Dixon Stores Group Ltd v Dwan & Anor [1994] UKEAT 310_93_2507

EAT

Dixon Stores Group Ltd v Dwan & Anor

[1994] UKEAT 310_93_2507 · 1994-07-25

decision of an Industrial Tribunal held at Liverpool, that their dismissal of the two Area Managers, whom we shall call "the employees" was fair. None of the essential facts giving rise to the dismissal was in dispute either when the disciplinary procedures were invoked against the employees nor when the matter came before the Industrial Tribunal. Essentially the employees were dismissed for performing what was regarded by the employers as an unacceptably lewd act at the relevant division's Christmas party in 1991. After a thorough and fair investigation the employees were dismissed. The reason for the dismissal fell within s.57(2)(b) of the 1978 Act, namely conduct. The sole question before the Industrial Tribunal was whether the dismissals were fair or unfair, having regard to all the circumstances. The Industrial Tribunal correctly reminded themselves that they must not substitute their own judgment for that of the employer:

"the question was not what we should have done in their place, but whether their actions lay within the range of options reasonably open to them."

That direction cannot be faulted.

The reason that the Tribunal concluded that the dismissal was outside the range of reasonable responses of an employer, and thus unfair, having applied the test in s.57(3), may be summarised thus: first, having regard to an agreed established history of previous `turns'in bad taste at Company functions going back over many years, the employers were not reasonably entitled either to characterise the behaviour at the Christmas party as gross misconduct or to impose the penalty of dismissal. The Industrial Tribunal concluded in effect that no reasonable employer could have thought that what the employees did at Christmas 1991 was different in spirit from what had clearly gone on at these earlier functions. Secondly, whilst management were entitled to view what had happened as unacceptable such a view represented a change of attitude which was so radical that it needed to be communicated to the employees. Third, their `turn' was positively encouraged by the employers through the divisional director and there was no evidence to suggest that actual offence had been caused by the performance, in the sense that it provoked any contemporaneous complaint. In reaching their conclusion the Industrial Tribunal, in our judgment, characterised the essence of the employer's reasons for their decision in paragraph 3(g) of the Tribunal decision and we will incorporate that paragraph into this our decision (but not read it now):

"Mr Bathmaker considered the applicants' behaviour to have been inconsistent with the standards he thought the respondents' managers should observe. They had, moreover, by behaving as they did, at least risked being accused of sexual harassment. He had in his extensive industrial experience never known senior managers indulge in such conduct. The fact that it was done on a private occasion did not excuse it. Nor was it excused by what had happened on similar occasions before. Mr Bathmaker said of the respondents' organization: `The management style and culture has been changed and is changing.' Besides, he distinguished this from other occasions when uninhibited acts had been performed. On those other occasions, the audiences had included managers' families. They did not have the sexual connotations of this act. They had on occasion taken place abroad. He regarded the applicants' behaviour as gross misconduct: each had destroyed any confidence that he could as an area manager. He was not impressed by the arguments that managers should have been told that the Company's norms had been so changed, that entertainments of this type were forbidden: the act was not normal and it should not be necessary to forbid managers from behaving in so obviously gross a way. Such were the views on which he based his decision to dismiss the applicants."

Essentially, as the employers saw it, they sought to distinguish what happened on this occasion, in December 1991, from what had admittedly happened before on the three grounds which they there set out. It is in our judgment quite clear that the Industrial Tribunal had properly directed themselves as to what was in the employer's mind and were correctly applying the test which they themselves had to apply, to which our attention has been drawn in the course of argument.

Despite the skill of Mr Tabachnik, we fail to see in this case, any basis for an appeal on a point of law. Our jurisdiction which derives from statute permits us only to entertain appeals from Tribunal decisions which are erroneous in law. This appeal is, in our judgment yet another example of an appeal on fact, dressed up as an appeal on a point of law. What is argued in a ten page document, and urged on us in oral argument, is that contrary to their

express direction the Industrial Tribunal misdirected themselves and substituted their own findings on the material which had been before the employers and was before them, for those of the employers. We were given a number of alleged examples of this including the "significance of the change in work ethic". As we understand the argument the Industrial Tribunal were effectively bound to accept the employer's judgment as to the need for a warning having regard to the employer's perception of the need for such, in the light of the significance of the change in the work ethic as the employers have perceived it to be. That is the significance of the reference to the work ethic. The contention is not correct. What the Industrial Tribunal are doing in paragraph 5 of their decision is to explain why they considered the dismissal to be out with the range of reasonable responses. It is for the Industrial Tribunal to conclude that no reasonable employer would have dismissed without a prior warning, having regard to past practice; the Industrial Tribunal is not bound to accept the employer's own perception of the need for a warning because ex hypothesi in every case the dismissal would be fair. Whilst of course an Industrial Tribunal will have regard to the significance attached by the employer to the evidence the Industrial Tribunal is not bound to accept the employer's judgment but it is equally not entitled merely to substitute its decision for that of the employer. It is the decision of the employer that is under challenge and the Industrial Tribunal is entitled to pass judgment upon it in accordance with the obligations imposed on them under the statute.

We do not feel it necessary to go through each and every item which has been relied upon and allegedly constituting and establishing this ground of appeal. It seems to us that none of them has any validity at all. The Industrial Tribunal has, as we have already indicated, correctly set out the employer's case and it is to that case that they directed themselves in paragraph 5 of their decision.

The second ground of appeal relied upon is that the Industrial Tribunal decision was perverse. We have to say that in our judgment neither argument gets off the ground. This was, having regard to all the circumstances, a decision to dismiss which was, in our judgment manifestly unfair. Offensive office party behaviour is plainly unacceptable. But having regard to the established practice of employees behaving like immature schoolboys at such functions, the Industrial Tribunal were, we think, obviously correct to conclude that in the absence of a satisfactory communication of a change of ethos, making clear what was to be expected and letting employees know that anyone who broke the rules would be instantly dismissed, the dismissal was unfair.

We hope we will be forgiven for dealing with Mr Tabachnik's arguments in what might appear to be such a dismissive manner. Had we thought that they had any merit we would of course have rehearsed them in some detail and dealt with them at some length.

Accordingly, it seems to us that this appeal should be dismissed and the matter remitted back to the Industrial Tribunal for them to consider at the earliest possible hearing date the question of re-instatement and re-engagement and any other remedy which they are asked to consider and to deal with any question of contributory fault. Accordingly, this appeal is dismissed.