Denness v Joseph Bentley Ltd [1992] UKEAT 266_91_0906

EAT

Denness v Joseph Bentley Ltd

[1992] UKEAT 266_91_0906 · 1992-06-09

MR JUSTICE KNOX : This is a Preliminary Hearing Ex-Parte in an Appeal by Mrs Robina Denness from a decision of an Industrial Tribunal sitting at Hull on 16 January and 25 and 26 February 1991 and sent to the parties on 9 April 1991 whereby the Tribunal held unanimously that Mrs Denness was unfairly dismissed by her employers Joseph Bentley Ltd who I will call "Bentley's" and Bentley's were ordered to pay to Mrs Denness the sum of £680.50.

The Appeal is solely concerned with the way in which that last figure was arrived at by reducing by 90% both the basic and compensatory awards. It is in relation to that 90% reduction that Mrs Denness' appeal is concerned. Her Notice of Appeal says:

"The Appellant appeals from a decision of the Industrial Tribunal that by reason of the Appellant's contribution her award should be reduced by 90%"

and there are two points that are raised in the Notice of Appeal in support of that:

(i)Whether there was any or any sufficient evidence upon which the Tribunal could reasonably make certain findings of fact upon which its findings that the dismissal was contributed to by the Appellant depended, namely certain findings of fact contained in paragraph 10, that "Mrs Denness did nothing to cool the matter down until after the dismissal"

(ii)Whether upon such findings of fact as the Tribunal reasonably made a reasonable Tribunal could have found that the Appellant contributed to the dismissal as found."

That Notice of Appeal seems to us to reveal a misapprehension of what the functions of this Tribunal are. Under S.136(1) of the Employment Protection (Consolidation Act) 1978 an appeal lies to this Tribunal on a question of law arising from any decision of or arising in any proceedings before an industrial tribunal under or by virtue of inter alia, the Employment Protection Act.

There is no jurisdiction in this Tribunal to decide such questions as whether upon such findings of fact as the Tribunal reasonably made a reasonable Tribunal could have found such and such a fact. This Tribunal is concerned with correcting errors of law and is not empowered by the Act of Parliament under which it operates to differ from a Tribunal below on pure findings of fact.

This was an unfortunate dismissal, because at the end of the day the Industrial Tribunal came to the conclusion that the employers, Bentley's, had taken an unnecessarily serious view of what were, essentially, not very serious matters and it was for that reason that the Industrial Tribunal came to the conclusion that this dismissal was in fact unfair and there is no appeal from that. They said that in relation to the disciplinary hearing conducted by the managing director Mr Vaughan Foster, his reaction in treating the reason which he saw as a reason for dismissal as a sufficient reason for dismissal was unreasonable, falling without a broad band of reasonable responses.

The facts in short were as follows. Mrs Denness came in on a Monday morning 16 July 1990 and had a conversation with Mr Andrew Forster, the company secretary of Bentley's, in the course of which she referred to a previous hearing before an Industrial Tribunal, the details of which do not matter. We take, because we are bound by them, the findings of fact with regard to that conversation that she had with Mr Andrew Forster on 16 July. The Industrial Tribunal found she had a conversation with him and in that conversation she alleged that he had not been called to give evidence at the Tribunal. The reason for his not being called Mrs Denness alleged was because he was the only member of management with misdemeanours against him.

From then on things deteriorated because Mr Forster wanted to know what these misdemeanours were, Mrs Denness thus stimulated gave various details of what she claimed had been his misdemeanours and Mr Forster took exception to those and one of them related to a lady who was working in the next door office and he went and consulted her and wanted to know whether there was any truth in what Mrs Denness was saying and one thing led to another and Mr Forster took the view that he was being accused of sexual harassment and went off to complain to his immediate superior a Mr Milner because Mr Foster, the managing director, was not there.

Mr Milner caused a suspension of both Mr Forster and of Mrs Denness while these allegations, of which he took a serious view, were investigated and investigated they were. Mr Forster was cleared of the accusation of sexual harassment, Mrs Denness was summoned to a disciplinary hearing that was conducted by the managing director Mr Foster, and she on that occasion wanted to speak to Mr Forster, the person with whom she had had the original altercation. That was refused and she also wanted to see the statements of the witnesses, whom she had been told had heard what had gone on, and that also was refused to her. The disciplinary hearing produced the result that she was found to have been guilty of serious misconduct and was summarily dismissed. It is that that the Industrial Tribunal found was an excessive reaction outside the band of reasonable responses by the employer and therefore the dismissal was unfair.

There was an internal appeal before a Mr Holmes who was a director of an associated company. Mrs Denness, wrongly in our view, took the attitude that he was not sufficiently independent and that appeal was conducted on probably a rather smaller scale than it would have been had she participated in the appellate process but in fact she made it clear that she did not approve of the identity of the person who conducted that internal appeal. That was her attitude and the appeal was not successful.

