for all but one week of a period of 25 weeks was unsupported by any medical evidence, either oral or written. The Respondent did not even produce any sick notes.

b) The Respondent worked for one week in early December 1994, at the end of which she was laid off. If, following the dismissal on 25th August 1994 the Respondent suffered any such stress related illness, it no longer prevented her from working by early December and the casual link between the dismissal and the Respondent's inability to work was broken."

We are bound to say that submission finds no favour at all with us, in view of the evidence that we have seen in the Chairman's Notes of Evidence. In our view, it is perfectly clear that there was evidence, if a Tribunal chose to accept it, called by the Applicant and also the evidence of her mother, upon which the Tribunal could decide, if it were so minded, that the Applicant had suffered a stress related illness. She was on sickness benefit. She applied for jobs when her sickness ended. She did not get any benefit. She went on to say she had had an asthma attack. In view of the evidence that she gave and the evidence that her mother gave, we are of the unanimous and strong view, that there clearly was evidence that the Tribunal were free to accept.

We deprecate if we may, the suggestion that there was no evidence. There was evidence. The Tribunal chose to accept it. Parliament enacted there should be Tribunals to deal efficiently and effectively and economically with these such matters. This was a matter well within the purview and professionalism of the Industrial Tribunal and they were perfectly entitled to come to the decision they did.

Having disposed of that, as we call it, subsidiary matter, we now turn to the issue in this appeal. We accept, of course, Mr Galberg's integrity in the matter. He tells us he asked for there to be reasons given for the finding of no contributory fault. He says, and we accept this, that he put the case on two bases. On the one basis, he says that the issue of contributory fault should have dealt with the issue as to whether or not the Appellant was or was not, talking to Mr Ballinger. In the Skeleton Argument he puts forward various reasons as to why he says the Tribunal should have made a finding that there was contributory fault. He then adds a subsidiary reason which is this: he says that the Tribunal should also have considered whether or not the Appellant's conduct at the disciplinary interviews, in particular calling the employer "petty" was a matter, which he says, was put to the Tribunal and about which they should have made a finding of fact.

We have been referred, to the decision of this Tribunal in Portsea Island Mutual Co-op Society Ltd v Rees [1980] ICR 260 and in particular that part of the judgment of Mr Justice Ralph Kilner Brown which is set out at pages 264 and 265. It is perhaps right to say that we read that paragraph in extenso:

"What has caused us much more disquiet in this case arises when we have to consider the second matter which is appealed before us, namely, the absence of any diminution of the award by way of contribution attributable to the employee's own conduct. We are informed, and the information to some extent comes from both sides, that at the end of it all when the question of contribution was raised the industrial tribunal chairman indicated orally that they had considered the question of contribution and were not minded to make such an order. Pausing there, if that were so, and if both sides agree it was so, we must act on that assumption. There was plainly an obligation upon the chairman of the industrial tribunal to make some reference to the question of contribution. In a most ingenious argument, Mr. Ash suggested that there was no such obligation and he drew our attention to sections 73(7) and 74(6) of the Employment Protection (Consolidation) Act 1978, and particularly section 74(6) which reads:

`Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.'

So, says Mr.Ash, as they did not find there was any contribution they do not have to say so. Well, it is our experience-- and speaking for myself I can think of many cases which have come before the appeal tribunal, and I am supported in that view by my two colleagues who have practical experience of serving on industrial tribunals-- that is always done. When contribution is in issue there is always some reference in the decision. In any event, as Mr.Field points out, the chairman here was in breach of rule 8(2) of the Schedule to the Industrial Tribunals (Labour Relations) Regulations 1974 which says quite plainly in terms: "The decision of a tribunal shall be recorded in a document signed by the chairman which shall contain the reason for the decision." Of course, normally, that simply means the substantive question, but it is just as much a decision to say, "We find no contribution" as it is to say there was an unfair dismissal and, in our view, the industrial tribunal chairman was in error in not including it in the written, recorded and circulated reasons."

