United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Neither present nor represented


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal from a decision of the Employment Tribunal sitting in Southampton. The decision which was promulgated on 28 January 1998 held that the employees' claim for unfair dismissal should be dismissed. The employee, Mr Thorp, appeals.

Before I go further I should say that Mr Thorp does not appear before us today. This Tribunal has received a fax stating that Mr Thorp's father has a long standing illness as a result of which he is unable to attend, but he has requested that we proceed with the case in his absence. Accordingly we do so.

The facts are that Mr Thorp was employed by the Respondents as a jointer. The Respondents had attempted to introduce an incentive scheme and this had caused some considerable friction between various members of the staff and between staff and management. Mr Thorp had been an objector to the scheme. We do not know what role he played, but he clearly was identified as an objector. Mr Clark, who was the manager responsible for introducing this incentive scheme was in due course relocated to a position where he had direct managerial control of Mr Thorp. Before he took up the job, Mr Clark engaged in correspondence with Mr Thorp and in effect, served him a warning about what he alleged to be Mr Thorp's working irregularities. In turn, Mr Thorp made enquiries of Mr Hobbs who was the safety manager as to where Mr Clark lived, because he wanted to sort him out. This was reported by Mr Hobbs to Mr Clark.

On 23 October 1996, Mr Clark went on a visit to the worksite where Mr Thorp was working and during that visit the latter was foolish enough to give Mr Clark the "V" sign and followed this up with a remark "what are you going to do about it". Mr Clark got down into the hole in which Mr Thorp was working to discuss a severance application, made by Mr Thorp. The discussion which followed ended with Mr Thorp saying to Mr Clark that if he carried on in this way he would get hurt.

Following those remarks, Mr Thorp was suspended on 25 October and called before a disciplinary hearing on 6 November. On that occasion, he was accompanied by two trade union officials and the incident was enquired into. At the end of this enquiry, Mr Thorp was dismissed. On 6 December he appealed and again the dismissal was confirmed.

The matter then went forward to an Employment Tribunal for a hearing. The Tribunal, in their reasons, stated that they preferred the evidence of the Respondents' witnesses to that of Mr Thorp himself. They came to the conclusion that the Respondents had carried out a reasonable investigation. They had in fact made enquiries of the managers only and they indeed were the prime witnesses at the Employment Tribunal hearing. This approach was criticised by Mr Thorp but the Tribunal exonerated them in their following this particular course because they said it was only the attitude of the managers and what was said to the managers which was relevant.

The Tribunal them came to the conclusion that both the Chairman of the disciplinary hearing and of the appeal were entitled to find the words used by Mr Thorp to Mr Hobbs and Mr Clark to constitute a serious threat; they accepted that Mr Clark felt threatened by the remarks made to him. They said that they were directed against him as a manager. They reflected the possibility that the remarks were made to warn Mr Clark of the possible danger of standing too near the edge of the pit he himself was in.

They were critical of various aspects of the disciplinary hearing. They thought there was insufficient detail given of the charges before the disciplinary hearing although they were satisfied he was given notice of the charges themselves. They felt that Mr Moseley who conducted the hearing was too close to Mr Clark to be truly independent. They then went on to say that, but for the appeal hearing which they found to be satisfactory, they would have had no difficulty in finding that the dismissal was unfair as a result of the procedures used though they would have found some element of contributory conduct. However, at the end of the day, they came to the finding that the Respondents entertained a genuine reasonable belief that Mr Thorp had made a physical threat to Mr Clark and that his conduct on that occasion merited the dismissal. That was a reasonable response of the employers.

Mr Thorp has raised two issues on appeal. He has questioned the veracity of the Respondents' witnesses and criticised the factual findings of the Employment Tribunal. In effect, he relies on a claim of perversity. There is one aspect of the case which has concerned us and we have given considerable thought to it. Mr Thorp was at the time he made the remarks to Mr Clark down in a pit where he was engaged in what undoubtedly was a very dangerous task of dealing with live cables. We are aware of the fact that in those circumstances, peoples' judgments can sometimes be at fault. In that situation, those to whom such remarks are directed tend to dismiss them as being of little consequence. For that reason, we wonder whether we would have come to the same decision as the Employment Tribunal did as to the seriousness of these alleged physical threats.

That is not however a matter for us. We are here to decide as to whether there is a point of law at stake. We have not seen the witnesses. We have not seen their demeanour. These are crucial factors which the Employment Tribunal are entitled to take into account in coming to their decisions. They are in a better position to decide these matters than we are. Accordingly we come back to the main point of this appeal, namely, whether it is arguable that the Tribunal came to a decision no reasonable Tribunal could have come to. We do not think it is so arguable. In the circumstances we therefore must dismiss this appeal.