United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	SEAN JONES (of Counsel) Instructed by: Messrs Wagge & Co Solicitors 55 Colmore Row Birmingham B3 2AS
For the Respondent	TARIQ SADIQ (of Counsel) Instructed by: Messrs Jack Thornley & Partners 64-66 John William Street Huddersfield West Yorkshire HD1 1EH


 


MR COMMISSIONER HOWELL QC

1. This is an appeal by the employer, Stonehouse Battye Ltd, against the decision of the Leeds Employment Tribunal sitting on 25 May 2000, set out in Extended Reasons issued to the parties on 7 June 2000, in which it was held that Mr Philip Jackson had been unfairly dismissed from his employment in the Appellants' mill as a wool blender on 23 November 1999, after being involved in a fight at the workplace on 16 November 1999.
2. The grounds of the appeal are that the Tribunal misdirected themselves in three ways material to whether their decision can be allowed to stand: first, they addressed the wrong initial question for the purposes of Section 98(1) Employment Rights Act 1996 in assuming for the purposes of their decision that it was necessary for the employer to show not only that its actual reason for the dismissal had been one relating to the employee's conduct within Section 98(2)(b) ibid, but also that it was for the employer to show that its reason had been factually correct or based on reasonable grounds. Second, the Tribunal had applied the wrong test in relation to the issue of fairness under Section 98(4) ibid by asking themselves whether they considered the decision to dismiss had been unreasonable having regard to their own assessment of the evidence on which the decision had been made, rather than by applying the long established test of whether the employer's decision and the way it was arrived at could be said to be within the band of reasonable responses for a reasonable employer. Third, the Tribunal had wrongly taken account of matters other than the employee's own conduct (in particular their own impression on the evidence that the co-employee involved in the fight had been equally responsible for it) in assessing the proportionate reduction to be imposed on the compensatory award under Section 123(6), and in particular in only reducing it as they in fact did by 50%.
3. The first two of those contentions reflect the fact that this decision of the Tribunal was given on 7 June 2000, and (entirely properly for an Employment Tribunal determining a case of unfair dismissal on that date) referred to and applied the then recent decisions of the Appeal Tribunal in Haddon v Van Den Bergh Foods Ltd [1999] ICR 1150 on 29 September 1999 and Midland Bank Plc v Madden [2000] ICR 288 on 7 March 2000, to which the Tribunal expressly referred at paragraph 21 of their Extended Reasons in directing themselves as to the law to be applied. Of course, as is now well known, each of those decisions was shortly afterwards shown to be incorrect on the crucial points at issue for this appeal, by the further decisions of the Appeal Tribunal in Beedell v West Ferry Printers Ltd on 7 July 2000 and the Court of Appeal in Foley v Post Office on 31 July 2000 (both now reported, in [2000] ICR 1263, 1283, a subsequent appeal to the Court of Appeal in Beedell having been formally dismissed); so there could hardly have been a more difficult or more unfortunate time for the Employment Tribunal to be addressing the issues on which this particular case depended.
4. The facts, to which the Regional Chairman and his colleagues who formed the Tribunal on 25 May 2000 had to apply the law in its less-than-certain state on that date, can be summarised from the Extended Reasons relatively briefly. Mr Jackson had been employed by Stonehouse Battye in their Flush Mill at Heckmondwike in Yorkshire, as a general mill worker and blender continuously from 2 February 1988 until the events which led to his dismissal in November 1999. The only material disciplinary offences on his record were for timekeeping, with several warnings for lateness during 1999, the most recent of which had been given to him by his Wool Manager Mr Gibson on 10 November 1999. That was at a disciplinary hearing when Mr Jackson had given the explanation (for the first time, so far as Mr Gibson was concerned) that his lateness was due to someone at work tampering with his bike. Mr Jackson felt sufficiently strongly about this to lodge a written appeal against his warning for lateness, saying in a letter he gave to Mr Gibson probably on 15 November,

"Some bastard at work had let the tyres down on my bike and took the gears off, therefore I could not take my bike home, causing me to be late the next morning. My point is why should I be punished for somebody pissing about causing me to be late, when it wasn't my fault. If they were better supervised, they wouldn't have time to mess about."

