Eggleton v Kerry Foods Ltd [1996] UKEAT 938_95_2106

EAT
Eggleton v Kerry Foods Ltd
[1996] UKEAT 938_95_2106 · 1996-06-21
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr M A Eggleton against the unanimous decision of the Industrial Tribunal held at Reading on 25 July 1995.The Tribunal heard a claim made by Mr Eggleton for unfair dismissal against his former employers, Kerry Foods Ltd, by whom he had been employed from August 1988 until 8 February 1995 as a night loader. The claim is contested by Kerry Foods, who said that Mr Eggleton had been dismissed for a fundamental breach of trust following a disciplinary hearing after which he was given a right of appeal, at which the decision to dismiss him was upheld.On that dispute the Tribunal unanimously decided, in the Extended Reasons notified to the parties on 9 August 1995, that Mr Eggleton was not unfairly dismissed. He was disappointed by the result and he served a Notice of Appeal at the beginning of September 1995.The case has been listed for a preliminary hearing to decide whether there was any reasonably arguable question of law in the appeal. The Tribunal only has jurisdiction to hear an appeal from an Industrial Tribunal on a question of law and, if the grounds alleged in the Notice of Appeal are not reasonably arguable, there is no point in the case proceeding to a full hearing, at which the Respondents would appear.The position today is that a letter has been received from the representatives of Mr Eggleton, Personnel Advisory Services of Cuddington in Cheshire. The letter dated 19 June 1996, says that the representative would like the Appeal Tribunal to assess Mr Eggleton's appeal on the basis of the written material already submitted.In those circumstances, Mr Eggleton has not attended and he has not been represented. We deal with the matter on the basis of the written representations.The facts found by the Tribunal were these. Mr Eggleton was considered to be a good worker with a good record at his job as a night loader. There was no dispute that he had been dismissed. The case of Kerry Foods was that the dismissal was proper and fair, following an incident before the night shift on 24 January 1995, when Mr Eggleton was involved in an altercation with another member of the night shift, a Mr Paul White. Kerry Foods said that he had been warned about eight days before about his conduct, although it had not been a formal warning.The Tribunal found that, about the end of December 1994, early January 1995, Mr Eggleton tendered his resignation because of a personal matter between him and Mr White, his colleague, who was going out with Mr Eggleton's former girlfriend. There was tension between them. The supervisor refused to accept the resignation. He thought it was a hasty decision.For three days, in the middle of January 1995, Mr White did not go into work. Mr Cunningham, the Regional Sales Manager, said he got hold of both Mr Eggleton and Mr White to try and clear the air and sort out any issues between them. Mr White complained that he felt intimidated by Mr Eggleton and said that the girl concerned was not a girlfriend of his.The matter was discussed in front of Mr Cunningham. At the end of the discussion the two men shook hands. Mr Cunningham warned Mr Eggleton that, if there was any further issue or incident, he would take disciplinary action against him. After the Applicant left Mr Cunningham spoke to Mr White. He told him it was not acceptable for him not to come into work and gave him a verbal warning.The altercation referred to took place on the evening of 24 January in the car park of a newsagent opposite the employer's factory. There were different versions of what happened. The Tribunal said that the versions were not entirely coincident.The Tribunal then set out the facts that they found on the matter. The police became involved. As a result of that, Mr White said he felt extremely disturbed. He would not go into work because he did not feel safe. He resigned. He was told by Mr Cunningham to wait until matters had been further investigated.Some days later Mr White sent in a written resignation during the course of which he said "that as it is not safe for me to return to Amersham, I don't see how I can keep my position with Kerry Foods". Mr Eggleton was suspended on full pay. He was informed there would be a disciplinary hearing on 8 February.When offered a witness, he asked for somebody outside the firm, but that was not acceptable. Subsequently a Superintendent Smith appeared with him before Mr Cunningham and Mr Carney who attended the meeting. Mr Cunningham gave evidence to the Tribunal that Mr Eggleton was given every opportunity to put his side of the story. The hearing was then adjourned for a short time to take a decision. After that he was told that he was dismissed for a fundamental breach of trust.Mr Cunningham's evidence was that he considered it gross misconduct, but he had taken into account the good record and length of service of the Applicant. He did not dismiss him summarily for that offence. He decided to dismiss him instead on the ground of fundamental breach of trust.In his decision Mr Cunningham took account of his responsibility as a Manager to provide a safe place of work for employees under his charge. Mr White had felt threatened by Mr Eggleton's actions, although at that time his resignation had not been accepted. Mr Cunningham felt that Mr Eggleton had let him down badly and was not to be trusted in the future. He was informed of his right of appeal which he subsequently invoked.The appeal took place on 6 March before Mr Kilgannon in the presence of Mr Eggleton and a Miss Domin, who was a