United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J HEAL (of Counsel) Instructed by: Mr K S Bhogal Messrs Asghar & Co. Solicitors 112-114 The Broadway Southall Middx UB1 1QF
For the Respondents	MISS A PROOPS (of Counsel) Instructed by: Ms L Atherton Legal Adviser Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


HIS HONOUR JUDGE WILSON

1. This has been the final hearing of the appeal by Mr Shaw against the finding of contributory fault by the Employment Tribunal against the Respondent Company. Mr Shaw has been represented by Ms Heal today and the Respondent Company by Ms Proops and they have each submitted very helpful skeleton arguments which we incorporate into and as part of this judgment. In addition to the volume of cases to which reference is made in the skeleton arguments we have been specifically referred to the judgments in the case of Meek & Birmingham Council [1997] IRLR 250 page 251, Levy –v- Marrable & Co. Ltd [1984] IRLR 583 at 587 E to H, Parkers Bakeries Ltd –v- R E Palmer [1977] IRLR 215 at paragraph 13 on page 217 and Nelson –v- BBC (No.2) [1980] ICR 110 at 120C to 123 and finally Martin –v- Glynwed [1983] ICR page 511 letter G.
2. Ms Heal on behalf of the Appellant contends that the matter should be remitted to a different Tribunal on the issue of quantification of the reduction in the award. She says that the Employment Tribunal has erred in law in failing to state how it resolved the conflict it found in the evidence about events on 19^th November. Continuing on from that failure there was a further error in failing to make plain how it arrived at a 50% contribution by the Appellant towards the circumstances which led to his dismissal. Insofar as the finding of the 50% reduction because of contributory negligence is concerned, the Respondent says that the size of the reduction itself makes it plain that the Employment Tribunal found in favour of the Respondent over the conflict. We reject that argument as self serving. Secondly, Ms Proops submits that with regard to the further ground of appeal it is only common sense that the Employment Tribunal must have taken into account all of the conduct in arriving at their conclusion. We find that that is only a partial answer because it does not address the important one which is that of quantification. We find that, at the moment, there is no explicit statement made about how the 50% was arrived at. Insofar as each party is entitled to know how it lost or won and the degree to which it lost or won, that is a fault which must be remedied and we have considered whether it should be to a new Tribunal or to the Tribunal which heard this case. We have decided that it should go back to the Tribunal which heard the case for it to remedy the lacuna in its decision and we have come to that conclusion because there is not attack on the finding of the Tribunal itself, merely the complaint concerning the way at which they arrived at their quantification and the way in which they resolved the conflict of evidence about events on 19^th November. If the matter were to go back to a freshly constituted Tribunal it would in effect be a complete rehearing by the backdoor and without any legal justification.
3. We therefore order that the case should go back to the original Tribunal for it to amplify its reasons about the conflict of evidence on 19^th November and what its findings were and to amplify its reasons so that it is plain how it reached its contribution. It may well be that in approaching those matters it will reconsider the question of contribution and quite plainly it will be open to the Tribunal to do so, if it sees fit.