Peacocks Stores Ltd v Penticost [1992] UKEAT 410_91_0907

EAT
Peacocks Stores Ltd v Penticost
[1992] UKEAT 410_91_0907 · 1992-07-09

JUDGE HARGROVE QC:

The Respondent was employed by the Appellant from 1978 until his dismissal on the 16th November 1990, much of that time as a driver of Heavy Goods Vehicles. The Appellant decided to tighten up the discipline of the 7 drivers employed on the long range team. Each was interviewed and issued with a first and final written warning on the 25th June 1990. The aim of the management was to ensure that journeys were completed at a rate which would eliminate excessive breaks or slow running and would thereby cut down upon the payments of overtime to drivers and to loading staff.Six of the seven drivers managed in the next three months to adjust their driving to the new schedules, the Respondent did not. By the 14th November, following further checks on the Respondent's driving and the observance of discrepancies between his daily reports and the tachograph readings, management summoned the Respondent, by a letter of the 16th November, to an interview. The Respondent gave his reasons for the discrepancies, the Industrial Tribunal found as a fact that the Respondent did not accept the schedules, and indicated in his interview that he expected the schedules to be the subject of discussions between the drivers and management. He also felt that he was being victimised.The employers' view was that the interview showed that the Respondent was unwilling to change his ways and that there was no prospect of him accepting management practices. One of the interviewing panel thought that the Respondent was being "bloody minded". On that basis the Respondent was summarily dismissed and a letter of dismissal which cited amongst other things, the blatant refusal of the employee to conform with Company rules, which had resulted in the Respondent receiving overtime and that this activity was premeditated as reasons for this dismissal.After a three day hearing in May 1991 the Industrial Tribunal, on the 24th June 1991 found that the dismissal was unfair. That it was not practicable to order re-instatement and held that he was entitled to £11,961 compensation. The employers' appeal against this finding of unfair dismissal, and in the alternative appeal against the view that the Respondent had not contributed to his own dismissal. The employee appeals against the decision not to re-instate.We turn first to the question of unfair dismissal. The finding that the dismissal was unfair was based upon the following main points. First, the record of the Respondent's employment. Second, that the conduct in question was such that until June 1990 all drivers had been equally guilty of it. Thirdly, the events took place in the context of changes in legislation which had altered the rules as to driving hours, the new rules were not easy to interpret. Fourth, that the new schedules that were produced for guidance were only given to the Respondent at the end of July. He started to apply them on the 3rd September when he returned from holiday. Accordingly the first complete run under the new scheme would only become final in mid October. Fifth, that the four journeys, where it is concluded that the Applicants took breaks, totalled 7.25 hours. The next highest was 5.62 hours. Upon that basis it was said it did not amount to a crisis situation and it did not justify the type of disciplinary action which was taken. Further, it was unreasonable to give all the drivers a first and final warning. Correcting former lax management did not justify the issuing of such a matter straight away. Seventh, that no formal counselling was provided after the June meeting. In the light of that the employers were not justified in arranging the disciplinary meeting in November.On that basis the Industrial Tribunal concluded that the employers' action did not fall within the band of reasonable responses in summarily dismissing the Respondent.The appeal raises a number of alleged errors of fact by the Tribunal. The first was that the employer had been promoted, when it is obvious upon any reading that what was intended was to indicate that the employee had moved from one grade of Heavy Goods Vehicle Driver to a higher one. Second, that the change in legislation did not mean any alterations and that the overlap of that with the question of the schedules was a muddling of a whole problem.The gravamen, however, of the appeal, was that the Industrial Tribunal never came to grips with the reasons for the dismissal. Namely, that by refusing to follow Company policy the employee was getting overtime to which he was not entitled.We have borne in mind the view set forth in Retarded Children's Society v. Day that care must be taken to avoid concluding that an experienced Tribunal, although it does not expressly mention some point, has overlooked it. The position set out in paragraph 15 seems to us to set out the matter as clearly as one could have wished, and I quote:
"We are conscious that we must be approach our decision by asking ourselves whether the respondents' actions fell within the band of reasonable responses of a reasonable employer. We unanimously find that in this case they did not. We therefore conclude that the applicant was unfairly dismissed."
So far as the remaining matters are concerned, the Tribunal had ample matters of facts upon which they could conclude, that was the situation and we do not find that this decision was perverse, in the accepted sense of that term.We turn now to the question of contributory fault. At first sight it is an attractive approach to conclude that the activities of the Respondent in taking longer breaks than the management thought proper to do, and in the face of a warning, must have been a contributory factor. We have been reminded, however, of the warning contained in Hollier v. Plysu Ltd [1983] IRLR 261, it comes in the Judgment of Lord Justice Stephenson and is in these terms, he is dealing here again with the question of contributory fault:
"The apportionment of responsibility for the dismissal is so obviously a matter of impression, opinion and discretion that there must be either a plain error of law or something like perversity to entitle an appellate Tribunal to interfere with the decision of the Tribunal which is entrusted by Parliament with a difficult tasks of making the decision."
There is evidence upon which the Tribunal could legitimately reach the view that there should be no deduction. The refusal to find that the respondent was guilty of misconduct can be justified from the evidence inter alia that there was no great discrepancy between the times of drivers, that the schedules were not easy to interpret and that the management had been aware of the problem from long before the first and final letter of warning. Moreover, there is evidence that half an hours extra break was permissible in certain circumstances, the nature of those circumstances was obviously somewhat muddled by the time the Tribunal came to consider it, but in short the Industrial Tribunal's decision cannot be regarded as being irrational or perverse. There is a cross-appeal upon the issue of re-instatement, upon this issue the Tribunal expressed itself in this way:
"Having conveyed our decision to the parties the applicant asked us to consider ordering reinstatement under s.69 of the Employment Protection (Consolidation) Act 1978. We heard representations from the respondents who contended that to do so would be impracticable because they had already appointed a replacement driver. We do not accept that this necessarily makes the reinstatement of the applicant impracticable. Nevertheless, we are of the opinion that it is vital to the the respondents' business that they have trust and confidence in their drivers. We regret to say that the applicant has shown in his evidence to us that he still has difficulty in accepting, and perhaps even understanding, the respondents' system. In the circumstances we do not think that reinstatement would be reasonably practicable."
It is clear that reinstatement is the primary remedy. This is plain from the construction of the Act. It is said that the Tribunal has misdirected itself in considering whether it was practicable at this stage rather than at the secondary stage. Perhaps more important is the criticism that the Tribunal seems to have accepted the position that although they had not found the Respondent guilty of misconduct, nevertheless, the Appellants had a lack of trust and confidence and that is enough to justify refusing to reinstate.In our view, is that laid down by this Court in RAO v. Civil Aviation Authority [1992] IRLR 207, paragraph 32 reads as follows:
"We extract from these cases the following principles: (a)Orders for reinstatement of re-engagement under s.69 are primary remedies for unfair dismissal,

