Procter v British Gypsum Ltd [1991] UKEAT 535_89_2407

EAT
Procter v British Gypsum Ltd
[1991] UKEAT 535_89_2407 · 1991-07-24
MR JUSTICE WOOD (PRESIDENT) By an Originating Application dated 9th December 1988 Mr Procter alleged that he had been unfairly dismissed by his employers, British Gypsum Ltd, on the basis that the decision to dismiss was inconsistent with previous similar incidents. The Notice of Appearance alleged, as was the fact, that the dismissal was on the basis of gross misconduct for a physical assault on another employee; it denied that there was provocation and emphasised that the assault had been a prolonged physical attack.At all times Mr Procter has been represented by his Trade Union, the GMB (formerly the General, Municipal Boilermakers and Allied Trades Union), and was so represented at each of the disciplinary procedural hearings.After two days' hearing an Industrial Tribunal sitting at Leeds under the Chairmanship of Mr D A Bigham, by a majority decision, found that the application failed, it was dismissed. The minority view was that the dismissal was unfair but that there was an element of contributory fault to the extent of 75%. In paragraph 1 of their Reasons the Tribunal make clear what the issues were at the hearing and we quote -
"It may assist to say at this early stage in these reasons that the case for the applicant has been run essentially upon the basis that the penalty imposed by the respondent was not consistent when earlier cases experienced at the same factory site are taken into account. No argument or evidence has been presented in regard to provocation, and therefore we exclude this from our deliberations, although we would observe that the applicant was apparently provoked by (according to his evidence) a lack of cooperation on the part of Mr K Barton over a period, and particularly during a period of two weeks in which the applicant was acting foreman."
The Applicant and Mr Barton who was the victim of the attack were part of a team of loaders concerned with loading vehicles for despatch. There was a basic pay plus a bonus system depending on the rate of loading. At the time of the incident Mr Procter was an acting foreman and Mr Barton was a loader. The Tribunal received a great deal of evidence and saw statements from a number of witnesses.The facts as found are as follows. The incident leading to the termination of employment occurred shortly after 7.10 pm on the evening of 22nd September 1988. Mr Barton, a loader, ceased work for his meal break earlier than the other members of the team; on being asked by the Applicant to return to work earlier than the others he was reluctant to do so and was abusive. There were then further arguments in relation to the bonus payment and the use of strong language by Mr Barton. This provoked the Applicant, who followed him out of the messroom and apparently attacked him with the result that Mr Barton ended up on the floor and suffered at least a swelling over the eye. As quite reasonably found by Mr Scott on the following day when he held the disciplinary hearing, the extent of the attack was not as great as alleged by Mr Barton who had alleged as many as 20 to 30 blows being received, but was much more than the two blows alleged by the Applicant. This was a situation where an acting foreman had attacked a loader acting under his supervision.The disciplinary procedures were in three stages. The initial hearing was before Mr Scott and he made inquiries of a Mr Gunn about earlier incidents of fighting. The most recent incident reported by Mr Gunn to Mr Scott was that which had occurred in March 1984 between a Mr Dennis and a Mr Beaumont, each upon the evidence before the Tribunal being a loader. Mr Dennis was in a supervisory capacity, just temporarily, and had been attacked by Mr Beaumont. The penalty for both parties was a 24 hour suspension. Mr Scott, having conducted the hearing, decided that Mr Procter should be dismissed. The Tribunal deal with it in this way.
