Farleyway Chemicals Ltd v Fynn [1996] UKEAT 994_95_0407

EAT
Farleyway Chemicals Ltd v Fynn
[1996] UKEAT 994_95_0407 · 1996-07-04

JUDGE ALTMAN:

This is an appeal from the reserved decision of the Industrial Tribunal sitting at Birmingham on 27 April 1995. It is an appeal from that part of the decision which determined that the Applicant had been unfairly dismissed and that he had contributed 40% so far as the assessment of compensation was concerned. The Notice of Appeal relies upon an assertion that there is a contradiction between the findings of fact of the Tribunal in one paragraph, and their conclusions, which appear to have been based on facts, contrary to those they had previously found.Mr Lediard has put the argument before us fully on behalf of the Respondents. (We use the terminology of the parties in their capacity before the original Industrial Tribunal.) He has advanced other grounds not contained in the Notice of Appeal, which we have permitted him to do, in order to give him a full opportunity of airing all the matters that have concerned the Respondent.There were substantial issues relating to the allegation of the Applicant before the Tribunal, that the reason for his dismissal was his complaints in relation to health and safety matters. That was dismissed by the Tribunal and has not troubled us and been part of our consideration. The Applicant was employed as a fork-lift truck driver. He had received a certificate of completion of training in the operation of a fork-lift truck. One of the requirements of an operator of such a piece of equipment is that he apply the handbrake at all times if he is to step down from it.On the day in October which led to his dismissal, the Applicant dismounted from the fork lift truck, without applying the handbrake, and it rolled into collision with a vehicle and caused damage. It was observed by a Mr Alan Smith on 19 October 1994. On the following day, the Applicant was summoned to a disciplinary meeting at 11.30 a.m. He was given some five minutes' warning that he had to come to a meeting. He did not know that the meeting possibly was to lead to his dismissal and to consider that possible route. There was some dispute, we have been told, before the Tribunal, and there has been dispute before us, as to whether or not the Applicant was told that he had the opportunity to have a representative of his choice, and the further dispute as to whether or not the particular representative was a representative of his choice. That matter was resolved in the hearing of the Tribunal to which I shall in due course refer.The matter was canvassed in the meeting and the facts were established essentially upon the admission of the Applicant, that he had got off the fork-lift truck and it had rolled into another truck. He gave as his reason to the Tribunal that he did it as a matter of emergency to avoid some spilled chemical. That matter had not previously been mentioned when he had been interviewed about it and the Tribunal rejected that as his reason. The Personnel Officer, so described by himself, Mr Lediard, together with Mr Albrow the Operations Manager, conducted what they described as the disciplinary meeting. Mr Lediard has told us that he is a qualified Chartered Accountant, but that he is not trained or experienced in personnel management, although he has the responsibility for handling those matters. They [Mr Lediard and Mr Albrow] then after the so-called disciplinary meeting, met with the directors of the company and there they discussed and decided upon dismissal; it was a decision of the directors, who had not interviewed the Applicant.Thereafter, the Applicant sought an appeal. It was proposed that the appeal would be before the same people, so he did not go on with it. Thereafter, the Respondents offered a re-run of the whole proceedings. (We are told this was after they took advice from ACAS, but that is immaterial.) But such an offer, for whatever reason, was not taken up by the Applicant.We are concerned only with law, as applied to the facts, that were before the Industrial Tribunal. It is not for us to hear evidence or further facts and found further judgments upon them. The issue before the Tribunal about why there was no appeal, was again a matter that they took into account to some extent. Mr Lediard says he thinks he knows the reasons why the Applicant did not take advantage of a re-run, we presume because the Respondents regard the Applicant as having taken a tactical advantage of their error, not being prepared to put his misconduct properly to the test. On the Applicant's side, on the other hand, it is clear from what Mr Whitefoot who has stepped into the breach and very helpfully represented the Applicant today, has said that it is their view that, as we understand it, they thought that all that was going to happen was a cosmetic exercise and that they were not going to lend themselves to it. We do not know the truth as I say. We are not concerned with the evidence. The fact is that the offer was, to some extent, taken into account by the Tribunal.Those are the factual matters that formed the basis of the Tribunal's decision so far as unfair dismissal is concerned. The Respondents, through Mr Lediard, draw our attention to paragraph 7 of the Tribunal's decision, which relates to the time when the Respondents took the decision to dismiss after the disciplinary meeting:
"7. Thereafter both Mr Lediard and Mr Albrow conferred with the company directors. It was decided to dismiss the applicant for gross misconduct. Mr Lediard said the reasons for this decision were based on the fact the applicant had been on a training course and was well aware of the requirements. He had admitted his fault and even suggested he might have done this before. It was considered there was a possibility of danger to others with someone possibly suffering serious injury. For those reasons it was decided to dismiss and a letter of dismissal followed."
