St Helens School v Hmidouche [1994] UKEAT 951_93_2305

EAT
St Helens School v Hmidouche
[1994] UKEAT 951_93_2305 · 1994-05-23

JUDGE HULL QC:

This is an appeal to us from the decision of the Tribunal for London North, presided over by Mr Booth; their decision was promulgated on the 15 October 1993. The real point, Mr Lock has told us, is not really a question of law at all, but a question of fact; whether there was evidence on which the Tribunal could reach the conclusion which they did. The case is in our list to see whether we can discover any point of law, because our sole jurisdiction under the statute which creates our jurisdiction is to try points of law. We are not like the Court of Appeal or the Crown Court, which can hear appeals on questions of fact as well as law.The employers in this case, against whom the Applicant, Mr Hmidouche, complained, are a school and Mr Hmidouche was employed there as a chef. He had originally been employed in a less exalted capacity but he qualified as a chef and became a highly skilled chef, apparently. His record had not given entire satisfaction. I will not go into the details at all; he had received warnings and criticism and I think he had been given a final warning.There came an occasion when he was given an order to cook a ham. He said he would not do so because the ham should be soaked before cooking. He continued not to comply with the order and he was on that basis dismissed. When the matter came in front of the Industrial Tribunal, on his complaint that he had been unfairly dismissed, it was for the employers under Section 57 of the Employment Protection (Consolidation) Act 1978 to show what the reason was for the dismissal and then for the Tribunal to decide on all the evidence whether it appeared to them that the employers had acted reasonably or unreasonably in treating that as a reason for dismissal.The employers showed, or attempted to show, that the defiance of this order, after all the previous trouble, had justified them in dismissing, made it fair for them to dismiss in all the circumstances; that it was a proper ground for dismissal and they had acted reasonably. That what was the employers said. Now, as I say, we are not the Tribunal of fact and it is not up to us to try these contentions.The Tribunal heard the evidence of Mr Hmidouche, and they heard the evidence adduced by the employers, and everybody said what they wanted to say. The Tribunal then found as follows. The majority of the Tribunal, and we do not know whether that was the 2 lay members or one of the Industrial Members and the Chairman said: Industrial Members:
"We considered that any manager treating his staff fairly would not have required a qualified and proud chef to cook a ham in breach of the instructions which had been shown to us. The instruction was therefore unreasonable and indeed provocative, and therefore there was no obligation upon the Applicant to obey it, let alone to be disciplined for refusal to obey."
In other words, there was no question of a breach of his contract of employment. He acted reasonably and properly and whatever his previous record was he could not be said to have deserved to be disciplined in any way. Although it might have been perfectly proper to dismiss him in other circumstances, this was not an occasion on which he could be dismissed.The minority opinion was as follows:
"They had been more than tolerant with the Applicant over the previous 12 months and, to quote Mr Newell's evidence, [the Bursar] "the question was simple. The Applicant had been given an order. He had refused to obey it. He did not deny that. Therefore in view of his pattern of disobedience I sacked him". The proper remedy for an employee in that situation was to use the grievance procedure. Had this been one isolated incident, then clearly it would not have merited dismissal. But faced with a continuing pattern of disobedience and expressions of defiance in response to warnings, I was of the opinion there was little else a responsible employer could do."
It is implicit in that that he was not prepared to take the view which the majority of the members did that the instruction was unreasonable and indeed provocative.We cannot interfere if the majority reach a finding of that sort having heard all the evidence, that is something which it is open to them to do. We are told by Mr Lock today that in fact the witness for the employers was not asked about this. Well, he should have been. If Mr Hmidouche was saying "this order was wholly unreasonable, irrational and improper; I was not obliged to obey it", then that was something which the employers should have dealt with, and if they had not dealt with it when they first gave evidence and were taken by surprise they should of course have said "we wish to recall a witness to deal with this. This was not put to our witness".However that may be, this was a conclusion which the majority reached after hearing all the evidence. It is quite pointless to say that it may look surprising on paper. It may be one which we ourselves should not have reached if we had been the Tribunal of fact. That sort of thing could be said about any Tribunal of fact. It appears to us that no point of law arises here. The majority were entitled to reach the decision which they did and on the basis of that finding the employers were not entitled to dismiss for what had happened because it amounted to no breach of the contract of employment and indeed the fault was all on the other side.In those circumstances, not being able to find any point of law, our only conclusion is that this appeal must be dismissed.