THE LONDON BOROUGH OF ENFIELD v MR J W ARNOLD [2000] UKEAT 458_99_2101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 458_99_2101Case No Appeal No. EAT/458/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE LONDON BOROUGH OF ENFIELDAPPELLANTMR J W ARNOLDRESPONDENT
Before
His Honour Judge Peter Clark Ms S R Corby Mr P A L ParkerDate 21 January 2000
[1]APPEARANCES For the Appellants MR K BRYANT (of Counsel) Instructed by: Mr J Cawston Head of Legal Services London Borough of Enfield PO Box 50 Civic Centre Silver Street Enfield Middlesex EN1 3XY For the Respondent MR T LINDEN (of Counsel) Instructed by: Mr Cockburn Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA JUDGE PETER CLARK : This is an appeal by the employer, the London Borough of Enfield ['Enfield'] against a decision of the London (North) Employment Tribunal, chaired by Mrs Edith Prevezer, sitting on 27th January 1999, upholding the employee, Mr Arnold's complaint of unfair dismissal and awarding him compensation totalling £18,600; the statutory maxima under both the compensatory and basic award heads of compensation in his case. We should record that Mr Arnold's case was heard together with the case of his colleague, Mr Ruskin, who was also dismissed following an incident which occurred on 3rd April 1998. Mr Ruskin also succeeded in his claim against Enfield and received an identical award. Originally Enfield appealed against the decision in Mr Ruskin's case also. However, that appeal has been withdrawn. We are therefore only concerned today with Mr Arnold. The tribunal's decision with extended reasons was promulgated on 8th February 1999. The Facts Messrs Arnold and Ruskin were employed by Enfield as special collection loaders and drivers. They were engaged in rubbish collection. Both had long service; Mr Arnold had been employed for 22 years, he was 54 years old at the time of dismissal and had an unblemished service record. Mr Ruskin had been employed even longer and was some six years older.[2]In late 1997 the District Auditor warned Enfield that they were losing potential revenue generated by the collection of commercial waste. In January 1998 Mr Arnold represented two employees at a disciplinary hearing. They were found to have collected commercial waste for which they personally were paid by the occupiers. They each received a final written warning.[3]Following that disciplinary case, Mr Blake, the cleansing manager at the Montague Road Depot at which Messrs Arnold and Ruskin were based, issued a notice to all staff dated 24th February 1998. It read as follows:
" ACCEPTANCE OF MONEY FOR UNAUTHORISED DISPOSAL OF COMMERICAL WASTE Regrettably, because of a recent incident, I need to remind all staff that the acceptance of money for the unauthorised collection and disposal of waste is not allowed in any circumstances. Such an action is contrary to the Refuse Contract and also the Council's policy on the "
Code of Conduct". Indeed unauthorised disposal of any commercial waste, even without payment, could be interpreted as being in contravention of the Environmental Protection Act and therefore a criminal act. Should any allegation come to my attention that the above has occurred then management action will be taken which would likely lead to a disciplinary hearing. If proven, this would constitute gross misconduct and dismissal may be the outcome. I am sorry to have to be so blunt but I feel the seriousness of such an action does need to be made very clear." The tribunal found that the applicants before them were aware of that notice.[4]On 3rd April 1998 the applicants were collecting domestic waste from a block of flats in Green Lanes, Enfield. Those flats were above a row of shops. One of the shops was Green Lane Fisheries.[5]That collection was observed by a Mr Bryan, a Council Community Enforcement Officer. He made a statement to the effect that he saw two operatives enter the rear of the fish shop and remove a large quantity of cardboard boxes which they placed on their dustcart. He gave the index no of the vehicle. He then went into the shop and asked a man behind the counter whether the dustmen had taken away their rubbish. His reply was, according to Mr Bryan, "I don't know what you mean. We have a contract to buy green bags and the manager takes them to the tip twice a week." Mr Bryan carried out an enquiry when he returned to his office and discovered that Enfield had no contract with the shop.[6]Later another enforcement officer, Mr Milne, visited the shop. The fishmonger admitted that it was a one-off and asked about paying for trade waste.