"It is therefore the position in regard to the present that Mr Scott had in mind that particular incident, and it would seem to us that Mr Scott had then decided that, because of the extent of his understanding of the assault upon Mr Barton, and because the applicant was in a supervisory capacity, albeit temporary, he should regard it as sufficiently serious to impose dismissal."
Mr Scott wrote a letter of 26th September 1988 confirming his decision in which he says -
"The purpose of the hearing was to investigate the incident of 22nd September when at approximately 7.15 pm it was claimed by Kenneth Barton you made an unprovoked violent attack on him giving a bruised eye, split lip as well as other injuries.
At the hearing you did not deny the attack, but denied the ferocity of the attack claimed by Mr Kenneth Barton. In your defence you explained the inbuilt provocation of a chargehand's job and the general abuse you have to suffer. I explained to you that whilst I understood the problems and difficulties you have to endure this was not a permissible excuse for the attack and that I considered I had no alternative other than to terminate your employment with immediate effect."An appeal at Area level was made and heard on 11th October 1988 before Mr Studman. Mr Procter was again represented by his Trade Union and on this occasion Mr Sandham made the allegation that the decision to dismiss was inconsistent with similar cases in the past. He alleged that it was many years since anyone had been dismissed for fighting and in particular referred to the case in 1984 which had been drawn to the attention of Mr Scott. The allegation of inconsistency was the basis of the appeal. The appeal was dismissed.There was a final appeal at National Level before a Mr Parsons which took place on 23rd November 1988. Here again the issue of consistency was raised and the matter was re-argued. It was agreed that the Trade Union would want these matters to be dealt with in a strong and consistent manner but argued that there had been leniency in the past and therefore that there was a practice that dismissal was the not the normal disciplinary result for fighting. It was the 1984 incident which was once again being reviewed and management took the view that it was distinguishable in that there was considerable provocation and secondly, that it may, on reflection, have been a wrong decision; it did not mean that the Company should consistently decide against dismissal where serious fighting took place.At or very shortly before the hearing before the Industrial Tribunal it became apparent from documents produced by the Applicant that there were a number of other incidents that had occurred at this site. These we will examine in a moment. It is however clear that before the Industrial Tribunal the case being argued for the Applicant was a comparison between his situation and the other previous incidents, an allegation that there was inconsistency in the decision in his case.There was no criticism of the disciplinary procedures and the Tribunal did not therefore see fit to examine the evidence at each stage nor the way in which each was conducted. That was not part of the Applicant's case. We therefore reject any criticism made before us by Mr McMullen that the Industrial Tribunal failed to deal specifically with the appeal at National Level.The question of disciplinary action as a result of fighting is referred to in two documents. The first is the Memorandum of Agreement of the National Joint Council of the Gypsum industry an agreement between the Company and the Trade Unions incorporating the recommendations of the ACAS Code of Practice. It was in fact a revision of previous procedures; we were told it dates from October 1986. Under paragraph 4 the following appears -

