Salmon v Ribble Motor Services Ltd [1992] UKEAT 51_91_2311

EAT
Salmon v Ribble Motor Services Ltd
[1992] UKEAT 51_91_2311 · 1992-11-23
MR JUSTICE TUCKER: Mr Lambert cannot be here this afternoon but he knows of the decision which I am about to deliver and is in agreement with it.This is an employee's appeal against the decision of an Industrial Tribunal sitting at Manchester in June and November 1990, whereby it was decided that the appellant was unfairly dismissed by the Respondent but that by reason of the Appellant's conduct the basic and compensatory awards due to him should be reduced by 60%. The appeal is restricted to the question of this reduction; it is contended that no reduction should have been made at all, or alternatively, that the extent of the reduction should have been less than 60%.There is no cross-appeal by the Respondent against the finding of Unfair Dismissal. The background to the appeal is well set out in the reasons given by the Tribunal for their decision. The Respondent is a Bus Company operating out of various depots in Lancashire including one at Preston. They recognise two unions, the Transport and General Workers' Union and the National Union of Railwaymen. The Appellant was a shop steward and branch secretary of the TGWU. During 1989 the Respondent proposed to introduce new working patterns at Preston, including flexible rostering. Despite grievances, which were expressed by the drivers, it was indicated that the new rosters would be put into effect on Monday 5 February 1990. A petition was signed by 117 drivers calling for an immediate meeting. The senior union representatives at the depot were in addition to the Appellant Mr Durnian of the TGWU and Mr Baines of the NUR. These 3 men decided to call an emergency meeting at 12 noon on Friday 2 February and a notice to that effect signed by the Appellant was posted. The meeting took place at the appointed time. It was well attended by the drivers. That resulted in a stoppage of work and in a very great disruption of bus services in central Lancashire.The respondents considered that the drivers who had attended the meeting had breached their contracts of employment by doing so. It was decided that disciplinary proceedings should be taken against the Appellant and Messrs Durnian and Baines. These proceedings were conducted by Mr Archer, the Respondent's Commercial Director. He held 3 separate hearings, 1 in respect of each employee. Mr Baines was the first man to be interviewed. As a result Mr Archer found that he bore an element of responsibility for the stoppage and gave him a final warning, and 2 days suspension from duty without pay. In the case of Mr Durnian the penalty was a final warning and 4 days suspension from duty without pay.The appellant was the last to be seen. In his case Mr Archer came to the conclusion that the Appellant was the instigator of the holding of the meeting at that time and that Mr Durnian and Mr Baines were acquiescing, not supporting that decision. I take this from paragraph 4(1)(i) of the Tribunals reasons.
"He [Mr Archer] "formed the impression that there had been orchestration of ill-feeling" and "genuinely held the view that the applicant was responsible" and did not form that view of Mr Durnian or Mr Baines. He was also satisfied that there had been coercion and intimidation and that the applicant, to some extent, was responsible."
The Tribunal rejected the evidence of Mr Archer on this particular point. Mr Archer then dismissed the Appellant. The Appellant appealed that decision. An appeal hearing was held on the 15 February by Mr Hinkley, the Respondent's managing director, who found that there was nothing which would cause him to vary Mr Archer's decision, and a further unsuccessful appeal was heard on the 28 February by Mr Chapman, the Respondent's chairman.Those were the circumstances giving rise to the Appellant's application to the Industrial Tribunal. He alleged that he had been unfairly dismissed and he sought re-instatement. Before the Tribunal it was contended on his behalf that the reason for the dismissal was that the Appellant was a member of a trade union, or alternatively because he had taken part in trade union activities. The Tribunal rejected those contentions. They found that the reason for dismissal was that the Appellant had been the instigator of the meeting held at noon on the 2 February, and that he had played a part in the coercion and intimidation of drivers to attend that meeting.The Tribunal found that the dismissal was unfair, for reasons which they set out in paragraph 6. They say:
"We were satisfied that Mr Archer was genuine in his belief that the applicant was the instigator of the holding of the meeting at that particular time, and that he had been involved in coercion and intimidation of drivers to attend that meeting. We were not satisfied however that Mr Archer had carried out an investigation into the matter which was reasonable in all the circumstances of this case."
The Tribunal then went on to consider whether there were reasonable grounds upon which Mr Archer could come to the conclusion that the Appellant was the real instigator of the holding of the meeting at that particular time. They said that they were satisfied that the evidence of Mr Baines and Mr Durnian did not provide reasonable grounds for such a finding. The Tribunal went on to consider whether there were any grounds for the finding that the Appellant was responsible for coercion and intimidation and again found that no such grounds existed.That would have been sufficient to enable the Tribunal to dispose of the matter, and to entitle them to reach the conclusion that the Appellant had been unfairly dismissed, but the Tribunal went on to say this, in paragraph 7:
"We are satisfied that the only safe and reasonable finding that Mr Archer could have made on the evidence that he had, was that the 3 men were equally responsible for the decision to hold the meeting at 12.00 noon on the 2 February."
In other words, says Mr Horlock for the Appellant, the Tribunal found a parity of responsibility. And that has what has given rise to the present appeal because, it is contended, it cannot be just and equitable that 2 men should continue to be employed while the third held equally responsible has not only been dismissed, but has had his compensation reduced by 60%.The statutory starting point for Counsel's submission, and for our consideration, must be 2 sections of the Employment Protection (Consolidation) Act 1978. Section 73 deals with the calculation of the basic award. Sub-section 7(b) is the relevant provision.
"Where the tribunal considers that any conduct of the complainant before the dismissal ...was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
Section 74 deals with the calculation of compensatory award and sub-section (6) is in these terms.
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
Looking first at section 74, sub-section 6, Counsel submits that in this case, "just and equitable" cannot be restricted to the immediate circumstances of the Appellant alone, given the Tribunal's finding that the only conclusion which the Respondent should have reached was that all 3 men were equally responsible. Counsel submits that having made that finding the Tribunal failed to recognise its importance and to put it into effect. Counsel makes similar submissions in relation to section 73, sub-section 7(b), and he submits that the effect of the finding of contributory fault by the Tribunal is in reality to deprive the Appellant of the opportunity of being reinstated.Counsel for the Appellant realistically, and correctly recognises and acknowledges the reluctance of the Employment Appeal Tribunal to interfere with a finding of contributory fault or to make a finding of perversity on the part of the Tribunal which is what the Appellant is driven to suggest before we can interfere. But he submits that the decision of this Tribunal does fall into that category, in that it in effect ignores the statutory provisions and the requirement for a just and equitable solution.In this connection Counsel for the Respondent, Mr Fordham, refers us to the case of ASSOCIATED TYRE SPECIALISTS EASTERN LTD v WATERHOUSE [1976] IRLR 386, and we look in particular at paragraph 20 of the decision of the Appeal Tribunal delivered by Mr

