Morangate Ltd v Besant [1997] UKEAT 1401_96_0707

EAT
Morangate Ltd v Besant
[1997] UKEAT 1401_96_0707 · 1997-07-07

JUDGE J HULL QC :

This is an appeal to us by Morangate Ltd, employers, a contract cleaning company. They appeal to us against a decision of the Industrial Tribunal sitting at London (South) on 1 November 1996 under the chairmanship of Mr Warren, with two industrial members. That Tribunal found that the Respondent to the appeal, Mr Besant, who was an employee of the Appellants, had been unfairly dismissed and they awarded him a total compensation of more than £10,000, made up of a basic and a compensatory award.The facts can be fairly shortly stated. Mr Besant's employment, which was at the Arndale Centre in Wandsworth, began on 1 September 1993 and on 15 May 1996 events took place (which we will go into in a little more detail) in the form of a disturbance, an altercation at the Centre and it was said that on this occasion Mr Besant conducted himself in an aggressive, unpleasant and very unwise way. It is said he approached the scene of the altercation armed with a pick-axe handle, clearly a dangerous weapon, if it was used as a weapon, and that he was observed doing that by the General Manager, who happened to be present on that occasion, but was not actually, of course, involved in the altercation.There were disciplinary procedures which followed. We do not need to go into those in detail. It is conceded by the Appellants that the disciplinary proceedings were wholly defective. They were the worst, said the Tribunal, that they had seen for some considerable time. Among other things, the employee, Mr Besant, was not given proper notice of the charges against him and he was handed documents at the hearing. All sorts of things went wrong. So on procedural grounds it could most certainly be said that the employers had fallen down and could not show that they had behaved reasonably in treating the complaint, which they had against the employee, as a reasonable ground for dismissing him.The matter did not end there so far as the employers were concerned. They wished the Tribunal to consider two basic contentions. The first was that the conduct of Mr Besant, whatever else one said about the conduct of the employers, but the conduct of the employee, Mr Besant, was such that he should be held to have contributed to a substantial extent to his dismissal and that the Tribunal should consider that matter.The second contention was what is sometimes called "the Polkey contention", that when they came to consider compensation, the Tribunal should ask themselves, "Well we find that the procedure followed was unfair. Let us ask ourselves what difference that would have made? Would it have made any difference and if so, how much difference, if the employers had behaved impeccably, had had a faultless enquiry and an entirely fair disciplinary hearing? Would that have resulted in dismissal in all the circumstances of the case?". Of course, in the circumstances of this case, those two contentions are closely connected, because the question of what difference would it have made - the Polkey point - depended very much on what the Tribunal made of the facts.So that was how matters stood in front of the Tribunal. The Tribunal's decision sets out the facts at considerable length. They refer to Mr Brown's evidence (the gentleman who is in fact the General Manager - he is also referred to as Mr Burns and Mr Barnes - it is probably Mr Burns in fact). They say, concerning this disturbance, at paragraph 3(iii):
"Mr Burns' [the General Manager's] evidence was that the Applicant had attacked a Kwiksave [a well known store] employee. He stated that the Applicant was involved in a fracas with the Kwiksave security staff. In a statement which Mr Burns made shortly after ... he writes: 'I then saw Keith Besant run over to the staff brandishing a pick-axe handle and start threatening security and staff'."
So that was what was said by the employers. Then the Tribunal say:
"The Tribunal had the opportunity of watching the security video recording which covered the yard and from which one could see the sequence of events. It was clear from the video that the Applicant did not 'run over to the staff brandishing a pick-axe handle'."
Then the Tribunal go on, at paragraph 3(v):
"The Respondents obtained a report from security. ... Much of that report is hearsay. Mr Caskin, the reporting officer, was not personally involved with all of the events which occurred, but what is clear is that before the Applicant had become involved, male staff from Kwiksave had threatened Mrs Amato [a lady involved in the altercation] and her son, saying 'they were going to kill them'."
The Tribunal (as I say) were looking into it. And if that was true, or was thought by the Tribunal to be probably true, small wonder that any decent minded man might think it necessary to intervene, whether or not he had a pick-axe handle in his hand and apparently what Mr Besant said about that was that he used that piece of wood in the course of his work, and there was no question of it being a weapon.Then they go through the procedural defects. I do not need to go through those. Mr Griffin has very frankly acknowledged that really the employers have nothing now to say about those.The Tribunal say, looking into the evidence which the employers gave, at paragraph 3(viii):
"The Applicant was dismissed as he was 'unable to give a satisfactory explanation for his failure to work in an acceptable fashion'."
