United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A FREER Solicitor Legal Department GMB 22-24 Worple Road Wimbledon London SW19 4DD
For the Respondents	MR C SHELDON (of Counsel) Messrs Mace & Jones Grundy Kershaw Solicitors Drury House 19 Water Street Liverpool L2 ORP


 


JUDGE C SMITH QC: This is an appeal by the Appellant employee, Mr Craig Smith against the decision of an Industrial Tribunal sitting at Leeds on 25 March 1996 of which Extended Reasons were sent to the parties on 16 April 1996, when the Industrial Tribunal dismissed the Appellant's complaint that he had been unfairly dismissed by the Respondent employers, Siddall & Hinton (Springs) Ltd.

Background

The Appellant had been employed by the Respondents as a machine operator since March 1990. Most of his time was spent operating a roll pack machine. The Respondents had two such machines which, until they were modified, were operated manually. However, in early 1995, both machines were modified to incorporate a belt system so that the quality of packing done on the machine could be improved. Training was given to the operators including the Appellant as to how to operate the modified machines and after some teething problems in early 1995 there were no problems until the events set out below.

Events Leading up to Dismissal

At 4.30 pm on 20 September 1995 a belt broke on one of the machines at a time when the Appellant was in charge of this operation. The breakage was reported by the Appellant to the supervisor and no steps were taken at that time to investigate whether it was the Appellant's fault. Then, on 4 October 1995, the belt on the other machine also broke at a time when, once again, the Appellant was in charge of this operation. The Industrial Tribunal held that the cause of the break in each case was that the mandrel and the belt had been allowed to come into contact with each other. To operate the machine safely it was necessary for the operator to take such action as was necessary to ensure that the mandrel and belt did not come into contact.

Disciplinary Procedure

The Industrial Tribunal found that management decided to investigate the matter through the disciplinary procedure. A disciplinary meeting was held on 9 October 1995, under the chairmanship of the Works Manager, Mr Taylor. After hearing from witnesses and from the Appellant, who was represented by his shop steward, Mr Taylor found gross misconduct proved on the ground that the Appellant had carelessly failed to comply with the proper procedures for operating machines and thereby misused them, so that there should be summary dismissal.

There followed an appeal to Mr Siddall, the Managing Director, which was heard on 13 October 1995. The Industrial Tribunal found that Mr Siddall looked carefully into the matter. Although he supported the conclusion of Mr Taylor, he accepted that the Appellant had not acted maliciously so he rescinded the finding that there had been gross misconduct warranting summary dismissal. However, Mr Siddall then went on to decide that, in the light of the fact that (a) the Appellant had received a clear final written warning on 23 August 1995 and (b) he had failed to work in accordance with company requirements and was responsible for substantial damage to the machines, the Appellant should be dismissed but would receive payment for the period of notice to which he was contractually entitled.

The Decision of the Industrial Tribunal

Having noted (a) that final written warnings can remain on the record for up to 18 months; (b) that the Respondents' written disciplinary procedure had generally speaking been properly followed and (c) that on the evidence before them, the Appellant was clearly at fault in allowing the snagging to occur and had caused serious damage to the Respondents by his failure to attend to the machine when the breakages of belts occurred, the Industrial Tribunal proceeded to reach its conclusions in paragraphs 11 to 13 of its decision:

"11. We entirely accept the reasonableness of Mr Siddall's view of the matter that this was in itself not a case warranting summary dismissal. The procedures which the company follows are to consider the next stop which is appropriate if a cause for discipline arises during the period while a final written warning is on the record. This is what happened on this occasion and it is clear that dismissal is one of the modes of progress by the company which is open to them if that stage is reached.

12. We are not allowed to say what we would have done in the circumstances. We are not allowed to say whether a final written warning given on 23 August 1995, which was not challenged, was an appropriate way of dealing with the matter of complaint at that time. We are not allowed to say that, there having been recorded a final written warning and this serious event having occurred in fact twice over on 20 September and 4 October, we would have dismissed the applicant as a result. If we find that the decision of the company was within what is called the band of reasonable responses which an employer viewing all the circumstances might reasonably consider appropriate, then it is not for us to intervene and say that if dismissal is not a course we would take ourselves this must therefore be unfair.

