Colas Ltd v Cloake & Ors [1995] UKEAT 1211_94_0305

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 1211_94_0305

Case No Appeal No. EAT/1211/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Colas Ltd

Cloake & Ors

Date 3 May 1995

[1]BAILII case number: [1995] UKEAT 1211_94_0305 Appeal No.

EAT/1211/94

EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 3rd May 1995 Before THE HONOURABLE MR JUSTICE MORISON MR T C THOMAS CBE MRS P TURNER OBE COLAS LTD APPELLANTS MR G CLOAKE & OTHERS RESPONDENTS Transcript of Proceedings JUDGMENT Revised APPEARANCES For the Appellants MR J BENSON (Of Counsel) Messrs Mace & Jones Drury House 19 Water Street Liverpool L2 0RP For the Respondents MR O SEGAL (Of Counsel) Messrs Pattinson & Brewer 30 Great James Street London WC1 3HA MR JUSTICE MORISON : This is an appeal by Employers against findings of unfair dismissal made in relation to four former employees. In this judgment we shall refer to the Appellants as the "Employers" and the Respondents to this Appeal as the "Employees". The decision of the Industrial Tribunal which runs to some nineteen pages was sent to the parties on 30th November 1994. The background facts and the findings made by the Industrial Tribunal, which are relevant to this Appeal may be summarised as follows. The Employees had been employed by the Employer for different periods. The longest serving and most senior of the four was Gerard Cloake, who had been employed since July 1973 and held the position of Gang Foreman, grade two and was one the Company's longest serving employees. All four employees worked at night, and they started their duties at about 7 pm. Three of the four lived free on site. Safety at work is one of the matters which the Employers stressed, and training was directed at this issue. From about the first week in May 1993, three of the four employees brought onto the site air rifles which were used for target shooting largely inside a bauxite shed lined with railway sleepers, not far away from a car park used by the public when shopping at Tescos next door. All the people who worked at the depot, save for the two supervisors and John Cloake took part in this sport on one or more occasion. Mr Cloake bought such a rifle at a later date. On 25 May 1993, a Mr Watkins, who was employed as a manager, and was responsible for the depot, discovered that the shooting had been taking place and published a memo which said amongst other things:

"Please ensure that all Air Guns are removed from the Company's Property by Friday 28 May 1993 at the very latest. There will be a full investigation into the damage caused, and those responsible will face disciplinary action."

That memo was handed to employees and it was made clear that the shooting had to stop. On 26th May Mr Watkins called a meeting of all the employees and enquired who owned the guns and who had fired them. Each of the four employees admitted owning the guns and were suspended on pay. The other employees who had fired them also admitted their involvement, but continued in employment. Following an interview, each of the four employees received a letter of dismissal in these terms. "The hearing was called to investigate the wanton damage to company property at the Bromley-By-Bow depot, by firing of air guns in and around the depot. The damage caused is estimated to cost in excess of £700 to repair. In addition, the company considers the firing of air guns on company property to be a gross breach of its safety policy. You admitted owning and possessing the air gun which were fired by yourself and others within the depot. Having given due regard to all the facts, the scale of the damage, cost of repairs together with the safety aspects, I must inform you that your employment is being terminated forthwith for gross industrial misconduct and gross breach of the company's safety policy." In the case of Mr Cloake, it had been put to him in interview that he had discharged an imitation pistol whilst a fellow employee was in the room having entered it and found Mr Cloake holding the air gun he owned. His letter of dismissal contained an additional paragraph:

"You also admitted to possessing an imitation pistol which fired blanks, you further admitted discharging this pistol in close proximity to another employee. You should be aware that this caused him considerable discomfort. We are disappointed that in a position of some authority and trust, you as foreman did not prevent these occurrences but became involved."

The other eleven employees, who admitted firing the air rifles were given a final written warning. The decision maker had all the available personnel details about the employees, but whilst aware of their length of service, it played no part in his decision. Each of the four exercised their right to appeal, but their appeals were dismissed. In the case of three of them, there was a further stage when their appeals were reviewed but without success. The case for the four employees before the Industrial Tribunal, is succinctly summarised by the Industrial Tribunal in this way: They maintained that the dismissal was unfair, because Mr Watkins, the manager knew about the shooting for a week, presumably between 18th May to 25th May or 26th May, but he did nothing about it.

