Transfood Meat Company Ltd v McLaughlin [1996] UKEAT 1139_95_2606

EAT
Transfood Meat Company Ltd v McLaughlin
[1996] UKEAT 1139_95_2606 · 1996-06-26

JUDGE HULL Q.C. :

This is an appeal to us by employers, Transfood Meat Company Limited against the decision of the Industrial Tribunal sitting at Liverpool under the Chairmanship of Mr Robinson on 3rd May and 24th May 1995. The decision was published in short form on 28th June 1995 and full reasons were eventually given on 15th September 1995.By that decision they found that the respondent to the appeal, Mr Michael Anthony McLaughlin, had been unfairly dismissed. In due course they proceeded to matters which are no longer the subject of any contest in front of us. The Industrial Tribunal concluded on the remedies hearing that Mr McLaughlin was 20% to blame for what had happened, he had contributed to that extent to his dismissal and they awarded him compensation (the figures do not matter) reduced accordingly.Mr McLaughlin is a butcher and his employment with appellants began on 18th May 1992. The appellants are a medium sized firm, they have total of 130 employees engaged in preparing various meat products, and Mr McLaughlin was in the butchery department. They work three shifts, clearly it is a business which has to be efficiently organised.Mr McLaughlin did not find approval with his employers, and indeed apparently there were fellow employees who did not care for him for various reasons whether justly or unjustly. We are not concerned with all that, except that it is a background to this case. He was given a final written warning on 1st October 1993, that is to say about 18 months after he began his employment. That is to be found at page 35 of the bundle which was put before us, which was used before the tribunal. There is the letter which gave the final written warning. He had been suspended. The writer, Mr Brett the Production Director as he then was said:
"The initial investigations indicated that some degree of intimidation by yourself was taking place [ and then two incidents were referred to involving named employees ] ...
As a result of these investigations although the intimidation could not be substantiated, it was abundantly clear that overall your demeanour was causing concern, also your overall attitude to fellow colleagues and supervisors. Your work rate is also erratic and you have a penchant for participation in horseplay within the department."On the face of it, that letter as a final written warning leaves something to be desired. The allegation of intimidation one would have expected to see particularised. It really was not, and in any event it was found to be unsubstantiated. The other matters seemed to be matters really of impression and degree. What was wrong with his demeanour? It caused concern apparently, it is not said that his demeanour is consistently sulky, or threatening, or anything of that sort, it is simply left as that. Also another matter for concern "your overall attitude to fellow colleagues and supervisors" what can that mean? Is it unfriendliness, it is an overbearing attitude, it is an attitude of indifference? One just does not know. "Your work rate also is erratic" . Is he going too fast, too slow? One would expect again some particulars to be given. "You have a penchant for participation in horseplay" , certainly employers in a butchery department with a number of sharp instruments around would be expected to object to any horseplay and that is entirely legitimate. But it is a rather strange letter by way of a final warning. That was the final written warning. It was said:
"This will remain on your record for 12 months and ... any further breaches of discipline will result in dismissal."
On 16th August 1994, there was an incident which led to the dismissal of Mr McLaughlin. According to the letter of dismissal (which is at page 36 of the bundle) he arrived 50 minutes late. The evidence appears to be that he was 15 minutes late. At any rate he was late, a legitimate matter of complaint. What was said by the employers eventually was that he had refused to work. So having arrived late and the situation being somewhat aggravated by the fact that he and his fellow butchers had not earned their bonus, as the others had just learned, he then refused to work. That is dealt with in the letter of 12th September 1994 in which a number of complaints are made. After setting out the lateness and the refusal to continue working until the matter of the bonus was sorted out, the writer (Mr Quinn the General Manager of Operations) continues:
"You were spoken to by your production manager and then in the presence of your Union Official I informed you that we were not prepared to tolerate this type of behaviour. At that time we were all involved in other matters of a more important nature therefore you were suspended with pay until further notice.
During the meeting on the 6th September you were informed that the company will not be dictated to by an individual who attempts to work as he pleases, who will not work as part of a group for the good of the group, and who is known to have a disruptive influence on others.Accordingly, you were given a verbal warning which in addition to your current Final Written Warning resulted in your dismissal from the company."Well, one is entitled to ask, on reading that letter, exactly what was he dismissed for? It is not perfectly clear and in particular, one notices that there is no record whatever of the disciplinary hearing which apparently took place and led to his dismissal on 6th September, six days before the letter was written. Mr Shammah, who appears for the appellants, agrees that that is a source of regret.There was an appeal from the dismissal. There is a record of that which was before Mr Crossley, the Managing Director, at page 40 of the bundle. There, Mr Quinn, the manager to whom we have referred, stated the grounds for dismissal:
"i) Mr McLaughlin did not attempt to use Grievance Procedures in place at the time."
That is new, not in the letter. Is that really one of the grounds of dismissal? The grievance procedure relates to a collective agreement, a recognition agreement with the Union, which incidentally (since we have been shown both documents) contains various inconsistencies which are not resolved in the contract of employment of Mr McLaughlin.

