Hilton v Arthur Gresty Ltd [1993] UKEAT 661_92_0903

EAT
Hilton v Arthur Gresty Ltd
[1993] UKEAT 661_92_0903 · 1993-03-09
MR JUSTICE WOOD (PRESIDENT): Mr Hilton complained that he had been unfairly dismissed by his employers, Arthur Gresty Limited, who ran the business of funeral directors and his case was heard on the 15th May 1992 by an Industrial Tribunal at Manchester sitting under the Chairmanship of Mr Verdin. He succeeded on the issue of unfair dismissal and was awarded £1,247.20 in compensation. That compensation was reduced by 80% and it is respect of the 80% that Mr Hilton appeals. This is a preliminary hearing we look to see whether there was an error in law in the decision reached by this Industrial Tribunal.The Originating Application was dated 16th October 1991. It complained that:
"On Friday 4th October I was accused of leaving the flat to have lunch after being on duty for more than 24 hours continuously, although I pointed out the circumstances, Mr Robert Gresty said I was finished and must vacate the flat above the funeral parlour within seven days."
The Notice of Appearance gave rather a different picture, it suggested that a Mr Smith was on duty on Friday night and all day on Saturday. The Applicant was on duty on Sunday that the directors had tried to make contact with him at his flat during the Sunday and they failed to do so and that Mr Hilton later admitted he had been absent between 10 am and 3 pm without notifying the Company or making other arrangements. This was the background of the issues that were before the Industrial Tribunal. Of course we do not have the Notes of Evidence, this being a preliminary hearing, but the Tribunal had those issues from the pleadings and they also heard evidence.We would remind ourselves of the principle that when one is looking at a decision of an industrial tribunal, it is wrong to seek to treat it like a pleading and to use the words of Lord Russell of Kilowen "to examine it with a fine tooth comb". However, it is also on the other side of that equation, necessary for the decision to be so drafted that the parties, and indeed this Court, can understand the reasoning of the Industrial Tribunal.May we say at once that Mr Scott has been most helpful in his submissions and he has made a number of points, which we have considered carefully. It is fair to say that we might ourselves not have drafted this decision precisely in the same way as it was drafted, however, it is necessary to see whether there is an error of law.The facts, appearing from the face of the decision, are that Mr Colin Smith, who was in an administrative capacity arranged over the weekend for various members of staff to be on duty. It is absolutely clear that no one running the service and business of a funeral director would ever leave the weekends without someone being at the end of the telephone, for obvious reasons. He arranged to be on call for Friday 27th September 1991, also that he was going to be on duty and available to take calls on Saturday and that the Applicant was to be available to take them from the midnight of the Saturday. There may have been some possible misunderstanding about that, but in any event on the Sunday morning attempts were made to make contact with Mr Hilton at his flat; it was a flat provided for him by the respondent Company. No one could obtain contact with him. He maintained he was there until 12.45 pm but no one could make contact and as a result Mr Robert Gresty had to return from Llandudno to deal with a call.On Monday 30th September Mr Hilton went to work as usual, nothing was said on that occasion, but Mr Smith, as the Tribunal found, indicated to him he was likely to be in trouble because of the problems over the telephone call. So at least Mr Smith thought that Mr Hilton was responsible for some of the problems.On Friday 4th October, Mr Robert Gresty gave Mr Hilton his wages and then spoke to him about the incident the previous Sunday. There seem to have been varying versions of that conversation and the Tribunal had to say this at paragraph 4, they say:
"Whatever version of the evidence one prefers, it is clear that the conversation became heated and the applicant indicated that he had a low view of the management abilities of Mr Gresty, and Mr Gresty was clearly taken aback and also annoyed. The Tribunal accept that the applicant said `I don't give a shit' and that the business was run like a circus or words to that effect. The conversation ended by the applicant saying `I'll finish now' and walking out of the office."
