United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 894_95_2903

Appeal No. EAT/894/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th March 1996

HIS HONOUR JUDGE N BUTTER Q.C.

MRS P TURNER OBE

MRS R A VICKERS

---

STERLING GRANADA CONTRACT SERVICES LTD          APPELLANTS

P HODGKINSON          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR J HORAN

(of Counsel)

Legal Department

Rentokil Ltd

Garland Road

East Grinstead

West Sussex

RH19 2DR

For the Respondent MR P HODGKINSON

(in person)


 


JUDGE BUTTER Q.C.: This is an appeal by Sterling Granada Contract Services in respect of the decision of the Industrial Tribunal at London (South) on 23rd June 1995. The reasons for the decision were sent out on 10th July 1995.

The decision was expressed in this way:

"The unanimous decision of the Tribunal is that the dismissal of the Applicant was procedurally unfair but in accordance with the Rule in Polkey -v- EA Dayton Services Ltd [1987] IRLR 503 the Tribunal finds that there was 90% possibility that the Applicant would have been dismissed within one month. It also finds that he contributed to his dismissal 80% and the Tribunal has decided as a result that that should apply to the compensatory award only. The Tribunal awards the Applicant £4,677.01 and orders the Respondent to pay the Applicant that sum."

The finding of unfair dismissal is not challenged, and this appeal relates to the question of contribution and the deduction.

It may be helpful if I say just a few words about the background to the case. Mr Hodgkinson was employed as a General Manager from February 1978 until his dismissal on 17th May 1994. Some complaints had been made against him. In 1994 there was a disciplinary hearing held on 26th April 1994. The meeting was reconvened for reasons not material to the present appeal, and as a result a final written warning together with a six months' probation period was issued.

One week later, that is to say on 16th May 1994, Mr Hodgkinson was holding a management meeting in his office at Luton. He was interrupted and there was then an unhappy exchange in the course of which he was abusive to the Senior Sales Co-ordinator, and indeed took hold of the latter's arm and pushed him through the door way and slammed the door hard. As a result of that, a further disciplinary hearing was instituted. Although there was an appeal against this, Mr Hodgkinson was finally dismissed.

The reason for dismissal was gross misconduct. The tribunal was satisfied that the decision of the employers in this respect came within the range of reasonable responses. But the tribunal went on to find that the dismissal was procedurally unfair and they devoted quite a section of their extended reasons to dealing with the circumstances in which they reached that conclusion.

In paragraph 8 the tribunal said:

"8. For these reasons the Tribunal considers that the dismissal was procedurally unfair, but the Tribunal finds that had the Respondent followed its procedures properly, the Applicant still had a 90% chance of being dismissed within one month. It is also satisfied that it would be just and equitable to reduce the compensatory award by 80%"

The tribunal then goes on to deal with the obligations and duties of managers.

The finding that there should be a reduction of 80% compensatory award, but that there should be no reduction at all in relation to the basic award, is on any view an unusual conclusion.

The various statutory provisions involved have been dealt with in the course of argument today. It is unnecessary for me to recite the provisions of Section 72(1), 73(7)(b) or 74(6) which are well known, though the connectional interchange between those sections and sub-sections is not always clear and always requires thought.

We have had cited to us a number of authorities. It is accepted by the appellants today that in a proper case a tribunal can make a different percentage reduction in relation to the basic award as distinct from the compensatory award. But we accept the argument that such an approach should only be taken in an exceptional case. There is authority for that proposition, see for example: RSPCA v Cruden [1986] ICR 205 at pages 217 and 218. That authority was cited with approval in Parker Foundry Ltd v Slack [1992] ICR 302 at page 308.

In the present case there is no apparent explanation for the differential. Certainly there is no explanation whatsoever spelt out by the tribunal. What are the circumstances which justify such a differential? It is a matter of speculation, but on any view it was incumbent on the Industrial Tribunal, particularly since a finding of this differential would only be permissible in exceptional circumstances, to spell out their reason clearly.

We are unanimously of opinion that the decision below cannot stand. The appeal must be allowed. The next question however is, what is the appropriate action to take?

On behalf of the appellants, it is said that we should deal with the matter now, because in view of the findings made we have all the necessary material to reach our conclusion. Mr Hodgkinson says that he leaves the matter in our hands.

It does seem to us that the overall decision on the facts as found by the tribunal, that there should be an 80% reduction in relation to the compensatory award was a realistic one, and a conclusion which other tribunals would very likely come to if the matter were to be remitted to a freshly constituted tribunal. If we do remit either to the same tribunal or to a new tribunal, there will need to be a further hearing and time, cost and anxiety, particularly in relation to Mr Hodgkinson, will be involved.

In the particular circumstances of this case, we are satisfied that we can and should substitute our own view, because we accept the basic finding that an 80% reduction was appropriate. In these circumstances there being nothing to indicate why there should be a differential, we are similarly satisfied that the reduction of 80% should apply to both the compensatory award and to the basic award.

So far as the lesser point in relation to the way in which the tribunal approached the sums set out in paragraph 9 of the decision, we think that Counsel for the appellants is right in his argument in this respect.

In these circumstances the appeal is allowed. This tribunal today has substituted its own conclusion, and I leave the parties to indicate to the Associate the figures which are appropriate in the light of our findings.