"ii) He blatantly challenged the Union Official about the non-payment of bonus "

That seems an extraordinary allegation. What is suggested now by Mr Shammah is that the correct course was to take up any such grievance with that Union Official. Apparently that is exactly what Mr McLaughlin did.

"iii) He refused to work until the matter is sorted."

That is the refusal to work. We pressed Mr Shammah to tells us today, was that refusal to work the reason and if so the only reason for the dismissal, on top of course of the written warning? He said that it was. He referred us to the evidence. There is a long note of the evidence which is before us, and we have looked at it. It emerges that what happened on this occasion was that according to Mr Quinn, who did give evidence at the Industrial Tribunal, there were three people at least who said that Mr McLaughlin had refused to work. One of them was the Senior Shop Steward who came and reported to Mr Dickson, the production manager, immediately that something was wrong. We looked at Mr Banks' evidence. So far as the tribunal was concerned, he did not tell the tribunal that Mr McLaughlin had refused to work. Mr Shammah rather optimistically took us through the evidence to show that that was what Mr Banks' evidence amounted to, but he did not persuade us of that. Then it was said that there were two other witnesses who were seen by Mr Quinn, they had to be referred to as Mr "A" and Mr "B" because, it was said, they were so afraid of the intimidation. It was said that Mr McLaughlin had indeed been guilty of intimidating them, and therefore it was essential to preserve their anonymity. But Mr Quinn had seen them, and he said, as he had said of Mr Banks', "they told me that Mr McLaughlin was refusing to work".We were referred to the case of Linfood Cash & Carry Ltd v Thomson . It is quite clear that in such circumstances, in the interests of fairness, the employer has to act with particular care. In the headnote to that case there are usefully encapsulated the guidelines which this tribunal thought it right to give in such circumstances to employers in this very delicate and difficult situation. They are required by law to act reasonably in considering the dismissal of the employee. The usual rules of fairness require the employee at least to be told who his accusers are, and exactly what their evidence is, and shown it. The employer is not generally bound to organise a confrontation, still less to permit cross-examination and matters of that sort. But he is bound to tell the employee what the case against him is, so that the employee can see how to conduct himself. Is it sufficient for him simply to answer it? Is it sufficient for him to say "Perhaps Mr So and So who accuses me had a long standing grievance and I will tell you all about that" or is it necessary for him to say "I did not realise that people were saying this about me, and I must get my evidence together, I must see what I can do to rebut this, and I must ask for an opportunity. May I have 24 hours please so that I can gather other evidence?" Of course many of those steps are hardly possible if the employee concerned does not know what the case against him is. It is like, in that sense, being before the old `Star Chamber' where the accusers stood veiled behind the court. The court knew what they said, but the accused did not.As I say, in Linfood a long list of suggestions was made by this Employment Appeal Tribunal under its President, and with two of its most experienced members concurring of course. The importance of reducing the statements to writing and conveying the substance of them to the employee, and many another precaution, are set out in the head note as useful suggestions, not of course prescribed by law, but useful suggestions as to what this tribunal and any Industrial Tribunal will expect to see observed in spirit. None of that occurred in this case.Then one looks at the record of what happened, which is in the notes of the appeal. Mr McLaughlin was represented by his Union Officer, and at the appeal this question was raised. Mr Crossley, the managing director, questioned both parties and asked for explanations. He asked if other people had observed Mr McLaughlin's behaviour, and if they were available. Mr Quinn responded that a number of individuals had observed Mr McLaughlin, but the company would not name them for their own protection. Mr McLaughlin had on previous occasions attempted to find out who had been saying what about him. Mr Davies, the Union Officer, concluded that he did not see how the company could reach a decision concerning Mr McLaughlin's behaviour, when the proof, i.e. statements, were not being made available. A protest was made on that occasion.All the comments which I have made so far would not of themselves be fatal to the employer's case. It was, as is pointed out to us by Mr Shammah, for the employers to say first of all how they were going to proceed; secondly, what conclusions they reached, and thirdly, what action they were going to take. With regard to the action which they took, it had of course to be within the reasonable bounds of an employer's discretion in all the circumstances. With regard to the procedural steps they took, they had to be reasonable, in the sense of natural justice, not a rigid concept.Many of the matters which the tribunal would look for were plainly missing in the circumstances, and that meant that the tribunal had to look at the matter with additional care. They did so, it seems to us. Their decision, which we have read, sets out a number of matters. They show themselves puzzled to a certain extent, in the way that we have been puzzled, by certain omissions. They observe at paragraph 13 that they feel that they have to some extent been misled either deliberately, or probably by accident, by Mr Quinn, but there is a certain doubt over one matter which we need not go into. They observe at paragraph 17:
"17. It is significant that neither Mr Quinn nor anybody from Management saw what was happening on the shop floor nor did anybody see Mr McLaughlin stop work."
At paragraph 21 they say:"21. Mr Banks [ He was the Shop Steward ] went on to give evidence to say that he "assumed the applicant was not going to do his quota until he got the question of the bonus pay sorted out". He left the shop floor immediately to see the Production Manager. Again there was no direct evidence that Mr McLaughlin had stopped work.22. Returning to Mr Quinn's evidence Mr Quinn gave evidence to confirm that he had taken statements and heard evidence from other workers who were working with Mr McLaughlin to say that Mr McLaughlin had stopped work and it was upon that evidence that a decision was taken to dismiss Mr McLaughlin.23. There was no direct evidence put before the Tribunal that the applicant had actually stopped work but Mr Quinn confirmed that not only had he interviewed two other employees about this matter but they had confirmed to him that because of Mr McLaughlin's violent reputation they did not wish to be identified.24 No statement was produced to the Tribunal from these other workers."We understand that in fact it was oral rather than written statements.They say:

"26. When the applicant gave evidence he denied that he had stopped work."

They say a little later:
"27. Mr McLaughlin confirmed that he was late that morning and that he had explained his lateness to the Factory Manager ..."
He said that he had immediately begun work on arrival. In paragraph 34 they say:
"34. The Tribunal felt that there was no direct evidence that Mr McLaughlin had stopped work. Mr McLaughlin himself was adamant that he had not stopped work and in that particular regard this Tribunal preferred Mr McLaughlin's evidence to the evidence given on behalf of the respondents. Indeed Mr Banks' evidence was not that Mr McLaughlin had stopped work but that he was saying he would not do his quota."
That we understand to be the amount of work he would need to do with the others to earn the bonus, which they had forfeited apparently in respect of the previous week. Then the tribunal say:
"35. The burden in these cases is upon the respondent Company to show that in all the circumstances they acted fairly in dismissing the applicant."
That is literally and legally wrong. The burden is on the employers to show the reason for which they dismissed the applicant, but there is a neutral burden, so to speak, in respect whether they acted reasonably. Taken by itself, that is certainly a blemish. They say:
"35. ... There was no evidence from either Mr Dixon or Mr Quinn or any other member of Management that they had actually investigated at the time of the incident whether the applicant was working or not. Mr Quinn acted upon the evidence of other workmates of Mr McLaughlin."
One would have thought, and the tribunal obviously thought, that in the circumstances Mr Dixon or Mr Quinn would have investigated and given evidence about that. Mr Dixon did not even give evidence before the Industrial Tribunal. They go on:
"36. It is this Tribunal's view that this is a fatal flaw in the respondents argument that they acted fairly. It is this Tribunals view that it would have been a relatively straight forward matter for a member of management to ascertain on the particular day in question whether the applicant had ceased to work. Mr Dixon could have easily obtained that evidence once he had been told by Mr Banks that there was discontent on the shop floor. Mr Dixon did not feel that it was appropriate to go and visit the shop floor.
37. Similarly Mr Quinn did not visit the shop floor despite the fact that he was in the vicinity of the shop floor and was told shortly after the incident complained of what was occurring on the shop floor.38. Mr Quinn himself could have visited the shop floor to find out exactly what was happening. It seems that the respondents did not take this simple step.39. Simple investigation at the time that the problem arose on the shop floor, would have been reasonable fair and a proper manner in which the respondent Company should have proceeded.40. For all the above reasons it is this Tribunals view that the applicant was unfairly dismissed and that this matter should proceed to a remedy hearing."Three criticisms are made by Mr Shammah of the way in which the Industrial Tribunal proceeded. He says, and this is the most substantial criticism, "The Industrial Tribunal substituted their judgment for that of Mr Quinn and the Company; not only in respect of the dismissal, but also in respect of the final written warning."It goes without saying that one can only assess the justice of that complaint by reading the decision as a whole and since we were invited to look at the evidence by looking at that, although reminding ourselves of course that it is not for us to assess the evidence ourselves, still less to substitute our views for those of the Industrial Tribunal. There was enough evidence before the Industrial Tribunal to show cause for serious concern about the fairness of what had happened; particularly when they found Mr Quinn's evidence, he being the only representative of management to give evidence, not entirely satisfactory for various reasons.Were they putting themselves in the place of the employer by saying that Mr Quinn or Mr Dixon should have visited the shop floor to see what was exactly going on? They said "should have done so". Is that