Justice Bristow:

"There is a cross-appeal by Mrs Waterhouse on the basis that the Tribunal were unduly severe in reducing their award, as they did, by 50% because they came to the conclusion that her own over-sensitiveness and reactions had contributed in a marked degree to what ultimately happened."
and Mr

Justice Bristow then said this:

"It is always difficult for an appellant or a cross-appellant to attack, before this Appeal Tribunal, matters of amount, because those are essentially questions of fact for the Industrial Tribunal itself, and, provided that they addressed their minds to the right considerations and did not act without evidence, even if we ourselves disagreed with the results at which they arrived we could not say that they were wrong in law. It is only if they were wrong in law that we could interfere. We cannot say that there was no ground on which the Industrial Tribunal could have come to the decision which they did in reducing the compensation by a half, and therefore the cross-appeal is also dismissed."
Counsel for the Respondent reminds us that what is in question in this appeal is not the finding of unfair dismissal, but the quite separate finding that a deduction ought to be made. There was in this case a positive finding of misconduct by the Appellant as set out by the Tribunal in paragraph 8 of their reasons. They said this:
"We are satisfied however, in the accordance with our aforesaid finding of fact that the applicant was responsible for the calling of a meeting, by reason of the attendance of which, there were breaches of contract by him and other drivers. We are satisfied that this was an act of misconduct by the applicant."
and the act of misconduct to which they refer is the participation in the calling of a meeting during working hours, as they set out in the preceding paragraph, to which I have already referred.That finding by the Tribunal is not challenged. It amounts to a finding that the Appellant had induced a breach of contract by many of the Respondent's drivers with the result as the Tribunal found elsewhere of a stoppage of work and a very great disruption of services. It was therefore mis-conduct of a grave kind. If the case of the Appellant was taken in isolation it could not seriously be suggested that a finding of contributory fault and to a substantial degree was not fully justified.That leaves only the question whether the treatment of Mr Baines and Mr Durnian is relevant. It is tempting to say that parative treatment does form part of the concept of a just and equitable solution to the problem. But in our opinion it is not open to us to take the treatment of Mr Baines and Mr Durnian into account. We should look at the conduct or action of the Appellant alone and ask whether or not the Tribunal were entitled to form the view of it which they did on the evidence before them, or expressed more accurately - has it been shown that the Tribunal mis-directed themselves in their approach or that the findings which they made were perverse? We answer that question with a "No". If we had any doubts about the correctness of our decision they were resolved by the decision of the Court of Appeal in the case of PARKER FOUNDRY LTD v SLACK [1992] IRLR 11. At paragraph 24 of his Judgment in that case

Lord Justice Woolf as he then was, said this:

"So, on the basis of the language used in s.73(7B), it seems to me that the Tribunal, when properly performing its responsibilities under subsection (7B), is not required or indeed entitled to take into account what happened to the other employee in this case who was a participant in the fight which undoubtedly took place."
Mr Horlock has valiantly sought to persuade us, that we ought not to feel ourselves bound by that decision because it can be distinguished on the facts. He points to the fact that in the instant case an express finding was made of parity of responsibility. There are it is true some distinguishing features, but none which persuade us that we ought not to follow the case of Parker Foundry . In any event as I have indicated we would have reached the same decision even without that authority.It is as Counsel said at the outset always difficult for this Appeal Tribunal to accept and act upon any submission of disparity of treatment. We are not persuaded that it would be right to do so in this case. It may be that Mr Baines and Mr Durnian were fortunate to be treated so leniently, but even if that be so, that of itself does not in our view invalidate the conclusion which the Tribunal reached, as to the Appellant's responsibility for what took place. The Tribunal were fully entitled to approach the matter as they did and to conclude that in justice and equity, a reduction should be made. Having reached that conclusion we can find no grounds for interfering with the extent of that reduction. The decision was far from being perverse, it was one which was entirely open to the Tribunal.Accordingly the grounds of appeal are not made out and the appeal is dismissed.