United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS MARTIN (Solicitor) Instructed by: Messrs Ward Hadaway Solicitors Sandgate House 102 Quayside Newcastle Upon Tyne NE1 3DX
For the Respondent	MR T MILBURN (of Counsel) Instructed by: Messrs Jordans Solicitors The Woolstapler 8 Cheapside Wakefield West Yorkshire WF1 2SD


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about unfair dismissal. We will continue to refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Respondent in proceedings against the reserved majority decision of an Employment Tribunal sitting at Leeds, Chairman Mr C T Grazin dissenting, promulgated with Extended Reasons on 22 September 2002. The Applicant was represented by Mr Milburn, the Respondent by Miss Martin, there and here. The Applicant claimed unfair dismissal, disability discrimination and wrongful dismissal in breach of contract. The Respondent contended the dismissal was fair, not wrongful and not connected to any disability.
3. The essential issue, as defined by the Employment Tribunal was to decide on fairness, under the Employment Rights Act 1996, section 98 (4). It put it this way:

31 "The real issue, however, in this case is whether the Respondent acted reasonably in treating the reason for the dismissal as a sufficient reason in all of the circumstances. We have considered all of the factors which are set out in section 98 (4) of the 1996 Act. As was clear from the submissions of both representatives, the real issue in this matter is whether the Respondent acted "in accordance with equity." It was not in dispute that, in the absence of the comparison with Mr Miles, dismissal for fighting in a colliery is a dismissible offence and that the sanction of dismissal is within the band of reasonable responses for an offence of that nature."

4. The reason for dismissal was conduct under section 98 (2). There was no issue as to the fairness of the procedure adopted by the Respondent (see Reasons, paragraph 15). The Tribunal had already dismissed the Disability Discrimination Act 1995 claim and, by agreement of the parties, held back on any decision relating to wrongful dismissal and, as will become relevant, contribution for unfair dismissal.
5. The Tribunal found, by a majority, that the Respondent unfairly dismissed the Applicant and set a date for a remedy hearing which has been put back pending this appeal.
6. The Respondent appeals against the substantive finding on grounds set out in a Notice of Appeal, a Skeleton Argument and oral submissions today. The essential submission is that the decision was perverse.
7. Directions were given in this appeal by Burton P. The case has now come before us and we are giving a judgment in a case less than three months from the service of the Notice of Appeal and eight months after the Originating Application.

The facts

8. Miss Martin was unable to tell us much about her client and the Employment Tribunal tells us nothing. It is the successor to British Coal Corporation. It runs collieries, including the Prince of Wales Colliery, Pontefract, West Yorkshire, where the Applicant was employed. The Respondent employs people in approximately 10 pits but sadly the Prince of Wales has now closed.
9. The Applicant was employed as a Command Supervisor, which used to be called a Deputy or an Official, from 25 November 1975 until the relationship ended by his dismissal on 7 March 2002. He was a member of the appropriate trade union, NACODS, and was represented throughout by officers of that union in the internal procedures.
10. There had been an incident underground at the pit on 1 March 2002. A complaint was made by Mr Miles that the Applicant had been down the pit and he said this:

6 "He questioned why I was not on at 10.00 p.m. to do on heating and said I should stop through to do one. I explained to him I was ordered on by the Shift Manager and stated that it was not for him to start deploying me. At this point he struck me in the face with his helmet in a fit of rage. I pushed him towards the ring legs trying to restrain him but he kept hitting me with his helmet, so I struck him in self defence."

11. An investigation into that complaint by Mr Miles was conducted by Mr Whyatt. Potential witnesses were interviewed, although none cast any light. The evidence before the Tribunal was that Mr Whyatt had received an admission by the Applicant that he was the first person to use any form of physical force. The degree of physical force was found to be a connection between the Applicant's helmet in his hand and Mr Mile's helmet on his head. The Applicant's case was that this was a mere tap.
12. The Applicant had given a statement in relation to how the events started that night. He said this about Mr Miles:

13 "He said I was not his boss I said I was, but it was jokey. He said I was fucking nothing. I was only fit to be in charge of a mental institution. I gave him a tap on his helmet. I realised I'd gone too far but he just attacked me before I could apologise. We ended up having a scuffle and some of the lads came and broke it up…As he walked away he said "you are done now"."