b)Such orders are discretionary - see s.68(1) and s.69(1)

c)The only fetter on that wide discretion is that a Tribunal must `take into account' the considerations set out respectively in s.69(5) and (6).(d)In both subsections the word `practicable' is used. It is not `possible', it is not `capable'. At that stage an Industrial Tribunal is not required to reach a conclusion on the practicability, whether or not it is or is not practicable; that need only be decided if the provisions of s.71 become relevant, but the Act specifically requires that the Industrial Tribunal should take into account practicability for the employer to comply with the order. An Industrial Tribunal must use its experience and common sense, looking at what has happened in the past and what can reasonably be anticipated for the future, always maintaining a fair balance, that which is, in all the circumstances, fair, just and reasonable between the parties. (e)It is unwise to seek and define rules for different factual situations"the Court then goes on to set out various situations none of which is similar to that which faces us today.However, a case which is closer to the present and which contains valuable guidance, in our view, is that set forth in Boots Co Ltd v. Lees Collier [1986] ICR 728, the relevant passage occurs at p.735, it arises from a situation where an employee had been dismissed from his company on the grounds of suspected theft. His claim for unfair dismissal was upheld, the tribunal finding that the dismissal had been caused by an act which had been carried out absent mindedly and not dishonestly and an Order was made for reinstatement. The particular passage reads as follows:
"On the facts of this case we have no hesitation in saying that, once the tribunal had concluded, as plainly they did, that this was not a case in which there was any question of finding that the applicant's conduct had caused or contributed to his dismissal in the sense that would justify a reduction of compensatory award, there was plainly no room for a finding that he had caused or contributed to some extent to his dismissal in the context of paragraph (c). We have no doubt (though they did not say so in terms) the tribunal had in mind the requirements of paragraph (c) but considered that they were inapplicable to this case. Accordingly, they had to concentrate of paragraph (b) of subsection (5) and had to ask themselves the question as to practicability in the terms indicated in the Timex case, they had to have regard to practicability.
As we interpret their decision, what they were saying was; `Notwithstanding the evidence that we have accepted as to Dr Page's state of mind and a recognition that that may give rise to certain difficulties, we do not consider that Dr Page's view makes it impracticable for the applicant to be reinstated.' We have little doubt that in reaching that conclusion the tribunal were having regard to the evidence as to the nature of the relationship between Dr Page and the applicant as indicated by the hierarchy that we have already described and as to which they had evidence. They might - we know not - have taken a different view if this had been a case in which there was close daily contact and the risk of abrasive meetings on a daily basis between Dr Page and the applicant. But we think that plainly they must have had regard to the relevant infrequency of any contact and to the insulating properties of Mr Allen as the manager interposed between Dr Page and the applicant.In those circumstances, it appears to us that the tribunal approached the matter on the correct legal basis. I the appeal is put on the basis that no reasonable tribunal could have reached that conclusion, we would only say that in our judgment, on the facts of this case, it was certainly open to the tribunal to reach the conclusion that they did reach."It seems to us that the Tribunal has not asked itself the questions in the correct order. Nor has it applied its mind to the approach set forth in the Boots case. It may well be that even if they had done so they might well reach much the same conclusion as they have set forth in their Reasons, however, it is our view that upon the cross appeal, this matter must be allowed and the case will be remitted to the same Tribunal for the matter to be considered further.