United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S GILL (of Counsel) KLC Advisory Services 86 Smithbrook Kilns Horsham Road Cranleigh Surrey GU6 8JJ


 


JUDGE ALTMAN:

1. On 16th July 1998 the Employment Tribunal sitting at Carlisle held that the respondent to this appeal had been dismissed; that the ground for dismissal was "some other substantial reason", namely, that the owner of the site, where he was employed, had insisted upon the respondent's removal from the site; that the decision to dismiss was procedurally unfair; and that the extent of the respondent's contribution, if any, was undecided and was adjourned to be considered together with other matters of remedy at a later hearing.
2. After a hearing on 22nd January 1999, in a decision reached on 25th February 1999, the Employment Tribunal, sitting in Carlisle – the same tribunal, made decisions about remedy including that the respondent should receive 60% of compensation as a result of what is often called a Polkey deduction; that there should be a deduction of 15% for contributory conduct and that there should be an award of holiday pay.
3. The appellant employer appeals from the decision on remedies only. The matter comes before us by way of preliminary hearing to determine if there is any point of law that can properly be argued in full before the Employment Appeal Tribunal.
4. We say at the outset that: It is arguable that it is not apparent from the decision of the Employment Tribunal so far as holiday pay is concerned, either that there was an entitlement to be paid for holidays not taken or that there was an entitlement to carry over such accrued holidays from one year to the next. There seems to us to be an arguable point of law as to whether the Employment Tribunal were in error as to the contractual entitlement to holiday pay of the respondent. It seems to us also arguable that the award of holiday pay in effect duplicates the award made for loss of pay from the date of dismissal as part of the compensation for unfair dismissal. The matter should go forward on that ground.
5. We turn now to the other issues that are raised. The facts show that the respondent was what was called an "in-plant ink technician" employed by the appellants, working exclusively with other employees of the appellants at the premises of their customers referred to as LMP in the decision. On 3rd March 1998 the respondent was lifting down a bucket of ink from the top of a high stack when he dislodged another such bucket. This bucket fell and spilled its contents of 20 kilograms of ink on the floor. This ink is inflammable. The respondent did some clearing up, but the Employment Tribunal found that he did not clear up properly and that he left some ink and at least two bags of absorbent granules on the floor. The appellants' plant manager, Mr Parrot, arranged for the clearing up to be completed before it was seen by anyone in authority with their customer LMP.
6. We have been helpfully provided with a chronology in this case which shows that the respondent was suspended and that on 3rd March Mr Nairn, the production director of LMP said he did not wish to have the respondent back on site; that Mr Newlands, the commercial purchasing manager of LMP, later confirmed that the respondent would not be allowed to return to its site; and that on 5th March there was meeting with Mr Parrot and Mr Arrowsmith, the appellants' account executive, with Mr Nairn, because Mr Arrowsmith had the closest connection with LMP. Following enquiries Mr Nairn then confirmed LMP's decision.
7. The Employment Tribunal were unclear as to whether Mr Arrowsmith spoke again with LMP, but those employees of the appellants who dismissed the respondent had asked him about any change in LMP's attitude.
8. The appellants investigated unsuccessfully the possibility of work for the respondent elsewhere and the respondent was dismissed with effect from 15th March on the grounds that:

"Regretfully, the Management of Smiths [LMP] are insisting on your removal from the site."

9. The Employment Tribunal found that the reason for dismissal, as I have indicated, was for 'some other substantial reason'. The Employment Tribunal went on to find that the dismissal was in their words "procedurally unfair", in that first, the respondent was suspended without being given an opportunity to state his case, and secondly the dismissal took place without, in effect, giving the employers an opportunity to put their disciplinary findings to their client so as to see if their client would change its mind as to what it was insisting upon.
10. The evaluation of compensation is always very much a discretionary matter. Mr Gill who has argued the matter on behalf of the appellants has conceded that. The approach of the Employment Tribunal to the issue of the extent to which there should be a reduction in compensation has been one which has not been altogether clear to us.
11. On page 2 of the Employment Tribunal's remedies decision, after quoting, in paragraph 3, s.123(1) of the Employment Rights Act 1996, the tribunal ask themselves the following question:

"The Tribunal had to assess what were the chances of LMP having changed its mind and permitted the applicant to return to work on the site if a fair procedure had been carried out, which, on the respondent's admission, would have resulted in a written or final warning but not dismissal by the respondent."