13. The investigation continued in front of Mr Whyatt and a further investigation occurred in relation to disciplinary action against Mr Miles. The union officers representing both men made cases in mitigation. Mr Miles, as it is common ground, had an unblemished record. The Applicant was subject, in 1998, to a written warning. He had orally abused HM Inspector of Mines underground and as a result of that, on 22 July 1998, the relevant director issued the Applicant with a warning "which will be retained on your records for twelve months." He had been given a final warning but it was reduced on appeal to a formal written warning.
14. A number of points were made before the Tribunal about the nature of the representation respectively of the Applicant and Mr Miles by the union officers. In mitigation it had not been suggested that the Applicant did not have a record. The relevance of the record will become important in a moment.

The disciplinary regime

15. A decision was made by Mr Whyatt to dismiss the Applicant on 7 March. The appeal procedure was operated by the Applicant and eventually he went to Mr McPhie. Mr McPhie candidly accepted that he would have dismissed both men as a result of this incident. Nevertheless, Mr Miles was not dismissed but the Applicant was.
16. The disciplinary regime in place at the Prince of Wales Colliery is modelled upon the ACAS Code of Practice. In particular there are references to the formal written warning, which the Applicant was given in 1998. It provides as follows:

28 "This will be given in cases of minor infringement or lapse where…:

(2) there is no current formal warning but the facts call for action more severe than a formal oral warning…

29 A formal written warning…will set out the nature of the misconduct…the reason for the disciplinary action…the nature of any other disciplinary action to be taken and the likely consequence of any further misconduct (not necessarily only of the same nature as that in question) or of failure to improve.

30 A formal written warning will be disregarded after one year."

It is also noted in these disciplinary rules:

44 "Any personal disciplinary record will be disregarded after one year."

The word "disregard" appears on a number of occasions and indeed that is the word used in the ACAS model (see, for example, paragraph 18, providing the template for the Respondent's own set of rules).

17. The Tribunal directed itself by reference to section 98 of the Employment Rights Act 1996 and what we hold to be the relevant authorities, to which we will come in a moment. The Tribunal made a decision which was split; the Chairman in the minority.

Submissions

18. The Respondent's case today is that the Tribunal erred in law. It should have followed the authorities which provide that two issues distinguish the cases of the Applicant and Mr Miles. They are causation (that the Applicant admitted striking the first blow) and that Mr Miles had no disciplinary record. It is contended that these two matters were the basis of a valid distinction which is rational.
19. The Respondent follows the ACAS Code, which entitles it to dismiss for fighting and constitutes that as gross misconduct, irrespective of the existence of any previous warning. It was contended that no issue was taken by the NACODS representatives about the Applicant's record. If no attention were given in a disciplinary situation to a previous disciplinary event the purpose of keeping disciplinary records would be nugatory.
20. As to causation, Miss Martin submitted that Mr Miles acted in self defence following a fight caused by the Applicant. This too can be a rational distinction between the two men. Miss Martin submitted that the Tribunal Chairman in his minority judgment had found that the alternative position of the lay members, at least in respect of the disciplinary record, was unsustainable.
21. Mr Milburn for the Applicant contended that the Employment Tribunal had fully in mind the disciplinary record and the majority was correct when they decided that the men were in the same position; in other words, that the disciplinary record of the Applicant should have been disregarded and as to causation, the findings of the majority were that both men were equally culpable. These two issues were fully worked through by the majority and found to be not rational distinctions. Reliance was placed on the meaning of "disregard" in the Rule and in the ACAS Code. As Mr Milburn put it, "disregard" should mean that no account is taken of them.
22. On the issue of causation Mr Milburn submitted that there was provocation by Mr Miles and he relied on the language which we have cited. Effectively both men were engaged in a fight and there was not a rational distinction to be made, given that it is common ground that there was a tap to the helmet and not serious.

