Appeal No. UKEATS/0029/11/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF
At
the Tribunal
On
13 December 2011
Before
THE
HONOURABLE LADY SMITH
MR P PAGLIARI
MRS A HIBBERD
CK
HEATING LTD APPELLANT
MR
MICHAEL DORO RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL
Compensation
Contributory fault
THE HONOURABLE LADY
SMITH
Introduction
1.
This is an appeal against a decision of an Employment Tribunal not to
make deductions from the basic and compensatory awards that were made to the
Claimant, who was found by them to have been unfairly dismissed.
Background
2.
The Respondent is a plumbing business, and the Claimant was employed by
them under a contract of apprenticeship. In November 2008 there was a
severe downturn in the Respondent’s business, and they decided to make one of
their plumbing apprentices redundant. The apprentices were scored, and at a
meeting on 24 November the Claimant was advised that he had been
provisionally selected for redundancy. He was demoralised and he felt his
score was unfair. In particular, he felt that inadequate account had been
taken of him having received the “Apprentice of the Year” award from Cardonald
College earlier that year and that undue weight had been attached to him having
received warnings for his conduct at work, such as in respect of lateness, in
the past. He was invited to attend another meeting with the Respondent on
28 November.
3.
On the morning of 26 November the Claimant was instructed to sweep
the Respondent’s yard and he refused to do so. The Claimant and other
apprentices had been asked to clean the yard on previous occasions and had
willingly done so. The Claimant was asked to attend a meeting with two of the
Respondent’s directors. He persisted in his refusal to sweep the yard. An
exchange followed which the Respondent thereafter treated as a resignation by
the Claimant. The Tribunal found, however, that he had not resigned at the
meeting and that he had accordingly been unfairly dismissed. The Respondent had
misunderstood what the Claimant was saying, so said the Tribunal, and had been
wrong to insist thereafter that his employment was at an end by reason of
resignation. Also, the dismissal was automatically unfair as the statutory
dismissal procedures, which were then still in force, had not been complied
with.
The Employment Tribunal
4.
Turning to the Tribunal’s decision in this case, at the end of an
evidential hearing on 1 July 2009 the Employment Tribunal, Employment
Judge Hugh Murphy in the chair, announced its decision, which included that the
Claimant had contributed to his dismissal to the extent of 30 per cent, and
that the award to him would be reduced accordingly. Written Reasons having
been sought, they were prepared, and a Judgment and Reasons were issued and
registered on 29 July 2009. In their written Judgment the Tribunal
referred to their earlier decision to reduce the Claimant’s award by 30 per
cent, and at paragraph 149 said:
“[…] it is at least arguable that the decision from the award made
to the claimant announced at the close of the hearing was misconceived.
Throughout the hearing, attention was focused on whether an instruction to
clean the yard was an instruction that the respondents could lawfully give.
Reference was made to the fact that on earlier occasions the claimant and
others had without protest cleaned the yard, and, of course, the contract
expressly provided that the respondents could not generally employ the claimant
on labouring duties, the clear implication being that they could do so from
time to time, and, in these circumstances, the tribunal had little difficulty
in concluding that generally speaking it was within the power of the
respondents to give the claimant an instruction to clean the yard, so that at
first blush it appeared that the claimant was at fault in refusing to clean the
yard. Insufficient attention, perhaps, was paid to the possibility that the
instruction to clean the yard was an element of a course of conduct that
constituted a fundamental breach of contract on the part of the respondents in
which case it is at least doubtful whether any deduction should be made in
connection with the claimant’s refusal to clean the yard.”
5.
That being so, the Tribunal said that they were satisfied that the
decision announced orally to reduce the award by 30 per cent should be
reviewed, although not necessarily varied, and they would give parties a
further opportunity to make submissions. That decision was appealed against,
it being argued that the Tribunal could not competently review its decision in
that manner. The Employment Appeal Tribunal, Underhill P presiding, on
30 July 2010 held that although the power of review was not available
to the Tribunal, rule 36 of the 2004 Rules not having been complied with,
it did have power to recall its own decision, and that was what the Tribunal
should be regarded as having done. The matter was accordingly remitted to the
Tribunal once more.
6.
