THE LONDON BOROUGH OF ISLINGTON v MRS M COLLINS [1999] UKEAT 3_99_0907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 3_99_0907Case No Appeal No. EAT/3/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE LONDON BOROUGH OF ISLINGTONAPPELLANTMRS M COLLINSRESPONDENT
Before
His Honour Judge Harold Wilson Mr J R Crosby Mr P R A JacquesDate 9 July 1999
[1]APPEARANCES For the Appellants MR D BASSU (of Counsel) Instructed by: Head of Law and Public Services London Borough of Islington PO Box No 21030 London N1 2WW For the Respondent MR M BALYSZ (of Counsel) Instructed by: Messrs Chas T Nicholls Solicitors 1 Lincoln's Inn Fields London WC2A 3AH JUDGE HAROLD WILSON : This has been the hearing of the substantive appeal by the respondent Borough, represented by Mr Basu of Counsel, against the decision of the Employment Tribunal that the applicant had been unfairly dismissed and should be reinstated by 9th November 1998. Mr Balysz of Counsel has represented Mrs Collins, and we are indebted to both for their skeleton arguments and for their oral amplifications of those arguments before us today. We accept Mr Basu's submission at the outset that the appeal, so far as the Borough is concerned, has two strands. The first, the strand dealing with the dismissal itself and his contention that it is not an unfair dismissal.[2]The second strand stands completely separately from whatever our conclusions might be about the first. It concerns the remedy of reinstatement with which he deals completely separately. He says that as a remedy, reinstatement was not open to the tribunal. They failed to say why it was a practicable remedy. Furthermore, he submits that it was non sequitur for the tribunal to rely upon a decision of the Scottish Employment Appeal Tribunal in Automatic Cooling Engineers Ltd v Stephen Scott (Unreported 26th November 1981) . In that case an appellant, who had been found 75% responsible for his predicament, was nevertheless ordered to be re-engaged. Mr Basu contends that the tribunal could not use a re-engagement authority in support of a reinstatement case.[3]The main part of Mr Basu's contentions revolves round what he submits are contradictions between the contents of paragraph 5 of the Employment Tribunal's decision and paragraph 17, insofar as each of those paragraphs deal with Mr Wright. Mr Wright was the official who took immediate action in the incident with which this case has been concerned.[4]Before dealing with the alleged contradictions, it is perhaps sufficient briefly to state the facts. Mrs Collins had been employed for a number of years by the Borough and had an unblemished record of service until the incident on 3rd September which led to her facing disciplinary proceedings.[5]The findings of fact by the Employment Tribunal are set out in paragraph 3 of their decision. Paragraph 3 sets out a brief biography of Mrs Collins' time with the Borough; and paragraph 4 deals with the incident itself:
"The incident which led to Mrs Collin's dismissal occurred on 3 September 1997. That was shortly after Princess Diana had been killed and that was the subject of deep discussion in the office. Conversation took a personal turn when Mrs Collins mentioned that people other than Princess Diana had been involved in campaigning for Aids victims and this provoked a hostile remark from her colleague Gillian Lee. Mrs Collins announced that she did not wish to take any further part in the conversation and wanted to get on with her work. Ms Lee riposted with words to the effect "
Work? It will be a miracle the day you do any work". This remark upset Mrs Collins and after she thought about it for a few moments she walked across the office to Ms Lee's desk and asked her what she meant by that remark. At about the same time Ms Lee's telephone rang and she went to answer it. Ms Lee motioned with the phone in her hand to indicate that she was speaking to a caller and turned her back. Mrs Collins approached Ms Lee, pulled her around and made a movement with her arm towards Ms Lee. Whether this was in order to put her hand over the mouth of the receiver, so that the caller could not hear their conversation, or whether it was to grab the telephone from Ms Lee's grasp or whether it was actually to hit Ms Lee is something which was the subject of much debate at the disciplinary hearing and in the Tribunal. At that point another officer shouted to Mrs Collins "Don't you dare hit Gill"."[6]Paragraph 5 deals with Mr Wright's position. He was the senior officer in the room, and he took an immediate decision, which was in fact beyond his authority, but was recognised as a reasonable thing for somebody to do anyway, in that he told Mrs Collins to leave the office and go down downstairs and that she was suspended pending further investigation. That was a decision to deal immediately with a very tense situation. The rest of paragraph 5 deals with the disciplinary proceedings, which did take place. It is worth noting that the action was taken against Mrs Collins only and not against both of the protagonists and that the investigation concerned Mrs Collins only and not any other protagonist.[7]Those then are the facts found about the actual matter, which was the subject of the disciplinary enquiry. The enquiry was conducted by Mr Farrant, who adjourned overnight, in order to consider the matter, and he announced his decision in the following words:
"Difficult decision to make. In my view gross misconduct had occurred. As the chair I have a responsibility to protect the members of the staff. Make it clear that violence in the work place can't be tolerated. Therefore I have decided to summarily dismiss you. Advice you of an appeal which must be made in writing to the head of personnel and administration 5 days."
