Francis v TM Group Plc [1996] UKEAT 51_95_1601

EAT
Francis v TM Group Plc
[1996] UKEAT 51_95_1601 · 1996-01-16

JUDGE CLARK:

This is an appeal by the employee, Mr Francis, against a finding of the Bedford Industrial Tribunal that he had contributed to the extent of 75 per cent to what the Tribunal also found was his unfair dismissal. The Tribunal's extended reasons for their decision are dated 2 December 1994.The background is that the Appellant commenced employment with the Respondent as a second chef on 18 March 1991. On 4 May 1991 he was promoted to head chef.Thereafter the Respondent raised with the Appellant concerns about what were perceived as shortcomings on the administrative side of his job. A meeting was held on 30 January 1993, followed by a memorandum which required the Appellant to act on a list of his shortcomings and a warning that failure to do so could lead to termination of his employment.There then followed further meetings and warnings, culminating in a final written warning dated 3 September 1993.On 8 October 1993 a meeting took place involving the Appellant, a Miss Wilkinson, who gave evidence before the Tribunal and Mr Mackay, the Respondent's group catering manager. There was an issue as to what was said at that meeting which the Tribunal resolved in favour of the Appellant, finding that he had been given an ultimatum by Mr Mackay, effectively, resign or be dismissed. The Appellant did resign in circumstances which the Tribunal found amounted to a dismissal.Having concluded that the Appellant had been dismissed, the Tribunal went on to find that the reason for dismissal related to his capability, but that the dismissal was unfair on procedural grounds. Finally they dealt with the question of whether or not he had contributed to his dismissal. At paragraph 12.4 of the reasons they put it in this way:
"4. The applicant contributed to his dismissal because he failed to respond to clear warnings that his performance in the administrative field fell short of the standards required by the respondent. The percentage of reduction should be 75%."
Against that finding of contribution the Appellant appealed by Notice dated 13 January 1995. The matter was listed for a preliminary hearing before this Tribunal on 15 May 1995 (Morison J presiding). At that hearing leave was granted to amend the Notice of Appeal, and an amended Notice dated 25 May 1995 was lodged. This hearing has focused on the new grounds set out at paragraphs 6(4) and (5) of the amended notice which contend:
"6(4) The decision of the Industrial Tribunal was given without argument on the point of contributory fault.
(5) In any event it was wrong having regard to the decision of Slaughter v Brewer & Sons [1990] ICR 730, in that the Industrial Tribunal did not consider the degree to which the conduct relied upon by them as constituting contributory fault was blameworthy."Dealing first with the suggestion that the issue of contribution was not argued before the Tribunal, it is plain from the affidavit of Mr Davies, who appeared for the Respondent below; the affidavit in draft of Mr Awan, who appeared for the Appellant below and the Chairman's letter to the Employment Appeal Tribunal dated 25 July 1995, paragraph 1, that the question of contribution was raised by Mr Davies in his closing submissions to the Tribunal. It seems that Mr Awan chose not to reply on that point. In these circumstances this is not a case where a point has been decided by the Industrial Tribunal without allowing the parties an opportunity to make representations. We cannot see any merit in this point.The second point is a quite different matter. Mr Abbott, on behalf of the Appellant, submits that the Tribunal, in paragraph 12.4 of its reasons, has failed to provide any reasoning as to why or how the Appellant's failure to respond to the warnings which he received amounted to culpable or blameworthy conduct on his behalf, and that such reasoning was necessary to explain to the Appellant why a finding of 75 per cent contribution had been made against him.Mr Bellm contends that sufficient reasons have been given for the finding of contribution, and relies also upon paragraph 2 of the Chairman's letter dated 25 July 1995 which states:
"2. Although the decision does not say so in as many words the Tribunal decided that the Applicant's conduct was culpable and blameworthy and the compensation was reduced accordingly."
Further, both advocates have referred us to passages in the Chairman's notes of evidence; Mr Abbott to demonstrate that what the employer was complaining of was pure incompetence, not culpable behaviour on the part of the Appellant; Mr Bellm for the proposition that what was being said in evidence was capable of amounting to culpable behaviour.As to the law, we accept that in cases where the reason for dismissal is found to relate to capability, that does not preclude a finding of contribution. Any suggestion to the contrary which may be inferred from this Tribunal's judgment in Kraft Foods Ltd v Fox [1978] ICR 311 was expressly disavowed by Kilner Brown J., who presided in the Fox case, in the later case of Sutton & Gates (Luton) Ltd v Boxall [1979] ICR 67, 74B.Equally, it is quite clear from the judgment of Brandon LJ in Nelson v BBC (No.2) [1980] ICR 110, 1221 F - G that the concept of contribution in Section 74(6) of the Employment Protection (Consolidation) Act 1978 imports culpable or blameworthy conduct, as there more particularly described.In the instant case we are satisfied that it was incumbent on the Industrial Tribunal to explain why it found that the Appellant's failure to respond to the warnings which he received amounted to culpable or blameworthy conduct on his part. Having considered the reasoning in paragraph 12(4) and the notes of evidence, we find ourselves unable to discern what it was that might amount to such conduct. Further the Chairman's letter simply states the test without setting out any reasoning. In failing to properly set out its reasoning on this issue we conclude that the Tribunal has fallen into error and that this appeal must be allowed.Pausing there, we are minded at the moment to remit this part of the case, that is the remedies issue, to a fresh Industrial Tribunal but we would like to hear any representations from either party on that course.Having considered representations on behalf of both parties as to what course we should take we have come to the conclusion that the matter ought to be remitted on the question of remedies to a fresh Industrial Tribunal. Mr Bellm has made the point quite forcefully that the new Tribunal may have to re-investigate issues which go to the question of contribution which were dealt with to some extent by the first Industrial Tribunal. That is an inevitable consequence of our ruling. However, we think it important where the first Tribunal has expressed a view on contribution albeit, in our judgment, without explaining why, that it would be undesirable to require that same Tribunal to reconsider a matter on which it has expressed a final view and therefore we direct that the case should be remitted to a fresh Industrial Tribunal to consider the question of remedies, based on the first Tribunal's findings that this was a procedurally unfair dismissal by reason of capability.At the remedies hearing it will be necessary for the next Industrial Tribunal to consider the following issues:

(1) Is this a proper case for reinstatement or re-engagement; if not

(2) What compensatory award is just and equitable under Section 74(1) of the Employment Protection (Consolidation) Act 1978 , applying the well-known Polkey principles in this case of procedural unfairness.(3) Has the Appellant caused or contributed to his dismissal for the purposes of Section 74(6) of the 1978 Act in the sense that culpable or blameworthy conduct on his part has caused or contributed to the dismissal and if so to what extent.(4) To carry out the similar exercise under Section 73(7B) of the 1978 Act in relation to the basic award.The appeal will be allowed on this basis.Mr Abbot makes two further applications in relation to the question of costs. The first is that the Respondent should pay the legally aided Appellant's costs. We bear in mind the restrictions on costs orders contained in Rule 34 of the Employment Appeal Tribunal Rules 1993. We are quite satisfied that this case does not fall within that Rule and accordingly we dismiss the application for costs against the Respondent.His second application is for legal aid taxation and we grant that necessary order.