5. The later disciplinary investigation which led to Mr Jackson's dismissal confirmed that at least one of his fellow employees had indeed been messing about with his bike when he left it at the mill; moving it from where he left it so that he could not find it again, and letting down the tyres as part of what seems to have begun as a generalised game of annoying him, though he jumped to the wrong conclusion as to who had been responsible. On 11 November (the day after his warning for lateness) Mr Jackson had been heard accusing another employee, Mr Lee Walton, of being involved or at least knowing where his bike was, but by the following day appeared to have let the matter drop. The letter to Mr Gibson maintaining the complaint (though without naming any names) was probably handed in by Mr Jackson after the intervening weekend, on 15 November which was a Monday. The following day, according to the evidence in the disciplinary investigation which was not in dispute, there was a good deal of banter in the canteen at the morning lunch break. It started with Mr Jackson bringing up the complaints about his bike again, and carried on between him and Mr Walton, who was sitting at another table, with Mr Jackson calling Mr Walton a "Welsh bastard" in what one of the other employees who heard it thought was a good natured way. Although a different employee observed that:

"Lee did not respond and I thought that he could have been hurt",

Mr Walton's own evidence to the disciplinary inquiry had not borne that out but suggested it had not made any significant impact on him, saying such comments were:

"…..things which I mostly ignored. We normally take the "Mickey" out of one another".

6. When the break was over, all the employees simply went back to work; and so far as the material evidence referred to by the Tribunal goes, there was nothing in these exchanges that gave rise to any suggestion of physical violence, or the risk of it. The sequence of events was then as follows. After Mr Jackson had gone back to his workplace, Mr Gibson, the Wool Manager, came and asked him at approximately 12.30 pm if he was available to work overtime that afternoon. Mr  Gibson's statement to the disciplinary enquiry, quoted by the Tribunal at paragraph 4 of their Extended Reasons, continued:

"He said that he could not, and could not guarantee to be on time the following morning because someone had been tampering with his bike again. I told him that this was his problem and no excuse for being late. He then accused Lee Walton of being the culprit ……

I left him and went into scouring to have a word with Lee, emphasising that I was not accusing him of being involved. He assured me that he had not touched Philip's bike. I left it at that and went into the wool warehouse for a few minutes."

7. About five minutes after that, as recorded by the Tribunal at paragraph 10 of their Extended Reasons, Mr Walton left his own workplace in the scouring department and went of his own volition to where Mr Jackson worked. According to Mr Walton's own evidence and that of another employee who witnessed what happened, Mr Walton approached Mr Jackson in a provocative fashion, mimicking riding a bike and singing a song about grass which was an obvious accusation about the complaint made to Mr Gibson. The two men then faced up to each other and a short scuffle ensued, in the course of which Mr Jackson was seen to push Mr Walton away, and Mr Walton was seen to grab Mr Jackson by the neck. The two men then let go of one another, and did not have to be separated by their co-employees, who were by this time encouraging them to pack it in. Mr Jackson himself seems to have immediately gone up to the Factory Manager's office; and the disciplinary inquiry, conducted by Mr O'Connor, the Factory Manager, ensued.
8. Matters then moved up another level, with a disciplinary hearing conducted on 23 November 1999 by Mr Lomas, the Spinning Operations Executive. Mr Jackson was present and represented by a Ms Mumford of his trade union. In the words of the Tribunal:

"Mr Lomas's view of the fight was that each antagonist was equally to blame for it happening. He also concluded that each had deliberately, and in a calculated manner, provoked the other over a period of time ……He saw the applicant as having continued to goad Mr Walton by using provocative, foul language [in the canteen]. He believed that the applicant recognised that things were getting out of hand and yet took no steps to avoid escalating the strained situation. From the statements and the evidence at the disciplinary hearing of the applicant, he believed that his actions had been premeditated. That evidence included an assertion by the applicant that on the previous day, the witness Mr Sullivan, had been sending messages down to Mr Walton saying that they would get a fight started somehow. The fact that the applicant's actions had been premeditated and deliberately provocative influenced his decision to dismiss ……"

9. Before the Tribunal, Mr Lomas referred to the Respondent's disciplinary procedure which lists fighting as an example of gross misconduct normally punishable by summary dismissal, though Mr Lomas's own evidence was that a distinction was in practice made between premeditated violence and spur-of-the-moment incidents which had just boiled up: his conclusion was that this fell into the "premeditated" category which was what led him to impose a dismissal. He would not have done so if he had thought it only a "spur of the moment" episode; and it was expressly conceded on the employer's behalf before us on the appeal that if the violence in this case could not reasonably have been regarded by the employer as premeditated, the dismissal would not have been fair having regard to the lesser penalty imposed in other spur-of-the-moment cases. Distinguishing such cases, the letter of dismissal written by Mr Lomas following the hearing and his summary dismissal of Mr Jackson on 23 November gave as the reason:

"Extensive provocation leading to an act of violent behaviour, assaulting another employee, Mr L Walton, whilst at work on 16 November 1999."