13. The conclusion we have come to very reluctantly is that the respondents were acting reasonably on the basis that the decision which they came to was one within the band of reasonable responses. We might have taken the view that the lowest form of decision within that band would have been appropriate. The employers took a contrary view and considered that there should be a dismissal. If that was within the band of reasonable responses as we find that it was then it is not for us to interfere; and so somewhat reluctantly we come to the conclusion that this application must be dismissed."

We should mention that it is apparent from an earlier paragraph in the decision of the Industrial Tribunal, namely the opening sentences in paragraph 8, that the Industrial Tribunal were there paraphrasing Section 57(3).

In our judgment, it is quite apparent that in paragraphs 12 and 13 of their decision the Industrial Tribunal were, in effect, deciding what their approach should be to the application of Section 57(3) of the 1978 Act. Now of course, Section 98(4) of the 1996 Act. In our judgment, it is clear that the Industrial Tribunal decided that it was bound to follow the approach laid down by the Employment Appeal Tribunal in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, i.e. the "band of reasonable responses" approach and that they concluded that, although they might well have reached a different conclusion themselves, they could not find that the employer's decision to dismiss was outside the range of reasonable responses open to the employers as to what action to take by way of sanction against the employee. Indeed, having heard the submissions of Counsel for the Appellant, Mr Freer, and Counsel for the Respondents, Mr Sheldon, it is really common ground between Counsel that the Iceland approach was that which the Industrial Tribunal was following.

Submissions on Appeal

Counsel for the Appellant, Mr Freer's principal submission to us was that the Industrial Tribunal erred in following the Iceland test in construing Section 57(3). He submitted boldly that that test was a gloss on the statute and contrary to authority, namely principally the Court of Appeal decision in Bessenden Properties Ltd v Corness [1977] ICR 821. He submitted that to the extent that the decision of the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 was authority for the approach laid down by the President in Iceland, it was decided per incuriam, since it conflicts with the earlier decision in Bessenden. By parity of reasoning he submitted that the Court of Appeal decision of Neale v Hereford And Worcester County Council [1986] ICR 471 which applied and approved the approach of Iceland, is once again a question of the Court of Appeal proceeding per incuriam since the decision of Bessenden was not before the Court of Appeal in the Neale case.

At the heart of Mr Freer's submission, as we understood it, lay the proposition that there was a conflict of approach between what the Court of Appeal had, according to Mr Freer, decided in Bessenden to be the correct approach, to construing what is now Section 98(4) of the 1996 Act and what was, at the time of Bessenden, Section 24(6) of The Industrial Relations Act 1971, and the subsequent decision of the Court of Appeal in Swift, in effect, followed by the President in Iceland. He submitted that Swift and Iceland departed from the Bessenden test by importing into it impermissibly the range of reasonable responses test. Mr Freer sought to derive support for his argument that there was a conflict between the two approaches by reliance upon the Court of Appeal decision in Gilham & Others v Kent County Council [1985] ICR 233 where Dillon LJ appeared to deprecate what he called the "over-sophistication" contained in some of the reported decisions as to the approach to be taken by Industrial Tribunals to the question of reasonableness laid down in Section 57(3). Mr Freer submitted that the importance and binding effect of Bessenden is exemplified and recognised by the way it was treated as a binding precedent by Bristow J in Jowett v Earl of Bradford [1978] ICR 431 at page 436 paragraph B.

Thus, it was Mr Freer's submission that what an Industrial Tribunal was required to do under Section 57(3) was (1) to follow the wording of the sub-section and (2) to be careful not to substitute its own decision for that of the employer. It was not required to go on to consider the band of reasonable responses test since this, said Mr Freer, was to follow a test which is more stringent than that laid down by Parliament and is contrary to the decision of Bessenden.

