"Breaches of discipline fall into three categories:
"Penalties will depend on the circumstances surrounding the alleged offence.
"2.The Applicant was employed by the Respondent from23 May 1973 to26 February 1991 . His job title was bottle selector/packer. He complained of unfair dismissal. He was summarily dismissed after a fight with another employee, Mr Khan.
"7.We are satisfied that every effort was made to establish who had started the fight - if, indeed, the participants did not start it simultaneously. In the event it proved impossible to say that either party was blameless in the matter, for example, acting purely in self defence. Each man blamed the other."
"8.Mr Jakes saw the Applicant at 9 a.m. on Tuesday 26 February, for a disciplinary hearing and dismissed him. The Applicant appealed and appeal hearing took place on 27 February in the presence of the factory manager, Mr Mair and the personnel manager, Mr Clark. The Applicant was accompanied by Mr Smith and his senior steward, Mr Dunham. Mr Dunham accepted that the disciplinary hearing had been fair and that the fighting amounted to gross misconduct."
"The Applicant's case was that he had not started the fight, and that in any event he should not be dismissed in view of his long service with the Respondent. The management took the view, however, that it was impossible to establish who had started the fight and whether either men were blameless. The appeal was dismissed.
"For the Applicant, Mr Siddle contended that the Respondent, had adopted a rigid policy of dismissing automatically for fighting and had failed to take individual circumstances into account. Although some answers given by Mr Clark in cross-examination may have given this impression, we are satisfied on the totality of his evidence that there was no such rigid policy."
"He accepted that fighting was a "category B" offence under the Respondent's disciplinary procedure, so that on the face of it summary dismissal was not the inevitable result. The procedure contemplated suspension for a first offence and dismissal was appropriate only in "blatant" cases. He also accepted that as a matter of history all persons found to have been fighting were dismissed: this was because in those cases and in the present case the offence was blatant. He stated that the Applicant's long service and clean record were taken to account. We accept his evidence."
"In the abstract, we are all agreed that summary dismissal is not unreasonable punishment for fighting, particularly where, as in the present case, it takes place in the neighbourhood of machinery and glass."
"15.We find that, in accordance with decided cases, it is open to an employer who cannot identify the perpetrator of an offence to dismiss those reasonably suspected of it, even though one or more of those dismissed may in fact be innocent. By the same token, it was open to the Respondent in the present case to dismiss both participants in the fight, even though there was a possibility that the Applicant was innocent, in the sense that he might have been acting in self defence.
"17.The Tribunal was divided on the question whether the Respondent breached its own disciplinary procedure, thereby rending the dismissal unfair. The minority finding is that the Respondent's procedure provided for suspension for a first offence of fighting (as this was). The procedure was part of the contract of employment. Dismissal was accordingly a breach of the contract and ipso facto reasonable, unless the fighting was, in the words of the rule, "blatant". This term [and this is the minority's holding] should be construed against the Respondent as meaning an exceptionally serious fight, for example, a premedicated one where weapons were used. The majority finding is that - despite the difficulty of the word "blatant" - the intention of the rule was to differentiate between a trivial or momentary fight causing no damage and a relatively serious one. In other words the intention was simply to leave it open to the Respondent to dismiss, where appropriate, for a first offence of fighting. It is impossible to say that the Respondent breached its own rules. The Respondent judged the case on its merits and decided that dismissal was the appropriate response in the particular circumstances of the case. The majority cannot find that dismissal was outside the range of reasonable responses open to an employer in the Respondent's position."
"1.As held by the Employment Appeal Tribunal in the Judgment on the Preliminary Hearing, the proper construction of the disciplinary hearing and in particular the meaning of the word "blatant" is a matter of law."
"The proper construction of the disciplinary agreement and in particular the meaning of the word "blatant" are matters of law. If the Tribunal misdirected itself, an appeal will accordingly lie. We do not propose to enter into the arena of construing the word "blatant" save to say that one view at least would be that the adjective as to be applied to the blameworthiness if any, of the employee under investigation but we are quite satisfied that in the absence of any evidence of the start of the fight, the Appellant has an arguable point that his participation could not be regarded as blatant."
"a - adjective - noisy, vulgarly clamorous; flagrant, palpable; obtrusive, conspicuous; unashamed;"
"All instances of fighting in factories raise very grave problems for the employer. There was made at one stage a point that there was nothing in the contract to prevent fighting. Some companies do have rules which specifically forbid it. All three of us here are unanimously of the opinion that in these days it ought not to be necessary for anybody, let along a shop steward, to have to have in black-and-white in the form of a rule that a fight is something which is going to be regarded very gravely by management."
"It seems to us it is quite wrong to say that a management faced with fighting, even of a very modest nature, in a workplace where there is a large amount of machinery would be perverse in deciding what whoever started the fight must be dismissed. The potential for danger which any degree of violence involves in close proximity to machinery is blindingly obvious. It is difficult enough sometimes to keep people who have to operate machines safe from hurting themselves in the machinery even in the absence of any violence at all. Add some violence; the risk of serious injury to other people, let along severe interference with the work, is clearly great. Whilst circumstances must of course vary infinitely, in our judgment it certainly does not go without saying that to dismiss by reason of one blow, even by reason of the threat of a blow, is by itself plainly wrong. It may be in some circumstances wrong. It may well be a perfectly proper thing for management to do."
"In an attempt to analyse the Monie principles where dishonesty is involved together with the Whitbread principles where mere incapability was involved, we ourselves would suggest that a possible approach is as follows, and in setting it out I have had the benefit of the view of the industrial members with their experience. If an industrial tribunal is able to find on the evidence before it: (1) that an act had been committed which if committed by an individual would justify dismissal; (2) that the employer had made a reasonable - sufficiently thorough - investigation into the matter and with appropriate procedures; (3) that as a result of that investigation the employer reasonably believed that more than one person could have committed the act; (4) that the employer had acted reasonably in identifying the group of employees who could have committed the act and that each member of the group was individually capable of so doing; (5) that as between the members of the group the employer could not reasonably identify the individual perpetrator; then provided that the beliefs were held on solid and sensible grounds at the date of dismissal, an employer is entitled to dismiss each member of that group."