That was a reference in part, to the witness statement of Mr Smith, read to the original disciplinary hearing, reproduced to the Tribunal, and in a general way without specific reference being made to it, accepted by the Applicant as an account of what happened. That witness statement dealt in its first paragraph with the incident that was subject to the enquiry. It said:
"The reason for the incident was due to the driver, Andy Fynn, failing to follow company procedures, i.e. applying his handbrake. When asked about this Andy Fynn replied "I have jumped off the stacker truck before without applying the handbrake with it in neutral and it has never happened before."
That is to what the Tribunal were referring no doubt in that part of their decision.The Tribunal then go on to describe how, after the decision to dismiss, there was an appeal and they there conclude their description of the procedure that the Respondents adopted. In paragraph 9 of the decision the Tribunal deal with their own findings on the evidence before them, in which they say:"... We find when interviewed the applicant did make an admission he had failed to engage the handbrake causing his truck to move and collide with another vehicle. Despite the applicant's claim we find at that stage he made no mention of chemical seeping from a container, which may have caused an emergency reaction on his part."...They go on to deal with the procedural defects which were accepted by the Respondents, to which I will return. Later on, having dealt with all the safety matters at paragraph 28, they come to deal with the question of the application of the statute to their findings. Having found the reason for dismissal, they then go on to consider whether the Respondents were reasonable in treating that as the reason for dismissal, when the matter is viewed in the light of equity and the substantial merits of the case, bearing in mind the size and administrative resources of the Respondents, as I refer back to the statutory provisions and they say this:"28. We find the response in dismissing the applicant was not a reasonable response in all the circumstances... we find the respondents over-reacted in deciding the only penalty had to be that of dismissal. We are not satisfied they gave consideration to any other way of dealing with the matter such as for example, giving a warning since there was no suggestion the applicant had mishandled a fork lift truck on any other occasion and no other disciplinary matters were considered by them."...Then they deal with the suspicions of the Applicant and reject them. They go on:
"... and the response was not that of a reasonable employer in all the circumstances. We find for these reasons the applicant was unfairly dismissed."
Mr Lediard submits that the Tribunal in reaching their judgment that the Respondents over-reacted in their decision, did so on a false basis of fact, even on their own finding, because he says, that their assertion, that there was no suggestion that the Applicant had mishandled a forklift truck, was undermined by their own earlier findings that he had admitted doing it on earlier occasions.This matter comes before us to determine whether the Tribunal has made an error of law in its approach. There are a number of ways in which that may take place. First of all was the decision, one which no reasonable Tribunal could have reached on the evidence. Or, putting it another way in relation to one other case, is there a material finding of fact relied upon by the Tribunal in the decision, which was contrary to the evidence before them. A number of facts must be made clear. First of all, in paragraph 28, the Tribunal took into account a number of features informing their judgment: the openness of the Applicant in admitting his guilt; the fact that there had been no previous disciplinary hearing about this whatsoever; the fact that he had never been warned before in relation to any misconduct; and the fact that, it seems to us they are saying, when it came to actually giving the reasons for dismissal, it was for the one incident alone, not for any course of conduct or general negligent practice on the part of the Applicant. We read paragraph 28 as saying that that was the reason for dismissal. That is borne out by the letter of dismissal which we have in fact seen. Furthermore, when one looks carefully at paragraph 28, it goes in this way: first they say that it was not a reasonable response. Secondly it says, no consideration was given to any other way of dealing with the matter. The Tribunal then challenged themselves to justify that assertion by coming up with any other way of dealing with the matter that could have been considered. They suggest, as an example, that a warning may have been considered. When considering whether a warning should be given, and in the context of whether a warning could reasonably have been considered, they say since there was no suggestion the Applicant had mishandled a fork lift truck on any other occasion, and no other disciplinary matters were considered by them. It is in the context of saying that this matter had not arisen before, so far as the employers were concerned, in that they had not had to look at it before and so it was the first time that they