O & R Metal Pressings Ltd v Johnson [1994] UKEAT 25_92_1901

EAT
O & R Metal Pressings Ltd v Johnson
[1994] UKEAT 25_92_1901 · 1994-01-19

JUDGE LEVY QC :

This is an appeal by O & R Metal Pressings Ltd against a decision of the Reading Industrial Tribunal following a hearing of a matter on 11 December whereby the Reading Tribunal held that Mr Johnson was unfairly dismissed. The decision was entered on the register on 22 November 1991. The Company, the Appellant, has had the benefit of Mr Wearden appearing before us this morning. Mr Johnson has appeared in person, those we understand who were to help him not being available to come today, which is a great pity for him and I think for us. Before we go into our decision I think it material to add that following the decision of the Tribunal below, there was a hearing on 29 September 1992, at the conclusion of which a sum in excess of £12,000 was awarded to Mr Johnson in compensation.The grounds of appeal include a number of alleged misdirections of the Tribunal in the course of its decision and our papers rather strangely and include at page 28, comments on the appeal by the Learned Chairman.In view of the decision which we have reached we are not going to go into great lengths as to the criticisms which are made by Mr Wearden both in deploying his appeal before us and in the Notice of Appeal itself but we are bound to say that we are unhappy that the Chairman has chosen to comment on the appeal and some of the matters which he has put in the comments on appeal are matters which in our view, if they were matters which were troubling the Tribunal, are matters which should have been in the decision itself.Mr Warren, the Chairman, says in paragraph 3 of his comments on the appeal:
"The Tribunal were not happy from the evidence that there was a proper investigation - it was clear that Mr Brown did not like Mr Johnson and was looking for any opportunity to get rid of him."
That does not seem to us to square with the findings which the Tribunal are recorded as making and we quote in this context paragraphs 30 - 33 of the decision:"What actually happened at the meeting on Monday 25 March, a meeting just between Mr Brown and Mr Johnson, was that the allegation was again put to Mr Johnson, namely that he had said "I don't give a fuck what Andy said. Take no notice of Andy". Mr Johnson admitted that he had used those words. Mr Brown then reminded him that this was a serious situation and that he had the right to be accompanied, but Mr Johnson declined the offer.Mr Brown took the view that this was gross misconduct. [The misconduct complained of was a sort of insubordination there having been occasions in the past when Mr Johnson had used language which was derogatory to the senior management. More than once there had been warnings about this and there had also been warnings because of his unpunctuality]. He had clearly given the matter a great deal of thought and told us that he thought about it over the weekend and that he went to the meeting on the Monday with an open mind. He had thought about how he was to deal with it if it went one way or the other and he had clearly discussed with his co-Directors, if the matter had to lead eventually to dismissal, what payments would be made. He was thus able to deal with the matter expeditiously in the end.We are satisfied that he had not made up his mind prior to that meeting but only did so after talking to the applicant on that day. He dismissed him, summarily, for gross misconduct.On 26 March, the following day, a letter was written (page 19 in the bundle) which sets out the grounds of dismissal, dealt with the financial package and the car and reminded Mr Johnson of his right to appeal."Particularly the finding in paragraph 32 that Mr Brown had not made up his mind prior to the meeting that day but only did so after talking to the applicant on the day does not square with what Mr Warren has put in his comments on appeal "Mr Brown did not like Mr Johnson and was looking for any opportunity to get rid of him".In the circumstances it is unnecessary for us to go into the grounds of appeal which I have mentioned, other than to say that we think that some of Mr Wearden's criticisms of the Chairman of the appeal may have some force in them. We have to say that at the end of the day, what the Tribunal was looking at, and we quote now from one of the authorities which was cited to us: United Distillers v Conlin [1992] IRLR 503:
"The first submission for the appellants was that the Industrial Tribunal had fallen into the error identified in cases such as Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 and Scottish & Newcastle Beer Production Ltd v Cameron EAT/254/90, in that they had substituted their own judgment of what was reasonable for that of the employer, and had failed to consider whether, in the circumstances of the case, dismissal fell within the range of responses open to a reasonable employer."
We think that what this case may turn on was whether, in the circumstances of the case, dismissal fell within the range of responses open to a reasonable employer. Speaking for ourselves we are not satisfied that the decision of the Tribunal was perverse in the sense that it was not a result which the reasonable employer could have found, but that is not something for us to determine. What we think has to happen in the circumstances of this case is that the matter has to be remitted for a further hearing before another Tribunal with a different Chairman so that the matter as to whether the dismissal was or was not unfair can be gone into afresh.We are sorry about reaching this conclusion but the manner in which Mr Rearden has criticised the decision seems to us to have some force and we are very unhappy with the notes of the Chairman which suggest that what was in the decision and what was in the Tribunal's mind are not one and the same.