10. A similar conclusion was reached by the Managing Director Mr Betts, who dealt with Mr Jackson's appeal against his dismissal on 2 December and confirmed Mr Lomas's decision: after speaking to Mr Lomas himself to clarify the reasons for the dismissal, but without then giving Mr Jackson the opportunity to answer any points arising from what Mr Lomas had told him. As the Tribunal recorded in paragraph 17 of their Extended Reasons, this was a "significant failure" in the appeal process, though on the basis of the assumption made by the Tribunal about the way they were required to apply the law under Section 98(1) of the Act, they commented that:

"…it does not go to the heart of this decision"

as in any event they were holding that the employer had failed to show what was required of it by Section 98(1). This, following the decision in Madden, they held to be not only the actual reason for Mr Jackson's dismissal but the justification of that reason as well. Mr Betts's decision, confirming that of Mr Lomas that this was a premeditated fight on the part of Mr Jackson, was that:

"He had provoked the situation with his antagonistic language in the canteen. He had stayed at his workstation to confront Lee Walton and had pushed him."

11. The principal issue of fact between the parties at the Tribunal hearing was, as is apparent from paragraphs 19 - 20 of the Tribunal's Extended Reasons, that question of premeditation, with Mr Jackson asserting that his fight had not been premeditated and that the swearing before it had been "normal banter", and the employer submitting that:

" Messrs Lomas and Betts had been entitled to come to their view of the incident that it had been premeditated"

After referring expressly to the two decisions of the EAT in Haddon and Madden noted above, the Tribunal referred to what they obviously regarded as the principal issue in the case as being whether the employer had shown what was required of it under Section 98(1), and commented that the test of fairness under Section 98(4):

"only obliges us to apply the test in that sub-section where the employer has fulfilled the requirements of sub-section (1)."

12. The major ground for their decision was their view of the first issue, which is shown by what they said in paragraph 22 of their Extended Reasons as follows:

"In this case, we identified the reason as the fight and the view of the respondent that the applicant had set out to have a fight with Mr Walton. It was the latter feature which tilted the decision in favour of dismissal, rather than a lesser sanction. Accordingly, we ask the question whether the respondent has shown that reason. We find that the respondent has not shown that reason, having regard to the evidence which was before its managers."

They then went on to deal with the weight of the evidence about the difficulties with the bicycle, the exchanges in the canteen and Mr Walton's conduct, and concluded:

"We find that the sequence of events as demonstrated in the evidence before the respondent's managers did not support the view that the applicant was deliberately provoking Mr Walton into a confrontation which would provide an excuse for violence. There was no evidence linking Mr Sullivan's message (about starting a fight) with the applicant."

13. Those passages make it clear beyond doubt that, consistently with what was said by the Appeal Tribunal in Madden's case, the Tribunal conceived themselves as concerned under Section 98(1) not only with whether the employer had "shown" that its reason for dismissing Mr Jackson (namely the belief by Mr Lomas and Mr Betts after investigation that he had been guilty of a premeditated act of violence amounting to gross misconduct) was the true reason for having acted as it did, and that this amounted to a reason relating to conduct within Section 98(2)(b), but also with the factual correctness or reasonable justification for that belief. In that, the Tribunal in our judgment clearly erred in law in importing the issues of reasonableness and the content of the investigation into the question in Section 98(1) which is concerned only with what were the actual reasons for dismissal. Thus the first and major ground for their decision embodied a misdirection for the reasons explained in the judgment in Beedell, [2000] ICR at 1276 H - 1277 A, paragraphs 63-64; and Foley, [2000] ICR at 1287H - 1288B.
14. The Tribunal however gave as a separate and free-standing ground for their decision their view that the decision to dismiss was also unreasonable in terms of Section 98(4), since as they explained in paragraph 24 of their Extended Reasons:

"……applying the respondent's own distinction between premeditated and spur of the moment violence, the decision to dismiss was unreasonable because the evidence before the respondent indicated that it fell into the latter category, albeit that there was a background to it. In other words, as a matter of reasonableness, we do not think that this incident was different in principle from those in which final written warnings had been given."

Again this conclusion related directly to the Tribunal's own assessment of the evidence elicited by the employer's disciplinary enquiry, and their conclusion that:

"the sequence of events as demonstrated in the evidence before the respondent's managers did not support the view that the applicant was deliberately provoking Mr Walton into a confrontation which would provide an excuse for violence".