One other fact is important and that is that on 21 August, which was three days before the internal appeal that I have last mentioned, Mrs Denness was given by Bentley's a reference signed by Mr Foster the managing director. In the first paragraph it said this:

"Mrs Denness had been employed by our Company for thirteen years until her dismissal on 27 July 1990 for serious misconduct."

The rest of the reference is a good one, indeed an excellent one. It said:

"Her work in both departments was very good, she was punctual and hard working. Her attendance record was excellent and in all dealings with customers she was well received and honest."

It is in our view most unfortunate that that reference should have been given in those terms because it now has been shown to be entirely inaccurate to say that she was dismissed for serious misconduct and although we have no jurisdiction to make any order in that regard, we do express the hope that Bentley's will see their way to furnishing Mrs Denness with a reference which does not contain that erroneous first sentence in the reference that she was given on 21 August 1990.

The points that Mrs Denness urged upon us in relation to the decision to reduce her awards both basic and compensatory by 90% was that there were errors in the paragraph of the Industrial Tribunal's decision that contained that reduction decision. The paragraph reads as follows:

"However, we have to have regard to whether or not she has contributed to her own dismissal and clearly she started the matter by referring to Mr Forster as having committed the misdemeanours and then gone on to specifics and other allegations. However, although we may have suggested that Mr Forster and the management acted in a way that they blew up the whole matter out of proportion, it has to be said that Mrs Denness did nothing to cool the matter down, until after the dismissal, which is when she wrote the "Now laddie" letter to Mr Andrew Forster. That was a step she could have taken at any time before dismissal. She chose not to do it until after dismissal and certainly the terms of that letter at the start and until the latter part are not really conciliatory." For that reason we say that Mrs Denness has contributed to her own dismissal."

There are only two things that Mrs Denness challenged about that. The first is that she denies that she started the matter. She takes the view that what happened was that Mr Forster asked questions and got rather more by way of answer than he had bargained for and that that was how the original row blew up. That is a pure point of fact. I have read the paragraph that the Industrial Tribunal wrote in finding what it was that happened when the dispute on 16 July started. We are bound by those findings of fact and it clearly does contain a statement that it was Mrs Denness who said that Mr Forster had not been called at the earlier tribunal hearing because he was the only member of management with misdemeanours against him and things started from there. It cannot be said that there was no evidence upon which the Industrial Tribunal could have come to the conclusion that they did reach. That is not a matter over which we have any jurisdiction therefore.

The second complaint that Mrs Denness has about the Industrial Tribunal's decision is that they were wrong in saying that she did nothing to "cool the matter down" until after the dismissal. The letter that is referred to is the "Now Laddie.." letter is a letter that Mrs Denness has put before us. We would take the view that it was a conciliatory letter right through but that is not central to this issue. The fact of the matter is that she did write it. It is dated 30 July and the dismissal after the Disciplinary Hearing was on 27 July which was itself 11 days after the original altercation on Monday 16 July so the Industrial Tribunal was perfectly right in saying that she could have written the letter at any time before dismissal but what Mrs Denness really insists on is that she did everything that she could to cool things down. She came to work the day after she was suspended but she was sent away again and she would urge that she came in a conciliatory frame of mind but there is no evidence before the Industrial Tribunal that we can discern which suggested that she took any particular steps by way of making it clear that she was in a repentant frame of mind. Nor indeed does her note that she has written to us on that subject actually say that in terms. She also says that at the Disciplinary Hearing she asked to see Mr Forster and although he was in the office and could have been summoned she was not allowed to see him and when that was refused her she wanted to see the statements from the witnesses and that too was refused her.

We are not suggesting that those were not proper things for Mrs Denness to ask to be allowed to do, that is not the question. The question is whether she had actually done anything effective to "cool the matter down" and we are unable to see that there could possibly be an error of law in taking the view that a request to see Mr Forster and a request to see the witnesses' statements did not amount to cooling the matter down. What Mrs Denness would have said had she seen Mr Foster might well have made all the difference. Those are all things that might have been. There was material before the Industrial Tribunal that entitled them, if they saw fit, to come to the conclusion that Mrs Denness did not do anything to cool the matter down until after it was too late when she had been dismissed.

We are not here to say whether we think that 90% is an appropriate figure by way of reduction because that is essentially a matter for judgment by the Industrial Tribunal and it should not be assumed that 90% is the figure that we, had we had the job of fixing the figure, would have arrived at. It would be wholly inappropriate for us to express our own views on the matter because we do not have jurisdiction over that aspect. We have given careful consideration to the points that Mrs Denness has put to us and we have been unable to discern an error of law in the Industrial Tribunal's decision and on that basis this Appeal has to be dismissed. But we do venture to repeat the hope that this unfortunate affair can be finally disposed of by Bentley's giving Mrs Denness the sort of reference to which it seems to us in common justice she is entitled to.