EAT/624/98 MR J MCLEOD v ECOVERT SOUTH LTD [1999] UKEAT 624_98_0106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 624_98_0106Case No Appeal No. EAT/624/98 EAT/801/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/624/98 MR J MCLEODAPPELLANTECOVERT SOUTH LTDRESPONDENTEAT/801/98 ECOVERT SOUTH LTDAPPELLANTMR J MCLEODRESPONDENT
Before
His Honour Judge Peter Clark Mr D J JenkinsDate 1 June 1999
[1]APPEARANCES MR J MCLEOD (in person) For Ecovert South Ltd MR T LINDEN (of Counsel) Howes Percival Oxford House Northampton NN1 5PN JUDGE PETER CLARK: We have before us appeals by both the Respondent employer, Ecovert South Ltd, and the Applicant employee, Mr McLeod, against a decision of the Ashford Employment Tribunal sitting on 3 rd April 1998 upholding the Applicant's complaint of Unfair Dismissal, but finding that he had contributed to his dismissal to the extent of 75%. The Respondent appeals against the former finding (EAT/801/98) and the Applicant against the finding of contribution (EAT/624/98). The decision with extended reasons was promulgated on 7 th April 1998. By that decision the Tribunal also upheld the complaint of Unfair Dismissal brought by a second applicant, Mr Moore. In his case there was a finding of 60% contribution. The Facts: The Respondent provided ground maintenance services under a contract made with Brighton Borough Council. Both Applicants were employed as Groundsmen/Gardeners. Mr Moore had some 29years continuous service, Mr McLeod eight years. Both had clean disciplinary records. The incident leading to their dismissals occurred on 6 th June 1997. It is set out at paragraph 7(7) of the Tribunal's reasons thus:
"…both Applicants were working together as groundsmen/gardeners. Mr Moore was hosing down some mowers and as Mr McLeod walked past, Mr Moore flicked water at him. Shortly afterwards, Mr Moore felt water on his back and thought that Mr McLeod had thrown a cup of water at him. In fact Mr McLeod had actually spat the water from his mouth. Subsequently, Mr Moore flicked further water over Mr McLeod. Mr McLeod then went into the mess room and obtained a bowl of water, which he threw all down the side of Mr Moore. Mr McLeod retreated to the mess room, followed by Mr Moore still holding the hose which was still on. Mr McLeod picked up a chair for protection, but Mr Moore approached him and there was some wrestling with the chair. Subsequently, Mr McLeod threw the chair at Mr Moore and in the altercation, the chair became broken. Mr Moore remained in the mess room and attempted to clear up the water from the floor. Mr McLeod left the mess room and en route kicked over some grass boxes, overturned a mower and kicked a company vehicle. Raymond McSweeney [the Foreman] went over to Mr McLeod to try to stop him, whereupon Mr McLeod got hold of Mr McSweeney's shirt and hit him in the face."
