United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P GILROY (of Counsel) Messrs Brian Taylor & Co Solicitors 92-96 Wellington Road South Stockport Cheshire SK1 3TJ
For the Respondent	MR T RIGBY (of Counsel) Messrs Gorna & Co Solicitors Virginia House Cheapside King Street Manchester M2 4NB


 


JUDGE J HULL QC: This is an appeal to us by a famous football club, Stockport County Association Football Club Ltd, against a decision of the Industrial Tribunal sitting at Manchester under the chairmanship of Mr Creed, with two Industrial Members. That Tribunal sat on 8 and 9 November 1995 and again on 1 April 1996, when they heard further evidence and their decision was published on 1 May 1996.

In that decision they held that the Applicant, Mr Alberto Daniel Bergara, the Manager of Stockport County Football Club, had been unfairly dismissed on 31 March 1995. They also found that Mr Bergara had contributed 25 percent to his misfortune and they therefore thought that any compensation which he was to receive should be reduced accordingly. We are told that, pending this appeal, the question of compensation has, in fact, been compromised, so we do not go into that.

Mr Bergara was first employed by the Club as their Manager on 28 March 1989. The Club enjoyed great success during his period of office. His contract was renewed. It contained certain provisions with regard to expenses, which come into the story.

I must now go to what the Industrial Tribunal found concerning these matters because, of course, we are concerned only with questions of law and the facts of the case are for the Industrial Tribunal and not for us in any way.

The Tribunal set out the names of the witnesses, a very large number of witnesses, who gave evidence to them about these matters, including most of the senior officers of the Club and the Applicant and his witnesses. They said, and this is very important, that:

"Wherever there was a conflict in the evidence, the Tribunal preferred on the balance of probability, that which was given by [Mr Bergara] and witnesses called on his behalf. In addition it should be noted that the evidence given by Mr Scragg [a sponsor of the Club and a local business man] who was called on behalf of the respondents, supported the contentions advanced by the applicant."

They then went into the facts. We are not going to go all through those. They say that it was a term of his contract that he would be given an allowance, not a very large one, £50.00 per week, if he spent up to that sum on staying in Stockport; because his home was in Sheffield. There was, apparently a discussion between the Club Chairman, Mr Elwood and Mr Bergara about the question of his expenses and that particular allowance was to be discussed later, if it could not be otherwise resolved. Certain other expenses, it was agreed, would end.

On 16 March 1995 there was a board meeting. The Applicant asked to be excused attendance at the meeting and he asked Mr Coxon, the chief executive, to speak on his behalf with regard to playing matters which, of course, were his particular responsibility. The Tribunal then record that what happened at this board meeting was as follows:

"In his absence and as part of the Team Manager's report rather than as a financial item it was reported by Mr Elwood the Chairman that the drinks in the drinks cabinet in the applicant's room would no longer be paid for by the respondents. [That was correct.] Furthermore, he [Mr Elwood] announced incorrectly that agreement had been reached with regard to the accommodation allowance of £50 per week and that it would cease forthwith."

That was simply untrue. It might, I suppose, conceivably have been held to be simply a slip of the tongue or a mistake by the Chairman but it does not look as if that was so because the Applicant, they find, was not sent the minutes of the meeting which would ordinarily be circulated. The Tribunal had been told in the IT3, the Club's notice of appearance, that he had been informed the next day of this decision but the Tribunal reach a contrary decision in paragraph 5 (vii) they say as follows:

"The applicant was not informed of the outcome of the board meeting by the Club Secretary, Mr Glendenning, or anyone else in the days following the meeting or at any stage before the 29 March 1995."

They say that on 29 March matters came to a head because Mr Bergara, the Applicant, put in his expenses claim for his stay in Stockport and payment was refused. Then we come to the events which led to the Applicant's dismissal. He telephoned Mr Coxon and was abusive to him. He demanded a meeting with Mr Coxon and he got one and he was abusive again and he referred to the Chairman and the Finance Director, Mr Jolley, as "bastards" for withholding his expenses. That is what the Tribunal found. There was plainly unpleasant behaviour, and unjustified. There could, on the face of it, be no justification for treating Mr Coxon like that, although there might be an excuse or provocation. What did he tell the Tribunal? The Applicant said he did do this. He accepted that it was out of order and would have liked, if he had had the opportunity, to apologise for that.

