Huffer v Hepworth Building Products [1993] UKEAT 685_92_1106

EAT
Huffer v Hepworth Building Products
[1993] UKEAT 685_92_1106 · 1993-06-11

JUDGE N HAGUE QC:

This is the preliminary hearing of an appeal brought by the Applicant, Miss Huffer, against a decision of an Industrial Tribunal sitting at Ashford, sent to the parties on the 16th July 1992. The Tribunal rejected her claim against her former employers for unfair dismissal.The employers were Hepworth Building Products Ltd, which appears to be a substantial company with its headquarters in Sheffield. Miss Huffer worked for them at a small office in Erith. Her duties included general office duties, typing, filing, answering the telephone and so on. She first worked for a Mr Lambert, but he was subsequently replaced by a Mr Sayer. It is apparent that she and Mr Sayer did not get on very well together.The Tribunal in its Reasons sets out a number of matters of difficulty that occurred between them. One such matter concerned a particular file which appeared to have been in some disarray, including correspondence that related to some other matter, and Mr Sayer had asked Miss Huffer to put the file into order. Matters came to a head on the 18th December 1991 when a Mr Wills came into Mr Sayer's office and asked for this file, discovered that it was still in some state of disarray and told Mr Sayer about it. Mr Sayer then called Miss Huffer in, and (in the presence of Mr Wills) asked her for an explanation. There was some conflict of evidence as to exactly what happened on that occasion. Miss Huffer said that Mr Sayer shouted at her and banged his fist on the table, and that she was put into a state of fear and had to leave the room as a result. It is common ground that she did not give any explanation for the disarray of the file and did leave the room without any explanation. However, the Tribunal, having heard the evidence of Mr Sayer and Mr Wills as well as Miss Huffer, said that they were not persuaded that Mr Sayer shouted at her or banged his fist on the desk.A little time after that incident, Mr Sayer asked Miss Huffer to come into his office again for a quiet word. Mr Wills was not present then. It is quite clear, and it is really common ground, that there was no quiet word on that occasion. On the contrary, Miss Huffer swore at Mr Sayer and again left the office. Miss Huffer gave evidence that she accepted that she had done that, but she thought that as he had not apologised for shouting at her on the previous occasion she was justified in swearing at him and then leaving the room. Subsequently to that incident Mr Sayer suspended her and called her in for a disciplinary hearing on the 3rd January 1992.Pausing at that point Mr James, who has argued this case very helpfully and realistically and to whom we are very grateful, has put forward certain matters of which, he says, evidence was given at the Tribunal but which the Tribunal did not mention in their Reasons. He says that there was evidence on that day that Mr Sayer was feeling unwell (as the Tribunal do mention in the decision) and that he had a very trying journey into work. He says that there was evidence that Miss Huffer was normally not the sort of person to behave insubordinately or to swear at work. It is true that the Tribunal do not mention those particular factors but, as Mr James realistically accepted, it is not incumbent on a Tribunal to mention every single piece of evidence that is given. They heard the evidence of Miss Huffer and Mr Sayer and Mr Wills, in so far as he was involved and they came to their conclusion. That was, to our way of thinking, clearly a conclusion of fact and there can be no possible challenge to their findings.Following on from that one comes to the disciplinary hearing that was held. That took place, apparently with Mr Sayer himself being the person conducting the hearing. At the end of the hearing Miss Huffer was dismissed.Mr James has put forward a number of criticisms of what happened at that hearing and the circumstances in which it took place. In particular he makes the obvious point that Mr Sayer was not really an appropriate person to conduct the hearing, because to a certain extent his own conduct was material. It might well be thought that the Company could have sent somebody down from headquarters, after all they did send somebody else down from Personnel for the hearing of the Industrial Tribunal. There are other criticisms made by Mr James of what happened. We do not think that those criticisms are without force, although one must of course bear in mind that this was only a small office. However at the end of the day the Tribunal find and are satisfied in paragraph 12 of their Reasons that the disciplinary hearing was not a complete dead letter even though Mr Sayer had come to the conclusion beforehand that he would dismiss Miss Huffer, because they are satisfied that if she had come up with some good reason for doing what she had done he would have considered it and they say that his attitude on that was one that is reasonable and which they can accept. But much more importantly in paragraph 13 the Tribunal say this:
"We find that there has been gross misconduct here, on the grounds of insubordination. We find that it was within the range of a reasonable employer to dismiss for misconduct under those circumstances and it follows that we not find this dismissal unfair . . ."
That, as we see it, is a clear finding of fact. One must bear in mind, that here was a secretary swearing at the person by whom she was immediately employed, and that is obviously serious conduct and serious insubordination. The Tribunal make the express finding that it was within the range of responses of a reasonable employer to dismiss for misconduct in those circumstances. Mr James says that, bearing in mind modern industrial practice, that is not a finding that a Tribunal could reasonably come to. We cannot accept that and we consider that there are no realistic grounds for challenging that clear and unequivocal finding on any point of law. So, despite Mr James' submissions, we do not think this is an appropriate case to proceed any further and we dismiss the appeal.