United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON
For the Respondent	MR D BEAN QC MR M TRUSTED (Of Counsel) Messrs Blatchfords Solicitors 192 Northolt Road South Harrow Middlesex HA2 OEN


 


JUDGE CLARK: The Appellant, Mr Gordon Beaven, was employed by the Respondent as a Machine Minder from 7 July 1986 until his dismissal on 6 November 1992.

On 14 January 1993 he presented a complaint of unfair dismissal to the Central Office of Industrial Tribunals. The matter first came on for hearing before an Industrial Tribunal sitting at London (North) under the Chairmanship of Mr Ivor Walker, on 2 June and 7 September 1993. That Industrial Tribunal dismissed his complaint for reasons given with the decision promulgated on 13 October 1993.

Against that decision the Appellant appealed to the Employment Appeal Tribunal. Following a hearing before a division of this Tribunal presided over by Judge Hicks QC on 3 October 1995, by a majority judgment dated 6 December 1995 this Tribunal allowed the appeal and remitted the matter for a re-hearing.

The complaint came before a second Industrial Tribunal chaired by Mr G W Rice, sitting at London (North) on 3-5 February 1997. For the reasons given with a decision dated 18 February 1997 that Tribunal (the Rice Tribunal) found that the dismissal was unfair, but that the Appellant was not entitled to any compensation.

Against the "Rice" Tribunal's refusal to award him compensation the Appellant again appealed. At a Preliminary Hearing before a division presided over by Judge Hargrove QC, when the Appellant was represented by Counsel under the ELAAS pro bono scheme, the appeal was allowed to proceed to this full hearing on a single ground, formulated in the EAT Order of 10 November 1997 as follows:

"..... whether the Industrial Tribunal was justified having regard to Section 123 of the Employment Rights Act 1996 to take into account surrounding circumstances which were not grounds upon which the Appellant was dismissed. Such matters being within the knowledge of the employer at the time of dismissal."

The Appellant was granted leave to amend his Notice of Appeal implicitly for the purpose of pleading that ground of appeal only. In the form of amended Notice of Appeal which is before us, the Appellant has taken a number of other grounds, none of which we have permitted him to pursue. Accordingly the ground identified by the Appeal Tribunal at the Preliminary Hearing, is the sole issue in the appeal.

By their answer dated 22 December 1997 the Respondent cross-appealed against the Rice Tribunal's finding of unfair dismissal.

The Rice Tribunal Decision

The Appellant's disciplinary record during 1992 may be summarised as follows, based on the Tribunal's findings of fact:

On 17 January 1992 he was given a formal warning for lateness. He was then frequently late between March 12 and April 30.

On 15 May he was given a formal warning by letter for lateness. Again he was frequently late between June 25 and August 22.

On 21 August he was given a final written warning for workmanship.

On 7 September a final written warning for the quality of work was removed and substituted by a final warning for lateness.

On 28 October an incident occurred away from the Company's premises, when, as the Tribunal found, the Appellant chased a fellow employee, a Mr MacGregor, in his car, and then when both vehicles stopped the Appellant got out of his car holding a metal bar and wearing what were described as knuckle dusters, but were in fact, it is common ground, studded gloves. An investigation into that incident was carried out by a Trade Union official, Mr Fowler.

On 30 October the Appellant and Mr MacGregor shook hands and everyone thought and hoped that was the end of that matter.

However, on 5 November, the Tribunal found, the Appellant threatened Mr MacGregor again.

On the following morning a conversation took place between Mr Shannon, a Director for the Company, and a Mr Pattison, following a report in relation to the incident the previous day involving Mr MacGregor, by Mr King, the Deputy Father of Chapel. The two men, Shannon and Pattison, decided that the Appellant should be dismissed and that it was Mr Pattison's job to do so.

Mr Pattison then dismissed the Appellant giving as his reason the Appellant's lateness record.

The Industrial Tribunal was much exercised by the Respondent's disciplinary procedure and the extent to which it was properly applied in relation to the warnings given to the Appellant. The question was whether warnings expired after six months or three months. They found that it was the latter. Further, the Tribunal found that the Respondents decided to dismiss the Appellant on 6 November 1992, before hearing what he had to say in his defence. That, the Tribunal held, was a fatal flaw in the procedural fairness of the dismissal, and they found it to be unfair.

The Tribunal went on to consider the question of remedy. Looking at the decision itself, the Tribunal found that it would not be just and equitable to award any compensation in the light of the Appellant's conduct. In particular the MacGregor incident which arose as a result of the Appellant's perception that he was being "wound-up" by Mr MacGregor over his, (the Appellant's) infatuation, for a fellow employee, Diane Kelly, would probably have justified his dismissal had the Respondent approached the matter in a procedurally fair way. In these circumstances the Tribunal decided that no compensation should be awarded.

The Cross-appeal

We first heard submissions from Mr Bean QC on behalf of the Respondent in support of the cross-appeal against the finding of unfair dismissal. It came to this, Mr Bean relied upon certain findings of the Tribunal in support of the proposition that this was a case, exceptionally, where the normal rules of fairness, that is, in particular, giving the Appellant an opportunity to show cause why he should not be dismissed, could and should be disapplied. To apply a rigid rule that in every case of an employer failing to give the employee his say before dismissal was unfair amounted to an error of law.

The findings relied on by Mr Bean are summarised in this way, taken from the Industrial Tribunal's findings of fact:

1) The Appellant had been repeatedly late for work.

2) He had been guilty of poor workmanship.

3) He had threatened Mr MacGregor with a metal bar and chased him on the highway.

4) He had again threatened Mr MacGregor a week later.

5) He had developed a fixation about Miss Kelly.

6) "His work colleagues became very apprehensive about him."

We reject that submission in the circumstances of this case. In doing so we remind ourselves of the immutable standards of fairness referred to in the judgment of Sir John Donaldson M.R. in McLaren v National Coal Board [1998] ICR 370 at 377G. In our view the Industrial Tribunal's finding of unfair dismissal on the facts of this case was a permissible one and we shall dismiss the cross-appeal.

The Appeal

We are here concerned with the sole point identified by the Appeal Tribunal at the Preliminary Hearing. The proposition is that an employer cannot rely upon conduct which did not form part of the articulated reason for dismissal, but which occurred before dismissal, as being conduct relevant for the purposes of Section 123(6) of the Employment Rights Act (Reduction of Compensatory Award) and, we infer, for the purposes of reducing the basic award under Section 122(2) of the Act. We reject that proposition.

It is open to an Industrial Tribunal to find that a complainant has contributed to his dismissal in circumstances where he has been constructively dismissed and no potentially fair reason for dismissal has been made out. See Polentarutti v Autokraft Ltd [1991] ICR 757.

There was evidence before the Tribunal that Mr Pattison, the dismissing Manager, had the MacGregor incidents in mind when he dismissed the Appellant. He did not put those matters forward as part of the articulated reason for dismissal, which was said to relate to lateness. However, that did not, in our judgement, prevent the Industrial Tribunal from taking the MacGregor incidents into account as part of the relevant contributory conduct, which was outlined by Mr Bean and which we have summarised above.

On the Industrial Tribunal's findings, permissibly in our view supported by letters written by the Appellant himself after his dismissal, we are satisfied that this Tribunal was entitled to reach the conclusion that a 100% contribution finding in relation to both the basic award and compensatory award was appropriate. In these circumstances we dismiss the appeal also. The result is that the Industrial Tribunal's decision stands.