By Judgment dated 30 March 2011 the Tribunal issued its
decision regarding the issue of contribution. We would refer in particular to
paragraph 13 of the decision, which provides, and we quote:
“It is certainly the case that the claimant refused to clean the
yard, but we do not agree with the suggestion that the claimant was clearly culpable.
As explained in our reasons and given on 29 July 2009, we are
satisfied that, by then, the respondents were in fundamental breach of contract
with the respondents and were not in a position to demand performance of the
contract from the claimant. The respondents, moreover, did not have an
unfettered right to require the claimant to clean the yard, even when they
themselves were not in breach. As pointed out in paragraph 121 of the
said reasons, it is at least a permissible inference from the evidence that, by
the time that the respondents purported to require the claimant to clean the
yard, they had abandoned any intention of training him so that any instruction
to him to clean the yard could only be given pursuant to a right to require him
to the yard ‘generally’, and the respondents had no such general right. There
is an assumption in the respondents’ submission that the instruction to clean
the yard was a lawful one and it has not been established that the instruction
was one that the respondents were entitled to give in terms of the contract.”
7.
Put shortly, the Tribunal’s analysis was that by 26 November the
employers were in fundamental breach of contract because they were taking steps
to bring the Claimant’s apprenticeship contract prematurely to an end; they
could not, therefore, require the Claimant to sweep the yard. There is,
however, no question of the Claimant, at the point he refused to do as he was
told, having in mind that the Respondent was in breach of contract or were not
entitled to ask him to carry out the task. The Tribunal, however, says that
because on their contractual analysis the Respondent was in breach, that is an
end of matters, and there should be no deduction from the award made to him.
The appeal
8.
Turning to today’s appeal, Mr Khan, who appeared for the employers,
submitted that the Tribunal had erred in taking account of the employers’
conduct when deciding whether or not to reduce the Claimant’s award. This was
a case where the Claimant had failed to obey what, on the face of matters, was
a reasonable management instruction; that is, he was culpable or blameworthy.
Further, his conduct was within his control and had caused or contributed to
his dismissal. His dismissal was directly linked to him having refused to
sweep the yard. The Tribunal should have focussed on that matter and nothing
else. He referred to two authorities: Parker Foundry Ltd v Slack
[1992] ICR 302 and Langston v Department for Business,
Enterprise and Regulatory Reform UKEAT/0534/09/ZT.
Decision
9.
Turning to our decision, we consider that this appeal is well founded.
We would refer to the provisions of section 122(2) and section 123(6)
of the Employment Rights Act 1996. Those are the two
subsections that provide for reduction of awards of compensation and of the
basic award on account of a claimant’s conduct. There is nothing in either of
them which entitles an Employment Tribunal to look beyond the claimant’s
conduct when considering whether or not it is just and equitable to reduce
those awards (see: Parker Foundry Ltd). That, however,
is precisely what the Tribunal have done. The focus of their considerations
was the position of the employer and the Tribunal’s own analysis of how and why
the employer was at fault in asking the Claimant to sweep the yard at all.
Instead of having regard to the relevant statutory provisions, they have taken
account only of their own analysis of where, as a matter of contract, parties’
rights and duties lay by 26 November 2008. As a consequence they
have had no regard to the nature and quality of the Claimant’s own conduct,
which was, we accept, that he refused to do what he was being told to do by his
employer at a time when he knew nothing other than that they had the right to
instruct him at work. He was not asserting that they no longer had any right
to issue him with instructions. He was, on the picture presented by the
findings in fact, simply being stubborn and difficult. Further, the stance
adopted by him in persisting in that refusal, despite, on the Tribunal’s
findings in fact, being told that he would be given other work in the
afternoon, plainly led to his dismissal.
10.
In these circumstances, the Tribunal was, we accept, bound to conclude
that the Claimant’s conduct was culpable and caused the dismissal that
occurred. That of course was the Tribunal’s own initial reaction, and it was
only by taking account of a matter to which they should not have had regard,
namely the employer’s conduct, that they retreated from their original
conclusion. It follows, in our view, that in upholding the appeal we ought to
reinstate the Tribunal’s original decision, which was that a reduction of
30 per cent should apply.
11.
We will accordingly pronounce an order upholding the appeal and
substituting for the figure £4,442.50, where it appears in paragraph 2 of
the Judgment of the Tribunal dated 30 March 2011, the figure £3,109.75.
