United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S BOWEN (Representative)


 


JUDGE PETER CLARK: This is an appeal by the employer against a decision of the Norwich Industrial Tribunal sitting on 4th November 1996 which heard the respondent, Mr Curtis's complaint of unfair dismissal.

He had been employed by the appellants from 1969 until 17th July 1996 as a lorry driver. The appellants manufacture and instal poultry sheds. His works foreman was a Mr Hardyman and the works manager was Mr Brian Mixer.

In February 1996 an incident occurred when the respondent swore at Mr Hardyman in the presence of the wife of an important customer of the appellants. As a result of that incident Mr Mixer gave the respondent a final written warning.

On 17th July 1996 Mr Hardyman was told by the respondent that he would not take out his lorry without a delivery note. The respondent said that he would then get in touch with his trade union representative. He did not telephone from the site but left. In due course he contacted Mr Hempleman, the branch secretary, who advised him to return to work where the matter would be dealt with by Mr Tobin, a full-time official of the union. The respondent did return to the site at 10 a.m. that day, but his vehicle had been sent out by Mr Hardyman. The respondent was telephoned the next day by Mr Mixer, and told that he was dismissed, Mr Mixer having been informed of the matter earlier.

On these facts the tribunal found that the dismissal was unfair. They were particularly struck by the fact that the respondent was given no opportunity to state his case before the decision was taken by Mr Mixer to dismiss him.

The tribunal then went on to deal with the question of remedies. They concluded that had a fair procedure been carried out there was only a 15% chance that the respondent would have been dismissed, and accordingly they made that deduction from the calculation of the compensatory award in accordance with the principles in Polkey v A E Dayton Services Ltd [1988] ICR 142.

They then went on to consider the question of contribution on the part of the respondent, applying the two-stage approach set out in the Court of Appeal's decision in Rao v Civil Aviation Authority [1994] ICR 495, and decided that by leaving the site when he did, the respondent was guilty of a high degree of misconduct which they assessed at 50%.

In this appeal Mr Bowen submits that a finding of unfair dismissal was perverse, in that it was an impermissible option, on the evidence before the tribunal. That consisted only of the evidence of Mr Hardyman and Mr Mixer, because on the morning of the hearing, the respondent did not turn up. There was some discussion as to what course should be taken, and both representatives, Mr Bowen and Mr Tobin agreed that the matter should proceed in the absence of the respondent, but the tribunal record in their extended reasons, which are dated 2nd December 1996, had the respondent felt that his case had not been done justice to he could have applied for a review in the event that he could show that he was medically unable to attend the hearing that day.

Mr Bowen submits that on that evidence dismissal fell within the range of reasonable responses and the tribunal ought to have dismissed the complaint.

The answer to that submission, in our judgment, is that the respondent was given no opportunity to state his case on the appellants' on evidence. In these circumstances, we conclude that the finding of unfair dismissal was a permissible option.

Next, he attacks the Polkey deduction of 15%. First, he says that consultation would have been a futile exercise and on that basis that tribunal ought to have found the dismissal was fair. Plainly the tribunal took a different view. Far from being futile, the tribunal found that there was an 85% chance that it would have resulted in there being no dismissal had the respondent been given an opportunity to state his case.

Was that a permissible finding? In our view the question of the Polkey deduction requires a degree of speculation by the tribunal. We are unable to say that the finding was perverse on the material before the tribunal. That included in the absence of the respondent, the contents of his form IT1, which was admissible under Rule 8(5) of the Industrial Tribunal Rules of Procedure 1993. In that document he said:

"For some time materials have been short on my loads. I continually requested delivery notes to avoid comebacks on myself. It came to a head on 17/7/96 when I challenged the system."

The Industrial Tribunal appear to have accepted that explanation at paragraph 13 of their reasons in holding that only a 15% reduction was appropriate under the Polkey principle. In our judgment, it is matter for the tribunal to weigh the material before it, and that can include written representations by a party who is not himself present at the hearing.

Finally, Mr Bowen submits that the 50% deduction for contribution on the part of the respondent was too low. However we cannot interfere with such a finding, unless it can be said to be perverse. In our judgment, the degree of contribution, once contribution is found to exist, is very much a matter of fact and degree for the Industrial Tribunal. We can see no grounds for interfering with that finding.

In these circumstances, despite the force with which Mr Bowen has advanced his submissions on behalf of the appellants, we are driven to conclude that there is here no arguable point of law to go to a full hearing, and accordingly, this appeal must be dismissed.