12. If the Employment Tribunal had been adopting the words of established case law, it seems to us arguable that they would at that stage asked themselves two questions: firstly, whether they were satisfied that the adoption of a proper procedure would have made no difference, which was the stance of the appellants before them and if they had answered that question by confirming that it would have made no difference there would have been no compensatory award, subject to a matter of compensation for the passage of time. And if they had answered the question that they were not satisfied it would have made no difference, they may have gone on to ask themselves whether there was a measurable chance that it would have made no difference, and on the mathematics in their decision would have come to a figure of 40%.
13. We have wondered if it is arguable that by asking themselves the question they did, rather than those questions, the result was any different at all. In posing the question as being clearly focused entirely on the chance of changing LMP's mind, the tribunal then seem to have sought to analyse the chances of getting LMP to change their mind. They point out that no witnesses were called from LMP to explain their "hardline attitude", and the tribunal seem to have placed considerable emphasis on the fact that witnesses were not called. But they also had before them evidence shown at the top of page 2 of their decision, that there had been a telephone conversation with the commercial purchasing manager of LMP on 5th October, just before the remedies hearing, in support of the proposition that there would still inevitably have been a dismissal. The Employment Tribunal resolve that by saying in paragraph 4 of their decision that the respondent had no opportunity to challenge the so-called "hardline attitude". They came to the conclusion that "if someone had been available for cross-examination it is likely that the matter would have not have been so set in stone." The tribunal then evaluate that effectively at a 60% chance that is, more likely than not that the respondent would have been allowed back on site. They seem to consider it important that no one at LMP ever saw the spillage and we consider that it may be arguable that that does not appear to be relevant to the question they were deciding. They also at the same time appear to reject the comment of LMP that Mr Nairn said that he was "too long in the tooth to get involved".
14. The clear focus, therefore, of the tribunal's decision, it seems to us, may arguably have been to consider whether or not LMP would have changed their mind. The tribunal said in paragraph 3 that

"… a reasonable employer would have communicated their disciplinary findings to the site owner and made representations as to why the applicant should be allowed to return."

15. In the end, however, it is not apparent from the decision whether there was evidence upon which the appellants could have relied, or upon which the Employment Tribunal relied, in coming to the conclusion that there was a prospect of being allowed back on site in the amount of 60%. It seems to us that it may be arguable that such a conclusion was speculative.
16. The position, it seems to us, is rather unclear. But it does seem to us arguable that the tribunal failed to ask itself the right question in approaching the assessment of chance and again arguable that in so doing they were led to focus exclusively on the attitude of LMP rather than on all the matters which may have made a difference, such as whether it is reasonable to expect the employer to further press their client for an answer. It also seems to us that a matter that merits argument is whether there was evidence upon which the tribunal properly directing itself could reasonably have come to the decision it did.
17. The third ground of appeal relates to the assessment of 15% for contributory conduct. The essence of the submission is that this decision was one which, on the facts, no Employment Tribunal properly directing itself could have reached. Particular reliance is based upon the decision reached by the appellants which the Employment Tribunal adopted that had it been left to them there would probably have been a final written warning. In those circumstances, the argument runs, 15% is too low.
18. The assessment of contributory conduct is very much one of discretion. It depends very much on the impression that witnesses have created. It depends very much on measuring the degrees of responsibility. On one view, it seems to us, that having to pull a bucket of ink from such a high shelf and that this incident was followed by a recommendation that ink should not be stored in that way in future illustrates that this was simply an accident which could happen to anyone and that failing to clear up a mess sufficiently did not constitute very serious misconduct. It might not be measurable at all in contribution. On the other hand, it may be argued that to leave spilled inflammable substances on the floor of a client of an employer is a very serious matter. It is all very much, it seems to us, a matter of discretion in which the three members of the tribunal will no doubt have discussed and measured themselves. We can find no arguable error of law in the assessment of the percentage of contribution in this case. These are areas which even though they have a substantial impact on the final award of compensation, are imminently suitable for the exercise of discretion by an Employment Tribunal and that is clearly what happened in this case.
19. Accordingly, this matter will be listed for full argument before the Employment Appeal Tribunal confined to the issues of the award of 60% of full compensation because of the risk that dismissal may have taken place in any event and on the award of holiday pay. It will be listed for one day, in Category C. Skeleton arguments should be submitted 14 days before the date finally listed for the hearing.