Then he saw his two deputies, a Mr Sainty and a Mr Jones, and he referred to the directors again in bad language. That, of course, was again wrong. It was disloyal to the Board, of which he was apparently a member, and he was being disloyal to his juniors concerning the directors. Once again, he told the Industrial Tribunal that he regretted that and would have liked to apologise if he had been given the opportunity. His bad behaviour did not end. He said he was going to attend the dinner - there was an important dinner at which all sorts of people, of great significance to the Club, would be attending - and the Applicant said he was going to attend that and he was going to create a row there. He was advised not to do that and in fact he behaved himself, the Tribunal found, during the dinner.

They tell the story of the dinner. At the hotel he met Mr White, who was the Vice Chairman of the Club. He used bad language and described the Chairman and the Finance Director as a pair of "Fucking Gangsters" on account of the withdrawal of his expenses. He told the Tribunal again that he regretted saying that and would have liked to withdraw it and give an apology if he could.

We are asked by Mr Gilroy to say that that was defamatory and was reflecting on the character of the Directors. It seems to us that that is, of course, a matter for the Tribunal but in the context of this loss of temper and bad language it would be extremely unlikely, we think, that the Tribunal could possibly accept that that was a serious charge that these two senior men, the Chairman and the Finance Director, were, in fact, gangsters. It was just another piece of bad language and they record that it was on account of the withdrawal of his expenses. He was not suggesting they were taking part in organized crime or anything like that.

Then the dinner continued. It was suggested to the Tribunal by the witnesses for the Club that during the dinner the Applicant had misbehaved himself. They expressly rejected that evidence and said no, he had behaved himself quite properly during the dinner. After the dinner there was an incident in the foyer. The Tribunal found that at this stage it was the Chairman himself who was behaving aggressively. He swore at Mr Bergara, he sought to assault him by striking at him on two occasions and told him not to bother to turn up for work as he no longer had a job. So there was the Chairman being the aggressor and using bad language. Mr Jolley, the Finance Director, was there. He acted, apparently, quite properly by trying to be the peace-maker and standing between the two men. The account of this given by the Applicant was preferred. It was corroborated by Mr Beales, who was another of the witnesses.

There was the question of calling the Police and then there was an interview between Mr Jolley, the Finance Director and the Applicant and on this occasion it was Mr Jolley who was behaving badly. He poked him in the chest and issued Mr Bergara with a tirade of swearing and abuse which he, Mr Jolley, described as a "Sheffield volley" and then Mr Jolley said that the Applicant was to come to a meeting at his office the following day and at that meeting he would "tear up his contract and shove it up his arse".

It is suggested on behalf of the Club that that was a very proper invitation to a disciplinary committee at which these matters would be fairly heard. It seems to us that that is not a suggestion which the Tribunal would be very likely to accept nor did they accept it. At any rate, on the next day, Mr Bergara did not attend a meeting with Mr Jolley, although he did speak to the solicitor that day and a Board Meeting was held on the following day, 31 March. It was resolved that Mr Bergara should be summarily dismissed. He did not attend the meeting, no evidence was received from him and what happened, so it was said, was that there was a resume of events over the preceding six months.. The Board was told by Mr Elwood that he had been assaulted. That was clearly, on the findings of the Tribunal, an untruth. It was Mr Elwood who had tried to assault Mr Bergara. Then Mr White, the Vice-Chairman, gave his account and the Board acted therefore simply on the stories told to them from Mr Elwood's side of the matter.

The Tribunal came to their findings. They found that Mr Elwood had sought unilaterally to alter the terms and conditions of employment without any agreement, by withdrawing the accommodation allowance. As we have said, it appears from their findings that that was, on the face of it, not done in good faith, because Mr Elwood would have known perfectly well that there had been no agreement to vary that and he told the Board that there had been an agreement. At a Board Meeting on 16 March Mr Elwood had incorrectly advised the Board, that is their finding.

The Tribunal was satisfied on the evidence that the Applicant was not informed of the Board's decision between 16 and 29 March. That was a contention put forward by the Club and the Tribunal rejected it. The Tribunal say that they were satisfied that Mr Bergara had been abusive but they were satisfied on a balance of probabilities that swearing was commonplace in this workplace, as shown by Mr Elwood's conduct and Mr Jolley's conduct. They said that the Applicant did not misbehave during dinner, so that was another false allegation being made against him by the high officials of the Club. They found that it was Mr Elwood who was the aggressor and Mr Jolley had behaved aggressively. They said that:

"The respondents did not seek an explanation from the applicant for his actions in expressing himself the way he did to Messrs Coxon, Jones, Sainty and White ...

The members of the Board did not carry out any independent investigation into the events upon the night of the 29 March 1995 at the Alma Lodge Hotel which were plainly inaccurate on the findings of the Tribunal and in relying upon those matter permitted Messrs Elwood and Jolley to be both judge and jury in the investigation."

