United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR JONATHAN MIDDLEBURGH (of Counsel) Messrs Bhagwandeen & Co Solicitors 331 City Road London EC1V 1LJ


 


JUDGE PETER CLARK: This is an appeal by the respondent employer before the Middlesbrough Employment Tribunal, Walter Thompson (Contractors) Ltd, against that tribunal's decision, promulgated with extended reasons on 2nd September 1999, upholding the applicant, Mr Wheldon's complaint of unfair dismissal and finding that he had contributed to his dismissal to the extent of 50%.

1. The relevant facts as found by the tribunal were as follows.
2. The applicant was employed by the respondent as a plant operator from and since 1st September 1981 driving excavators.
3. He had received four disciplinary warnings between May 1990 and April 1998, none of which were taken into account by the respondent when they finally dismissed him. The tribunal also record that there was an earlier incident of the applicant having tipped up his JCB, but he did not receive any warning for this and was not disciplined. We think that the word 'not' has been omitted from subparagraph (e) of paragraph 2 of the tribunal's reasons.
4. On 2nd November 1998 the applicant was operating a Case digger at a site in Stokesley. As he moved the digger it toppled over, thereby sustaining damage. At the time the applicant was operating the digger it had the back acter and front bucket raised, contrary to the express instructions set forth on a sticker inside his cab. The applicant was aware that the digger was unstable if operated in this way. However, he maintained that the digger toppled over because it had caught in a rut and that he had raised both the front and the back items in order to allow workers to pass.
5. Disciplinary steps were taken by the respondent in relation to this incident as follows. On the same day Mr Fordy, one of the two joint managing directors (the other being Mr Caygill) told the applicant that he could either sack him immediately or suspend him for two days without pay. The applicant said that he would prefer to be suspended. In fact, the respondent had no contractual entitlement to suspend without pay. His lost pay during suspension was later made up to him.
6. On 5th November a meeting was held at which Mr Fordy told the applicant that he was "dismissed until further notice."
7. An inspection was then arranged by the manufacturers of the Case digger. That inspection took place on 24th November and the respondent received a verbal report later confirmed in writing on 2nd December. The accident was put down to driver error caused by operating the equipment with the front bucket and back acter raised.
8. The following day, 25th November, Mr Fordy wrote to the applicant summoning him to a disciplinary hearing on 30th November. On that occasion the applicant attended with a Mr York. The upshot was summary dismissal for gross misconduct, back-dated to take effect on 2nd November, the date of the relevant incident.
9. Against that decision the applicant appealed internally. The appeal was heard by Mr Caygill on 17th December 1998, he having earlier discussed the matter with Mr Fordy. The appeal was dismissed.
10. Having considered the facts and arguments presented on behalf of the parties, the tribunal found that the reason for dismissal was the applicant's conduct but that the dismissal was both procedurally and substantively unfair in the following respects:

(a) Mr Fordy had clearly prejudged the issue when he attended on site and before any investigation was completed by him, told the applicant that he could accept either instant dismissal or suspension without pay. This clearly indicated, in the tribunal's judgment, that Mr Fordy, who ultimately with the disciplinary hearing, had prejudged the matter.

(b) Failure to carry out any adequate investigation contrary to the test set out in British Home Stores v Burchell [1978] IRLR 379, by failing to enquire as to witnesses (there had been a large number of people on site) and to obtain statements.

(c) Failing to take any statement from the applicant.

(d) Failing to disclose the statement given by the site manager to the applicant.

(e) Suspending the applicant without pay contrary to the company's rules and the general law.

(f) Treating as an offence justifying summary dismissal a matter which no reasonable employer in the circumstances would consider justified dismissal, taking into account the way in which such a matter had been regarded in the past and bearing in mind that the respondent was not taking into account any past disciplinary action.

(g) Failing to take into account the very long history of service by the applicant with the company and his age and the difficulty he would experience in obtaining any further employment, the respondent having an obligation to consider these matters even if they were not specifically raised by the applicant.

(h) Operating an unfair appeal in that the person holding the appeal had clearly discussed the matter with Mr Fordy who had been the person who had both investigated the matter (inadequately) and held the disciplinary hearing and dismissed the applicant.

11. The tribunal went on to find that the applicant had contributed to his dismissal to the extent of 50% by his culpable conduct in operating the digger in a way which he knew to be dangerous from his training and from the warning inside his cab.
12. In this appeal Mr Middleburgh has attacked each of the findings on which the tribunal relied in concluding that the dismissal was unfair. In submissions before us today he has focussed his attack on the apparent finding by the tribunal at paragraph 6(f) of their reasons, in relation to the band of reasonable responses test. He submits that in finding that no reasonable employer in the circumstances would dismiss for this offence, the tribunal has fallen into the trap of substituting its own view for that of the employer.
13. We have carefully considered that submission and we reject it. It seems to us that the tribunal properly applied the test of the range of reasonable responses and found this respondent wanting, bearing in mind the incident to which we earlier referred where the applicant tipped up his JCB but was not disciplined for it. The tribunal concluded, permissibly we think, that this showed an inconsistency of treatment such as to render the dismissal unfair. However, that focuses only on one of the grounds on which the tribunal found the dismissal to be unfair.
14. We have considered the submissions made in writing by Mr Middleburgh in relation to each of the other grounds relied on by the tribunal, and we are unimpressed by them. We think that the tribunal was perfectly entitled to conclude, for the reasons which it gives at paragraph 6, that this dismissal was unfair.
15. So far as the question of contribution is concerned, the finding of 50% is attacked in this appeal. It is said that such a finding does not properly reflect the degree of culpability on the part of the applicant and that a proper finding would have been a 100% contribution.
16. Again, we have considered that submission and we reject it. We bear in mind the guidance of the Court of Appeal in cases such as Hollier v Plysu [1983] IRLR 260. The question of the degree of contribution is essentially a question of fact for the tribunal; our powers to interfere are limited to cases in which it can properly be said that the tribunal's conclusion is perverse. We are not satisfied that it is arguable that such a finding would be made at a full appeal hearing.
17. In these circumstances, we must dismiss this appeal.
18. Leave to appeal is formally rejected.