[2]Both the day and night yard foremen responsible for safety, property and stores, participated in the shooting.

[3]There was a failure to take into account their length of good service.

[4]The procedure was unfair, in a number of respects.

[5]And finally, there was disparity of treatment leading to unfairness between the four employees and the others who done the same thing. The Employers argued that there was gross misconduct. It was obvious that bringing onto and using firearms on this site, with the level of safety awareness which there was in connection with inflammable solvents, was self evidently dangerous and no specific rule was required. Reference was made to the fact that there was access for other people to come onto the site, which was open 24 hours a day, and the proximity of Tesco car park and store. Company property was damaged, and this was tantamount to an offence of criminal damage in the sense that, it was deliberate or manifestly reckless. There was no condonation by the Company, and no disparity in treatment because the employers were entitled to regard the four employees as being more culpable, because they had brought the guns on to the premises and encouraged and allowed others to use them. There was no procedural unfairness. The Industrial Tribunal correctly directed themselves as to the reason for the dismissal and the questions which arose for consideration under Section 57(3) of the Act. Before turning to their conclusions, they made further findings of fact: The Industrial Tribunal rejected the complaint that there had been any procedural unfairness. They accepted the submission made that there was no need for a rule about bringing firearms onto the premises, but rightly pointed out that air rifles are not firearms. They noted that the air guns were brought on to the premises where some of the employees lived, and were only used during non-working leisure time. They were impressed by the four employees immediate and persisting honesty in owning up to their role, and that their honesty in this respect added weight to their assertion that it never occurred to them that what they were doing would put their jobs on the line. The Industrial Tribunal said that the employers' concerns in fact arose from the use of the guns "rather than from from the fact that some individuals brought them on to the premises or owned them". In relation to the eleven other employees, the employers determined that they were in breach of the safety rules and/or were guilty of gross negligence or provisions of the personal policy manual, such that "a second chance was appropriate". The Industrial Tribunal continued:

" No distinction was made depending upon how many times they fired the rifles, how skilled they were, what precautions they had taken or what damage they might have caused. This Tribunal cannot understand how a reasonable employer having made that decision could go on to conclude that owning or bringing the rifles on to the premises was so much more serious than using them as to warrant no second chance. The Tribunal is aware that it is concerned with the range of sanctions which the reasonable employer could impose. It feels that it is most usefully guided by how the respondents themselves felt it appropriate to treat all those who admitted the use of the rifles, which use involved the evils of potential or actual damage. The Tribunal cannot see what the Applicants did was of a different order, so as to warrant the much mor serious final sanction of dismissal, especially when it is borne in mind that Mr Cloake had apparently only owned the gun for short time and had not brought it on to the premises."

In relation to the additional matter in Mr Cloake's case, they noted that what he did was most irresponsible, but that the other employee had not complained at the time, and only came forward when he knew that an investigation was being made into the matter or the air rifles. "The Tribunal is confident that the discharge of one blank in an imitation pistol is not the sort of thing which could on its own account have led to disciplinary action of any severity." Therefore, because of the absence of any clear rule, the ready admission of the four employees to the use and ownership of the air rifles and the disparity of punishment:

"It was not a permissible response for a reasonable employer to dismiss those who had freely admitted that they owned or had brought on to the premises the air rifles. In consequence the Tribunal finds that the dismissal of these four Applicants was an unfair dismissal."