[7]No action was taken over that incident until 23rd April when the applicants received a letter, calling them to a meeting on 8th May. At that meeting Mr Arnold stated that there were 6 polystyrene trays on top of sacks of domestic refuse, which he picked up together and placed on his vehicle. He said that he had not seen any boxes. Mr Ruskin denied any breach of procedures on his part.[8]A disciplinary hearing then took place before Mr Gardner on 9th June. He heard from Mr Bryan and from the applicants who were represented by a trade union representative. Mr Bryan maintained his account that he saw both men removing cardboard boxes. Both disputed that account. Mr Arnold denied receiving any payment for what he said was his removal of the polystyrene trays.[9]Mr Gardner accepted Mr Bryan's account of what he said he saw, namely the removal of boxes. He also accepted Mr Arnold's world that the men received no payment from the fishmonger. There was no evidence to the contrary.[10]Mr Gardner decided that in these circumstances both men were guilty of a grave offence and that, despite their long service, the appropriate penalty was dismissal.[11]Against that decision both men appealed to a panel of councillors. It had originally been intended that the appeal should take the form of a rehearing, but the panel decided that since Mr Arnold had admitted taking commercial waste (the polystyrene trays) that would not be necessary. The appeals were dismissed. The Employment Tribunal decision[12]It is necessary to say something of the proceedings before the Employment Tribunal. No split trial direction was given prior to the hearing. Accordingly both sides were required to attend to lead evidence and present argument on all points which might arise in the case, that is, points relating to both liability and remedy.[13]In accordance with the usual practice the tribunal dealt first with the issue of liability. They found, at paragraph 18 of their reasons, that dismissal was an unreasonable response on the facts of the case. What they said was this:
"18 Bearing in mind the length of service of these two Applicants and the fact that they had nothing on their disciplinary record for misconduct, dismissal was an inappropriate and unreasonable response to the actual offence that had occurred. We are aware that it is not for this Tribunal to substitute their own views for that of the dismissing officer, but in all the circumstances, which includes the size and administrative resources of the Respondents, we find that the employer acted unreasonably in treating the taking of six polystyrene trays by Mr Arnold as a sufficient reason for dismissing both these employees."
Accordingly they found that the dismissals were unfair.[14]At that stage it was pointed out to the applicants that if they wished to pursue the remedy of reinstatement or re-engagement then an adjournment would be necessary for Enfield to consider its position. The applicants decided to abandon those claims and instead asked the tribunal to assess compensation by way of remedy for unfair dismissal.[15]At that point Counsel then appearing for Enfield, Mr Fletcher, applied for an adjournment of the remedies issue. The tribunal refused that application. Pausing there, a ground of appeal against that adjournment refusal was dismissed at a preliminary hearing held before a division of this Appeal Tribunal presided over by Judge Wilkie QC on 17th June 1999. There has been no appeal against that decision. It cannot now be re-opened before us.[16]Accordingly the tribunal proceeded to consider the remedy of compensation. We shall return to the process whereby compensation was assessed when dealing with the submissions of Mr Bryant, who now appears on behalf of Enfield, in the appeal. The Appeal[17]At the preliminary hearing the appeal was permitted to proceed on limited grounds. Those grounds may be conveniently dealt with under the headings of liability, contribution and assessment of compensation.(1) Liability Mr Bryant has sought to persuade us that notwithstanding their express self-direction at paragraph 18 of their reasons, the tribunal nevertheless impermissibly substituted their view for that of the respondent when considering the appropriate sanction. We are quite unable to draw that inference from the tribunal's approach. It seems to us that they correctly applied the words of s.98(4) of the Employment Rights Act 1996 . There are no grounds in law for interfering with their judgment on this question, it being essentially one of fact for the Employment Tribunal(2) Contribution Mr Bryant submits that in deciding the liability question the tribunal had in effect gone part way to making the necessary findings leading