MR G SCOTT v THE POST OFFICE [1999] UKEAT 652_99_1310

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 652_99_1310

Case No Appeal No. EAT/652/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR G SCOTTAPPELLANT

THE POST OFFICERESPONDENT

Before

His Honour Judge J Hicks

Date 13 October 1999

[1]a previous occasion by an Employment Tribunal in which the dismissal was found to be unfair. We have no details of the reasons for that, but on appeal to this Tribunal, differently constituted, the appeal was allowed and the matter remitted for a rehearing, which took place before a different Tribunal. It is the decision of the second Employment Tribunal, that Mr Scott was fairly dismissed, which is now under appeal by him. The reasons given by the Employment Tribunal make it clear that the head-butting incident was the subject of investigation by the employers and the ground for dismissal. They do not spell out the factual background, such as what the provocation had been, or other general background facts to the incident, but that general lack of background fact-finding is not one of the grounds advanced in the Notice of Appeal or in the proposed amended Notice of Appeal before us. However, we did raise the matter at the outset of this hearing and Ms McKay, for Mr Scott, then told us that she would wish to add that as a further ground of appeal, but she accepted that the only issue of fact between the parties - there were of course other issues, but the only issue of fact between the parties at the hearing before the Tribunal - was whether the employer did reasonably believe after proper investigation that there was a deliberate head-butt and in those circumstances that, to our mind, is quite clearly the explanation for the fact that the Tribunal did not find it necessary to go into the background. There is no doubt in our mind that they did deal thoroughly with that issue, and in those circumstances we do not believe that we should at this late stage, and only because the matter had been raised by us, allow a further amendment to the Notice of Appeal. I say a "further" amendment because for the purposes of considering the question before us, whether there is an arguable case to go to a full hearing, we are perfectly content to address the matter on the basis of the proposed amended Notice of Appeal that is before us and the Skeleton Argument based on that amended Notice and developed by Ms McKay.

[2]In that argument the first ground which is advanced is that the Tribunal in paragraph 5 of their reasons accept that the evidence of the dismissing officer, Mr Baker, was inconsistent in certain respects with his evidence at the first hearing. The complaint is that they then failed to take that inconsistency into account when reaching their decision. We reject that ground of appeal. We consider it unarguable. The Tribunal plainly made those findings for the purpose of taking them into consideration in reaching their decision and we find absolutely no ground for supposing that they failed to do so. In the alternative it is submitted that it was perverse of them, after that finding, in substance to accept Mr Baker's evidence and the employer's case on the crucial issue whether Mr Baker reasonably believed that there had been a deliberate head-butt. Perversity of course is essentially a matter of first impression so far as this Appeal Tribunal is concerned and we are quite clear that this was not a conclusion which it was impossible for a reasonable Tribunal to reach.

[3]Then it is argued that in paragraph 7 of its decision, and this of course is a crucial finding, the Employment Tribunal find that the applicant in the presence of his representative made a number of clear admissions to an allegation that he had head-butted a junior member of staff. The attack on that finding seems to us to be self-evidently not an allegation of error in law but an attempt to reopen the facts, and we consider it unarguable for that reason. The details advanced in support of it make that absolutely clear by effectively going into an argument about evidence and fact, which is not for us.

[4]The next point is also a factual point. In paragraph 8 of its decision the Employment Tribunal find that there was evidence from the Applicant himself expressed in a variety of ways that he had lost his temper in the most extreme fashion and this was corroborated by evidence from other members of staff. The challenge to that is again, in our judgment, entirely a challenge to a finding of fact and to the Tribunal's assessment of the evidence which they had received, and is unarguable.

[5]The same is true of the next point, which is a finding by the Employment Tribunal that there had been a whole string of admissions by the Applicant at various stages in the history. The criticism here is that there is no list or particularisation of those alleged admissions, but the extent to which Tribunal's in reaching their findings of fact and in expressing their reasons have to descend to various levels of particularity is one where there must be some latitude and we see no error of law in the Tribunal's approach to this point.

[6]There is then a point which turns on paragraph 9 of the Tribunal's decision, and it is important in order to understand the point to see what is actually said. After a sentence at the very beginning which is the subject of a quite separate ground of appeal to which we shall return, the Tribunal say:

"In view of the history of these proceedings however, we postulated the situation that the Applicant had genuinely, in the stress and/or confusion of his situation assumed that Mr Baker had taken on board an erroneous definition of the word "head butt" flowing from the original brief suspension meeting after the incident in question."

That was a meeting at which, as the Tribunal clearly accepts, the Applicant had given his explanation of accidental head clashing. And the Tribunal go on:

"It seemed to us in so far as it is necessary for us to express a factual opinion on this issue that it was simply not credible that the Applicant would have gone to two formal meetings at which his job was on the line, and used phrases which clearly indicated that he intended to assault the colleague in question without ever once using the word "accidental"

. It also seemed to us to be not credible that even the most incompetent union advisor would have not albeit very briefly have discussed the brief facts of the incident with his member and elicited the Applicant's version of an accidental clash of heads, and then put that forward at the disciplinary hearing." There the Tribunal, as it acknowledges, and as it says, "in view of the history of the proceedings", hypothetically looked at some factual issues having, in the sentence at the very beginning which I have omitted, reminded itself that it was not for the Tribunal to substitute its own views on the facts. It is not, apparently, their tentative conclusion on that basis about the Applicant's omission to use the word "accident" at any of the hearings that is complained about. It is the reference at the very end to the part played, or not played, by the union advisor. The complaint about this is that that was an irrelevant consideration.