This was very important of course. If the Tribunal found it necessary, as they did, to go into these matters and say what was the reason for which he was dismissed, and whether that was a reason which was capable of supporting a dismissal; then they were right to look at what the employers had said about that. Clearly, it is a wholly unsatisfactory way to put it. If the true reason was that Mr Burns had seen the employee attacking somebody with a pick-axe handle or threatening to do so, then that was something one would have thought that he would have set out in the Answer, but there it is.Then the Tribunal go on further with what happened at the disciplinary hearing, finding it entirely unsatisfactory. And they went on to refer to the fact that their attention had been invited to the Polkey test, at paragraph 4:
"Put simply, the Respondent's submissions are that there had been a proper investigation; that there was evidence on which Mr Booth could reach the decision that the Applicant had committed an act of gross misconduct; that it was within the band of reasonable responses to dismiss; and that even if there had been a procedural flaw then the 'no difference test in 'Polkey' would reduce the compensation and that there was contribution on the part of the Applicant by reason of his conduct'."
We have no doubt that those matters were put before the Tribunal. Indeed, Mr Griffin has told us that, unhappily, it was a rather emotional hearing, as he puts it, but he is very clear that he put the question of contribution before the Tribunal as really the main plank of the employer's case. The Tribunal deal with what the Applicant said at the next paragraph, at the top of page 7 of our bundle, paragraph 5:
"The Applicant submits that he had not been guilty of conduct which amounts to gross misconduct, that there had been procedural flaws ... that there had not been a proper investigation and that summary dismissal was not within the band of reasonable response open to the Respondent."
They direct themselves according to the decision in Iceland Frozen Foods v Jones [1982] IRLR 439 , which they rightly refer to. They then consider in greater depth what happened at the disciplinary hearing. They discuss the appeal. And they say, at paragraph 8:
"Those matters may well have flawed the Appeal process, although of course, no final decision was made."
The appeal did not in fact result in a decision. They go on:
"For all of those reasons, we find that the Respondents failed to conduct a proper investigation and it was not reasonable for the Respondents to treat the Applicant's conduct as a ground for dismissal and, therefore, the dismissal is unfair and the application succeeds."
The Tribunal continue, at paragraphs 12 and 13:
"We are satisfied that the Applicant has done all he can to mitigate his loss. It is not easy for a man at his age to find alternative employment. ...
We consider this case to be one of the worst handled of dismissals that this Tribunal has seen for some time. We are the more surprised at the way in which the dismissal was dealt with bearing in mind the large number of occasions during the hearing when we were reminded by the Respondent's witnesses that they, throughout, acted on the advice of their advisers and in fact did nothing before taking that advice."Where, says Mr Griffin, where are the decisions on the points which the employers wanted decided? The question whether the employee had contributed by his conduct? The question of whether it would have made any difference had a fair and proper hearing been held? The answer is, of course, that if they are dealt with at all, they are dealt with very shortly and by implication.It seems quite clear to us from what the Tribunal was saying that they found that a reasonable employer would not have dismissed, however fair the hearing was. It seems tolerably clear to us that they were holding that there was no contribution here; that on credible testimony they were told that there were threats being made to kill and that, so far from rushing across, brandishing a pick-axe handle, all that Mr Besant had done was to go across and he happened to be holding the pick axe handle. They do not go into it in great detail, but they saw the video of what had happened and of course, in the absence of clear evidence from the employers about the basis on which they had proceeded, they had to judge the facts for themselves.That is not enough, says Mr Griffin, and our attention is invited to Nelson v British Broadcasting Corporation [1980] ICR 110. In that case the Court of Appeal said what contribution amounted to in this context, referring of course to the statute. They said, and this is the judgment of Brandon L J at page 23F:
"On the whole, therefore, while I think that an express finding on so serious a matter as culpability or blameworthiness is highly desirable, so as to show that the tribunal has applied its mind to the proper question, it would be right to imply the necessary finding in this case."
That was the judgment of Brandon LJ on the facts of that particular case.We have also had cited to us the case of Portsea Island Mutual Co-Operative Society Limited v Rees [1980] ICR 260. In that case this Tribunal, which was chaired on that occasion by Kilner Brown J said, as the headnote records:
"... that where the question whether the employee had contributed to his dismissal was in issue, the industrial tribunal was bound to record in a document their finding on that question and the reasons for it, ... since such a finding was a 'decision' within the meaning of that rule; that, accordingly, since contribution had clearly been raised, the chairman had erred in law in making no reference to it in the document, and the matter would be remitted to the industrial tribunal for reconsideration of the question whether the employee by his conduct had contributed to his dismissal."