to the conclusion that Mr Arnold had contributed to his own dismissal by his own blameworthy conduct and thus they should have proceeded to make a finding as to the degree of contribution under s.123(6) of 1996 Act. He specifically did not extend that submission to the provision in s.122(2) relating to the basic award. The difficulty with that submission is that Mr Fletcher did not see fit to raise the issue of contribution at the hearing. We do not accept that an Employment Tribunal is required to raise the issue of contribution of its own motion. cf. Langston v Cranfield University [1998] IRLR 172 . We consider that the position is plainly covered by the guidance of the Court of Appeal in cases such as Jones v The Governing Body of Burdett Coutts School [1999] ICR 38 , relied on by Mr Linden. This is a new point. We shall not allow Mr Bryant to take it for the first time on appeal, particularly in circumstances where further factual findings by the tribunal may be necessary.(3) Assessment of compensation (i) It is common ground that the tribunal miscalculated the basic award. The correct figure is £5,830, not £6,600. Accordingly we shall allow this part of the appeal by consent. (ii) It is submitted by Mr Bryant that there is a further error in the tribunal's calculation in relation to Mr Arnold's loss of earnings. He was earning £220 per week net with Enfield. It is recorded in the tribunal's calculation of loss that his current earnings in new employment were £150 per week. But the losses were calculated on the basis of a difference of £100 per week. It seems that Enfield, through Mr Fletcher, took no active part in the remedies exercise. The explanation provided by Mr Linden today is that Mr Arnold's unchallenged evidence to the tribunal was that in his new job he worked up to three days per week earning £50 per day, and that £0.23 in the £1.00 was deducted for tax. Thus it seems the tribunal took his net pay in the new employment to be £120 per week (£150 gross) and deducted that figure from his pre-dismissal net earnings with Enfield of £220. Thus there was a partial loss of £100 per week. In these circumstances we can see no grounds for interfering with that part of the tribunal's award. (iii) Pension loss During the remedies stage of the hearing Mr Fawcett, Mr Arnold's representative and a union regional officer, was asked by the tribunal whether there was here a claim for loss of pension rights. He indicated that there was such a claim, totalling £8,033. No explanation was given as how Mr Fawcett arrived at that figure. No documents were produced. It was not challenged by Mr Fletcher. The tribunal awarded that sum. Since the tribunal hearing Mr Arnold's advisers have disclosed Mr Fawcett's calculation. It involves three separates of claim: (1) Loss of pension rights from the date of dismissal to the Employment Tribunal hearing: £702.96 (2) Future loss of pension rights: £2,121.09 (3) Loss of enhancement of accrued pension rights: £5,188.48 TOTAL: £8,033.53 My Bryant has studied those calculations. He takes no issue on the first two heads of claim but he has found a flaw in the third head of claim. In fact Mr Arnold receives an index-linked pension from Enfield. Thus, it is said, he has suffered no loss under this head. Mr Bryant has asked us to reduce the award accordingly in common justice. We see the force of that submission, had it been made before Employment Tribunal. But it was not. Counsel then instructed for Enfield did not question the basis for calculation. The Employment Tribunal did not see the document. We see two insuperable objections to our interfering with this part of the award: (1) This is a new point. Following Jones Enfield should not be allowed to re-open this question on appeal. (2) The submission depends upon our admitting fresh evidence before us; the calculation prepared by Mr Fawcett. We must apply the principles in Wileman v Minilec Engineering Ltd [1988] ICR 318 . Although the evidence is relevant and is likely to have an important influence on the case, could Enfield with reasonable diligence have put that evidence before the Employment Tribunal, it then being in existence? The answer is, of course they could. It was for Enfield, through Mr Fletcher, to ask for the basis on which the pension loss claim was calculated. Production of the document now relied on by Mr Bryant at the time would have permitted Enfield to take the point then and there. That was not done. It is now, in our judgment, too late.[18]The result is that the appeal is dismissed, save to the limited extent indicated earlier in relation to the basic award, which we shall reduce to £5,830.