Scott v Carter Refrigeration & Retail Ltd [1997] UKEAT 52_96_1302

EAT
Scott v Carter Refrigeration & Retail Ltd
[1997] UKEAT 52_96_1302 · 1997-02-13

JUDGE PETER CLARK :

We have before us both an appeal by the Applicant and a cross-appeal by the Respondent employer against a majority decision of the London (North) Industrial Tribunal sitting on 12 October 1995. Extended reasons for that decision are dated 27 November 1995.

The Industrial Tribunal Decision

The Applicant was employed by the Respondent as a telephonist typist at their Hanwell, London premises. It seems that there was some friction between the Applicant and a fellow employee, Mrs Jenny Colby. The Applicant commenced employment on 13 November 1989 and she was dismissed on 10 March 1995.In November 1995, as a result of a deterioration in relationships between certain female members of staff, a director of the Respondent, Mr Mills, held a meeting of those staff members affected, urging them to resolve their differences and get on with the job in hand.Early on 6 March 1995 an incident occurred between the Applicant and Mrs Colby. It seems that there was some physical contact and bad language used. An investigation was carried out by Mr Phillips, the general service manager and Mr Black, another manager. Statements were taken from each of the two ladies. There were no other witnesses to the incident and the accounts given by the ladies conflicted. As a result, Mr Mills resolved to suspend each of them on pay until 10 March. On 8 March he spoke to each of them separately and the attitude of the Applicant was that she regarded herself as totally blameless for the incident and she could not see any need for a compromise. She did not on that occasion deny that there had been physical contact and she had pushed Mrs Colby in the face and used abusive language to her. Mrs Colby, meanwhile, appeared quite contrite.At that stage Mr Mills took the view that the conflict was six of one and half-a-dozen of the other. He decided the best course was for the two ladies to speak to each other and, hopefully, resolve their differences.Mrs Colby then telephone the Applicant at home but in a short conversation they failed to come to any agreement. On 10 March Mr Mills saw both of them and he decided that the proper course was to dismiss them both and that is what he did.The Tribunal unanimously concluded that the Respondent had carried out an adequate investigation and that they had reasonable grounds for concluding that the Applicant had behaved aggressively towards Mrs Colby and had used abusive language. Where the Tribunal parted company was on the question as to whether or not the penalty of dismissal in this case fell within the range of reasonable responses open to the employer. The majority consisting of the lay Members of the Tribunal expressed their conclusion in this way at paragraph 17 of the reasons:
"The two members, in the majority, consider that the employer's response of summary dismissal was outside the band of reasonable responses which a fair employer could give. Their reasons are: (a) The incident was not sufficiently serious in itself to warrant dismissal. (b) The Respondents did not take sufficient account of the Applicant's 5 1/2 years reasonably good service with them. (c) The response of a reasonable employer would be to give a final warning (with or without pay) for up to five days."
The majority went on to conclude that the Applicant had contributed to her dismissal to the extent of 50 percent.The Chairman, in the minority, took a different view and he said that although the decision may have been towards the outer edges of the band of reasonable responses, he felt that dismissal fell within that range and he would have found the dismissal fair. The majority decision prevailed and the Chairman joined with the other Members in their assessment of contribution at 50 percent.The Tribunal then went on to deal with the question of remedy. First, they calculated the basic award and deducted 50 percent for contributory fault. Secondly, they turned to the question of the compensatory award. They approached it in this way. First, they took the net average wages in employment with the Respondent earned by the Applicant for the period March, that is, from dismissal, until October, that is the date of the Tribunal hearing, 1995. From that gross figure of £5,978 they deducted 50 percent for her contribution to her own dismissal, giving a balance of £2,989. They then deducted the monies which she earned in temporary employment during that seven-month period. The effect of that was that she would receive no compensation. Further, they considered the question of future loss and held that since 50 percent of her pre-dismissal earning was less than the weekly wage which she received in alternative employment, there was again no loss and, therefore, they assessed the compensatory award at nil.

The Appeals

There are two live issues before us. It is convenient first to take the employer's cross-appeal against the majority finding of unfair dismissal.Mr Chronias advanced five uncontroversial propositions in considering the Tribunal's approach to reasonableness under s.57(3) of the Employment Protection (Consolidation) Act 1978, now s.98(4) of the Employment Rights Act 1996. His attack on the majority decision of unfairness necessarily focuses on paragraph 17 of the reasons which we have set out in full. He submits that reasons (a) to (c) must stand or fall together. He argues that ground (c) reveals that the majority have impermissibly substituted their own view for that of the employer and, further, that the majority was not entitled to find, in effect, that length of service must always be taken into account as a factor when considering the reasonableness of the decision to dismiss.We do not accept that all three reasons must be supportable for the majority decision to stand. It is enough in our judgment that the first reason, that the incident was not sufficiently serious in itself to warrant dismissal, stands against the background of a perfectly correct self-direction at the beginning of paragraph 17 of the extended reasons, although we go further and reject the submissions made by Mr Chronias in relation to grounds (b) and (c). It seems to us that all three grounds were matters which the Tribunal was entitled to take into account in considering the question as to whether or not dismissal fell within or outside the band of reasonable responses.In these circumstances we can see no grounds for interfering with the majority's finding of unfair dismissal and we dismiss the cross-appeal.Mr Jones, on behalf of the Applicant, abandons all but one ground of appeal and that is that the Tribunal erred in calculating the compensatory award by deducting the 50 percent contribution before deducting monies earned during the mitigation period. That ground is conceded by the Respondent. Since that concession involves our setting aside, at any rate part of, a reasoned decision of an industrial tribunal, we have ourselves considered whether it was properly made in line with the practice laid down by Mummery J in J Sainsbury Plc v Moger [1994] ICR 800 . In our judgment, it was. We prefer to follow the approach of the Employment Appeal Tribunal in Digital Equipment Co Ltd v Clements (The Times, 11 December 1996) to that of a different division of the Employment Appeal Tribunal in Derwent Coachworks v Kirby [1995] ICR 48, that is to say that first the net loss should be assessed for the period found appropriate by the Tribunal, then the earnings by way of mitigation during that period should be deducted and, finally, the deduction of 50 percent contribution should be applied to the resulting balance. This Industrial Tribunal, following the Derwent approach, reversed stages 2 and 3.We should say that such an approach was properly founded on authority at the time of this Tribunal's decision but that authority was wrongly decided, in our judgment and does not properly reflect the statutory regime.Our difficulty is that no findings were made by the Industrial Tribunal in relation to future loss. The Tribunal, having approached the case in the way we have described, found it unnecessary to make such findings because they anticipated that there would be no loss on their approach. In these circumstances, it is unfortunately necessary for the case to be remitted to a fresh industrial tribunal solely on the question of compensation, applying the approach set out in the Digital case. The existing findings of the Industrial Tribunal as to unfairness and the contribution of 50 percent will stand.Accordingly, the appeal is allowed to the extent that we have indicated and the case is remitted for rehearing.