The legal principles

23. The relevant principles to be applied to the approach to an issue of disparity appeared to be as follows:

(1) An employer is required to consider the case of each employee on its own merits which includes taking into account any mitigating factors:

"The requirement that employers must act consistently between all employees means that, before reaching a decision to dismiss, an employer should consider truly comparable cases of which it knows or ought reasonably to have known. The overriding principle must be, however, that each case must be considered on its own facts and with freedom to consider mitigating aspects. Not every case of leniency should be considered to be a deviation from a declared policy."

(Proctor v British Gypsum Ltd [1992] IRLR 7 EAT, Wood P).

(2) "Where two employees are involved in an act of gross misconduct it is not unfair to dismiss one employee and retain the other provided there are reasonable grounds for treating the employees differently."

(Frames Snooker Centre v Boyce [1992] IRLR 472).

(3) "An employer is acting reasonably and within the band of reasonable responses if it acts on the conclusions and findings of investigating officers where two employees are involved in an incident and the officers decide to dismiss one employee and not the other, provided that the decision is not irrational."

(Securicor Ltd v Smith [1989] IRLR 356 CA)

(4) "Disparity of treatment can be unfair." See Hadjioannou v Coral Casinos Limited [1981] IRLR 352 at paragraph 25, per Waterhouse J who said this:

"We accept that analysis by Counsel for the Respondents of the potential relevance of arguments based on disparity. We should add, however, as Counsel has urged upon us, that industrial tribunals would be well to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by [section 98 (4)]. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation."

This passage was endorsed with approval by Beldam LJ in Paul v East Surrey District Health Authority [1995] IRLR 305 at paragraph 34.

(5) "In cases where there is a disparity a Tribunal must consider whether the dismissal fell within the range of reasonable responses and ask itself whether the distinction made by the Respondent between two employees was irrational. It should not substitute its own view for that of the employers"

(London Borough of Harrow v Cunningham [1996] IRLR 256 EAT Judge Peter Clark)

(6) The guiding principle should be that laid down in Securicor v Smith and Harrow v Cunningham above. As Peter Gibson LJ said in Walpole v Vauxhall Motors Ltd (Unreported, Court of Appeal, 24 April 1998); giving the judgment with which the other members agreed:

"All that those cases do is to state the common sense proposition that where two employees who have committed the same offence are treated differently by the employer, the industrial tribunal should ask whether the distinction made by the employer was within the band of reasonable responses open to the employer or so irrational that no reasonable employer could have made it. I have no reason to think that the industrial tribunal did not apply that common sense rule which hardly needs any authority."

24. Those are the principles that we apply to our approach to this case and they are largely the cases relied upon by the Employment Tribunal for making the decision that it did. In addition, we have been referred to Chief Constable of The Thames Valley Police v Kellaway [2000] IRLR 170 EAT Morison P at paragraph 45. It is said this decision should inform the approach we would take to a split decision for the President said this:

45 "If this were a case where the two lay members were inviting the Tribunal to reach an unsustainable decision, the Chairman would have, and we think should have, been prepared to say so in the dissent. The Chairman does not do so, although he expressed, cogently, why he had disagreed on certain facts. In many ways, the fact that the majority accepted some but not all of the Applicant's evidence and some but not all of her complaints shows that they must have carried out a careful analysis of all the evidence, before upholding four of the eight complaints. Further, the fact that this was a 'split' decision is a good indicator of the care which must have been taken by all three members. The fact that the decision was split does not lead to the conclusion that it is somehow especially suspect; rather the contrary."