were looking at this with this employee, that what the Tribunal meant, looking at their words broadly, was that this is something in which perhaps a warning, it being the first occasion, could reasonably have been contemplated.Going back to paragraph 7, all they do there, it seems to us, is to say that in the course of discussions about it, the Applicant was by way of justifying what he was doing on that occasion, saying in effect "well he had done it before but it had not made any difference". But the difference between paragraphs 7 and 28 it seems to us, is that although paragraph 7 contains a recital of the background and a comment that the Applicant had made; when it comes to actually deciding what was in the mind of the Respondents as the reason for dismissal, that does not figure. The Tribunal made a finding of fact that the employer dismissed because of the one episode of misconduct as set out in their letter. That was a finding of fact, which, it seems to us, was justified on the evidence.Although at first sight there may appear to be a different description of the same aspect in different parts of the decision, and if we were demanding the most precise and legalistic analysis at every point from the decision of the Tribunal, we would find the difference. Nonetheless when we look without the famous "toothpick" at this decision in a broad way, and see what the Tribunal was intending, first of all, we do not find any real contradiction between those two paragraphs, and secondly even if there is a contradiction, and perhaps the matter could have been more happily expressed, that is only one of the features that the Tribunal were taking into consideration, when looking overall at the way in which the Respondents dealt with this situation. It is certainly not a fundamental fact in relation to which the Tribunal took a completely perverse approach, or one in which they made such a material finding of fact which was contrary to the evidence before them, as to lead us to conclude that that was so grave as to constitute an error of law with which we should interfere.It is always possible when looking very carefully at a Tribunal's decision to pick holes in it if one is using a magnifying glass. But that is not the process upon which we can engage. There is no substance in the arguments in relation to that which have been presented to us.In the Notice of Appeal, in addition, Mr Lediard goes on to say that whilst the disciplinary procedures were technically faulty, the dismissal was fair and reasonable given the facts. Well "given the facts" was a matter for the Tribunal. To balance the procedural defects with the breach of discipline of the employee, was the exercise that the Tribunal set itself. They set themselves that exercise and they came to a conclusion, putting it crudely, that it was 60/40. Mr Lediard has not advanced any real arguments as to why it should have been any different, except to go on to say that the word "technical" should be used in its loose sense of being minor, not very important, and not really having made much difference to the realities, so that therefore although there were technical breaches, the reality of it was that all the fault really lay with the Applicant, so as to make the 40% contributory fault inappropriate. He would also no doubt say that if he had done it before, then the contributory fault should have been greater, but we have already dealt with that aspect of the case.In support of the proposition that any defects were just "technical" Mr Lediard has produced to us a detailed statement. Although a lot of these matters have not been raised formerly, it is perhaps fair to deal with them, seeing as Mr Lediard has gone to the trouble to assemble them for our benefit. First of all he suggests for the Tribunal to look at the size and administrative resources of the Respondents, should have led them to look, as it were, indulgently and favourably upon these particular employers. They have a turnover of £7½m, a workforce of 42 people, 2 Directors and 3 Managers (although he said 2 in his statement) including himself, a fully qualified Chartered Accountant with primary responsibility for financial and other related matters, and, we pause to observe, describing himself at the disciplinary process, as responsible for Personnel. He confessed to us that he had had no training in personnel management, but he appreciates the need to follow the law relating to employment matters. We are bound to say that in the modern economic climate, these Respondents are blessed with resources which are denied to a very large number of Respondents and they are blessed with the resources to equip themselves to the necessary standards to deal with employment matters in accordance with well-established good industrial relations procedures. The facility of a non-productive employee of such experience as Mr Lediard, is a great luxury for most companies, and would normally lead one to expect very high standards of disciplinary procedures. But we think that Mr Lediard is far too modest in suggesting that the resources available to his employer should be regarded as small or deficient, in relation to ordinary industrial relations matters.Mr Lediard then deals with specific aspects. First