Mr Sheldon, on the other hand, submitted that Mr Freer was wrong in maintaining that there was any inconsistency between the decision of Bessenden, properly understood, on the one hand, and the decisions of Swift and Iceland on the other. He submitted that Bessenden, correctly understood, decided no more than that once a case properly falls within Section 24(6), as it then was, whether the dismissal is fair or not is essentially a question of fact which the Industrial Tribunal has to consider in its capacity as an industrial jury and that in so deciding the Industrial Tribunal must decided that matter in accordance with equity and the substantial merits of the case. He submitted that Bessenden was silent as to what the correct approach should be by an Industrial Tribunal towards so construing the overall question of reasonableness. Thus, he submits, that it was entirely open to and, indeed, necessary for the Court of Appeal, as a matter of law, to lay down, as a matter of statutory construction, what the correct test or approach was to the sub-section. In his submission that was precisely what had happened in Swift at page 93 at paragraph 11 of the judgment in that case and in Iceland at page 24 paragraphs F to H of the judgment in that case. It was Mr Sheldon's submission that, far from the approach laid down by the President in Iceland being an impermissible gloss on the statute, it was a perfectly legitimate and helpful aid to construction laid down, as a matter of law, by the higher court for the assistance and guidance of Industrial Tribunals.

Mr Sheldon pointed out that not only did the Iceland test have the express approval of the Court of Appeal in Neale - see for example May LJ page 481 between C and D, but that it had recently been approved by the EAT in Conlin v United Distillers [1994] IRLR 169 at paragraph 6 on page 170 and also in Boys and Girls Welfare Society v McDonald [1996] IRLR page 129 at paragraphs 31 and 32, at page 133 of the decision in that case. He submitted that the range of reasonable responses test was, in any event, as a matter of principle, the most appropriate test to apply especially and not exclusively where the question was whether the misconduct or lack of capability relied upon by the employer justified dismissal and he submitted that the test was entirely faithful to the statute and focused attention on the reasonableness of the employer's decision.

Decision

In our judgment, Mr Freer is reading far too much (with respect to him) into the Bessenden decision. That decision, in our judgment, properly understood, was a redundancy case critically concerned with the inter-relationship between Section 24(5) and Section 24(6) of the 1971 Act. That is particularly clear from what Roskill LJ said at page 823 at H where the learned Lord Justice said:

"The real point in this appeal arises on what I may call the interaction of sub-sections 5 and 6 of Section 24 against the background of fact found by the Tribunal."

And also from the passage in the learned Lord Justice's judgment at page 827 between F and H which it is unnecessary, in our judgment, to read.

On its proper construction the decision in Bessenden did not, in our judgment, and did not purport or attempt to lay down any criteria as to the correct approach to what was then Section 24(6) in the 1971 Act. It was simply silent on that point, other than saying that it was a question of fact for the Industrial Tribunal and that it was wholly at large and that the Industrial Tribunal could take anything into account. In our judgment, it is no doubt for that reason that the case of Bessenden was not cited in Swift in the Court of Appeal, since it threw no light on what the Court of Appeal had to decide in Swift. In our judgment, it is clear that the decision in Bessenden in no way fettered or inhibited the Court of Appeal from laying down, as a matter of law, the test which it laid down in Swift and it is fallacious to submit that the Court of Appeal in Swift in any way acted per incuriam by so doing.

In our judgment, it follows inexorably that the approach to the construction laid down, as a matter of law, by the President in Iceland, by reference to the range of reasonable responses test, was entirely consistent and in line with the authority of the decided cases and was in no way an impermissible gloss on the statute.

We accept that the Court of Appeal in Gilham, certainly as far as the judgment of Dillon LJ is concerned, was somewhat critical of an over-sophisticated approach to the question posed by Section 57(3) in some of the decided cases, but nothing is expressly said in that case which is in any way critical of the very concise summary of the law set out by the President in Iceland. We can see nothing in that decision which causes us in any way to depart from the Iceland approach.

Accordingly, we have concluded that the Industrial Tribunal, in applying the Iceland test, adopted the correct approach to their task in construing Section 57(3) and that they applied the correct legal test in so doing. In our judgment, they were not only entitled, but obliged, to judge the question of reasonableness of the employer's decision to treat the Appellant's conduct as justifying dismissal, by deciding whether such a decision fell within the band of reasonable responses of a reasonable employer in the circumstances. In our judgment this is the correct test. They applied it, and, admittedly reluctantly, they clearly concluded that the decision was within the bands of reasonableness. Accordingly, in our judgment, they did not, in any way, err in law in the approach that they took.

We should add for completeness that we could not possibly find that in so concluding the Industrial Tribunal had reached a decision that no reasonable Tribunal, properly directing itself, could have arrived at.

Accordingly, for those reasons, this appeal must be dismissed. We refuse leave to appeal.