So reading those two cases together, we undoubtedly get the proposition that if the question of contribution is raised, or, indeed, if it arises without being raised by the parties, the Tribunal will normally be expected to state their findings, however shortly, on that important matter. And also, of course, on the Polkey point, in so far as it is a separate point: What difference would it have made had the hearing by the employers been fair throughout? But in this case, it appears to us that we are entitled to follow what Brandon LJ said and look at the decision to see whether, although the matter is not expressly dealt with, one must gather from it that the matter was, in fact, considered and dealt with by the Industrial Tribunal, although they do not expressly say so.We have also considered something which has happened in this case, which is (with respect to those involved) wholly irregular. What happened was that a letter which we have not seen was written by Mr Trim, the employee's representative, to the Industrial Tribunal and the Industrial Tribunal Chairman thought it right to reply to that letter. That, we think, is an improper course of conduct. First of all, on the part of Mr Trim. He should not have taken it on himself to write to the Tribunal asking it to expand, or deal with matters arising out of its decision and we think again (with respect to the Chairman) that he should not have accepted the invitation. Subject to the question of review, when an Industrial Tribunal has given its reasons for its decision and published them, it is functus officio , it has no more to say. Anything it might say about its decision is entirely beside the point. If its decision can be criticised then it can be criticised in this Tribunal and we will, if necessary, ask the Chairman for his comments. If necessary, we will ask the Chairman for the comments of himself and his members. The decision is the product of the joint deliberations of all the members of the Tribunal and when they have agreed it and published it, it is not for the Chairman and not for any individual member to gloss it or say what it means, or why they put it in the way they did. We look at that letter which is dated simply "April 1997" and the Chairman caused this letter to be written:
"The Chairman has re-read the Tribunal's decision and the notes which he made at the time. At numbered paragraph 4 of the Decision the Tribunal records the fact that the Respondents had argued that the Applicant had by his conduct contributed to his dismissal. It is accepted that the decision does not specifically refer to the fact that the Tribunal found that there was no contribution. The Tribunal had made a finding of no contribution and announced it in so many words at the hearing. The Chairman accepts that that part of the decision should have been referred to in the written reasons there would then have been no confusion. The Chairman's notes are clear that at the end of the hearing the Chairman announced that the unanimous decision was that the dismissal was unfair that the flaws were so serious in the way in which the dismissal was handled as to make the dismissal substantively unfair. The Tribunal also found and did announce at the hearing that they found no contribution on the part of the Applicant to his dismissal. The Tribunal had considered whether or not to reduce compensation on the basis that had the Respondent dealt with the dismissal in a correct manner then the chances were the dismissal would have occurred and would have been fair. The Tribunal were unable to reach a finding in favour of the Respondent. It was not possible to say that had the matter been dealt with correctly then the dismissal would have occurred or would have been fair. The Chairman considers that to be clear from the decision."
We have no doubt that that letter was written in perfectly good faith and embodies the genuine views of the Chairman and his recollection of matters. For the reasons we have given we think it quite wrong that that letter should have been written and quite clear that the Chairman did not consult his members when he wrote that letter. Even if he had done, he should most certainly not have written it, but it has been written and it seems to us that if there was any doubt about the matter, and in our minds there is not, that letter would have really put the facts beyond doubt and it is a very great pity that the matters, which the Chairman makes very clear in that letter, were not set out in the decision of the Tribunal and that we have had, in effect, to gather them as a matter of inference. It would have been better had the parties not been left in that situation and had the employers been left quite clear about the reasons for the Tribunal's decision. As I say, we feel able to say that there is here no error of law. It is an exceptional case in which we feel able to follow what fell from Brandon LJ in the Nelson v BBC case.In any event, we would add this. We are not here to allow every appeal in which we can detect an error of law on the part of a Tribunal. To send this case back to the Tribunal, it seems to us, would inevitably involve, for no purpose whatever, a great deal of expense. Even if we had reached the conclusion that technically this decision was defective, we would, in the circumstances, not have been prepared to remit it since it is quite clear what was intended and that has been made even more clear in the Chairman's letter.We would simply conclude by hoping that what happened, in the way of writing to the Chairman and the Chairman replying, does not occur again. If any party wishes to complain that a decision is inadequate, then he has of course the possibility of applying to the Industrial Tribunal for a review if he can say that there has been some mishap or other, or appealing to us and this Tribunal will always apply to a Chairman for his comments or to the Chairman and all the members for their comments, if that is thought necessary.For the reasons which we have given we propose to dismiss this appeal. Those are the reasons of us all.