There was a difference of opinion, as the Tribunal found, as to whether Mr Gresty told the Applicant to go or not. However, shortly thereafter there was a conversation at the Applicant's flat which was less heated and it is clear that Mr Gresty then told the Applicant he had a week to vacate the flat.On the following day, the 5th October, Mr Gresty wrote to the Applicant saying:
"I write to confirm acceptance of your notice of resignation with immediate effect from yesterday."
and then he went on to other matters.On the basis of that conversation the Tribunal had to reach the decision whether Mr Gresty had in fact dismissed Mr Hilton on that date, or whether there had been a resignation. They found that he had not been dismissed that there was a resignation but it was a resignation in the heat of the moment and therefore on the usual application of the principles involved, that an employer realising that it was a very heated occasion, should have allowed sufficient time for the matter to have quieten down and to see whether it was really intended. They found that that period of grace had not been allowed by Mr Gresty. It would have been reasonable so to do and by writing that letter of the 5th October and accepting the resignation rather promptly, he had acted unfairly and unreasonably. Therefore they found that there was a dismissal rather than an acceptance of the resignation which was a fair acceptance and that the termination was therefore by the employer.They then look at the whole circumstances to see whether there should be any compensation. They thought that there should. The Tribunal might, very easily, have gone the other way, and perhaps Mr Hilton was fortunate that the Tribunal took that view, however they did but it must have been with some hesitation because they made a substantial reduction of 80% in the award of compensation. Paragraph 6 of the decision deals with the matter before reaching the calculation. The Tribunal say this:
"Given the circumstances which led to the confrontation between the applicant and the respondent, it seems to the Tribunal that the justice of the case and the contributory conduct by the applicant requires a substantial reduction in any compensation awarded to the applicant."
Pausing there it is clear that the Tribunal were looking at both limbs of Sections 73 and 74, the justice of the case, that which was just and equitable in Section 74(1), and then the contributory conduct element which is in Section 74(6).Mr Scott submits that the Tribunal have failed to spell out the reasoning behind that 80% reduction. That is the first point he takes and he says that that is an error of law. Secondly he says that a reduction of 80% was in any event perverse, it was far too much.What were the findings of fact and what was the background against which the Tribunal were exercising their discretion and reaching their decision? It seems to us that they really are fairly clear, although as we say, we would not perhaps have drafted the Decision in quite the same way. First of all there is the background of a weekend in the operation of a Funeral Director's business when anyone would know that the greatest care must be taken to ensure that someone was there answering the telephones and that Mr Smith had made the arrangements. There may have been some misunderstanding, but in any event the issue was that Mr Hilton said that he was at the Company's flat on the morning of the Sunday. The witnesses said they could not get in touch with him, and one would imagine they would have made strenuous efforts so to do. Eventually Mr Robert Gresty had to come back from Llandudno to deal with the call. There is the background to what went on. If there had been a misunderstanding then, no doubt, that could have been dealt with by an apology; an understanding; an argument; an explanation, call it what one will, but the attitude next of Mr Hilton is clearly evinced in the findings in paragraph 4 and, although the details are not found throughout, it is clear that he expressed his view that the management abilities of Mr Gresty left a great deal to be desired. He did say "I don't give a shit" and "it was more like a circus" or words to that effect and "I'll finish now". Now supposing he had not said "I'll finish now", we would have thought that the reasons for dismissal there and then were absolutely apparent and were well founded. However, he did say "I'll finish now" and walked out. So there are the findings, there is the attitude; the words used and there is criticism of his employers without any explanation about the Sunday or discussion about the Sunday or any notion of reasonableness. Mr Gresty also may have been in a slight temper, but there it was, and that took place.Then Mr Gresty departs, and there is further conversation back at the flat. Now again, here was an opportunity for Mr Hilton to say he was sorry, or to quieten down and to say perhaps that his employment was not at an end, but nothing like that occurred and the Tribunal clearly took that also into account in the middle part of paragraph 5, that although Mr Gresty had not made further enquiries nor had Mr Hilton expressed any sort of regret or apologised for the attitude that he had taken up, this was a face to face row between the two and that Mr Hilton, in the colloquialism, had let Mr Gresty know exactly what he thought. That was entirely inappropriate in the circumstances. Well the circumstances are those, and those are the circumstances to which the Tribunal give expression in paragraph 6. Read in that way, and we can see it is perfectly reasonable to read the decision in that way, it seems to us that the Tribunal were abundantly justified in reaching the decision which it did. The reasoning is perfectly clear to us, and to any normal person approaching it, and indeed a reduction of 80% is by no means perverse in the circumstances of this case. This appeal must be dismissed at this juncture.