Brintons Ltd v Lawley [1994] UKEAT 436_92_2604

EAT

Brintons Ltd v Lawley

[1994] UKEAT 436_92_2604 · 1994-04-26

JUDGE HULL QC:

This is an appeal to us by employers, Brintons Limited, in respect of a decision by the Industrial Tribunal sitting on the 27 April 1992 and giving their decision on the 11 May 1992. The Industrial Tribunal sat at Shrewsbury and it was a case which involved employment at Telford. The Appellants, Brintons Limited, I will call them the employers, are carpet manufacturers. Mr Lawley was a fitter, a skilled man, and he was employed on shift work.

In 1992 there were two untoward events in which Mr Lawley was involved. A door at the works was written on with a felt pen. Something was written there which appears to us not to be particularly offensive but which referred to another employee, a Mr Bosson. There was (to the mind of an outsider, more serious) a cartoon put up on a notice board very offensive to Mr Bosson, suggesting that he was disloyal to his colleagues and that he was a creature of management. Mr Bosson too was a fitter and a skilled man.

I should have said that Mr Lawley had joined the Company as a maintenance fitter in July 1989. Mr Bosson had joined rather later. Mr Bosson was a man with ambition and ability and he was hoping to go on an HNC course to college. He was participating in a management scheme to try to improve efficiency and in some sort of management study. It appears that that may have caused some ill feeling, jealousy, whatever the right word for it is, amongst some of his colleagues.

So that was the situation and unhappily these two events, which related to Mr Bosson, were taken very ill by him. It may well be that Mr Bosson is a sensitive man as well as an intelligent man. Apparently these incidents were bad enough to cause him to abandon his ambition to go to college, to leave the team, which was studying the management problems which I have mentioned, and to ask actually to be moved to the Company's other premises at Kidderminster. One hopes that he will in due course make the progress which obviously he deserves to, but he was upset by this. There is a good deal that could be said about these things which perhaps we need not say; but the fact is that this graffito, if that is the right word for it, was allowed to remain on the door for a substantial time. No one wiped it off, although apparently it could have readily been wiped off and was in due course. As for the cartoon, it was very offensive, and should no doubt have been taken down. There is a copy in the papers. It is offensive not only to Mr Bosson, but also to a member of management, Mr Morris, who was Chief Engineer.

Mr Morris made enquiries. He discovered that Mr Lawley was one of the participators. He found that the cartoon itself was drawn by a Mr Price, another fitter. He was on shift work and he had drawn this cartoon. Mr Lawley had contributed to the cartoon to the extent of altering two letters, apparently to spell Mr Bosson's name correctly, that appears to have been his contribution; but to that extent he was a party to the cartoon. It was Mr Lawley who admitted to Mr Morris that he had written this graffito on the door, which as we say appears to us to be far less offensive and, indeed, was suffered to remain on the door for a week or more.

Mr Morris took a serious view of what had happened. He had spoken to Mr Bosson and he felt that there was intimidation, that this was a campaign against Mr Bosson. Much less serious was the indiscipline aspect, the aspect of putting things up which were derogatory of management. Mr Morris held a disciplinary hearing, having made various enquiries and spoken to various people, and he dismissed Mr Lawley summarily on the 3 February 1992.

Mr Lawley appealed. There was a hearing by Mr Bradbury, who was the Employee Relations Manager. The appeal was unsuccessful and Mr Lawley remained dismissed. Thereafter there was what has been called a conference with Mr Powell, the General Manager. Mr Powell, having heard what was said, upheld the dismissal notwithstanding strong submissions by the Trade Union representatives.

Mr Lawley applied to the Industrial Tribunal and we will come to their decision in a moment. With regard to Mr Price who drew the cartoon which would appear to be far the most offensive thing that had happened, he was disciplined by being suspended for three or four days. No other party, so far as we know, was identified as being concerned with any campaign of intimidation or anything of that sort.

The Industrial Tribunal sat on the 27 April 1992 to hear the matter. Their decision is a short one and it is said to be perverse. They set out the facts:

"In this case, Mr Derek Lawley claims he was unfairly dismissed by the respondents, Brintons Limited. The respondents resist his claim and allege that Mr Lawley was fairly dismissed on the grounds of gross misconduct. Mr Lawley worked for the company as a Maintenance Fitter from a date in June 1989 until his employment ended on 3 February 1992. It is not in dispute that there were two incidents which caused great concern to Mr Morris, the Chief Engineer. One was the writing on a door, defacing the door, which is under the rules, gross misconduct."