Each of the applicants sought re-instatement and re-engagement and the Tribunal concluded that it would be practicable for the Employers to re-engage all the four; but only one of four applicants, Mr Leeson, at the depot. They set the degree of contributory fault at 55% in each case, and ordered that arrears of remuneration should be calculated on the basis of the Appellants receiving 45% of the net pay they would otherwise have received, between the date of their dismissal and implementation of the Industrial Tribunal's order. The Employers have put in a Notice of Appeal, in which they contend that the Industrial Tribunal has substituted its own judgment of the facts for that of the Employers. Having found them to be 55% to blame, the order of re-engagement was wrong. The Tribunal were wrong to conclude that re-engagement was practicable, and to conclude that Mr Cloake, despite his blameworthy conduct, could practicably be re-engaged as a foreman. Counsel for the Employers, who presented his clients' case with skill and admirable brevity, brought the Appeal against the finding of unfair dismissal both on the grounds stated in the Notice of Appeal, and with our leave, on the ground of perversity. In essence, he submitted that the Employers had drawn a perfectly valid distinction, between the culpability of the four, as against the culpability of the other eleven: namely that the four had been responsible for the guns being there, and they could not have been used by the others, without permission. He says that the passage in the decision where the Tribunal considers that all the Employer's concerns arose from the use of the guns, demonstrates that the Industrial Tribunal was substituting its own view of disparity for that of the Employer. Further, where in the decision the Industrial Tribunal said that they could not see that what the Employees did was of a different order from the actions of the other eleven, again they were not looking at the decision through the eyes of the Employers, but rather from their own point of view. Thus, they were either substituting their own decision for that of the Employers, or were perverse, because reason and common sense demanded that, a distinction between the culpability of the four as opposed to the eleven, be drawn. In relation to remedy, what is said is that having regard to the finding that the Employees were 55%, more than half, to blame, it was wrong for the Industrial Tribunal to order re-engagement. This submission applied to all four employees, but we were invited to consider the position of Mr Cloake separately, as he was in a supervisory position and the impact of his own contributory fault must have a greater impact on the question of practicability and justice, than in the case of the other three, who stand and fall together on this issue. In equally succinct submissions, Counsel for the Employees submitted that there was no merit in the appeal against the fairness of the dismissal, and it was in effect an appeal on fact dressed up as an appeal of law. That submission applied both to the finding of unfair dismissal and to the question of remedy. We are satisfied that the Industrial Tribunal have not misdirected themselves in law. It is clear that they have addressed their minds to the question of whether dismissal fell within the range of reasonable responses and concluded that it did not. They subjected, as they were entitled to do, the Employer's explanation for discriminating between the four employees and the other eleven, and concluded that it had no basis because it was the damage that was the real reason for their dismissal, and the bringing in of the guns, was largely, if not, wholly irrelevant to the mischief for which they were dismissed. Whilst we think that many Tribunals might have reached a different conclusion on the same evidence, and possibly we ourselves would have done, we are not persuaded that the decision thath the dismissal was unfair, could be categorised as perverse, namely one which no reasonable tribunal could have come to had it properly directed itself. As to remedy, we consider that the approach of the Industrial Tribunal also cannot be faulted. Section 69(6) of the Act provides:

"(6) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and if so on what terms; and in so doing the tribunal shall take into account the following considerations, that is to say- (a) any wish expressed by the complainant as to the nature of the order to be made; (b) whether it is practicable for the employer or, as the case may be, a successor or associated employer to comply with an order for re-engagement; (c) where the complainant caused or contributed to some extent to the dismissal, whether ti would be just to order his re-engagement and if so on what terms; and except is a case where the tribunal takes into account contributory fault under paragraph (c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement."

It is clear from the Tribunals decision, that they considered each of the three matters referred to in that section. It is to be noted that the Industrial Tribunal must reach a decision on practicability, although what it has to say at that stage is not the final word, because the Employer has an opportunity of proving, in due time, that compliance with the order was not practicable. They had to consider the question of practicability, not only from the point of view of the physical arrangements, but also as to whether working relationships must have been so badly dented by what had happened that it was not practicable from that point of view. They also considered whether the fact that the Employees had been found 55% to blame, disentitled them to the making of such an order, and decided that it did not. These were all matters strictly for the Industrial Tribunal and not for us, and we cannot say that they have either expressly or impliedly misdirected themselves. Nor, do we consider that we can interfere with the decision the Industrial Tribunal reached in this regard, in relation to Mr Cloake. As they said, they considered long and hard whether he could continue as gang foreman, but on balance concluded that he should, bearing in mind that what he did was in his spare time, and not in working hours. As we see the position, the Industrial Tribunal believed that the Employers were unfair to discriminate between the four employees, on the one hand, and the other eleven, on the other. That being so, it was unfair not to order their re-engagement. On the other hand, by the terms of that re-engagement, the individuals would have suffered a loss of wages; the loss of the chance to continue to live and work at the place where they had been based for some time; and as a team they were broken up. These consequences seem to us to be a just punishment for the four employees because of what they had done, which on any view was foolish and regrettable. Accordingly, there being, in effect, no point of law in this case, these appeals are dismissed.