United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J EADY (of Counsel) Under the Employment Law Appeal Advice Scheme


 


MR JUSTICE BURTON: This is an appeal by Mr Martley against a unanimous decision of the Employment Tribunal at Reading, in respect of that Tribunal's rejection of his claim for unfair dismissal by his employers, Daler Rowney Ltd.

1. I shall deal only very shortly indeed with the facts, save to say that he was involved in an incident near machinery when he pushed, as the Tribunal found, violently, a subordinate employee in circumstances in which there were clear safety implications.
2. The Tribunal found that the matter was fully considered by the employers, and the issue was fully looked into as to whether the Appellant had been treated in a way which compared unfavourably with the way in which other employees had been treated, and there was, it seems, some considerable evidence about such other incidents as there were, and the Tribunal were satisfied that there was no way in which the Appellant was being treated unfavourably as compared with other fellow employees, or that it could be said that on any previous occasion an incident of alleged violence had been overlooked or that a blind eye had been turned.
3. An issue was raised before the Tribunal as to whether it was unfair that Mr Robertson, who had been a witness of the violent incident and was a supervisor of the Appellant involved in his suspension, had been present when the matter was further considered by the Respondents senior manager, Mr Portsmouth. The Tribunal considered that issue and concluded that Mr Robertson had not become involved in the decision-making process and accepted the "clear evidence", as they described it, of Mr Portsmouth and the "cogent" and "truthful" evidence, as they found it, of Mr Robertson.
4. In those circumstances, the Tribunal reached a conclusion, set out in paragraph 23, that the dismissal was fair, as being within the range of reasonable responses of a reasonable employer, looking at the issue in the round without regard to lawyer's technicalities. It referred to the Court of Appeal decision in UCATT v Brain [1981] ICR 542 and of course, there is also another Court of Appeal authority Iceland Frozen Foods v Jones [1983] ICR 17 in which that way of looking at the matter has been not only accepted but approved and recommended, namely the tribunal not setting themselves up as if it was the employer, but considering whether the employer acted reasonably.
5. On appeal before us today, Miss Eady has understandably and correctly accepted that there were findings of fact by the Tribunal which renders it impossible to say that there was anything unfair in the procedure or, indeed, anything in any suggestion of lack of comparability or in any challenge to the facts establishing that there was a violent incident involving this Appellant for which he was responsible.
6. Miss Eady has concentrated, in her challenge, on her assertion that, because this Employment Tribunal adopted the 'range of reasonable responses test', they erred, in the light of the recent views particularly of Morison J in Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672 as added to by Lord Johnston in Wilson v Ethicon Ltd [2000] IRLR 4. She has informed us that there is an unreported decision of Lindsay J, the present President, in Midland Bank Plc v Madden (17th January 2000) which casts doubt upon those decisions and/or, at the very least, seeks to put them into context. But the fact remains that there are binding Court of Appeal authorities as to how the statute should be interpreted, and those Court of Appeal authorities, whether or not there may be what Miss Eady describes as a difference in view between different divisions of the Employment Appeal Tribunal, are binding upon the Employment Appeal Tribunal.
7. In this case the Tribunal did not set themselves up as the employers, but looked at the decision of the employers and took the view that the decision that the employers came to was a reasonable one in the light of the facts as found, the investigation the employers had carried out and the conclusions the employers had come to; and after reassessing the factual situation, they upheld the employers' case.
8. We do not believe that there is any ground of appeal in this case or that, as submitted by Miss Eady, the use of the reasonable range of responses test by the Tribunal should be a ground for a rehearing. It is not simply the fact that, if it were right in this case, then it would be right in every case decided by an Employment Tribunal over the last 10 or 15 years that if it adopted the reasonable range of responses test, there could then be an opportunity for the bringing of an appeal, so that the matter could be reheard on a different basis; but it is also the fact that on the facts of this case there is nothing to create any doubt in our minds as to the correctness of the Tribunal's decision.