United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Messrs Churchers Solictiors 60 & 62 Northern Road Cosham Portsmouth PO6 3DX
For the Respondents	MR J SWIFT (of Counsel) Messrs Thomas Eggar Verrall & Bowles Solicitors 5 East Pallant Chichester West Sussex PO19 1TS


 


JUDGE J HULL QC: This is an appeal to us by Mr Joseph Doyle, a gentleman of 46 years of age, and he was employed by the Respondent firm, Britax Wingard Ltd, as a machine setter. His employment began on 27 June 1994 as a machine operator and he was found to be a highly capable man and, after going on a course, he became a setter - at any rate in the view of his employers - which meant that he had to go round from machine to machine adjusting them. I do not need to go into the history of the matter any further before we come to the events which led to his dismissal.

The events occurred on 13 January 1997 when he was, I think, on night duty and he had occasion to carry out some work to a moulding machine. He made the necessary adjustments to the machine and then, having removed the guard from the machine for that purpose, failed to put it back. He was not without an excuse, in a sense; he said, apparently, that it would have required some machining - some fitting of bolts or something of that sort - to put the guard back. But at any rate he simply failed to do that. He failed to report what he had done and clearly it was a serious matter, because if these machines are unguarded very serious injuries or worse may occur to people in the factory.

The next day another man, a Mr Mayall, another setter, rather senior to Mr Doyle, looked at the machine and signed the safety check sheet: he never should have done that because the guard was still off. The Respondents were very keen, evidently, on safety and were making consistent efforts to improve and maintain safety. Their rules were broken. Happily, there was no disastrous result, because the omission was noticed. That is the story. I will go to the decision of the Industrial Tribunal in due course.

The employers held inquiries into the conduct of both Mr Doyle and Mr Mayall. They concluded that each was guilty of a serious breach of his duties. In the case of Mr Doyle, who had been guilty of taking the guard off and leaving it off, the view was taken that he was guilty of gross misconduct and that he should be dismissed. That decision was reached after two disciplinary meetings. In the case of Mayall, apparently the view was taken that his conduct was less serious, and he escaped being dismissed. He was demoted to a machine operator; a severe step; he was given a final warning. We think it is probably just to say, as has been said to us, that that was about as severe a penalty as could be imposed short of dismissal.

So Mr Doyle, being dismissed, duly complained to the Industrial Tribunal on 15 April 1997 that he had been unfairly dismissed and wrongfully dismissed in breach of contract and he claimed compensation. The employers pleaded the facts I have mentioned: that he had left the machine in an unsafe condition. The matter came before the Industrial Tribunal on 7 July, sitting at Southampton, chaired by Mr Belcher with two industrial members.

They found that there had been unfair dismissal but that Mr Doyle was guilty of contributing to it to the extent of 100%. That is to say, under section 123(6) of the Act they thought it right to deprive him of any compensation whatever. I must now go to their decision and read the material parts of it so that our decision can be understood.

They record that there was no dispute about Mr Doyle's failure to do as he should have done. He had admitted before the Tribunal that he had not attempted to fit the guard at all. He did not sign the machine off on the safety check system, "perhaps this was just as well", said the Tribunal "because had he done so and passed it, it would have meant he was putting in a false document as to safety". They say he did not attempt to see the senior, a technician, to discuss the matter with him. His excuse for his failure to fit the guard or discuss it with a more senior person was that they were "under pressure as there were two members of the night shift staff missing".

They say:

"The respondent's [employer's] witnesses made it clear that safety was of paramount importance and that the applicant along with other workers had had this explained to them..."

Then they say that Mr Doyle:

"...openly admitted that he had failed to fit the guard. He accepted that this was a major safety defect on his part.

12 His case put as best he could was that a Mr Mayall who was senior to him had the following morning passed the machine as being safe and had signed off the safety check sheet. Whereas the guard was clearly not on. The machine was run on the day shift and it was not noticed the guard was missing until a maintenance man discovered it during the course of that shift. The applicant [Mr Doyle] maintained there had been lack of consistency in the penalty of demotion of Mr Mayall and his [Mr Doyle's] dismissal."

Then they say,

"13 The Tribunal enquired into the lack of consistency or why there was a different approach in regard to Mr Mayall who was in fact demoted by being reduced from a setter to a machine operator. Unfortunately, the investigating officer who had taken the disciplinary hearing, Mr Gale was not available to give evidence. We were told he was out of the UK.

14 Mr Emery was recalled [that was the director of the firm] and told the Tribunal that he understood the reason for the differential in treatment was that the investigating officer had taken the view that the applicant's case was far more serious than that of Mr Mayall..."