[7]The first thing to be said about that, of course, is that the Tribunal, in a sense, clearly accept that it is irrelevant and not a matter they have to go into because it is not for them to find the facts. The second thing to be said about it is that, whether or not raised by Mr Scott or Ms McKay on his behalf at the hearing before the Tribunal, the Tribunal is asking itself if there is some point in Mr Scott's favour that it ought to take into account. Whether raised by him or not, that point was that he, personally or with the assistance of his union advisor, might not have realised that Mr Baker had a mistaken view as to what "head butt" means. It is only on that hypothetical basis that the Tribunal come to the conclusion that that is not a point that helps Mr Scott. They are not rejecting an argument that he actually advanced, they are asking themselves whether there was something else that could be said in his favour and have come to the conclusion that this particular point doesn't help him. We see no ground on which their decision can be said to be wrong in law on that basis. It was not part of their main line of reasoning. It arose only in the way which I have just described.

[8]The next point is the one which arises out of the very first sentence of that same paragraph, where they say:

"It is not for us to substitute our view of the facts from that ["for that", it must mean] of the reasonable manger."

The criticism of this is that it would have been better expressed and, Ms McKay must be saying, could only properly be expressed, by the words "It is not for us to substitute our view of the facts for that of Mr Baker acting reasonably in all the circumstances". The fact that it could more fully have been expressed in a different way is absolutely no reason for saying that the way it is expressed shows that the Tribunal were misdirecting themselves in law. They plainly were not. They were reminding themselves, and this is the substance of this sentence, that it was not for them to decide the application before them on their view of the facts of the case. There is nothing in that point whatsoever.

[9]The next submission is directed to a passage in paragraph 13 of the reasons of the Tribunal, in which they say:

"Whilst Mr Baker did not articulate his reasoning as carefully as Ms Little [Ms Little being the person who conducted the internal appeal which Mr Scott had brought] we have no doubt that he always had in mind the principal argument of mitigation for the Applicant namely the provocation."

It is submitted that there was no evidence before the Tribunal to support that finding, nor does it point to any such evidence. That, in our view, is a completely unarguable objection. The Tribunal was perfectly entitled to reach the conclusion that Mr Baker must have had that in mind given the undisputed background that that was a matter that was urged to him and given also, very significantly it seems to us, the fact that in the event for a head butting by a manager on a junior employee, he did not in the event summarily dismiss, but dismissed only on notice. How he could have reached that conclusion without taking mitigation into account was a question which the Tribunal was perfectly entitled to ask itself and to answer in the way that it did.

[10]There is next a complaint that Ms Little for the first time at the Tribunal produced her notes of the appeal hearing, but as we understand it Ms McKay is not advancing that as a tenable ground of appeal and we agree.

[11]The next submission concerns a passage in paragraph 19 of the reasons of the Employment Tribunal at which, dealing with the appeal hearing, and in particular with the way in which Ms Little dealt with this case by confirming Mr Baker's decision (as compared with what she had done in another case to which I shall return, because that is the subject of a further submission) the Tribunal say:

"On the general question of mitigation the Applicant had, by the appeal stage adopted a different approach to his situation. He was now arguing in effect that he had been wrongly accused at all for something which was simply an accident. He was thus depriving himself of one of his better points of mitigation, namely that he admitted his fault and was seeking to explain how he had been provoked to the extent of losing control."

What the Tribunal are clearly saying there was that by pinning his appeal for mitigation on the accidental nature of the incident he was bound to be weakening, to say the least, if not totally abandoning, the mitigation which plainly he had advanced before Mr Baker of provocation. We see no arguable ground for alleging that the Tribunal was wrong in law in making that observation.

[12]There is then, going back to the comparison which the Tribunal was being asked to take into account, an allegation that they made a straightforward mistake. What they say is this:

"In Ms Little's case a particular argument was put forward that she had dealt with a very similar case, namely that of Mr D where there had been a lesser penalty of suspended dismissal."

What is said is that that is a mistake, that the comparison that was really being put forward was not Mr D himself, who had been dismissed, again by Mr Baker, and had had his dismissal reversed by Ms Little because of a procedural breach. The comparison that the Tribunal was really being asked to make was with the person, Mr C, whom Mr D had head-butted, who had, according to Mr D's case, started the fight by scratching Mr D's eye, and who was, so far as was known, not the subject of any disciplinary proceedings at all. If that was the comparison that the Tribunal was being invited to make then it was, in our view, plainly one that was not going to help them very much at all. But if that was indeed the comparison they were being asked to make, as we accept from Mrs McKay it must have been because she was there, then undoubtedly the Tribunal are mistaken in addressing the question of Mr D.

[13]But the question of Mr D was nevertheless a perfectly material and intelligible comparison to make, and indeed part of the reason for any error on the part of the Tribunal in that respect was that on the face of it was a much more cogent and relevant comparison. The fact that they deal with it - in the event, as it appears, uninvited - cannot itself be an error of law. The fact that they do not deal with Mr C, in our view, cannot possibly vitiate their conclusion, to which this point was peripheral, to say the least, and we are of the view that it would not be right for this appeal to go forward to a full hearing on that ground, which would indeed, for the reasons we have given, in any event be the only point that could be pursued. In these circumstances we consider that the appeal should be dismissed.