What did they make of this lamentable story in which a long-standing and senior official, the Manager of the Club, had been treated in this way and had reacted in this way? It was clearly not a story which reflected to the credit of any of the gentlemen concerned. They said this:

"The Tribunal was not satisfied that the respondents had a genuine belief that the applicant was guilty of misconduct warranting dismissal based upon reasonable grounds. The ... evidence ... showed the allegations which were ranged against the applicant of events at the Alma Lodge Hotel to be misconceived and inaccurate."

What we are told by Mr Gilroy by way of submission is that that is wrong in law; that a man who misbehaves like this, swearing at his Chairman, abusing the Chairman, the Finance Director, blackguarding them to his own subordinates and so on, a man who behaves like that must be, so to speak, in line for dismissal. It must be within the range of responses of a fair employer to form the view that such behaviour is intolerable and merits summary dismissal.

In a general case, it might well be so. One cannot imagine anything much more insubordinate, even for a senior person, than to treat his Chairman in that way in public, even if they are used to using rough language in private. The flaw in that argument, it seems to us, is that this employer had not behaved in any way in a reasonable manner. The Tribunal were not satisfied that this employer did have a genuine belief that the Applicant was guilty of gross misconduct..

The Tribunal's findings show perfectly well that this was an employer who, so far from being reasonable, had treated this employee, this Manager, with a complete lack of frankness, in a disingenuous way, which must have been exceedingly provocative to him. He had been deprived of his allowances and, so far from being told about it, he had learned of it a fortnight later in the very aggravating circumstances which the Tribunal found. They found that in all the circumstances this employer, having behaved like that, could not have reached the conclusion that summary dismissal was a proper remedy. They were entitled to find that. It is no good to say a reasonable employer could behave in this way and form a conclusion of this sort if somebody swears at the Chairman and the Finance Director, because that is simply a false beginning, a false premise. In this case the employer had not acted reasonably and, therefore, the Tribunal were well entitled, in our view, to make the finding which they did.

As to the allegation that he was in contribution, the Tribunal found that notwithstanding the extremely abusive and unpleasant way in which he had been invited to see Mr Jolley, he should have gone. Clearly, he could hardly have expected a fair and impartial hearing after the Chairman had told him that his contract was at an end and Mr Jolley had used this abusive language which underlined, amongst other things, that his contract was at an end but the Tribunal still thought that he should have attended. After all, these things were said in heat, in excitement, after drink had been taken and, in those circumstances, it might very well be that the parties could have reached some sort of understanding. Moreover, his behaviour was clearly not blameless, it seems to us. The Tribunal certainly found it was not blameless. His language and behaviour had been, as some would say, appalling. But the Tribunal ended their findings of these facts by saying that the behaviour of the employers in the way they put the matter before the Tribunal, was mischievous.

How were they to deal with this, as I say, lamentable story and apportion blame between the parties? It is suggested on the one hand that Mr Bergara should, in the circumstances, receive not a penny. On the other hand, it is suggested, though very shortly, by Mr Rigby that, in fact, it was wrong to convict him of any contributory fault at all - wrong as a matter of law.

We have come to the conclusion that those submissions are not sustainable. The Tribunal said as follows:

"... there was a measure of contributory fault on the part of the applicant and ... this was a percentage of fault which should attach to both the basic and compensatory awards for compensation. The Tribunal had been advised by the parties that the applicant sought compensation as his preferred remedy. The Tribunal considered that

(I) the intemperate derogatory and vulgar remarks made to the respondents' officials on the 29 March 1995 were significant. "

They go on about the most serious of them. They said that the Applicant was wrong not to go to the suggested meeting on 30 March, notwithstanding the vulgar way in which he had been invited to it and that he was 25 percent to blame.

These are questions of fact for the Industrial Tribunal. It is only if it is possible to show that there is such an error, such a departure from the norm, by the Tribunal, that we can honestly say that it is clear they must have misdirected themselves in law, that they must have taken something improper into account that there must, therefore, be an error of law and the decision is perverse that we could possibly intervene. It appears to us that, far from that, this is a decision which is full of common sense, understanding and a correct direction at every point. In many ways it comes close, if we may respectfully say so, to being a model decision. However that may be, we are entirely satisfied that no error of law is shown either by the football club or by Mr Bergara in the decision which was reached and it therefore follows that, notwithstanding these submissions which have been made to us, we are obliged to dismiss the appeal and cross-appeal.