It is perfectly correct that under the Disciplinary Handbook, defacing Company property was given as an instance of gross misconduct which would invariably justify dismissal. Now I come to another passage which a particular complaint is made by the employers.

"It was said in this case today, and no doubt was said at the hearings, that Mr Lawley orchestrated or was the ringleader of the shift which intimidated another employee, Mr Bosson."

As I say, the employers make particular complaint of that. It is said by Mr Goulding on their behalf that no such thing was said to the Tribunal. The Tribunal have either simply made it up (Mr Goulding does not of course suggest that) or they have completely misunderstood something which was said to them. The Tribunal went on:

"We have heard the evidence and we entirely accept Mr Bosson's evidence that he was very upset, so much so that he gave up a college course because of the antagonism he was experiencing. However, having considered the evidence today, we can find no reliable evidence that Mr Lawley orchestrated that antagonism. We do know that Mr Lawley and Mr Bosson had a conversation and Mr Lawley told Mr Bosson that he had in fact changed the spelling of his name from Bossom to Bosson. Furthermore Mr Bosson, in order to inform the shift that he was "not a grass" (an informer) - which the shift believed - showed the applicant a report which he was making under the instructions of the Project Manager."

So having understood that that was the suggestion, the Tribunal were, of course, obliged to enquire into it. They could find no evidence that Mr Lawley was the ringleader, nothing to support that. Now to that Mr Carr, for Mr Lawley, says two things. First of all, that this would be much more important if the Tribunal had decided that the internal hearings had been wrongly conducted; that they had in fact proceeded on the basis that Mr Lawley was ringleader and the employers therefore had no reasonable grounds for a conclusion which they reached. Whereas in fact there is no such suggestion. Further, Mr Carr says that the Tribunal was fully entitled to take the view that what was being said in substance was that Lawley was the ringleader.

We think that there is really nothing in this complaint. As Mr Carr says, there is a suggestion hanging in the air here, arising from the facts, that would occur to any person; that it looks as though Lawley was the ringleader in this. Even if the Company expressly disavowed any such suggestion, it would be open to the Tribunal to look into the matter, and having looked into the matter. They found there was no evidence of that. Of course, if they had gone on to say "it is, therefore, obvious that the Company has acted without any evidence" that would be different, but they do not say that and it seems to us that it is not a just gloss on what they say.

So what they do go on to say, I am starting again at paragraph 3 is:

"At the first hearing on 3 February Mr Lawley admitted defacing the door and admitted the slight alteration to the cartoon. Mr Morris, who conducted this hearing, dismissed him. We also know that one of the shift, a Mr Price, who in fact drew most of the cartoon, was merely suspended for three days. It is true, and it is a matter we do bear in mind, Mr Lawley, although he attended three hearings and had a conversation with Mr Bosson, at no point did he apologise to Mr Bosson, though he had plenty of time to do so. However, having regard to the case of British Home Stores v Burchell and Iceland Frozen Foods Limited v Jones , we must bearing mind that the function of the industrial tribunals, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee, fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band the dismissal is fair; if the dismissal falls outside the band, it is unfair."

So there the Tribunal are making it very clear that they are considering the problem which, so to speak, is the fourth stage in the cases they mention. They are not considering procedural irregularities at all, they are considering whether the reaction of the employers fell within or outside the band of reasonable responses which a reasonable employer might have adopted. It is said by Mr Gould that they are in fact adopting their own standards and saying whether they would, or would not, have dismissed. But it is clear to us that they are adopting the correct objective standard of looking at the standards of a reasonable employer and the band of reasonable responses.

With the regard to the position of Mr Price, a complaint is made that here the Tribunal are improperly comparing the cases of the two men. Mr Price, as is pointed out, was merely guilty of drawing a cartoon, and evidently cartoons went up from time to time, no doubt in varying degrees of good or bad taste, varying degrees of humour and the Company was quite right to make a distinction between the two men. We think that the treatment of Mr Price, because he was in the involved in the same matter, was a matter which the Tribunal was entitled to take into consideration and enquire about, and they did. It is perfectly true that the two cases are not comparable and the Tribunal certainly does not attempt to draw up, so to speak, a league table of blame worthiness in respect of these two matters.