They go on:

"15 The Tribunal find that the applicant failed to take heed of the safety requirements which he himself as an operator was well aware of...

16 That in itself would indicate that the applicant's behaviour was serious gross misconduct. Normally, it would have been reasonable for the respondent to have dismissed and to have claimed that the dismissal fell within the band of reasonable responses of a reasonable employer. However, the Tribunal have had to take note of the question as to whether or not the respondents had acted in a consistent manner in which they had dismissed the applicant but had only demoted Mr Mayall.

17 The Tribunal find that this is an inconsistent approach. Mr Mayall clearly was more senior to the applicant. His job where he knew safety was paramount, checked off this machine on the safety sheet as being in correct order. Whether he in fact inspected it or just assumed so, the Tribunal had no knowledge as he did not give evidence.

18 Mr Emery suggested that it was a one off situation. Equally of course, the applicants was a one off situation. He had never been given any form of warning and there was no evidence to suggest that he had been careless previously.

19 Mr Emery suggested that Mr Mayall was in a position where he could be demoted, but the applicant could not. The Tribunal find that difficult to accept. The applicant was at A1 grade. Presumably he could have moved to a lower grade as just an operator and we find therefore that the applicant has shown through the evidence that there was inconsistency of approach in dealing with Mr Mayall being demoted and his dismissal.

20 That therefore in the Tribunal's finding makes the dismissal of Mr Doyle, the applicant, unfair."

Now, if I may go ahead to the cross-appeal, it is suggested that here the Tribunal were first of all showing that they had conducted an inadequate inquiry to compare the cases of the two men, Doyle and Mayall; they had inadequate information. Mr Gale, who had conducted the disciplinary hearings, was not available to give evidence. They did have documents in front of them which showed, as indeed their own judgment showed, that there was a difference between the negligence with which each of these employees was charged. Moreover, there was some evidence of warnings having been given to the Applicant. So that is a decision which it is possible to criticise; saying that there was an inconsistency between the treatment of the two men. We have not found that very easy to resolve but on balance we have felt, having considered the careful way in which this Industrial Tribunal went about their task, that we ought not to accept the criticisms that are made and we ought to say that this is a Tribunal which, having heard all the evidence, thought it right to say there was inconsistency and was in a position to do so and, certainly, having considered it as carefully as we can, we cannot say that that was a perverse decision.

So we go to the main point in Mr Doyle's appeal and here I really cannot do better than refer to Mr Kibling's outline submissions in his skeleton argument. At the start he makes a statement which really encapsulates his entire submission, he says that the Industrial Tribunal's determination was that

"...the Appellant's dismissal was unfair (he would not have been dismissed had the Respondent acted fairly)..."

That seems to us not merely to be a non sequitur but, in all the circumstances, simply not to be supported by what the Industrial Tribunal themselves say. They say this was gross misconduct which would, but for the treatment given to Mr Mayall, have been a perfectly proper ground of dismissal. Nor do they criticise the way in which the employers went about the dismissal. So it seems fairly clear to us that that proposition is quite simply wrong.

Then Mr Kibling, after very helpfully quoting the material provisions of the legislation and after setting out the material parts of the decision, says:

"there is nothing wrong in principle in reducing an award of compensation by 100%, see Devis v Atkins, [but] it will only be permissible to do so if the employee has suffered no injustice by being dismissed...

The type of case which would warrant a 100% reduction is where the employee was wholly to blame for the dismissal, see Mr Justice Kilner Brown in... Hollier v Plysu ."

Then Mr Kibling goes on,

"However, as in the present case the Appellant has suffered an "injustice" and was not wholly to blame for his dismissal in that he was unfairly dismissed as a consequence of his inequitable treatment by the Respondent."

Then he goes on:

"The Employment Appeal Tribunal can interfere with the Industrial Tribunal's assessment of contributory fault if it misdirected itself in law in that it misunderstood and/or misapplied the law, or its conclusion... [is perverse]."

He goes on to consider a number of provisions and decisions and says his case, basically, is that this was a perverse decision; to reduce the award by 100%.