witness. The hearing took place over about half an hour. The Tribunal saw the notes of that meeting and the Chairman went through the notes with Mr Eggleton when he was giving evidence. The Tribunal said they were satisfied that Mr Eggleton had every possible opportunity to say what he wanted to say. After a ten minute adjournment the meeting was reconvened. Mr Eggleton was asked whether there were any final comments he wished to add. He mentioned his long service with no trouble record and a good attendance record. That was considered at the time of the original decision to dismiss. Mr Kilgannon upheld the dismissal decision.The Tribunal then referred to the submissions on each side. They came to the conclusion, in paragraph 19, that the reason for dismissal was Mr Eggleton's conduct. That was a potentially fair reason. They said that Kerry Foods had taken the view that, rather than dismiss for gross misconduct without notice, they would dismiss him on notice for fundamental breach of trust. The Tribunal did not accept that, because the incident did not take place at the factory, it did not affect the working arrangements. The Tribunal found as a fact that it clearly did.They then had to consider whether, in all the circumstances, the decision to dismiss was that of a fair and reasonable employer. They reminded themselves that it was not for the members of the Tribunal to say what they would have done in the circumstances. They said, in paragraph 21:
"21 The question which we asked ourselves was whether this decision in this case fell within the band of reasonable responses of a fair employer or was it a decision which no such employer could have taken. We are unanimous in our finding that the decision fell within that band of reasonable responses and therefore this application is dismissed."
On the face of it, the Tribunal correctly directed themselves in the resolution of this dispute. They made clear findings of fact. They found that there was a potentially fair reason for the dismissal and they posed the correct test in deciding whether it was a fair and reasonable dismissal in all the circumstances.The grounds of appeal are two. First, that this was a perverse decision and secondly, that this was a domestic dispute between Mr Eggleton and Mr White. It was not something which took place at work. This is made clear in the Notice of Appeal dated 1 September 1995. The Notice says:
"There are 2 points in law where it is claimed that the Tribunal erred, or were perverse ... . No reasonable tribunal could have reached such a decision."
They say first:
"There was never any dispute or untoward behaviour on site. It was a domestic matter that took place offsite between 2 young men over a young woman. Both had offered their resignations to the company because of the domestic situation outside work. It was not possible for the 2 to work together once the romance of one had ended and the girl had chosen the other."
They emphasised that there was no episode on site affecting the contract of employment with Kerry Foods. There was no breach of trust in the relationship. "If matrimonial affairs outside the working environment constitute a breach of trust within an organisation then that part of the claim fails" .On that part of the case Personnel Advisory Services have cited two decisions in a later letter of 19 June 1996, Tower Boot v Jones and Waters v Commissioner of Police of the Metropolis . We have reached the conclusion that the Tribunal did not make any error of law on this. The Tribunal addressed themselves to the fact that this altercation had taken place as a result of a private dispute between the two men about a girl and they took into account the fact that the fight, which had led to the disciplinary hearing and the appeal and the decision to dismiss, had taken place not on the factory site, but in a car park near by.The crucial finding of the Tribunal was that the incident, although it did not take place at the factory, clearly did affect the working arrangements. That finding of fact, was made after hearing evidence and seeing that evidence given by Mr Cunningham, Mr Carney and Mr Eggleton himself. That was a crucial finding of fact which, in our view, disposes of the argument that the Tribunal made an error of law because this was purely a domestic matter. The Tribunal said it was not a purely domestic matter. It affected working arrangements.The second ground we can deal with more shortly. They said that the decision of the Tribunal was not within the band of reasonable responses. There had been no act of gross misconduct, no fundamental breach. It could not come within the band of reasonable responses to dismiss a person with a clean record and no warnings.They submitted that the dismissal could not be used fairly where an offence committed was not one of gross misconduct and the Company had failed to apply the disciplinary code setting out the levels of punishment.In our view, there is no error of law in this part of the case. It is a question of fact and degree for the Tribunal whether the decision to dismiss falls within the band of reasonable responses. The Tribunal correctly addressed themselves to the question in paragraph 21. They took into account all the earlier matters set out as findings of fact.We are unable to say that this Tribunal's decision was not a permissible option on the findings of fact.For those reasons we find that there is no arguable point of law on either of the two points set out in the Notice of Appeal and elaborated on in the letter of 19 June. On the basis of the written representations we come to the conclusion that this appeal should be dismissed at this stage.