United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Mr Buecher, the applicant before the London (North) Industrial Tribunal sitting on 10th December 1997 and 8th January 1998, against that tribunal's decision to dismiss his complaint of unfair dismissal against his former employer. In his Originating Application he named Northern Foods Plc as the respondent; in the respondent's Notice of Appearance the respondent described itself as Dale Farm Dairy Group t/a Northern Dairies. Mr Buecher takes a point as to the change of identity of the respondent, but he accepts that that point is academic if his appeal fails. We therefore turn to the substance of the appeal.

Before doing so, we should set out, briefly, the facts as found by the Industrial Tribunal in their extended reasons promulgated with this decision on 3rd February 1998.

The appellant was employed as a returns operative at the respondent's premises at South Ruislip from 24th January 1994 until his dismissal on 24th June 1997 on the grounds of gross misconduct.

The events which led to his dismissal occurred on 29th May 1997 when he was on the 'late shift', the basic hours of which were from 2.15 p.m. to 10.15 p.m.. There was an arrangement agreed with the recognised trade union that the appellant and others would work until the job was done, in other words, they would be able to leave early once the work had been finished for the day. A question arose as to when the appellant would be able to leave that day. He took it up first with a supervisor, Mr Killackey, who was just coming onto shift, and the matter then went to the next manager up, Mr Smith. The material events as found by the tribunal were these: something of a dispute arose, during which the appellant told Mr Smith to shut up and not interrupt him while he was speaking. Mr Smith tried to calm him down, but failed and the appellant became very agitated indeed. He left Mr Smith's office and headed towards the shopfloor. Mr Smith followed asking him to return to the office. The appellant then came back and went towards another door, which led to the filling hall. Mr Smith wanted to prevent him from going through that exit, he turned round and faced the appellant, having caught up with him and asked him to return to the office, the appellant said he wanted to talk to his union representative, Mr Wholey, who was at his break. The appellant turned to go to another exit, but Mr Smith overtook him and refused to let him go through that exit by standing in the way. There was then a dispute as to what may or may not have been said by the appellant, however, it was agreed by Mr Killackey, Mr Smith and the appellant, that the appellant then went up to Mr Smith pushed him out of the way with some force and went through the doorway. The appellant was then suspended and disciplinary proceedings followed.

First, there was a disciplinary hearing before the Finance Manger, Mr Cook, on 24th June, at the end of which Mr Cook concluded that misconduct had been established and under no circumstances was physical contact appropriate and that the proper penalty for the appellant was dismissal.

The appellant then appealed internally against his dismissal, first to Mr Garbutt the Production Manager, who dismissed that appeal on 15th July, and subsequently to the General Manager, Mr Woodburn, who dismissed that second appeal thereafter.

The Industrial Tribunal considered the guideline case of British Home Stores v Burchell [1980] ICR 303, they came to the conclusion that the employer had an honest belief in the misconduct alleged, that it had carried out a full and thorough investigation, and had reasonable grounds for believing that the misconduct was made out. They went on to hold that dismissal fell within the range of reasonable responses open to the employer and dismissed the complaint.

In the course of their reasons the tribunal at paragraph 13 set out the nature of the appellant's case which was that his way had been barred by Mr Smith, that that was unlawful or false imprisonment, and that his reaction in pushing Mr Smith out of the way was a legitimate form of self-help, as he puts it. They rejected that case and, in particular, found that Mr Garbutt's decision on appeal, that Mr Smith acted reasonably in what he did, was entirely justified in the circumstances.

Now there is an appeal. Mr Buecher, effectively, repeats the case which he put to the Industrial Tribunal. He submits that the tribunal fell into error in law by not considering the question whether if the belief of the appellant that he was being falsely imprisoned was reasonable, then self-help in the form of pushing Mr Smith out of the way was available to the appellant and the misconduct alleged by the employer is not made out.

We think that ground of appeal is wholly misconceived. The question for the Industrial Tribunal did not revolve around the niceties of the civil tort of false imprisonment, the question was whether this employer acted reasonably in dismissing its employee for pushing his manager in the circumstances which they believed had occurred. those circumstances being that there was no provocation on the part of Mr Smith, that he merely stood in the way of the appellant and that that did not justify the reaction by the appellant. It seems to us that the Industrial Tribunal asked themselves the correct questions in law as a matter of employment law, and came to a permissible conclusion. In these circumstances, there is no arguable point of law raised in this appeal, and accordingly, it must be dismissed.