W J Coleridge & Son v Ryland [1992] UKEAT 55_92_1707

EAT
W J Coleridge & Son v Ryland
[1992] UKEAT 55_92_1707 · 1992-07-17
MR JUSTICE HUTCHISON: This is an appeal by W J Coleridge & Sons, who are effectively I think Mr Austin, against a decision of an Industrial Tribunal sitting in Exeter on 30 October 1991, who sent their written decision to the parties on 22 November 1991, that the dismissal of Mr Ryland, the applicant before them, was unfair; that it was not contributed to by Mr Ryland to the extent that the Tribunal felt that any reduction should be made; and that compensation should be paid of £7,171.50p calculated in the manner set out in the concluding paragraphs of the award.The basis of the appellant's case before the tribunal was this - and I propose to describe it in a very compendious manner rather than by citation at greater length from the decision of the tribunal. Mr Ryland, a man of 62 at the time of the hearing, had been employed by the appellants as a delivery driver/carpet fitter - I suspect as a general handyman of some sort - since about the middle of 1984. Their case was, and we think the tribunal accepted, that he had really been a bit of a thorn in the side of Mr Austin and others: he was difficult and argumentative and he elicited comments from Mr Austin on a number of occasions to the effect "Well, if you don't like, you know what you can do".However, as the tribunal describe it the final act in the tale commenced with the events of 30 May 1991. When Mr Ryland was driving to deliver articles from the firm's van in Teignmouth and parking outside the premises he hit another car belonging to a Mr Cayless and damaged it. He then drove his van around the corner and on the employer's case he exhibited a marked reluctance to own up to what he had done. He was seen peering around the corner - intending, they believed, if he could, to get away with the offence undetected; and when it became clear that he could not do that he was rude both to Mr Austin's wife and to the owner of the car and did not apologise. There was plainly an issue of fact about a good deal of that but that was the employer's case.It has to be said, because in our judgement it is of some importance, that it was not then and forthwith that Mr Austin dismissed Mr Ryland. On the contrary, he was allowed to go on working for a number of weeks. The suggestion is made that that is a point in favour of the employers and shows tolerance and an anxiety on their part to be quite sure that they had grounds for dismissal but the facts do not bear that out. They were not during that period carrying out investigations or having disciplinary proceedings or anything of that sort, they were waiting to be acquainted with the size of the bill for the damage to Mr Cayless's car. Here I will quote a passage from the tribunal's decision, they said this.
"6 Mr Austin has told us that he expected and required that Mr Ryland should pay for the damage which he had caused. He obtained two estimates, albeit the second one took a considerable length of time to obtain, and on 26 July"

- it will be remembered that the accident occurred on 30 May -

"the second estimate was available; Mr Ryland was told that it was a figure of some £300. Mr Ryland said he was not prepared to pay it. The employers were insured and he expected them to claim against their insurers. Mr Austin immediately dismissed him, using words to the effect that "You and I must part company in that event". He was, effectively, dismissed with immediate effect."