Then the Tribunal goes on to say:

"We have come to the conclusion, not without some reluctance, that this is an unfair dismissal. It seems to us the writing on the door was easily removed and even though it was an act of gross misconduct, was we think outside the band of reasonableness of the reasonable employer. He had only one oral warning in his record. Therefore, we find that Mr Lawley was unfairly dismissed. "

So that is their decision. Now Mr Goulding has said that by their language the Industrial Tribunal showed that they were ignoring the provision of the Handbook which says that such behaviour as defacing company property will invariably lead to dismissal. We do not think that that is a just view of the Industrial Tribunal's decision at all. They had their attention expressly invited to these terms and no doubt they were underlined for their benefit very seriously by the Solicitor who then appeared for the employers. But of course the Tribunal would undoubtedly tell themselves, as an experienced Tribunal, the terms cannot be conclusive. They do show that it is gross misconduct in the view of the employers, but we have to consider the matter and the employers have to consider the matter not as something written in the laws of the Medes and Persians, but on a basis of fairness and reasonableness. We do not think that that complaint is made out.

The Tribunal were in our view entitled to consider the treatment of Price and I come now to what appears to be the real point in the case. It is said that here were employers confronted by behaviour which, in their view, amounted to victimisation, very unpleasant behaviour which had led to an employee being greatly prejudiced. He may be a very sensitive man, but Mr Bosson had abandoned his plans for his personal improvement and development in the light of this treatment and asked to be transferred. It was said that in those circumstances it must be open to the employers to take the view that dismissal is the appropriate penalty. It may be that other employers would take a different view, it may well be of course that the Tribunal would take a different view.

We are reminded of the decision in Matadeen

[1992] IRLR 336

and it is said to us that this is quite plainly a case of the Industrial Tribunal putting themselves in the place of the employers and saying "we do not think that he ought to have been dismissed".

This could have been put forward by the employers from the start as a case of a campaign of victimisation led by Mr Lawley. He was the ringleader, they could have said, and if they had established that, by reasonable enquiry, then it would be hard indeed to say that Mr Lawley, having instigated the campaign with the intention of causing suffering to a fellow employee, with disastrous results, could not have properly and fairly been dismissed.

But it was put forward as a case in which the employers did not say, or try to prove at any stage, that Lawley was the ringleader, leading a vindictive campaign. What was said was that he was solely responsible for a graffito on a door, and that he had corrected the spelling of the name of Bosson on this grossly offensive cartoon of which Mr Price was the artist, and for which Mr Price had merely been suspended. It was put forward variously as being the case that he had been dismissed for gross misconduct in writing on the door, or that the real matter was this offensive cartoon and the suffering to the employee, Mr Bosson.

In those circumstances it appears to us that the decision which the Industrial Tribunal reached was one which was open to them. It was their duty, not ours, to say whether the reaction of the employers in all the circumstances fell within the band of responses of a reasonable employer. As I say, necessarily the Industrial Tribunal knew more about this case than we do and in particular they had seen the parties giving evidence. They saw the way it was put forward. It was not put forward as being a case in which Mr Lawley had led a vindicated campaign but as one in which he had written on company property in felt tip on a door, and one in which he had corrected the spelling of a name on an offensive cartoon; not that he was the ringleader, or prime mover, or that he intended to wound and upset this employee, Mr Bosson.

In those circumstances it appears to all of us that it was open to this Industrial Tribunal, with their Industrial members with long experience, with their chairman an experienced lawyer, to say that this fell outside the band of reasonable responses of a reasonable employer in all the circumstances of which the Industrial Tribunal had heard everything which the parties wished to lay before them. It may well be that other employers would have dealt with the matter very differently and would have reached different conclusions. It may be, as must always be the case in questions of fact, that another Industrial Tribunal might have taken a different view. We are not concerned with that. What we are concerned with is whether this Industrial Tribunal was entitled to form the view which they did on the evidence.

Having heard everything that has been said so shortly and forcefully by Mr Goulding, we have nonetheless come to the conclusion that this Tribunal was entitled to reach the view which they did and that it cannot be described as perverse. We therefore have to dismiss the appeal.