"GROSS MISCONDUCT

Gross misconduct (eg fighting on Company premises, theft) which has been established after an investigation and a disciplinary hearing, may result in dismissal without notice."An argument was presented during the hearing that the word 'may' does not indicate that someone was liable to suffer that penalty, but this Court does not see any material difference in that wording.The second document to which we refer is the Works Rules for the Sherburn site, paragraph 11 of which reads -

"(11) DISCIPLINE

Any breach of discipline which in the opinion of the Management constitutes misconduct may be the subject of instant dismissal, suspension without pay, or demotion.Some examples of misconduct which will result in appropriate action being taken by the Management are:

. .. fighting on the premises of the Company."

The Industrial Tribunal looked at each of the previous incidents raised before them and ultimately as a question of fact decided first that " if the total history is examined, no clear pattern was followed by management". Secondly they found that the option of dismissal was a possible sanction and add, "We have in mind also that the Respondent management was seeking genuinely to regard each case on its merits, in the case in question they had investigated to a reasonable extent. "We therefore examine each of the other instances in order of date. The first occurred in 1979 between two loaders. This was said to be an act of "physical aggression" but it is not clear what the details were. Mr Ellis received five days' suspension and Mr Bredsen two days' suspension. Both were loaders. They were each sent letters of 4th May; each was warned about future conduct and that similar misconduct would result in more serious disciplinary action being taken. To Mr Ellis, the Company said " As indicated to you this suspension is of the maximum allowable duration and is imposed as an alternative to dismissal as your action was one of gross misconduct." He was given a like warning to Mr Bredsen.The second incident occurred in November 1981; Mr Barton prodded Mr Frith with his forefinger and was then punched by Mr Frith. There was no further retaliation. The decision was that both parties should be suspended for two days. Mr Barton was a supervisor; Mr Frith was a loader. The action of Mr Barton was considered to be provocative. Both sides were considered equally guilty. They were each warned of the seriousness of the situation and as to the future with its possible result.The third incident was on a date unknown between a Mr O'Neal and a Mr Brown. One was a part-time loader and one a full time loader. In each case the employees were initially dismissed but later Mr Brown was reinstated. There is no documentation which helps us to understand that incident.The 1984 incident, which had been considered by Mr Scott and at subsequent appeals, was an incident of fighting in a warehouse changing room. Mr Beaumont was warned that it was a very serious offence which would normally result in dismissal but that mitigating circumstances were taken into account particularly as some intimidating remarks were made by Mr Dennis. It was also noted on that occasion that there had been a report personally of the incident to the foreman in the appropriate way. Mr Beaumont was warned that a further incident of this nature would most probably result in his dismissal. Mr Dennis was warned about his provocative behaviour and that any repetition would most probably lead to dismissal; he was suspended and disqualified from acting as a relief foreman in the future.Having examined these instances and heard the evidence the Industrial Tribunal pointed out that the position before Mr Scott was that he knew of the incident of 1984 and that although suggestions had been made later on appeals of other incidents there had been no significant additional evidence before those presiding at the subsequent appeal hearings. The Tribunal then had to examine the decision of Mr Scott at the initial hearing and say this in paragraph 12,
"It may be that Mr Gunn who was of long standing employment on the site might have recalled the cases of 1979 and 1981 in addition to that of 1984; but, particularly in the absence of a request on the part of the Union for a postponement of the hearing, and also in the absence of a clear indication that there could well be earlier precedents which should be taken into account, we think it not unreasonable for Mr Scott to have arrived at his decision to dismiss the applicant."
Although it could be said that it was not as clearly stated as perhaps it might have been when one reads paragraph 11 and 12 of the Industrial Tribunal's Decision, it seems to us that the majority were of the view in the light of the different circumstances and in particular the violence of the present incident that the decision to dismiss was one which fell within the bracket of the reasonable response of this employer in these circumstances. It also felt that there was no clear pattern as was expressed in paragraph 11.It seems to us therefore that this case was really one of fact. The Applicant's case was inconsistency; the Industrial Tribunal examined all the facts laid before it and although the employers were unaware of three of the incidents until they arrived at the hearing, nevertheless there was a sufficient consistency of decision in the present case.Before this Court Mr McMullen submitted that there was a duty on the employer to make full and exhaustive enquiries of previous incidents before reaching its decision to dismiss. He also relied upon a notice posted on 13th December 1988 after the relevant incident which read,
"Following a recent National Level disciplinary procedure reference, the Company and GMB Trade Union agreed that a Notice was required to emphasise to employees that fighting on Company premises was considered as gross misconduct and therefore liable to instant dismissal.