That in brief outline is what happened. Mr Ryland then brought proceedings for unfair dismissal and the tribunal had to consider that claim. They had before them evidence from Mr Ryland and from Mr Austin who were both there and gave evidence in person. They also saw a number of character references from customers in favour of Mr Ryland and (produced by the employers) statements or letters from a number of customers who said that Mr Ryland was not satisfactory, was rude and unco-operative. As to that, the tribunal received those documents but said, and we are not surprised at this, that they found it difficult to reach any assessment of those documents since they had not had the advantage of hearing the individuals come before them to give evidence.Mr Golder, who, on the indisposition of Mr Austin today, was allowed to present the case for him and did so most competently and persuasively, suggested that there was some duty on the tribunal to ensure that those witnesses were called but that, of course, is not the case.They then went on to describe the sort of relationship that we have briefly summarised and we shall not repeat what they said. They adverted to Mr Austin's "warnings" - if that is the right word for them "Well, if you don't like it here, you can go and look for another job" and they concluded, in our judgement perfectly rightly, that one thing is clear: at no stage during any of these occasions did Mr Austin give any indication to Mr Ryland that his employment might be in jeopardy or that he was receiving anything tantamount to an official warning which would have had the effect of directing Mr Ryland's mind to the future of his employment in relation to his conduct and attitude.The second ground of appeal that is advanced is that the tribunal misdirected themselves in not finding that those had been, as it were, real warnings of dismissal and there is cited a case in which it was held that an official warning was constituted by the words "it will be a parting of the ways if my instruction is not carried out". We are bound to say that that seems to us to be a quite different form of words from "Well, if you don't like it here you can go and look for another job". The warning in the other case is an indication that the employer intends to take action; that, in the present case is an invitation to the employee to consider whether he wishes to continue in employment.The tribunal having described the final act and the events of 30 May and the conversation of 26 July, went on to say:
"7 It is clear on the evidence that we have heard that at no stage did Mr Austin seek to conduct any sufficient and proper enquiry as to what had happened. He never sought an account from Mr Ryland of what had happened in the accident; he never sought an account from Mr Ryland as to why he had behaved as he did; he never gave him any warning that his behaviour and his attitude over this matter might be something which could prejudice his employment."
They then directed themselves as to the legal position referring to Section 54 of the 1978 Act and to Section 57 and in particular Sub-section (2). They cite Burchell v British Home Stores [1978] IRLR 379 and they cite British Leyland v Swift . The purpose of those two citations was to remind themselves as to what the employers in a case such as this should have done by way of investigation etc. and also to remind themselves that they must at all costs avoid substituting their own views for those of the employer and must consider whether dismissal fell within the range of reasonable responses which a reasonable employer could evince to the conduct of the employee. They concluded that they did not and they said this:
"9 ......... In this case we feel that Mr Ryland's conduct in relation to the accident did, as I have already indicated, render him liable to some criticism. We do not feel, however, that the employer's reaction in dismissing him could in any way be said to have fallen in the range of reasonable responses. It would have been perhaps appropriate for some sanction to have been imposed, but we feel that there would have been other ways in which the employer could have dealt with this: perhaps by way of suspension; or by way of deducting a day's pay, but certainly the dismissal cannot in any way have been regarded as reasonable. Having regard to that analysis, we find that the dismissal was unfair. We do not feel that, having regard to the various other possible sanctions which could have been applied to this situation, that we are prepared to say that Mr Ryland contributed to his own dismissal."
It is against that decision that the various points taken in quite a long notice of appeal are advanced. The first is, that the tribunal failed to give sufficient reasons for their decision that Mr Ryland had not contributed to his own dismissal. It has been emphasised again and again that this is peculiarly a matter for tribunals and it is, certainly in our experience, by no means unusual to find that an Industrial Tribunal, even while finding an employee at fault in his conduct, do not consider that his fault is sufficient to justify a reduction. This Court will very rarely interfere and there is nothing in the facts of the present case which leads us to suppose that there is any prospect that a Court could be persuaded to interfere on this score.Paragraph 2 of the notice of appeal deals with the band of reasonable responses point and suggests that the tribunal failed to recognise the relevance of previous warnings to the fairness of the dismissal; they misunderstood the facts; did not give sufficient weight to relevant previous warnings and did not appreciate the method of dismissal.Once again it has to be said that the tribunal directed themselves impeccably. They reminded themselves that they must not substitute their own view for that of a reasonable employer and that there was a band of reasonable responses. It is the duty of tribunals to decide these matters and one of the things they have to decide is whether the employer's response fell within that band. If (absent a