[8]Mrs Collins duly appealed. The procedure was not a rehearing but a review. The subcommittee charged with the review decided to uphold the decision to find the complaint proved and took the view that they had no option but to agree the penalty imposed by management.[9]Those then are the facts found by the Employment Tribunal[10]Mr Basu concedes that the law is accurately and properly set out in paragraphs 10 to 14 inclusive of the reasons given by the Employment Tribunal, but he says that there is a contradiction between what is said about Mr Wright's action in paragraph 5 and what is said in paragraph 17. I have already referred to what is said in paragraph 5 concerning Mr Wright's action, which is described as a "reasonable managerial decision to deal immediately with a very tense situation." Mr Basu submits that it is contradictory to find in paragraph 17 Mr Wright's action differently described. In paragraph 17 Mr Wright is stated to have "taken it upon himself to make an instant decision that Mrs Collins was the only person at fault and that set the tone for ensuing investigation and disciplinary hearing." This tribunal finds no contradiction between what is said about Mr Wright in the two paragraphs. The second reference to him is a comment that he had taken action against only one of the protagonists. In the view of the Employment Tribunal that might well have set the tone for the ensuing investigation and disciplinary hearing. It seems to us that that is an inference, which it was open to the Employment Tribunal to draw, and we can find no quarrel with it. Neither do we think that it is right that it is not clear why he was criticised. The reason why is succinctly set out[11]Mr Basu went on to say that the finding in paragraph 17 of the decision was perverse. He submitted that it amounted to the Employment Tribunal substituting its own view for that taken by the responsible people in the Borough. Mr Basu today has taken the tribunal in detail through paragraph 17. Bearing in mind the findings of fact, to which I have already referred, it seems to us that the findings and remarks in paragraph 17 are not to be upset. There seems to be no justification for the criticism made of them. Firstly, the tribunal stated that it had the benefit of seeing Mrs Collins on two occasions, and they formed the view that she was a very emotional woman who would be very much upset by a cutting and hurtful remark by a colleague. That is in the context of the findings of fact about the timing of this incident, shortly after the death of Princess Diana, which was the subject of deep discussion in the office and had been the subject of discussion immediately before the incident itself. Secondly, the tribunal referred in paragraph 17 to Mrs Collins' ten years with the Borough with no previous recorded incident of any physical assault. It appears it was more than that. It was a ten-year period of an unblemished record.[12]Mr Basu submits that it was wrong for the tribunal to use its own assessment of Mrs Collins in the course of their conclusion. In particular, he criticises the subparagraphs in which the tribunal expressed its conclusions. It seems to us that those criticisms are baseless. In the first place Mr Basu concedes that the law is accurately set out in the decision; and in the second place, subparagraph (a) of paragraph 17 is applying the terms of s. 98(1) and (2) of the Employment Rights Act 1996 . That is to say, the employer has to show the reason for the dismissal and that it was one which fell within the second subsection, namely, conduct.