This is stated in both the Memorandum of Agreement Disciplinary Procedure and the Works Rules Handbook."Mr McMullen emphasised that the phrase used was " was required" and therefore argued that as the Notice was deemed to be required so employees were entitled to suppose that dismissal was not a likely consequence from fighting. He also emphasised the word 'liable' as opposed to the word 'may' in the Memorandum of Agreement and the Works Rules Handbook. We do not accept that either phrase is something upon which reliance can really be placed to indicate that there was a general practice that dismissal would not be the likely result from gross misconduct such as fighting. The earlier correspondence was clear and there were different or mitigating features in each incident.At the hearing before us an application was made to amend the Notice of Appeal. We agreed to consider the Notice de bene esse without deciding whether amendment should be allowed. It is the clear view of this Court that the proposed amendment raises points which were not raised in that way in argument before the Industrial Tribunal. We therefore refuse the application to amend.It was never part of the case before the Industrial Tribunal that there was a duty upon the employers to make exhaustive enquiries of previous incidents but the industrial members sitting on this Court feel that in the light of previous authorities this is a valuable moment at which to consider issues of comparability or consistency.There are three cases to which we were referred and which are the three principal cases relevant to this issue. The first is THE POST OFFICE v. FENNELL [1981] IRLR 221. This case establishes that it is open to an Industrial Tribunal to classify as unfair a dismissal which demonstrates inconsistency on the part of the employer even though in any every respect the employer's actions have been reasonable. It also stresses as indicated in the judgment of Lord Justice Brandon that it was for the Industrial Tribunal to say what weight they attach to the evidence and that inconsistency was essentially a question of fact for the Industrial Tribunal.The second case is HADJIOANNOU v. CORAL CASINOS LTD [1981] IRLR 352. The facts of that case are not particularly material but its importance is in the guidance given by this Court presided over by Mr Justice Waterhouse in paragraphs 24, 25 and 26 -
"24 In resisting the appeal, counsel for the respondents, Mr Tabachnik, has submitted that an argument by a dismissed employee based upon disparity can only be relevant in limited circumstances. He suggests that, in broad terms, there are only three sets of circumstances in which such an argument may be relevant to a decision by an Industrial Tribunal under s.57 of the Act of 1978. Firstly, it may be relevant if there is evidence that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. Mr Tabachnik illustrates that situation by the argument advanced in the present case on behalf of the appellant, that the general manager was determined to get rid of him and merely used the evidence about the incidents with customers as an occasion or excuse for dismissing him. If that had been the case, the Industrial Tribunal would have reached a different conclusion on the appellant's complaint but they considered the submissions about it and rejected them. Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.
25. 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 wise to scrutinize 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 s.57(3) of the Act of 1978. 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.26. At the end of the argument we have not been persuaded that the evidence in this case established any inconsistency of treatment by the respondents of employees in relation to breaches of the socializing rule. It was open to the Industrial Tribunal to take the view that inconsistency had not been established and this part of the appeal is based on an issue of fact rather than one involving a question of law. For that reason we are unable to uphold the appeal on the ground of disparity."Finally we would refer to the recent decision in this Court of CAIN v. LEEDS WESTERN HEALTH AUTHORITY [1990] ICR 585 (Sir David Croom-Johnson, T S Batho and R J Lewis) Mr Batho is a member of the present Court. In that case Mr Cain was a hospital laundry worker and was summarily dismissed by the Health Authority on the ground of gross misconduct for fighting with a fellow employee. He complained to an Industrial Tribunal of unfair dismissal. The Tribunal considered the cases of two other employees which had not resulted in dismissal for gross misconduct put forward as comparable, but rejected consideration of those two further cases on the ground that they had occurred seven years earlier at different hospitals. The reason for rejecting those comparables was that the other cases had been dealt with by different personnel on behalf of the Authority and could not necessarily be said to be therefore comparable with the present case in assessing inconsistency. This Court held that an employer must act consistently between all employees and it was no answer that the decision in the other cases had been taken by different servants or agents of the employer. This was held to amount to material misdirection.As in so many aspects of industrial relations a reasoned and reasonable balance must be sought. This is emphasised in HAJIOANNOU . Before reaching a decision to dismiss an employer should consider truly comparable cases of which he knew or ought reasonably to have known. The information may be forthcoming at the initial stage or on appeal. If the employee or those representing him know of other such incidents it will no doubt be in his best interests that they should be identified or at least drawn to the attention of the employer. If necessary an adjournment can be taken for further investigation. A small concern may not keep any records of dismissal; a large employer may do so as a matter of sound administration. We do not suggest any obligation so to do. Unless the personnel manager has been in post for a substantial period it may be reasonable to make enquiry of others, as did Mr Scott in the present case.Industrial situations within a unit or on a site may change from time to time as may physical conditions. There may be an increase in dishonesty, fighting or absenteeism. Thus, it may not be reasonable to look back more than a few years.These may be some but by no means all the factors which may be relevant to the approach of this employer in these circumstances. The question will always be one of fairness.Whatever the relevant factors, the overriding principles must be that each case must be considered on its own facts and with freedom to consider mitigating aspects. The dangers of a tariff and of untrue comparability are only too obvious. Not every case of leniency should be considered to be a deviation from declared policy.For the reasons we have given this appeal is dismissed. Leave to appeal.