Trefoil Steel Co Ltd v Watson [1992] UKEAT 187_91_0806

EAT
Trefoil Steel Co Ltd v Watson
[1992] UKEAT 187_91_0806 · 1992-06-08
by Trefoil Steel Company Limited from a decision of an Industrial Tribunal sitting at Sheffield on the 31st January and the 13 February 1991 when they unanimously decided that the Applicant before them, Mr Stephen Watson was unfairly dismissed and was entitled to compensation of £2,202. That figure in fact was struck after a reduction of 50% on the basis of Mr Watson's contributory conduct to his dismissal.Mr Watson had been employed from 1984 until his dismissal in September 1990 as a Furnaceman and he had, what was obviously, an important and skilled job operating a crane which moved molten metal about. There was a history of difficulties in operating the crane, in fact there were two cranes but nothing much turns on that, and matters came to a head on Saturday 8th September 1990 when another difficulty in the movement of the crane arose when it was carrying molten metal in its ladle and was not responding to control. Mr Watson decided he was not going to put up with that, as he saw it, dangerous state of affairs and left notwithstanding the Foundry Manager, a Mr Jewitt saying to him "don't to that or you will get sacked", but Mr Watson did go off.He was summoned to a disciplinary hearing on the following Monday, 10th September which was conducted by the Managing Director, Mr S Bloor, who gave evidence before the Industrial Tribunal, indeed there was evidence given not only by Mr Stuart Bloor, the Managing Director but Mr R Bloor, the Works Manager and Mr Jewitt, whom I have already mentioned, the Foundry Manager. The Industrial Tribunal went through what occurred at the hearing of the 10th September and found that Mr Stuart Bloor came to the conclusion that he was prepared to treat the matter as the subject of a final warning and asked Mr Watson to sign a document to that effect, but Mr Watson was not willing to do so and in fact, he left in spite of some dissuasion. The following day he was given a letter, signed again byMr Stuart Bloor, which said:
"We note that you have totally ignored verbal and written warnings given on previous occasions. We regretfully terminate your employment with this company as from 1.15 Monday 10 September."
The Industrial Tribunal then, quite rightly, turned to the question whether this was a fair or unfair dismissal in the context of Section 57 of the Employment Protection (Consolidation) Act 1978.The Notice of Appeal raised two points. One was whether there was any or sufficient evidence upon which the Tribunal could reasonably have made its finding of fact that there was a dismissal. The second was whether the Tribunal paid any or any proper regard to the oral evidence of the Applicant upon cross-examination that the decision of whether his employment continued was his, i.e. that his employment would continue if he agreed to sign a written warning. The appeal was conducted before us by Mr Date who, rightly in our view, did not rely to any significant extent on either of those two matters because, it is in our view, clear first, that it is a pure question of fact whether there was evidence to justify a finding a dismissal, and secondly, that it is equally a question of fact as to whether the Tribunal paid any or any proper regard to what the Applicant, Mr Watson said in cross-examination. In any event as regards to the latter point it clearly was put to him that if he agreed to sign a written warning the penalty would be less than dismissal, but he refused to do so. There is nothing to indicate to us that the Industrial Tribunal got any of that in any way wrong, they appreciated those facts, in our view, quite clearly. What was advanced to us, and leave was rightly sought to amend the Notice of Appeal to raise this point, was quite a separate matter and that was the extent to which the Industrial Tribunal relied on some hearsay evidence which clearly was before them and which clearly, to some extent, influenced their decision. It arises in this way. In describing the Industrial Tribunal's dealing with the question of fairness or unfairness they say in paragraph 7 of their decision, that they liked Mr Watson's evidence, in particular on the point about whether there was a constructive dismissal. They said in connection with this, having described his evidence as "unflinching and unswerving":
"It was supported by the reports he had had from a mate about Mr Bloor's declared intention when he went into the meeting and the subsequent letter from the Company."
That is a reference to a report that obviously is hearsay evidence so far as the Industrial Tribunal is concerned. Mr Date of course appreciated that industrial tribunals are not precluded from hearing hearsay evidence because of Rule 8(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 which says, so far as relevant:
"it [the industrial tribunal] shall so far as appears to it appropriate seek to avoid formality in its proceedings and it shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law."
and I suppose, the best known Rule about admissibility of evidence in proceedings before courts of law is that, subject to numerous exceptions, hearsay is not admissible.It is perfectly clear that the Industrial Tribunal did take that hearsay about Mr Bloor's frame of mind when going into the meeting into account for two reasons. First of all the Industrial Tribunal towards the end of paragraph 8 said:
"the tribunal find that Mr Bloor, when he went into that meeting, had made up his mind to an extent which cut out the possibility of meaningful consultation with Mr Watson."
Secondly, if there were any further doubt about it, there was a letter written by the Chairman in answer to the Notice of Appeal in which the Chairman said:
"We were influenced by the evidence that dismissal was in Mr S Bloor's mind before the final meeting and by the letter of dismissal dated 11 September 1990 and signed by Mr Bloor."
So that we would accept the proposition that it does look as though the Industrial Tribunal did not dismiss from its mind the hearsay evidence of Mr Bloor's state of mind.Mr Date told us, very fairly, that he had no detailed note, he was not present below, of Mr Bloor's evidence and was therefore not in a position to produce anything like categoric evidence as to what Mr Bloor did or did not say. He submits that perversity is a matter of law and therefore is not excluded from the jurisdiction of this Tribunal, which, it is notorious, is limited by Section 136 of the Employment Protection (Consolidation) Act 1978 to questions of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under (inter alia) that Act. We have given careful consideration to this point but we are not satisfied that there is anything like the weight of evidence that is needed before an appeal based on perversity stands any chance of success. In our view this was from beginning to end a pure question of fact. The Industrial Tribunal came to the conclusion that the dismissal was unfair, not because Mr Watson had not been guilty of unreasonable conduct because they specifically found that when he walked out on the Saturday morning that was not a reasonable thing to do in the employment situation. The reason they came to the conclusion that the dismissal was unfair was partly that there was a failure to have meaningful consultation with Mr Watson and that is a matter of judgment, having heard Mr Watson's evidence and Mr Bloor's evidence as well as the other two witnesses. The Industrial Tribunal has to make up its mind on the totality of the evidence given before it, as to where the truth lies in relation to the possibility of meaningful consultations. It seems to us quite impossible to say that there was no evidence upon which they could reach the conclusion which they did reach. They also were satisfied that the employers turned to dismissal without any consultation with Mr Watson about that step, nor indeed about any way of avoiding it by suspended dismissal or suspension without pay for some days or alternatives of that sort. They came to the conclusion, putting it rather shortly, that the employers overreacted in all the circumstances of the case in dismissing in the way in which they did.We see no basis on which the employers stand a chance of satisfying this Tribunal that that was a perverse decision. We have already mentioned that there was in fact a 50% reduction in the award so that the rights and the wrongs of the dispute were obviously taken into account by the Industrial Tribunal.We therefore dismiss this appeal at this stage.