United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS HEAL (Of Counsel) ELAAS


 


MR JUSTICE LINDSAY: We have before us by way of preliminary hearing the appeal of Mr Perotti in the matter of Perotti v London Borough of Camden. The appeal concerns a decision promulgated on 24 May 1996; it was the decision of an Industrial Tribunal under the Chairmanship of Mrs E Prevezer.

We have nine pages of closely typed documents by way of Notice of Appeal. It did look as if, before us, Mr Perotti would be represented, as he was below, by himself, but we have been assisted by Ms Heal, appearing for Mr Perotti.

It would be misleading to dignify all the points taken in Mr Perotti's nine pages with an answer. The decision of the Industrial Tribunal was unanimous that the Applicant was unfairly dismissed but that he had contributed to his dismissal and accordingly the compensation was reduced by 60% and he was awarded £5,952.

All Mr Perotti lost, therefore, was, firstly, the question of reinstatement, rather than the monetary award; he preferred reinstatement; and, secondly, he suffered the reduction by 60%, which I have just mentioned.

Taking that contributory fault point first, I will very briefly take a convenient passage from Mr John Bowers and Mr Simon Honeyball's book on Labour Law, simply as a convenient and brief summary of the position. At page 178 the book says this in relation to contributory fault:

"Sir Hugh Griffiths said in Maris v Rotherham Corporation that the concept 'brings into consideration all the circumstances surrounding the dismissal requiring the tribunal to take a broad commonsense view of the situation and to decide what, if any, part, the applicant's own conduct played in contributing to his dismissal and then in the light of that finding decide what, if any, reduction should be made in the assessment of this loss.' The onus lies on the employer to prove that the employee contributed to his dismissal by conduct which is "culpable or blameworthy" and unreasonable in the circumstances."

The book goes on at page 179:

"Once a causal link has been established, the amount of deduction is at large for the tribunal. ... The EAT will generally not intervene in a tribunal's finding of contributory fault, still less in the amount of the deduction. In Hollier & Plysu Ltd 1983 the Court of Appeal advised Industrial Tribunals to take a broad commonsense view. It was a matter of 'impression, opinion and discretion'."

and then some further cases are cited.

Here the position was that Mr Perotti had written a letter to a resident of the Respondent Borough, which letter the employer took to be an inappropriate letter to have been written by one of its employees to a resident. There was evidence that to have written the letter was in breach of the Council's procedures and was regarded by the employer as a breach of those procedures. It must have been that the Industrial Tribunal so held because that was the particular express reason for the reduction of 60%. Given, as the textbook we have just quoted shows, that matters of contributory fault are very much at large, that the Industrial Tribunal did hear evidence, that it is entitled to come to a view as 'the Industrial Jury' and that the general approach of the law is that the EAT should not intervene on this subject without there being a clearly demonstrated error of law, and given also that the Industrial Tribunal's are enjoined to take a commonsense view - they are the best equipped to do so - we see no ground for disturbing the finding of contributory fault, either as to there being a finding of contributory fault or as to its amount.

Turning to the other subject which Mr Perotti lost below, reinstatement, again it is convenient briefly to mention what the law is on the subject and I shall take the same textbook, but this time at page 169. Under the heading of 'Reinstatement' the book says:

"Reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed and must include benefits payable in respect of the period since dismissal and rights and privileges, including seniority and pensions. [Statutory references are then given.] It should not be ordered if it is 'not practicable' for the employer to comply with it or it would be unjust to do so because the employee contributed to the dismissal. ... The matter is one pre-eminently for the tribunal's independent discretion and appeals are only reluctantly entertained."

Here, the finding of contributory fault which we have just described as not open to successful challenge, itself militates against there being a reinstatement. The subject of reinstatement is not mentioned at all in the reasons of the Industrial Tribunal but there has, since then, been correspondence on the point from the Chairman. What she says in her letter of 9th December 1996 addressed to the Registrar of the EAT is this:

"9 As the Tribunal found that the Applicant had contributed to this dismissal, then the Tribunal did not think it appropriate to order reinstatement."...

That seems to be a view which is open to a Tribunal to take on the law. It is the view that has the benefit of the citation from the text book which I have just given. It accords with the general disposition of the EAT to leave matters of this kind to the Tribunal itself as the 'Industrial Jury'. It would, of course, have been preferable if the subject of reinstatement had been expressly dealt with in the reasons, but we cannot conclude, especially given the nature of the Chairman's letter, that simply because it was not mentioned, it was not in mind. We see no error of law in relation to reinstatement and accordingly, on the only two aspects of the matter which Mr Perotti lost, we have been able to identify no point of law and accordingly do not permit the matter to go to a full hearing.