misdirection, and there is in our judgement none) this Court were to conclude that this Tribunal were not entitled to come to the conclusion that the employer's reaction was outside the band of reasonable responses it would have to be on the basis that no reasonable tribunal could have reached such a view. It would be hopeless to raise such a contention.It is then suggested that the tribunal misunderstood the facts or misapplied the facts as regards the accident and a good deal of argument is set out about the circumstances of the accident; the failure to apologise - it is said that the tribunal who accepted Mr Ryland's evidence that he did apologise should have accepted a letter from Mr Cayless that he did not; about the nature of the damage and the relevance of the criminal sanctions which would apply in such a case. Again, it is argued that all of this shows that it was a serious case which plainly merited dismissal as a sanction. That was a matter for the Industrial Tribunal to judge in the light of the relevant legal principles.We have to say that had Mr Austin dismissed Mr Ryland after a proper enquiry for the conduct he had indulged in that particular afternoon it may be that the case would have been stronger. However, he did not do so: it seems, although this is not precisely what the tribunal said, that he was really dismissed because he refused to pay £300 by way of damages. It is quite impossible to say that the tribunals decision was not one at which they were entitled to arrive.In ground 4 it is said that it was inappropriate for the tribunal to approach this case by way of the Burchell v British Home Stores test, because, as a number of decisions including the decision of the House of Lords in Polkey show there are many circumstances in which the Burchell approach is inappropriate. In our judgement, on the facts of this case where there were disputed issues of fact, it was perfectly appropriate for the tribunal to apply Burchell as they did. They have not misdirected themselves and that ground of appeal fails as does the contention that, assuming they did not make adequate enquiries, it is inevitable that they would have reached the same conclusion. If one wants to point to a factor which destroys that submission it is to be found in the fact that Mr Austin did not, as we have said, dismiss Mr Ryland for what he had done that afternoon but kept him on for several weeks and dismissed him when he refused to pay £300.Then it is contended that the tribunal misunderstood the nature of the previous relationship. They describe a battle of wills and, says Mr Golder, surely if there is a battle of wills between an employee and an employer in a very small firm where the employee constitutes 20 per cent of the total work force there is only one way in which that can be resolved - he must be dismissed. A small firm cannot be expected indefinitely to put up with so disruptive a member as was Mr Ryland. That seems to us a matter for the assessment for the tribunal. We detect nothing in their reasoning which shows that they misdirected themselves about it and this is in effect an invitation to this Court to substitute its own view for that of the tribunal.The final point urged on appeal is that the award of compensation is in all the circumstances excessive. The position about compensation is a little complicated. At the beginning of this hearing we were invited to receive further evidence: the bulk of that evidence related to what I call the issue of liability i.e. the previous relationship between Mr Ryland and his employers and the circumstances of the accident and its aftermath. That evidence could plainly have been available at the hearing but Mr Austin chose not to obtain or produce it for reasons which are explained in the letter from Mr Carpenter. We, therefore, considered that there would be no prospect of persuading a tribunal to allow that evidence to be introduced on the issue of liability. However, there is also some evidence which bears on compensation.Mr Ryland was saying that he had not worked since the dismissal apart from an hour or so in a hotel, which had not led to formal employment. A letter has now been obtained (and we are satisfied that it is arguable that it could not with reasonable diligence have been made available before the hearing) from the hotel indicating that he had applied for a vacancy as a night porter; had worked on a casual basis for a few days and had apparently, it is to be inferred, been offered a job but had then informed the employers that he had to travel to the Midlands, disappeared and never taken up the position.It does seem to us that that is a piece of evidence which arguably might be admitted on appeal as fresh evidence and which arguably is relevant to the issue of compensation. On that ground we would propose to permit the appeal on the issue of compensation to go ahead. We emphasise to the appellants that we are not deciding the matter, we are simply deciding that there is something arguable, and that we are not admitting fresh evidence, only saying that it is arguable that fresh evidence should be admitted - something that will have to be decided at the contested hearing in the light of submissions from Mr Ryland or his representatives. Thirdly, and we add this by way of we hope a helpful postscript, this evidence will plainly need to be put in some proper form. We suggest that the parties consult the rules in order to see what is required in that regard at the very least there should be a statement from the Manager of the Hotel properly signed and preferably confirmed by an affidavit from him as to its truth. It is conceivable that that will be admitted.We should have said that a general point is taken that the decision of the tribunal was perverse. We have already said enough to indicate that in our judgement such a point is hopeless and could not possibly succeed. For those reasons the appeal against the finding of unfair dismissal is dismissed but the appeal in relation to compensation will continue in the ordinary way with both parties before the Court.