United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr J Keeble Representative Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


JUDGE PUGSLEY:

1. Employment Tribunals consist of a legally qualified Chairman and two members, I hope I am not being pedantic in saying, the reference to members as lay members is highly misleading and by implication somewhat insulting. Members of the Tribunal all have their different expertise and it would be a very sad day, if it is thought that the expertise of those who have great experience and expertise as to how the industry actually works, is was in some ways less valuable than those who have lived the sheltered and cloistered life of being a lawyer. I say that because it is of the experience of this Tribunal that often where one has a majority decision and the dissenting member is a Chairman it is thought that.
2. We say that because this is a case where the majority of the Tribunal the industrial members decided this dismissal was unfair. It is pertinent to note that there is no finding of fault contribution because that issue has not yet been litigated. The facts of the case are disarmingly simple.
3. The Applicant had been employed for some 25 years. The Respondent company was a large public limited company. The Tribunal say that although the Applicant had some disciplinary record the matters were out of time for them to be considered as relevant. The incident that bought about the dismissal began on Monday 29 June 1998. The Applicant was involved in a road traffic accident on his way to work. A work colleague had driven in a negligent way and caused the applicant to drive off the road. This has caused him a particular emotional upset. After the accident the applicant arrived at work and confronted Mr Spafford, the fellow employee in the Respondents power and control workshop. This was done in the presence of two colleagues.
4. The Applicant was very annoyed and verbally abusive towards Mr Spafford. He grabbed him by the chest and slapped him. This resulted in severe bruising. We say in parentheses that we wonder whether the slap is the appropriate description of what happened to have caused severe bruising. The Applicant had been upset, it was his belief that when confronting Mr Spafford about the accident he denied responsibility for it and made light of it.
5. The Tribunal found that it was likely that Mr Spafford was genuine in his belief that no serious incident happened, but nevertheless it was clear to the Tribunal the negligent driving in Mr Spafford had caused a serious incident which affected the applicant. Soon after this attack, physical and verbal, the Applicant returned and offered his apologies which appear to have been accepted.
6. The Applicant reported the car incident and the incident at work to Mr Holden, a shift supervisor. He advised the Applicant and Mr Spafford to discuss the matter in his office. This again resulted in the Applicant verbally abusing Mr Spafford, but this was again followed by an apology. The parties at this stage appear to have agreed the incident should be forgotten and Mr Spafford said he did not intend to take any action. It appeared likely that Mr Holden would not have reported the matter to any senior manager. After taking advice Mr Spafford did complain about the physical attack on him on the 1 July, sometime after the original matter on the 29 June, two days earlier.
7. The Respondent carried out an investigation and it is common ground that during that investigation the Applicant admitted he had slapped Mr Spafford at the meeting. The procedure was then followed through and the Tribunal was unanimous in deciding the Respondent satisfied the burden of proof on the balance of probabilities to show the applicant had been dismissed for a potentially fair reason for dismissal within the terms of section 98 under the heading of misconduct.
8. The Tribunal then considered 98(4). The Tribunal rejected the submission made by the applicant representative as the investigation had not been wide ranging enough to justify such a serious conclusion as dismissal. The Tribunal agreed unanimously that the procedure adopted in coming to its conclusion was a fair one.
9. The Respondent had given the applicant the opportunity to explain his version of events. He was represented at the hearing, saw papers which are used in evidence and was able to know exactly the charges against him. He was given the opportunity to appeal twice to different senior managers who both confirmed the original decision to dismiss. There was then a disagreement and I quote from the judgement, paragraph 9:-

"However, the two lay members of the Tribunal disagreed with the Chairman in concluding that the decision to dismiss the applicant was not within the range of responses of a reasonable employer. They did not accept that the respondent had properly taken into account the applicant's clean disciplinary record and long period of employment, that there had been significant provocation for the assault because of Mr Spafford's negligence in causing the road traffic accident, that the assault was not a really serious one and that the applicant had apologised immediately after he had done it. The conclusion of the lay members was that no reasonable employer would have come to the conclusion that an employee should be dismissed in such circumstances, applying the range of reasonable responses test contained in the case of Iceland Frozen Foods v Jones".

Paragraph 10: -

"The Chairman, who was otherwise in agreement with the lay members, disagreed on this issue. It was his conclusion that although a decision to dismiss was on the harsh side of the range of responses of a reasonable employer, he did not consider that it was outside that range of responses. In coming to this conclusion, he noted that there had been some significant period of time following the road traffic accident before the applicant had carried out the assault. Further, the respondent was entitled to consider the assault to be a serious one and it was the Chairman's conclusion that the respondent had properly taken into account the applicant's disciplinary record and length of employment".

"The Chairman advised the members that they were quite entitled to come to an opposite opinion to him in relation to the range of reasonable responses test. It was clear to the Chairman that there is an element of discretion contained within this test. He explained to the lay members that their conclusion was that the decision of the respondent was outside the range of responses of a reasonable employer rather than simply, for example, the conclusion that they themselves did not consider it reasonable in the circumstances to dismiss the applicant, their conclusion, although not the same as the Chairman's, was valid in law. Following this advice the lay members still believed that the decision to dismiss the applicant, their conclusion, although not the same as the chairman's, was valid in law. Following this advice the lay members still believed that the decision to dismiss was outside the range of reasonable responses and therefore it was agreed that the appropriate conclusion of the Tribunal was that there should be a majority decision the dismissal was an unfair one".

10. We have been considerably helped by Mr Keeble in this case. He has argued the matter concisely and ably. He really, if we may say so, has caught the nub of the argument which is set out in Mr Choudry's Notice of Appeal:-

"Further or in the alternative, the Tribunal's conclusion that dismissal was outside the band of reasonable responses was one which no reasonable tribunal, properly directing itself, would have reached. It is perverse to conclude that no reasonable employer would have dismissed the Respondent in circumstances where, as the Tribunal found there was an admitted unilateral assault; the assault involved verbal abuse, grabbing a fellow employee by the chest and slapping him; and the "slap" was forceful enough to result in "serious bruising" (paragraph 5 of the Reasons). Clearly, dismissal was a permissible option".

11. This was a decision reached by the two industrial members of the Tribunal. In our considered view it was a decision that is open to them to reach. They had the opportunity, which we do not, of hearing the evidence. We agree that slap may have not been the most appropriate word to use, if there was serious bruising.
12. But we consider their reasoning objectively construed is a decision to which they could come, and it would be no more than arrogance on our part to conclude an arguable point arises. We have no basis for saying that it is arguable it was a perverse decision.
13. The issue of contributory fault remain to be determined. On the issues put before us the Appeal is dismissed.