really saying "this is what we would have done?" It seems to us when you read the decision as a whole, they were not saying that. They clearly directed themselves in accordance with law at the very outset that they were not to substitute their views for those of the employers. What they were saying, it seems to us, if a paraphrase is needed, is that these matters gave rise to serious concern, and this was an easy way in which it could have been dispelled. Since it happened and since they were dissatisfied with the evidence which they had heard, they felt that this man had not been treated fairly and reasonably. It seems to us that they were perfectly entitled to reach that conclusion. It is not up to us of course to say whether we would have reached the same conclusion or whether another Industrial Tribunal might have reached a different conclusion, they were entitled, in our view, to reach the conclusion which they did and read justly and as a whole, their decision does not show that they were taking the place of the employers, putting themselves in their place and assuming the mantle of the employers.Mr Shammah then says that the Industrial Tribunal failed to set out the range of responses the employer should have shown.It seems to us that that is a far less substantial criticism. The Industrial Tribunal were perfectly aware that the employer could have and might have issued a further final warning, or imposed suspension; there were all sorts of things that the employer could have done. They were considering the actual facts which were that dismissal had taken place and therefore they were entitled and bound by law to enquire into the question whether the employer had acted reasonably, after discovering what the reason for the dismissal was.Mr Shammah then makes a complaint which seems to us to be unjustified. He says the Industrial Tribunal failed to refer to the recognition agreement or to the appeal which later took place. We have referred to that appeal ourselves. It is hard to see how it could have helped the employers to refer expressly to it. The fact is that Mr Crossley raised just the question which the Industrial Tribunal had in mind; the unhappy circumstances of concealed witnesses, witnesses whose identity was not disclosed and whose statements were not shown to the defendant. He raised it, his request for information on that was met with the answer that it could not be provided. The record shows that Mr Davis, the Union Representative, asked what he could do in the circumstances.It was not a case where it was said "well we, the employers, admit that we behaved hastily and perhaps unfairly in dismissing, but we say that everything was put right by the appeal hearing". In that case, everything would have concentrated on the appeal hearing and it would have been essential to look into all those matters and one would have thought essential for the employers to call Mr Crossley who presided at the appeal hearing. But we cannot find that the failure to refer to the appeal hearing, as we have referred to it, is a blemish which in any way invalidates the decision of the Industrial Tribunal.We think that there is an element here of the `fine toothcomb' on the part of the appellants' conduct of this appeal. Evidence is looked at and repeated many times and analysed to see whether it would support this proposition or that proposition. Of course, so far as we are concerned, we are looking for an error of law. If we find that the evidence has not been dealt with fairly, or vital matters have been omitted, those of course are errors of law, because the Industrial Tribunal is bound to tell one party why he has lost and the other why he had won; fairly, and not at length and not in every possible detail.We have considered the criticisms made and we have all come to the conclusion that there is no error of law shown in the decision of this Industrial Tribunal or in the way that they arrived at it. In those circumstances, since our jurisdiction is simply over matters of law, our only course is to dismiss the appeal.There is an appeal and a cross-appeal in respect of the remedies hearing, but those are not proceeded with and therefore both those too are dismissed.