Clark v Watson [1997] UKEAT 1114_96_0606

EAT
Clark v Watson
[1997] UKEAT 1114_96_0606 · 1997-06-06

JUDGE HULL QC:

This is an appeal to us by Mr Alan Derek Clark, who appeals to us from a decision of the Industrial Tribunal, sitting under the Chairmanship of Mr Puttick with two Industrial Members, at Exeter on 12 August 1996. On 22 August the decision was promulgated. It found that Mr Clark had made out his claim that he had been unfairly dismissed by his employers, but the Tribunal, in circumstances which I will mention in a moment, thought it right to make no award of compensation.Mr Clark was employed in Mr Ben Watson's shop ("the Respondent") at Totnes, Devon, as a butcher. His employment began on 1 June 1990 and was terminated, as the Tribunal found, on 3 June 1996. He had been in employment for six years. During his employment, apparently, he had shown capability as a butcher: he is a good worker.I cannot do better, in dealing with the appeal, than to say what the Tribunal said they found as facts. It must be remembered, by anybody who is endeavouring to understand these matters, that we are judges only of law, we can hear appeals only on grounds of law. The Industrial Tribunal has been described as the "Industrial Jury" in the case and Parliament has said that the Tribunal are to have exclusive jurisdiction on questions of fact. We cannot reach our own conclusions or inferences of fact. We have not heard the witnesses and Parliament has said that we are not to hear any appeals on fact. In that way we are different from other Courts of Appeal, and in particular the Court of Appeal in England, because we cannot entertain any appeal except on a question of law.What the Tribunal said was as follows:
"4 The Tribunal has heard evidence from the Applicant and the Respondent. It has carefully noted the demeanour of both. It has no hesitation in coming to the conclusion that the Applicant is a strong willed and naturally aggressive man who would not take kindly to any form of authority. No doubt he is a very competent tradesman. The Respondent is not of the same material, being inconcise and indecisive as a manager.
5 There is a history of petty infringements of the rules set out by the respondent for the workforce. The Applicant paid mere lip service to the health and safety rules as to smoking, dress and the reporting of machinery faults. He admits foul language to fellow employees, and aggressive and abusive behaviour to fellow employees and to his employer. His employer neither encouraged nor condoned this behaviour, but he could not control it. The Applicant did more or less as he pleased, to the detriment of the business.6 In the period 2 June 1996 to 4 June 1996 the Respondent did take some steps. He told the Applicant that his behaviour was intolerable and that his performance as a supervisor was not up to the standard that he required. He made a unilateral decision to temporarily demote the Applicant from his supervisory grade which would result in a loss of wages and status. The Applicant objected loudly and aggressively. The Respondent told the Applicant that if he could not accept the new terms of employment he should go. The Applicant did so."The Tribunal then set out, quite rightly, that an employer must act reasonably towards his employees at all times. They find that what the employer had done was unreasonable on two counts. First, that there had been no formal discussion of the Applicant's shortcomings and the possible repercussions of them prior to the unilateral decision being made. Secondly, when the angry Applicant left, the Respondent allowed no cooling off period for the Applicant to change his mind.On those grounds, which are entirely adequate to support this conclusion, the Tribunal finds that there has been constructive dismissal. The lack of consultation makes this dismissal unfair. The Tribunal go on to say this:
"9 When considering the Applicant's contribution to his own dismissal, the Tribunal assessed the Applicant as an aggressive man who over several years has taken advantage of the weak managerial approach of the Respondent. He has flagrantly breached health and safety regulations. He has made a mockery of the Respondent's attempts to manage the business. The Applicant has caused disruption in the workplace, and he has not shouldered his responsibilities as a supervisor, allowing the respondent's reputation and business to suffer.
10 In all the circumstances we find that the Applicant has contributed 100% to his own downfall, and we find that it is just and equitable to make no award of compensation."Those observations, as findings of the Tribunal concerning the Applicant, Mr Clark, are serious ones indeed; in particular, that this behaviour, of which they found he was guilty, had gone on for years and that he had flagrantly broken health and safety regulations and made a mockery of the Respondent's attempts to manage the business. We do not need to say any more about that than this, that they are very serious breaches of the obligations of an employee, which clearly the Tribunal were entitled to find, and went to the root of the conflict between the parties. They found that at the least the employer should have discussed these matters with the employee, and, of course, given him proper warning.That theme was taken up by Mr Galbraith-Martin who said everything that can be said on behalf of the Applicant on this appeal. First of all, he has abandoned on behalf of the Applicant, quite rightly, grounds A and B of his Notice of Appeal. Mr Galbraith-Martin directs his short and pointed argument to the finding that the Applicant contributed one hundred percent to his own downfall. He pointed to the ordinary practice of Tribunals, and of this Tribunal, of looking, when a man is to be dismissed, to see what steps the employer has taken to put matters right. In ordinary cases of misbehaviour, not very serious matters such as theft, but other matters less serious, the Tribunal will expect to see that the employee has been warned, perhaps warned more than once, and warned in particular that if this behaviour is not put right, the employer will be bound either to dismiss the employee or, as in this case, to demote him.The Tribunal found in the circumstances that indeed this demotion, the cutting of the wages, was a constructive dismissal. They were quite right to do that. They were also entitled, and indeed required by Parliament, to look at all the circumstances. The Tribunal in paragraph 10 were looking at the sub-sections of the Employment Rights Act to which we were referred in argument. Under the basic award and compensatory award provisions, Sections 122 and 123, there are provisions made not merely for reduction on the grounds of conduct which contributed to the dismissal, but also for conduct before the dismissal. The compensatory award may be reduced so far as the Tribunal considers it just and equitable, and so may the basic award.The Tribunal clearly took the view that this was an exceptional case. First of all the Respondent is a small employer; he has very few employees; he is a man who is not, to say the least of it, a gifted manager. He allowed things to go on, in the view of the Tribunal, for far too long. When he did endeavour to do something about it, he was treated by the Applicant in a contemptuous and aggressive way.In those circumstances the Tribunal had to assess the just and equitable level of compensation. It was a matter for them. It is eminently a question of fact. Certainly we should expect the Tribunal to look, and we should ourselves look, to see, in an ordinary case of intermittent faults - and an employer who is discharging his responsibilities - for the apparatus of warning and consultation and so forth. In these circumstances it is quite clear to us that the Tribunal found that the facts were quite exceptional. The findings which they made, in our view, are sufficiently set out in their decision and justify them, if they took that view, in deciding that it was not just and equitable to award compensation.It will not help if I go into examples of other things that might lead to the same result but we have no doubt that, in a proper case, it is always open to an Industrial Tribunal to say that, notwithstanding that the dismissal has been unfair, they are not prepared to award any compensation to the Applicant, because it would not be right and just to do so. Those words are clearly intended - "just and equitable" - to be used in a layman's sense and if the Industrial Members and their Chairman feel, having thought about it, that it would be quite wrong for this gentleman to receive any compensation from his employer at their hands, they are entitled to say so in circumstances such as they found in the present case.In those circumstances there is no point of law disclosed and the point which was put to us so shortly and well by Mr Galbraith-Martin, is one which we at greater length, but nonetheless quite shortly, feel obliged to say that we are not prepared to accede to. There is no point of law and we must therefore dismiss the appeal.