Title: Appeal No
Author: Joe

Appeal No. EATS/0051/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 19 December 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MR J M KEENAN
MR M G SMITH

 

MICHAEL HENRY DUNCAN	APPELLANT

 

THE PARTNERS OF A A HUTTON	RESPONDENTS

 

Transcript of Proceedings
 
JUDGMENT

 

 

 

	APPEARANCES

 

For the Appellant

Mrs Clare Duncan, Solicitor
14 Farmhouse Road
LONDON
SW16 5BQ

For the Respondents

No Appearance
Nor Representation

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employee in respect of a finding by the Employment Tribunal that he was not unfairly dismissed from his employment with the respondents.  There is a cross-appeal in relation to a separate finding by the Tribunal in relation to notice pay on a claim of wrongful dismissal.
 
2.	There was no appearance for the respondents who submitted a letter maintaining their cross-appeal and their opposition to the appeal.
 
3.	The background to the matter is that the appellant was dismissed consequent upon him writing certain material on a card which was being presented to a departing employee.  The employer determined that such amounted to bad or abusive language having regard to the fact that it contained a sexual innuendo.  The employee was charged with such and was summarily dismissed consequent upon a hearing when he was asked to defend himself.  He was therefore given the opportunity to do so.
 
4.	The decision of the Tribunal was in the following terms:-
 
The first matter we have to decide, and this is for the respondents to establish to our satisfaction, is why it was that they decided to dismiss the applicant.  It was clear that they did so because of the comments which the applicant had written on Marie Stewart’s leaving card at R15 which the respondents regarded as offensive and carrying clearly sexual connotations.  Three of their staff were offended by the applicant’s comments on the card and, in the circumstances, it is clear that the applicant was therefore dismissed by reason of conduct which is a qualifying reason for dismissal in terms of section 96(2)(b) of the Employment Rights Act 1996.  That is not the end of the matter however since we then require to determine in terms of section 98(4) whether the respondents were reasonable in treating that as sufficient for the applicant’s dismissal and in our unanimous view, the respondents did indeed act reasonably.  In that connection, the applicant was well aware having regard to the provisions of the warning letter of 21 November 2002 [sic] (R11) that the likely consequence of further misconduct would be dismissal.  When the incident involving the leaving card occurred on 20 September 2002, three employees, one junior and one senior, were offended by the message which the applicant had written on the card and it was accordingly decided that the applicant should be seen at a disciplinary interview for an explanation.  In essence, the applicant’s position was that he saw nothing wrong with what he had written on the card and “he was not bothered about what other people may think”.  That theme was continued over into the appeal, the applicant’s position being that the comments he had made on the card were for interpretation and that alternative meanings, other than sexual ones, could be applied. On any view, the applicant was clearly allowed the opportunity of explaining his position and he did so.  Faced with that explanation, it was the view of the respondents that the comments on the leaving card clearly had sexual connotations, that they were offensive, that three of their staff had complained, that the applicant could have been in no doubt following the warning at R11 of the consequence of further misconduct, and in our view, the respondents’ decision to dismiss fell within the band of responses open to them.  Accordingly, the applicant’s complaint of unfair dismissal fails.
 
However, we were not satisfied that the applicant’s dismissal without notice was justified and in our further view therefore, it was wrongful.  It is clear that in any given case, the degree of alleged misconduct required to establish that an employee’s behaviour amounts to a repudiatory breach is a question of fact and that there are no hard and fast rules.  Past conduct is certainly relevant as, of course, are the terms of the contract of employment. Here, the respondents sought to rely upon their company rule (see R27) involving the “Use of bad or abusive language”.  The language of the note which the applicant wrote on Marie Stewart’s leaving card was neither bad, nor in our opinion, abusive (and in that connection, we bear in mind the applicant’s evidence, which we accept, that late on the evening of her leaving party on Friday 20 September 2002, the applicant was in the company of Marie Stewart and told her what he had written on the card – she laughed about it).  On the other hand, the language certainly did have clear sexual innuendo and, as we have said, it upset three of the respondents’ staff.  However, we do not consider that even against the background of the existing written warning, the note on the card could be said to amount to repudiatory conduct on the part of the applicant which justified summary dismissal.  Moreover, we had in mind that when he was asked why it was that he had taken the decision summarily to dismiss the applicant, Graeme Simpson responded along the lines that it was because of the need to protect client confidentiality.  We accept that in addition, Mr Simpson also had in mind the company rule to which we have referred but the remarks concerning client confidentiality struck us as important.  In all these circumstances, we shall therefore order the respondents to pay to the applicant damages for breach of contract measured by the period of notice which the respondents were obliged to give in terms of the contract of employment at R4 which, in terms of paragraph 8, amounts to four weeks’ notice.  Since we understand that the applicant’s net week’s pay amounted to £145.21 (see the calculations at R29), the damages therefore amount in total to £580.84 and we shall accordingly order the respondents to pay that amount to the applicant.”
 
5.	It is to be noted for the reasons given that the Tribunal supported the dismissal but found the appellant entitled to certain payments consequent upon the common law position as to wrongful dismissal.
 
6.	Miss Duncan, appearing for the appellant, submitted that the dismissal was not within the band of reasonable responses open to the employer in the circumstances, not least because what was written on the relevant card should not be construed as bad or abusive language.  In any event the respondents had not followed their disciplinary procedure.
 
7.	We have little hesitation in rejecting this argument on the basis that the language in question could be described as abusive given its sexual content but, in any event, amounted to conduct which the employer was entitled to regard as sufficiently offensive to warrant dismissal having regard to the fact that offence was taken by a number of their employees.
 
8.	In these circumstances we will not interfere with the decision of the Employment Tribunal in this respect.
 
9.	However, in relation to the cross-appeal, we consider that the payment in lieu of notice is justified having regard to the fact that, while a breach of contract at common law, it might not be regarded as sufficiently material in terms of the language used to be regarded as repudiation. We accept however that the figure should be grossed up and we will so do.  We also consider that the holiday pay that accrued over the relevant period should be added in.
 
10.	In the result the sum properly to be awarded, in our opinion, is £737.42.
 
11.	We will accordingly allow the appeal to the extent of varying the sum awarded to that particular figure.  Beyond that the appeal is dismissed.