Skinner v Hi-Miles Tyre Service Ltd [1993] UKEAT 623_92_0203

EAT
Skinner v Hi-Miles Tyre Service Ltd
[1993] UKEAT 623_92_0203 · 1993-03-02
MR JUSTICE WOOD (PRESIDENT): This is an appeal by Mr Skinner by way of a preliminary hearing from a decision of an Industrial Tribunal sitting at Birmingham under the Chairmanship of Mr Macmillan who heard his case on the 3rd April 1992. They were unanimous in deciding that Mr Skinner had been unfairly dismissed by his employers, Hi-Miles Tyre Service Limited and that he was not entitled to any compensation.Mr Skinner was employed as a tyre fitter and had been employed for many, many years. He was, by way of character, somewhat aggressive. He was capable of using abusive language and he had occasionally walked out.There was an incident which we can treat quite shortly, because it is all set out in the decision, when there was an argument over the right to be using an air gun. An air gun, we imagine, is to do with replacement tyres. There was a quarrel. The responsible member of management, Mr Dangerfield, came upon the scene. He decided against the view being expressed by Mr Skinner, who was incensed and walked out saying:

"I'll be back when you can get your act together."

In fact, having washed and changed, he left and that was the last time that Mr Dangerfield saw Mr Skinner. He did not return, Mr Dangerfield felt that if he had returned later on he might have "ticked him off", but nevertheless, there came a moment when Mr Dangerfield had to reach a decision and in the light of the whole history of this matter he decided that he must dismiss. So he wrote a letter to that effect and that was the dismissal.Mr Dangerfield told the Tribunal that he had written that letter because he thought that his authority was being undermined by Mr Skinner's actions. There had been a very heated argument in front of customers, it had all been very embarrassing, and Mr Dangerfield felt that he had no choice but to write and dismiss Mr Skinner without hearing anything from his side of the argument or of the question. The Tribunal said "no". Although this was a small business, seven full-time, two part-time staff, nevertheless natural justice had to be applied and he ought to have been given first a warning about his conduct and secondly an opportunity to explain it, and indeed an opportunity to return to work in view of Mr Skinner's known character. Thus, the issue of liability was decided in favour of Mr Skinner that the dismissal was unfair, but of course because it was procedural the Tribunal had two further functions to consider, namely would the dismissal have occurred if the appropriate procedure had been followed through and secondly, the issue of compensation.The Tribunal, in paragraph 5, make their findings of fact about the background of the whole matter and Mr Skinner's own evidence, they say this at paragraph 5:
"However, it is plain from Mr Skinner's own evidence that had they afforded him the courtesies which a reasonable employer extends to an employee in these circumstances, the explanation which he would have given them for his actions was such that Mr Dangerfield would have been amply justified in concluding that not only had his authority been undermined but that Mr Skinner had every intention of behaving in a similar fashion in similar circumstances in the future."
They find facts thereafter in (a), (b) and (c) and then at (d) it is material and we will look at that again: (d)"At the conclusion of his evidence he [Mr Skinner] agreed with the chairman when he suggested that his actions amounted to informing Mr Dangerfield that if he disagreed with any of his decisions in future he reserved the right to walk out."So there was the background of Mr Skinner's attitude and what he would have done in the future in any event.Then, the Tribunal turn to considering those two matters to which we have already referred and paragraph 6 has to be read in toto to understand their thinking, they say:
"Therefore, although in our judgment Mr Dangerfield jumped the gun, none the less, unbeknownst to him, he had more than ample reason for summarily dismissing Mr Skinner. Mr Skinner was undermining his authority in the plainest way possible. He was walking off the job in protest at a decision of his managing director with which he disagreed. Much worse, he was reserving to himself the right to do so again in respect of any future decisions of his managing director with which he disagreed. Manifestly no employer can retain in his employment an employee with that attitude. Therefore although this dismissal was procedurally unfair, Mr Skinner is entitled to no compensation because if the employers had carried out the enquiry which a reasonable employer would have carried out in the circumstances, he would have condemned himself out of his own mouth and the respondents would have had virtually no alternative but to dismiss him. That would have taken place on the Monday, the first working day after the letter of dismissal was sent. Accordingly Mr Skinner has suffered no loss as a result of this unfair dismissal, and is entitled to no compensatory award. We reduce his basic award to nil under the provisions of Section 73(7B) of the 1978 Act because of his conduct prior to the dismissal."
Mr Readings argued this appeal with great ability and helpfully if we may say so. He has made one simple point. He submits that the Tribunal in using the phrase that there was "virtually no alternative but to dismiss" failed to consider the chances of dismissal taking place. They failed to ask themselves the question whether Mr Skinner would have been equally vociferous on the Monday morning? Secondly, would he have been dismissed? By using the word "virtually" they indicate that he might not have been dismissed and therefore there was a percentage possibility that he would not have been dismissed. That must be apparent from the wording. But he also conceded, rightfully in our judgment, that thereafter, even though there was a percentage and let us say a 20% chance of not being dismissed, compensation would need to have been calculated or assessed. It seems to us that the Tribunal also had that second issue in mind at the end of paragraph 6 and they went on to say that there would have been either no award because it was not just and equitable or no award because of the conduct of Mr Skinner.In looking at that paragraph 6 we are reminded of the warning given to us by the Court of Appeal, it was Lord Justice Russell, before he became Lord Russell of Kilowen, who warned against a minute disection of the wording of a decision of an Industrial Tribunal. It seems to us here on a broad reading of that paragraph and a reading of the decision as a whole that this Tribunal, under a very experienced Chairman, had well in mind the two matters which they had to consider, and indeed the evidence was overwhelming here that Mr Skinner really was and had proved to be, and confessed to be, his own worst enemy.In the circumstances we are unable to find any error of law in this decision and the appeal must be dismissed at this stage.