Conclusions

25. The Employment Tribunal Chairman has laid out most carefully the common ground between the members of the Tribunal and shown us precisely the distinction between himself and the two lay members. In short, the Tribunal majority decided that there were no rational reasons for distinguishing the cases of the Applicant and Mr Miles. On the issue of the Applicant's record, the majority decided that the two men should have been given credit for an unblemished record. Given the approach to the ACAS Code of Practice and the disciplinary rules of the Respondent, had the approach been applied correctly, the Respondent should have disregarded of his previous record. The majority criticised the Respondent for not making a rational distinction in that respect.
26. Secondly, the Tribunal decided that the causation issue applied equally to both men. It is true that the majority had in mind that the Applicant had struck the first blow, since it was common ground; but, as they put it, it does not amount to any sufficient justification for a physical fight between the two men, or to any rational distinction as to the position of the two men. The blow was a tap to a miner's helmet and the majority found that the evidence pointed to both men being equally responsible for the actual fight. In other words, who struck the first blow was not a rational distinction given the provocation to which the Applicant was subjected and the equal blame attributed for these two supervisors getting involved in a fight underground. Again, the majority decided that applying Securicor v Smith the Respondent had not displayed a rational distinction.
27. The Chairman, in his disagreement, said that the Respondent was entitled to have regard to the Applicant's personal file on an indefinite basis. He said this:

37 "It would be standing logic on its head to say that the Applicant was a man of previous good character during the entirety of his employment when, within four years prior to this incident, there had been a disciplinary offence, albeit that was of a different nature. The minority does not read the ACAS Code of Practice as requiring the Respondent to act in that way."

28. The Chairman drew a distinction between the use of previous record as background and its purpose in "totting up". That is a familiar term in crime as in employment. No automatic penalty obtained in this case since the previous warning had been spent, but the Chairman felt that it was illogical not to allow a Respondent to consider it. On that basis Miss Martin submits that the Chairman has indicated that the majority view is unsustainable for the purposes of the Chief Constable of The Thames Valley Police v Kellaway case.
29. In our judgment the Chairman's view is incorrect by reference to the language of the Code and of the disciplinary rules of the Respondent. Disregard must mean what it says and the scope of the formal warning is finite, being on the record for 12 months. In those circumstances the majority view that a reasonable employer should treat the two men equally is one which is entirely rational.
30. The Chairman's view as to the second issue, causation, accepts that the fight was a matter of equal culpability, but goes on to say that the Respondent was entitled to take the view that the helmet was used as a weapon, whatever the provocation. It is not clear whether that was the Respondent's view. The Respondent seemed to operate on the basis that the blow was struck first by the Applicant. But as we have indicated by reference to the majority's view, given that the finding by all three members of the Tribunal is of equal culpability, a rational distinction between the two men is not possible.
31. It should also be noted that the dismissing officer, Mr Whyatt, had in mind the disciplinary record of the Applicant since he knew it. The submission of Mr Milburn is that the matter should have been put out of his mind when it came to what might be described as sentence. We agree.
32. In these circumstances we consider that this difficult case has resulted in a judgment which was freely open to the majority of the Employment Tribunal. We accept the force of Mr Justice Morison's injunction as to split decisions, and this case as we have seen involved a good deal of examination of the factual issues and the arguments in chambers by the disagreeing members of the Tribunal.
33. In our judgment, this was a difficult decision to come to but it is a question of fact for the majority and the minority. We detect no irrationality in its decision and we uphold the judgment of the majority.
34. We are happy to note that a date has been re-fixed for March for a remedy hearing. No doubt the parties in this case will have fully in mind the final paragraph of the Employment Tribunal's decision, which represents a unanimous view, that the Applicant should realise that there must, on any basis, be some element of contribution on his part. We hope that it may be possible for the parties, with the good sense of representatives including the trade union, to reach a settlement without coming forward to a hearing. As we have been told, the pit is now closed; so it seems that the likely remedy would be compensation and finite at that. Those are matters for mature advice, otherwise for a remedy hearing before this Employment Tribunal and we pay tribute to the careful way in which the Chairman has set upon the difficult task of presenting fairly a view which was not his.