There does appear to us to be, as I have said, a gap in the logic here. Here was a man who - in the view of the Tribunal, as we understand what they have said, and it does seem very plain - richly deserved to be dismissed. He had imperilled the safety and perhaps the life or lives of his fellow workers, he was in a responsible position and there was no excuse for it. Such a grave breach of safety rules well merited dismissal. What had the employers done for which it could be said that they were to blame? The answer was that they had treated Mr Mayall with leniency, perhaps with excessive leniency; we do not know, of course, all the reasons they may have had; he may have had much longer service, perhaps blameless service, he may have had great value to the firm; there are various possibilities and we must not speculate on it. But that is the worst that can be said of these employers, not that they had been severe and unfair to this employee, but they had been unfair in and about the dismissal because they had been excessively lenient to another employee. That sounds rather a strange basis for saying that it is improper that the employee, Mr Doyle, being found very much to blame for what had happened, should have his compensation reduced by as much as 100%. Moreover, logically the proposition does not seem to hold water. It being conceded by Mr Kibling that in all cases, whatever the deduction is, the employer will, by definition, have acted unfairly, how can it ever be said, if the logic is right, that the employee is ever wholly to blame? It will always be possible to say " the employers have acted contrary to the requirements of this most important statute, they have acted unfairly. They must be held partly to blame."

So we looked to see what the situation is so far as the authorities go, and there are plenty of authorities on this topic. We drew the greatest help from Devis & Sons Ltd v Atkins [1977] ICR 662, a decision of the House of Lords and from the decision in Warrilow v Robert Walker Ltd [1984] IRLR 304. Three cases appeared to us to put the matter beyond any doubt, Parker Foundry Ltd v Slack [1992] ICR 302, Allders International Ltd v Parkins [1981] IRLR 68 and Devis v Atkins to which I have already referred.

I must refer to the provisions of the statute. Section 98 provides that it is for the employer to show what the reason for dismissal is and if he does show an admissible reason then the Tribunal must continue by seeing whether the employer acted reasonably or unreasonably, which of course means fairly or unfairly in treating it as a reason for dismissal.

When we come to the provisions with regard to compensation, it will probably suffice if I refer to section 123 of the Employment Rights Act 1996. There are two subsections there. The first is a general provision with regard to the amount of compensatory award, (1):

"Subject to the provisions of this section and [other sections], the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer"

Subsection (6) is differently phrased but equally relevant:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

It is to be noticed that subsection (6) first of all requires causation. It invites the Tribunal to look at whether the dismissal was caused or contributed to by the action of the complainant; in this case, of course, Mr Doyle. Then, the amount of the compensatory award is to be reduced by "such proportion as it considers just and equitable". Now, that section does not refer to "all the circumstances". It does not echo the provisions of section 123 (1). It is looking, ostensibly, at the actions of the complainant and talking about what is just and equitable so far as he is concerned and, having looked at the authorities, and in particular the three authorities to which I have referred, it is made very clear, there, that if there is a disparity alleged between a particular applicant and others involved in the case, if it is said that the employer is guilty of fault, those are not matters to be taken into consideration under section 123(6). The Tribunal there is entitled and bound to look at the actions of the complainant and consider what compensatory award is just and equitable.

Here the Tribunal found this Applicant well deserving of dismissal. They also said, "it is not right that he should receive any compensation. We propose to make a 100% deduction". It is perfectly apparent to us that the only unfairness was the disparity which the Tribunal detected, and they were not merely entitled but bound, on the true construction of section 123, to hold that that was an irrelevant matter in considering what was just and equitable so far as the Applicant was concerned. They could, of course, have reached a different conclusion. They could, of course, have said, if it had seemed right to them, that serious as Mr Doyle's behaviour was they felt it not right to deprive him of any compensation; but they did not. We find the grounds urged for saying that the Tribunal were wrong wholly unconvincing. First of all there is the logical difficulty, which I have mentioned, but secondly, it seems to us, the Tribunal were entitled to say (and although they did not say it, it was obviously in their minds) that here were employers who were determined to insist on safety, and the Tribunal was entitled and, indeed, in their view, required, to give backing to that. If they found only unfairness in the form of disparity, though they might find that one employee had been treated too leniently, they were certainly not going to say that that act of benevolence - or however you like to characterise it, an act of weakness perhaps, by the employers - was going to give Mr Doyle, who otherwise would have got nothing, a reward for his misdeeds. That, as we see it, is the justice of the position and in those circumstances there is nothing perverse about this award in any way.

There is nothing improper here or contrary to the statute, it is not a case of saying that the employers were to blame and therefore the employee should receive something. Equally, as I have said, we are not satisfied that this Tribunal was not entitled to say that there was unfairness in, if one likes, the rather technical sense, that there was a disparity. They were entitled to say that and yet to say that Mr Doyle was to get nothing.

We are very grateful to Counsel for taking us through the authorities and we intend, of course, no discourtesy by not going through them ourselves. We are entirely satisfied and that is the judgement of all three of us; that both appeal and cross-appeal fall to be dismissed. Those are the reasons of us all.