(b) considers:

"… the appropriateness of the sanction, Mr Farrant failed to take adequately into account the previous unblemished disciplinary record of Mrs Collins or the fact that the assault took place in the heat of the moment and as a result of some provocation on the part of the victim. He also failed to give adequate consideration to the other sanctions short of dismissal which were available to him. … Instead of all those alternatives the Respondents immediately opted for the ultimate sanction of dismissal and as stated above we consider that that was excessive."
[13]Mr Basu criticises that as a substitution by the Employment Tribunal of its own view of the matter. We think that that submission is not well founded. It seems to us quite clear that the tribunal was applying the law set out in the statute, s. 98(4) of the Act, which says:
"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."
[14]All of the things that Mr Farrant appears not to have taken adequately into account fall within those four corners of equity, substantial merits and the circumstances of the case. For that reason, we have quoted the words in which Mr Farrant announced his decision. Words from which any reference to mitigating factors are entirely absent.[15]In paragraph 17(c) the tribunal says that it found that the decision to dismiss fell beyond the band of reasonable responses open to a reasonable employer. That is the test set in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 . It is a test, which the Employment Tribunal has to decide acting as the industrial jury in the matter. The particular part in the Iceland case says as follows:
"There is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another. The function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair."
[16]That is precisely the test which the Employment Tribunal in this case applied and they found, as expressed in paragraph 17(c) of their decision, that the decision to dismiss "fell beyond the band of reasonable responses open to a reasonable employer".[17]The tribunal then went on in subparagraph (d) of paragraph 17 to find that:
"… Mrs Collins had undoubtedly made a major contribution to her dismissal both in relation to her conduct at the time of the incident and the fact that she made no attempt to apologise for her actions afterwards. We place her contribution at 70% and any basic and compensatory awards would be reduced accordingly."
[18]We can find no ground upon which it would be right to seek to interfere with that decision of the tribunal. The law is accurately stated. The facts are fully stated. The conclusions drawn are conclusions which a reasonable tribunal properly directing itself on the law and applying the law to the facts they found could have come. We note that at the hearing of the preliminary point, Charles J stated when Mr Basu was turning to the question of unfair dismissal:
"… he acknowledges that there are some difficulties in his path because in the Tribunal's findings they do recite the right test but he says, either that a fair reading of the Extended Reasons shows that they did not actually apply that test, or that if they did, the decision reached by the Tribunal was perverse because no Tribunal, properly directing itself, could have reached that conclusion."
[19]We find that he has succeeded in neither of those alternatives and the appeal against the finding of unfair dismissal is dismissed.[20]So far as the second part of the appeal is concerned, that of remedy. Mr Basu's points have already been referred to.[21]Mr Balysz in response says that what was exercised here was a discretion which is given to the Employment Tribunal by Parliament. It was properly exercised; particularly when regard is had to paragraph 19.[22]Again, Mr Basu concedes that the law is accurately set out in paragraph 18 and the contents of paragraph 19 show how the tribunal approached the matter. They came to a conclusion, in the light of a decision in Automatic Cooling Engineers Ltd v Stephen Scott and Mr Basu says that that should not be relied upon because it is a decision to do with re-engagement and not reinstatement.[23]We do not think that that is a limitation which stands close examination. We have regard to the final paragraph of the decision by the Scottish Employment Appeal Tribunal and in quoting from it I substitute the word reinstatement for re-engagement:
"We recognise that the order for reinstatement may present practical problems. Orders of this nature very frequently do. We do not consider, however, that there is any legitimate ground on which we could interfere with the discretion of the tribunal in making an order of this nature. …"
[24]It seems to us that paragraph 19 of the extended reasons recognises those factors and we too consider that there is no ground upon which we should interfere with the exercise of discretion by the Employment Tribunal. Accordingly, that ground of appeal also fails.