The learned Judge then goes on to point that unfortunately manners did not end there, because when the Chairman was asked to say why they had said nothing about contribution, he declined to do anything about it. At the conclusion of the judgment, paragraph G at page 265 Mr Justice Kilner Brown said this:

"We feel very strongly about this and, in our view, no reasonable tribunal knowing the facts of this case and having examined it in depth, could have come to any other conclusion than to say it was a case in which there should have been found a substantial degree of contribution."...

The facts of Portsea Island Mutual Co-op v Rees were very different from the facts of this case. We would not in any sense suggest that our state of mind is, that a Tribunal would have come to the case that there had been a substantial degree of contribution, if it had properly applied its minds to the issue. That is not our state of mind. This is a very different case and on very different facts.

We first of all deal with the suggestion that the Tribunal erred in not dealing and saying in terms that there was no contributory fault arising out of what has loosely been called the "talking on the bus incident". We are well aware of those authorities which point out that it is not the correct approach to look at decisions of the Industrial Tribunal and over analyse them and give each sentence the tactical analysis which might be appropriate in a literary thesis on the authorship of some of the disputed Shakespeare sonnets. We approach this case and ask ourselves in broad and simple terms: does a decision tell the parties why they have won and why they have lost? We do not think on the primary finding that the Applicant was unfairly dismissed, it can be criticised. Moreover, although we think it might have been more helpful if the Tribunal in terms had spelt out why they found no contributory fault in relation to the "bus talking incident", we do think it is clearly implicit within the body of their decision that they have come to the view that they did not accept the employers' account of the dismissal. Putting it no higher than that, they accepted the Applicant's account. The Applicant's account was that she was not dismissed for refusing instructions. It was purely because of the argument over the bonus deduction and the fact that she called Mr Larking's actions "petty".

Therefore, although with the wisdom of hindsight it would have been better if the Tribunal had in terms spelt that out, we accept it as clearly implicit in their decision, that they did not believe the "bus incident" had any relevance to the issue of dismissal. She was dismissed because of the argument that arose when he saw her about deducting of bonus. It is true that with a considerable degree of ingenuity, Mr Galberg has sought to argue before us that one cannot as it were, snap the chain of causation in such a way, and that we should have regard to the particular wording of those sections of the Employment Protection (Consolidation) Act that deal with contributory fault and the slightly different wording that pertains when one considers the question of assessing the basic award.

We think that that is an over-refined argument. We consider it is quite clear that the Tribunal reached the decision that there was no question of contributory fault arising out of those matters, which had not been properly investigated by the employer and that that was not a matter they need take further, because they came to the view it was not the cause of the dismissal. The cause of the dismissal was the argument and the altercation and the fact that the Applicant had called him "petty".

However, we do consider there is greater force on his second point, which is that, having asked the Tribunal to consider whether the attitude adopted by the employee in those interviews on 24 August caused or contributed to the dismissal, the decision is silent as to that and no help was afforded by the process, we think the legitimate process, in inviting the Tribunal to consider a review.

It may very well be, as Mr Galberg has conceded, that a Tribunal could have taken the view and expressed the view, that this was all part of the wear and tear of industrial life, and no fault of any sort lay with the employee. That was a view they could have taken. The difficulty is that the Tribunal has not dealt with it in that way. We are left to speculate as to what their decision was. On this very limited point, we remit the case to the same Industrial Tribunal, to consider whether the part played by the Applicant in the interview on 24 August, and on 25 August, in any way can be said to have caused or contributed to a dismissal.

We are quite happy and have every confidence that the Tribunal will consider that matter with complete open-minded fairness. This point, unlike the other aspect of contributory fault which was alleged, is not implicit in clear terms in their decision. I conclude this judgment by saying we have reached this decision with heavy heart. The Applicant won her case. Her account was accepted. She was unfairly dismissed and that is not challenged, and cannot realistically be challenged. The amount she was awarded was a comparatively modest sum and we are concerned that legal costs should not eat up that sum.

We are sad that the matter has wended its weary way to this Tribunal and that we have now come to the conclusion that we have to remit it on that one aspect. We have come to the view, that is the only fair and proper way, and that ultimately Mr Galberg is right in saying, at the end of the day, his client is entitled to know what was the decision the Tribunal reached on that matter.