Webster Machine Co Ltd v Cliff [1993] UKEAT 637_91_1612

EAT

Webster Machine Co Ltd v Cliff

[1993] UKEAT 637_91_1612 · 1993-12-16

JUDGE HARGROVE OBE QC :

The Industrial Tribunal held that the Respondent, Mr Cliff, was unfairly dismissed by the Appellants who are a small company. The Tribunal further held that Mr Cliff had contributed as to 50% of the damage.

The circumstances were that the employee, a foreman, became progressively more disturbed at the behaviour of two employees who were not part of his team but whose conduct he considered to be disruptive and prejudicial to the health and safety of his team. It is right to say that he was a valued employee with a clean disciplinary record of over 11 years. The employee raised his unease with his superior, and with the Appellants' technical director, Mr Clayton and in April indicated that he no longer wished to have the responsibility of being a foreman. Although the dates are not entirely clear from the Tribunal's findings, it seems that the employee left the premises; was invited back to discuss the matter on the same day; went home to think matters over and was granted a period of leave and finally at an interview the expression "resign" was used by the employee. At the meeting it seems that the employers made it clear that they were unwilling to fall in with the employee's suggestion that he should merely resign as a foreman and the employee reluctantly indicated that he might be prepared to return to his duties but that would be under protest. The employers decided that was not acceptable and dismissed him.

The Tribunal held that there was no true resignation here and that the dismissal was unfair. It was put in this way:

"This was an employee who had seen 11 years' conscientious service with no previous disciplinary record against him. Refusing to continue to work as a foreman was clearly a serious form of misconduct putting the employer into an untenable situation if it was persisted in. But what was the effect of the employee stating at the end of discussions that he was prepared to give matters a trial in the same capacity as before?

In the light of the circumstances and what had gone on before the tribunal considered that the reasonable course of action to take by the employer was at least to give this employee a chance before taking the very final step of dismissing him. A reasonable course would have been to allow a trial period during which the mettle of the applicant could be tested and during which the employer for its part could take whatever reasonable action was necessary to remove the root cause of the complaints which this employee was making about the attitude and actions of the 2 men who work in his shop.

It is of course never the duty of the tribunal to take over the decision of the employer and say what the tribunal would have done in these circumstances. The question to be asked is: did the employer act reasonably in the terms of Section 57(2)(3) of the Employment Protection (Consolidation) Act 1978. Taking all the circumstances into account was dismissal within the range of reasonable responses which a reasonable employer might have adopted. For these reasons the tribunal considered that the dismissal was unfair but in view of the conduct of the applicant throughout the unanimous finding of the tribunal was that he was to some considerable extent responsible for the termination of employment and this was reflected in the finding of the tribunal of the 50% contribution."

The first point is that paragraphs 15 and 16 which I have recited indicate that the Tribunal has substituted its own views for those of the employer. In our view there is nothing in that point. The Tribunal having rehearsed certain matters then goes on to set out precisely the question of law it has to decide and takes precisely the right route. The slight ambiguity which appears in paragraph 15 is explicable upon the basis that what the Tribunal is looking at is what is a reasonable course for an employer to take.

The second ground of appeal is that in the computation of the compensation, that the Tribunal has strayed. If there is a procedural defect a Tribunal must consider what is the percentage chance of an employee being dismissed if the proper procedure has been followed. I shall call that the Polkey principle percentage and there should be also a consideration of the degree to which the employee has contributed to the dismissal. It is said here that these two stages were not complied with. In other words even if Mr Cliff had been given an opportunity to return under protest, that he would either not have accepted that opportunity or if he had, he would have resigned within a very short period of time, and we are told, and we see no reason to doubt it, that a period of time was suggested on behalf of the employers that the employment would have run out in a period of about 6 weeks.

It is trite law that it is for an employer to prove an assertion that loss should be limited on the ground that the employee would have been fairly dismissed at any event at some future date. With very considerable reluctance, we have reached the conclusion that the Tribunal ought to have indicated the view which they formed on the Polkey principle percentage. We think that the employers did just sufficient to raise the issue before them. At first we were attracted to the argument that it is not necessary for a Tribunal to spell out every last point, nor, incidentally, is it appropriate for this Appellate Tribunal to go through the findings of the Court of first instance with a fine toothcomb.

However, we have considered the unreported case of Allmakes v Boorman

EAT/695/92

and the case therein cited of Red Bank Manufacturing Co Ltd v Meadows

[1992] ICR 209

and the passage which appears from Red Bank and is quoted by this Tribunal runs as follows:

"It is not clear from the second decision whether or not the Tribunal did apply the Polkey principles to their consideration of the question of calculation of quantum. While of course Tribunals are not required when giving the reason for their decisions to deal with all the arguments put before them, we feel in view of the appellants' counsel's submissions that it is unsatisfactory in the circumstances of the present case that a fundamental question such as this should not have been seen to be expressly addressed.

Furthermore, we think that the Industrial Tribunal should have made it clear whether or not they considered making a percentage reduction in the award to reflect the chances that the outcome might have been the same even if consultation had taken place."

We feel great sympathy with the Tribunal. It may be that even if they had expressly taken into account the Polkey principle percentage they would still have reached the figure of 50% and that all that was required was a single sentence added to their decision. Moreover, and more important, at the date of the hearing it appears that the Red Bank Manufacturing Co Ltd case had not been reported. Nevertheless, we feel obliged to follow those two decisions and indicate that there is a proper ground for appeal here.

We cannot leave this case without commenting that in a field where it is said to be desirable, indeed necessary, that matters should be simple, the calculation of percentage deductions has now become incredibly complex and costs in this case must now considerably exceed the compensation. That cannot have been the wish of Parliament when this legislation was first passed. However, for the reasons we have given this matter will be remitted to the same Tribunal for the reconsideration of the percentage reduction, if any.