[2]The Respondent, through Mr Leach the Grounds Manager, carried out a detailed investigation taking statements from all relevant parties. Both Applicants were suspended. A disciplinary hearing took place before Mr Nigel Skinner, Head of Grounds Maintenance Service, on 4 th July 1997. Mr Skinner decided to summarily dismiss both Applicants and a subsequent letter to Mr McLeod, dated 7 th July 1997, read as follows: "Dear Mr McLeod, LETTER OF DISMISSAL I am writing to confirm the decision taken at the disciplinary hearing held on Friday 4 July 1997 that you be summarily dismissed in accordance with the final stage of the Company's agreed disciplinary procedure. Present at the hearing in addition to ourselves were Ken Leach, Grounds Manager West and Carmel Lennon, Senior Human Resources Assistant. You were represented by your Union representative, Dominic Mahoney. Your last day of service was Friday 4 July 1997. The reason for your dismissal is: 1. that after being repeatedly sprayed by Mr R Moore with a hosepipe, you spat water then threw a bowl of water over him. The expectation of any individual for spitting or throwing water at another member of staff would be dismissal. Here is provocation to the highest degree but your actions still cannot be condoned. 2. that when R Moore followed you into the messroom, spraying you with water form a hose, you picked up a plastic chair with which the two of you struggled and, when the chair came free, you threw it at Mr Moore. During the course of this incident the legs broke off the chair and Mr Moore sustained deep red welts to his arm and shoulder. Throwing a chair (plastic or otherwise) causing deep red welts as witnessed by Ken Leach, cannot be acceptable. 3. that when you walked out the messroom you kicked company equipment including grass boxes, a mower (which you overturned) and a company vehicle. Were the Company machines or vehicles damaged if not, it is not through any attempt to avoid damage, it is coincidence. Petrol spilling over the floor could have had far more serious consequences. 4. that when R McSweeney walked towards you to try to make you stop, you grabbed him by the shirt collar, causing marks to his throat, and asked him if he wanted a fight. When another employee tries to intervene, despite being fearful for his own well being and is then threatened it is well beyond acceptability. The letter goes on to deal with the employee's right of appeal and arrangements for the return of Company equipment.[3]The reasons for dismissal contained in the letter to Mr Moore of the same date were these:
"1. that you provoked the incident with Mr J McLeod by repeatedly spraying him with water from a hosepipe after he had told you to stop. If you continually spray a person with water until you get a reaction this goes beyond horseplay/serious misconduct, it becomes deliberate provocation. Therefore, we find that you provoked the whole incident. 2. that you escalated the incident and breached the company's health and safety rules by following Mr McLeod into the messroom and continuing to spray him with water. By your continued provocation the incident escalated until such times that you flagrantly breached the Company's Health and Safety rules. 3. that when Mr McLeod picked up a chair to defend himself from being sprayed, you grabbed the other end of the chair and pushed it into him. there is no supporting evidence that you grabbed the chair and struggled with John McLeod causing injury."
Subsequent internal appeals by both Applicants were rejected. The Tribunal Decision:[4]Before the Tribunal Mr Moore was represented by Mrs Rybka, his Trade Union Official. Mr McLeod appeared in person and the Respondent was represented by Mr Brennan, of the Engineering Employers Federation. The cases for the respective parties where summarised by the Tribunal as follows:[5]Mr McLeod argued that he and Mr Moore were only indulging in horseplay which was a regular occurrence. Mrs Rybka on behalf of Mr Moore referred to the decision of this Appeal Tribunal in W Brooks & Son .v. Skinner (1984) IRLR 379. In that case the Applicant was dismissed for failing to turn up for his night shift following the Company's Christmas party. Due to problems over attendance in previous years as a result of employees, including Mr Skinner, getting drunk at Christmas parties, the Company had reached an agreement with the Union that if an employee failed to turn in for work due to over indulgence at the Christmas party, he would be instantly dismissed. That agreement was not communicated to the workforce.[6]An Employment Tribunal found that the dismissal was unfair since the Applicant did not know that a failure to attend work following the Christmas Party would result in his dismissal. That finding was upheld by the Employment Appeal Tribunal, this court holding that whether or not an employer is justified in treating a particular matter of conduct as sufficient to justify dismissal must include the question whether, in a particular case, the employee knew that his conduct would merit summary dismissal. On the facts of that case the Tribunal was entitled to find that the Applicant was not so aware.[7]Relying on Brooks .v. Skinner , Mrs Rybka submitted that Mr Moore did not know that his conduct would warrant dismissal. On behalf of the Respondent, Mr Brennan contended that the incident was more than just horseplay. He submitted that there was something of a fight and some damage was caused. Dismissal for misconduct, in each case, fell within the band of reasonable responses open to the employer.