United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT OR THE RESPONDENT


 


JUDGE ALTMAN

1. This is an Appeal from the Employment Tribunal sitting at Carlisle, on 17, 18 and 19 March 1999 when a unanimous decision was reached that the Respondent was unfairly dismissed and the Appellants were ordered to pay compensation of £7,054.56. The Appellant appeals on the ground that the Tribunal erred in law in making no deduction in relation to either the basic or compensatory award on the grounds of the contribution of the Respondent.
2. Because of the order we propose to make it is neither necessary nor desirable to go into a great deal of detail and we express no views about the merits of the argument that there was or was not any contribution.
3. Briefly the Respondent began work for the Appellants on 24 November 1986 as their club steward. He was essentially responsible for running the club. There were a number of matters of complaint between 1993 and 1996 about the Respondent's conduct and attitude with a final warning being issued in September 1997. However, the facts that gave to rise to dismissal come about because the Appellants' club has a games room upstairs which has a bar. It has a lounge downstairs which has a bar. The downstairs bar closed between 4.30 and 8 00 pm but "the Nap club" used to drink there. During that period of closing they were left unsupervised. It was more comfortable for the elderly and disabled than going upstairs. They could go and collect drinks from upstairs at the bar, which remained open.
4. The Respondent's practice was to leave the door from the hall into the lounge open so that access could be gained even when he was not there and the downstairs was closed. It followed that it may be that that door was open even when there was no one in the lounge.
5. The Employment Tribunal found this went on for a number of years. They found that members of the club knew about it, though they made no finding on the face of it that any other committee member or that those responsible for the dismissal knew about it.
6. In June 1998 there was a burglary in the club. The burglar gained access through the unbolted door from the hall into the lounge where he forced the bar shutter and took £400 and some stock. There was a disciplinary hearing. The committee did not believe the Respondent's description of his practice. They did not investigate its truthfulness. They decided his behaviour warranted dismissal and following the Respondent's unsuccessful appeal he was dismissed.
7. The conclusions of the Tribunal appear to have been that the procedure adopted by the Appellant was more or less fair to the Respondent but that the dismissal was unfair, particularly in relation to the Appellant's failure to investigate the Respondent's explanations and in relation to their consideration of warnings which related to incidents which were mostly stale.
8. From the decision we are uncertain whether the Employment Tribunal considered that they would have expected a reasonable employer to impose a lesser penalty or no penalty at all. And on the face of the decision, as was flagged up at the judgment on the preliminary hearing before the Employment Appeal Tribunal, the Employment Tribunal appear to have made no findings of fact as to the extent of the Respondent's responsibility for security and the implications of that.
9. When they came to consider the question of contribution the Employment Tribunal did say in paragraph 28 the following:

"The Tribunal do not consider it just and equitable to make any reduction on account of conduct or a Polkey reduction."

10. No reasons for that decision appear on the face of the decision and because there are no specific findings within the decision as to the Employment Tribunal's view of the Respondent's conduct it is impossible to discern from the decision the reasons upon which the decision in paragraph 28 was based.
11. In the body of the decision the Employment Tribunal understandably were concerned with the reasonableness of the employer on the material available to them and not with the Tribunal's own assessment of the merits of the case. When it came to contribution of course the Tribunal's own assessment would have become central.
12. We have directed ourselves to the decision of the Employment Appeal Tribunal in Portsea Island Mutual Co-operative Society Limited v Reece [1980] ICR 260 and the judgment of Kilner-Brown J at page 264 Letter G.

"When contribution is in issue there is always some reference in the decision. In any event, as Mr Field points out, the Chairman here was in breach of rule 8(2) of the schedule to the Industrial Tribunals (Labour Relations) Regulations 1974 (The fore runner of the present regulation) which says quite plainly in terms "the decision of a Tribunal should be recorded in a document signed by the Chairman which shall contain the reason for the decision. Of course, normally that simply means the substantive question, but it is just as much a decision to say "We find no contribution" as it is to say "there was an unfair dismissal" and, in our view, the Industrial Tribunal Chairman was in error in not including it in the written, recorded and circulated reasons."

13. It seems to us that the same principle applies in the current case. Whilst the Employment Tribunal gave their decision, they did not give any reasons for it. It appears that they did not reach the stage where they formed their own judgment about the conduct of the Respondent so as to be able to give their reasons in relation to that decision.
14. We do not have the information before us upon which we can substitute our judgment or make an assessment of the evidence. Neither party has appeared before us today and we have effectively, although not expressly, been invited to consider this case in their absence.
15. Since the Tribunal, over a hearing of 3 days, considered a great deal of evidence and knows the case very well in relation to all other matters, it would be out of all proportion for us to set aside the whole of their decision and require a re hearing.
16. We do however, set aside their decision that there should be no reduction on account of conduct in relation to the basic and compensatory award. And we remit this case to the same Tribunal, constituted so far as possible by the same Chairman and members, so that they can consider their own findings in relation to conduct and re-consider their decision and express their reasons for it.
17. We are fortified in our own knowledge that Employment Tribunals may reach the same or a different decision to that which they have previously reached without any embarrassment on a proper consideration of the material before them. We note the way it was expressed when a similar course was adopted in the Portsea case by Kilner Brown J when he said:

"On the question of contribution the matter is remitted to the same Industrial Tribunal for re consideration and, we hope, in a perfectly reasonable open minded fashion the question of whether or not there had been any contribution on the part of this employee."

This case is remitted in exactly the same way for re-hearing.