15. On behalf of the employers in the appeal before us, Mr Jones submitted that this passage, coupled with the Tribunal's own reference to the decision of the Appeal Tribunal in Haddon, demonstrated them to have fallen into the error of substituting their own assessment of the reasonableness of the dismissal decision based on their own re-evaluation of the evidence. They had failed to ask themselves, as they should have, whether the employer's decision and the procedure adopted by it had been within the band of reasonable responses for a reasonable employer in the particular circumstances that faced this one, applying the now firmly re-established test for such questions under Section 98(4) explained in Foley -v- Post Office, in particular by Mummery LJ at [2000] ICR 1287 D - H, 1292 H - 1293 A. On behalf of Mr Jackson, Mr Sadiq did not dispute that these are the principles applicable but submitted that on a fair reading of what the Tribunal had said in this case their actual decision could be understood to mean that they were not satisfied this employer had reasonable grounds for the belief that the fight had been premeditated. It needed to be so read since the Tribunal's findings showed the event which appeared to have actually triggered the violence must have been what Mr Gibson, the Wool Manager, had said to Mr Walton, rather than the earlier remarks in the canteen which had passed without incident at the time. The decision should be left undisturbed on that basis, applying the well established principle that the Appeal Tribunal will not interfere with the practical judgment of an experienced Employment Tribunal - this one being actually presided over by the Regional Chairman - on matters of fact and degree.
16. We reiterate that we have considerable sympathy with the Tribunal given the state of the authorities as they stood at the time of this decision, but again we have to accept Mr Jones's submission that the Tribunal's conclusion on the Section 98(4) issue of reasonableness was based on a material misdirection. A Tribunal under the guidance of an experienced Regional Chairman, expressly directing itself at that time to the decision of the Appeal Tribunal in Haddon which propounded what has now been held a materially different and incorrect test from the "band of reasonable responses" approach cannot, in our judgment, be safely held on wording such as that in paragraph 24 of this Tribunal's Extended Reasons ("we do not think") to have been addressing the correct "band of reasonable responses" test all the time: nor do the views expressed by the Tribunal on the details of the evidence show this to have been what they were in fact doing.
17. Because of those two material misdirections we are unanimously of the view that we have to set this decision aside; and although we have given anxious consideration to the possibility, canvassed with both sides in the course of the argument before us, of substituting our own decision on the issues under Sections 98(1) and 98(4) for that of the Tribunal so as to save the parties being put to the trouble and expense of a further hearing, we have had to conclude that it would not be right in this case for us to do so. Each side was, understandably, most enthusiastic about this possibility if the result was to be in its own favour; but we have to bear in mind the established principle that on issues such as those under Sections 98(1) and 98(4) this is a course to be adopted by the Appeal Tribunal only where a final decision one way or the other can be said to be plainly right beyond argument; and this is not such a case. Although it was initially Mr Jones who pressed us to adopt this course by holding that on the Tribunal's findings the employer's decision to dismiss was within the band of reasonable responses in the circumstances before it, it has been laid down by the Court of Appeal in Morgan -v- Electrolux Ltd [1991] ICR 369 at 377E that it is wrong for the Appeal Tribunal to substitute its own decision for that of the Employment Tribunal in that way on an unfair dismissal issue, save in the most exceptional circumstances:

"Unless no industrial tribunal, properly directing itself, could have come to the conclusion that the employee was not unfairly dismissed, the Appeal Tribunal should have remitted the case to the industrial tribunal."

18. We are, for our part, far from being satisfied that this is such an exceptional case: on the contrary it appears to us that it may well be arguable here that the same conclusion would have been reached by a Tribunal on the issue of unreasonableness under Section 98(4) even applying the "band of responses" test. We say that in view of the extreme paucity of evidence before the employer to show any real connection between the banter in the canteen and any later violence when none took place at the time; and the very strong if not irresistible inference from the sequence and timing of what took place afterwards, that what actually precipitated Mr Walton's deliberate approach to Mr Jackson's workplace and the ensuing scuffle had been the conversation five minutes before with Mr Gibson, when Mr Walton first learned that some complaint had been made against him to the management (there being no suggestion against Mr  Jackson that it had been the making of that complaint which had been the "provocation" relied on as justifying his dismissal). In addition, there was the procedural defect in the appeal process remarked on in paragraph 17 of the Tribunal's reasons. But all of that must, in our judgment, be for a fresh Tribunal of fact to go into and assess with the benefit of all the relevant material and evidence before it, which we do not ourselves have.
19. For those reasons, we have concluded that the right course is for this case to be remitted to a fresh Tribunal for rehearing of all relevant issues under Section 98(1) and 98(4).
20. Since any question of remedy will necessarily also have to be reconsidered by the fresh Tribunal in the light of their redetermination of the unfair dismissal issues, it is not necessary for us to say anything about the third ground of appeal argued before us, on the reasons which led this Tribunal to determine that there should be a 50% reduction in the amount of any compensation to be awarded to the applicant. The submissions made to us that under Section 123(6) of the Act any reduction in compensation has to be by reference to actions of the complainant rather than anyone else (see Parker Foundry Ltd -v- Slack [1992] ICR 302), and that in fight dismissal cases reduction of compensation is not simply a mathematical exercise of dividing a notional 100% responsibility by the number of people involved in the fight, can of course be made and amplified to the Tribunal at the rehearing of the case.
21. The appeal is allowed, the decision of the tribunal set aside and the case remitted for rehearing accordingly.