[8]In determining the question of fairness, the Tribunal made the following findings, drawing no distinction between the cases of each Applicant:(1) the reason for dismissal was conduct, a potentially fair reason under section 98(2)(b) of the Employment Rights Act 1996.(2) in determining reasonableness under section 98(4); i. no criticism was made of the Respondent's investigation and procedures ii. both Applicants contended that they did not know that their actions would result in dismissal. The Tribunal accepted that horseplay, such as playing with water, although referred to in the Respondent's Health and Safety Policy as a breach of that Policy which would be dealt with by use of the disciplinary procedure, was not said to be punishable with summary dismissal. Further horseplay such as the playing with water was not unusual in the particular working environment in which these two Applicants worked.(3) they accepted Mr Brennan's submission that there was something more than just water play in these events because there were the actions of Mr McLeod in his confrontation with Mr McSweeney and his venting his feelings on the grass box, mower and Company vehicle.(4) they found that neither Applicant knew that his actions would result in instant dismissal.(5) It was not for the Tribunal to substitute it's own view for that of the Respondent. However, taking into account the working environment, that general horseplay did occur from time to time the actual incidents themselves and the good employment records of the Applicants, they concluded that no reasonable employer would have dismissed in these circumstances. The dismissals were unfair.[9]Finally the Tribunal drew a distinction between the two Applicants so far as contribution was concerned, assessing the degree of contribution at 75% in the case of Mr McLeod and 60% in that of Mr Moore. The Employers Appeal:[10]Mr Linden submits that the Employment Tribunal failed to consider the cases of Mr McLeod and Mr Moore separately on their facts when determining the issue of fairness. Assuming that the Tribunal was entitled to conclude that mere horseplay, here waterplay, was not such as to lead the employees to be aware that such conduct would lead to dismissal, that would justify the finding of unfairness in the case of Mr Moore, but not that of Mr McLeod.[11]Having accepted that there was something more than water play on the part of Mr McLeod in the incident with Mr McSweeney and his actions in kicking over some grass boxes, overturning a mower and kicking a Company vehicle, the Tribunal was wrong to treat McLeod's case on the same footing as that of Moore. On those facts the further principle emerging from Brooks .v. Skinner applied; namely that his was conduct of a type which the employee must have known would result in instant dismissal.[12]We here interpose a point well made by Mr McLeod. There was no evidence to support the Tribunal's finding that Mr McLeod hit Mr McSweeney in the face. Having considered the Chairman's Notes of Evidence and the witness statements before the Employment Tribunal, that submission, it seems to us, is correct.[13]However, we return to the Respondent's reasons for dismissal contained in the letter sent to Mr McLeod on 7 th July 1997. The finding by the Respondent, supported by the account given by Mr McLeod himself in an interview with Linda Punter on 11 th June 1997, which interview was recorded in writing and accepted as accurate in all material respects by Mr McLeod at the disciplinary hearing held before Mr Skinner on 4 th July, was that Mr McLeod threatened Mr McSweeney, the foreman who intervened, by grabbing him by the collar, causing marks to his throat and asking him if he wanted a fight. In our view, the Respondent's decision to dismiss must be judged by the facts reasonably believed to have existed by the employer.[14]In these circumstances we have concluded that the Tribunal fell into error by failing to consider separately the reasonableness of the reason for dismissal in each case. By running the two together they failed to make the distinction which, on their own findings at paragraph 16 of their reasons, they accepted existed.[15]Having identified an error of law in the Tribunal's approach to the question of reasonableness, the next question is whether this case must be remitted for rehearing, or whether we are in a position to substitute our own decision.[16]We bear in mind the Court of Appeal guidance contained in Dobie .v. Burns International Security Services (UK) Ltd (1984) IRLR 329 , McLeod and Hellyer Brothers Ltd (1986) ICR 122, and most recently in Martins .v. Marks & Spencers Plc (1998) IRLR 326 (per Lord Justice Mummery, paragraph 55). Both parties invite us to reach our own decision. In our judgment the finding by the Tribunal that no reasonable employer would have dismissed in Mr McLeod's case, was plainly and unarguably wrong on the facts found by the Tribunal, and those facts do not require any further amplification or investigation.[17]In these circumstances we shall allow the employer's appeal and substitute a finding of fair dismissal in McLeod's case. Employees Appeal:[18]It follows from our conclusion in the employer's appeal that the employees appeal against the Employment Tribunal's finding of contribution is rendered academic and accordingly this appeal is dismissed. Remedies:[19]It follows also that the subsequent award of compensation in favour of the Applicant totalling £1,956, subject to the recoupment provisions, made in a remedies decision dated 10 th June 1998, is set aside.