of all there was only five minutes notice of the meeting. There was an issue of fact, we understand, as to whether the night before by telephoning Mr Whitefoot, he showed that he knew there was "something brewing". The Tribunal made a finding of fact about that, which implies that they resolved that issue in favour of the Applicant. He then deals with the suggestion that it was suggested that the Applicant was not informed it was a formal disciplinary meeting. It seems to us that must be accepted. It has not been suggested otherwise by Mr Lediard. The third matter is that the Applicant was not represented by his choice of colleague. Again it seems there was a factual issue about it, which was impliedly resolved by the Tribunal in the finding that they made. But it is, let it be clearly stated, so far as we understand it, generally recognised that a feature of good industrial relations practice is to ensure that not only does an employee have sufficient notice, so far as time is concerned, before a meeting, but he actually has notice of the allegations that are to be made and the possible consequences, so that he has an opportunity to prepare to meet the case which is to be presented against him. We also understand it to be good industrial relations practice, that an employee is to be reminded of his entitlement to have a colleague of his choice present, so that the fact that there is no request for a postponement for that purpose by the employee, is only a valid complaint by an employer if he can show that he has given the employee that opportunity. Here again there seems to have been a factual dispute about it, which the Respondents impliedly resolved.Furthermore, the Respondents contend by Mr Lediard, that there is authority to suggest that it might be suitable for the same person to conduct the appeal as conducts the initial hearing, because by analogy the same person can conduct an investigation as makes the final decision. We cannot understand that comparison in any event. Clearly an appeal is an examination of the thinking by someone else of the person's decision to dismiss, which is quite a different matter from someone being able to investigate and gather the evidence and then form a judgement upon it. It is not a question of contamination as Mr Lediard said, but an appeal is a way of taking a second opinion, and a person cannot take a second opinion from himself.On all the points that have been raised, we can see nothing in the decision of the Industrial Tribunal which constitutes any error of law. Indeed, on the facts as found by them, this Tribunal cannot really find any basis for criticising their conclusions at all. It seems to us that there was a very careful and detailed analysis of the evidence and the arguments, and the judgment that the Tribunal came to on all the points seems consistent with their duties and the law, in a way that we can find no complaint.We would only add by way of conclusion that in the course of these proceedings in this hearing, it was elicited by one of the Members that when the Tribunal referred in paragraph 7 of their decision to the fact that after the disciplinary interview Mr Lediard and Mr Albrow conferred with the Company Directors and it was decided to dismiss for gross misconduct, that that was a meeting at which all the matters were discussed in the absence of the Applicant and that the final decision about whether there should be a dismissal or not, was carried out and made by the Directors themselves, who had not interviewed the Applicant or spoken to him at all about this whatsoever. We also learn that that was the general approach with these Respondents. We simply mention this matter "by the way" because it does not figure really as part of the issues that we have to decide, but it is part of our function certainly to deal with issues of industrial relations practice from time to time. The Directors are the only ones with authority to dismiss. We are sure they are very busy people. But we would simply comment that we cannot conceive of it ever being within a reasonable approach of an employer to the process of dismissal, for the employer to take the decision to dismiss, without giving the Applicant (the employee) an opportunity to speak to the person making the decision, and simply for the matter to happen behind closed doors in a discussion to which the employee is not at all privy. Nowadays, to remove a person's livelihood from him may be a step which is going to affect the way he spends the whole of the rest of his life; not only his life, but possibly that of his family. It is so important, not only in theory but in practice, it seems to us, that industrial relations requires at least that the employee has an opportunity for the person making the decision to discuss it with him before that sort of decision is taken. But as I say, that is something that just emerged during the course of the hearing. It would simply underline our final judgment that we can see nothing wrong with the final decision of the Industrial Tribunal in this case. We mention it because perhaps as this seems to be general practice in the Respondent's organisation, it may assist them in the way they direct their affairs in the future. This appeal is dismissed.