SOVEREIGN FOOD GROUP LIMITED v MR A CANNINGS [2000] UKEAT 802_00_2610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 802_00_2610

Case No Appeal No. EAT/802/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SOVEREIGN FOOD GROUP LIMITEDAPPELLANT

MR A CANNINGSRESPONDENT

Before

Mr Justice Lindsay

Date 26 October 2000

[1]APPEARANCES For the Appellant MR RICHARD POWELL (of Counsel) Instructed by Messrs Dibb Lupton Alsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL MR JUSTICE LINDSAY (PRESIDENT) We have in front of us a Preliminary Hearing of the Appeal of Sovereign Food Group Limited in Cannings v Sovereign Food Group Ltd. The Company appears today by Mr Powell, who had appeared below before the Tribunal.

[2]On 1 November 1999, Mr Cannings lodged an IT1 for unfair dismissal and for wrongful dismissal, the dismissal having taken place on 4 August 1999. He said: "I was employed by the Respondent as a Farm Manager for 17 years. My duties included the rearing and welfare of up to 130,000 chickens reared primarily for the national supermarket chains. On 24 July 1999 unusually hot weather required me to make a difficult decision concerning the welfare of the birds in my care. The action I took was intended to curb losses which were already inevitable. Unfortunately the decision I made was unable to prevent the loss of 990 birds. At a disciplinary hearing on 4 August 1999 I was summarily dismissed for gross misconduct. I was dismissed because of my 'wilful omission and neglect'.

[3]On 25 November the Company lodged an IT3 and they said:

"It is a basic technique of poultry care to allow the birds sufficient space to feed and move. In hot weather increased space allows better circulation of air and improves the animals well being or in some circumstances their chance of survival. Knowing the above full well, the applicant failed and after investigation by the respondent it was judged, without any reasonable excuse, to move the internal fence. Further, the applicant failed to keep in good order a series of internal fans which assisted the flow of air. By reason of crowding, which the applicant could have prevented, 990 pullets died in Shed 3 on the applicant's farm. Whereas it is accepted that in very hot conditions some birds may die through heat stress, the level of loss and the condition of the shed could not in the respondent's expert judgement and experience, be excused as a misjudgement."

[4]So, that gives the frame to the kind of dispute that the Tribunal was going to hear and there was a hearing on 2 and 3 March 2000. Then the Tribunal met again to consider written submissions in Chambers on 19 April 2000. The Hearing was at Stratford under the chairmanship of Mr Pritchard-Witts and on 15 May the decision was sent to the parties. It was unanimous. The unanimous decision of the Tribunal was that the Respondents unfairly and wrongfully dismissed the Applicant.

[5]On 21 June there was Notice of Appeal from the Company, Sovereign Food Group Limited, and Mr Powell has lodged a Skeleton Argument. The Tribunal dealt with a number of issues before it by setting out individual questions and giving individual answers. The Tribunal's answer to the question of whether the disciplinary procedure at large had been even-handed and fair was that it had not been. What they said was this:

"No – both disciplinary and appeal hearings did not allow the Applicant's representative to develop a fundamental explanation for the Applicant's behaviour in failing to move the fence. Furthermore, insufficient weight was attached to the mitigation advanced."

[6]Briefly, to explain the reference to moving the fence, the division between cockerels and pullets was the fence and one could give more space to pullets by moving the fence but that would diminish the space available for cockerels, and vice versa, of course, were it to be moved in the other direction.

[7]Now, the first ground of the Skeleton argues that Mr Cannings was an expert in the poultry handling area. He had long experience. He was well able to understand the allegations made against him as to the consequences of not moving the fence between cockerels and pullets. The documents handed in by him at the disciplinary stage dealt with his reasons for not moving the fence. Mr Powell told us that at the Appeal stage a second set of documents was handed in by Mr Cannings which again dealt with the issue of why the fence had not been moved. And so the Appellant Company says his "Fundamental Explanation" was thoroughly put before the Disciplinary Panel and the Disciplinary Appeal and Mr Powell points out that there is no conclusion by the Employment Tribunal that the point had not been understood at the disciplinary stage and indeed, given that those involved were all in the trade, it may be thought highly unlikely that the point was not understood at the disciplinary stage.

[8]Thus, the Company now says that its alleged procedural error in not allowing the Applicant's representative to develop a fundamental explanation for the Applicant's behaviour in failing to move the fence is a totally unsubstantiated shortcoming found by the Employment Tribunal in criticism of the disciplinary processes.

[9]It is hard to know what is meant by this failure. It is dealt with in paragraph 7(xxxiv) where the Tribunal says "Mr Cannings "[and this is speaking of the earlier stages, the disciplinary stages]" was nervous and tongue tied. Mr Gibson was terse. He was conducting the initial disciplinary hearing and failed to allow Mr Sharp to develop his argument re cockerel mortality in the other sheds." That argument being that cockerel mortality in other sheds was a relevant feature. 'Fail to allow' may, of course, be a way of describing a true procedural error if, for example, Mr Sharp was stopped and told that the point he was trying to make was not relevant or need not be further developed or something on those lines. 'Fail to allow' may be a finding that indicates a procedural error but it may not. It could mean no more than that those running the disciplinary stages did not themselves draw out Mr Sharp's argument on the point rather than that they positively stopped it

[10]One cannot be sure which is here intended and there is accordingly at least a possible arguable error of law here, if only in that the reasoning of the Tribunal does not satisfy the Meek & City of Birmingham text as to the adequacy of the Extended Reasons in explaining the procedural error which they hold had existed at the disciplinary stage.

[11]So, there is one arguable error of law (and, of course, we have to emphasise that at this stage all we are concerned about is what is arguable). The second ground of appeal is this: that having there to have been a thorough and balanced disciplinary investigation and a reasonable disciplinary enquiry and that the Company had an honest and genuine belief in the misconduct alleged and that the decision as to Mr Cannings' culpability was such that a reasonable employer could have reached it, then, says Mr Powell, the Tribunal should have moved on - see the recent case of Foley in the Court of Appeal - simply to ask whether dismissal for that given reason was within or without the band of reasonable responses. But here, says Mr Powell, the Employment Tribunal began a rather different kind of enquiry and in their paragraph 8(6), in answering the question:

"Did the sanction of immediate dismissal prove reasonable in all the circumstances of the case?"

They answered:- "No – insufficient weight was given to the following factors: i) the Applicant's decision, focused as it was on the elevation of cockerel mortality, was based upon a misjudgement honestly but erroneously held; ii) that decision had led to the loss of livestock worth £1,000 upon a night when the inadequacies of the Respondents' own factory organisation led to much higher levels of loss – almost twice that occasioned by the Applicant's error of judgment; iii) the work record of the Applicant, after 17 years of employment, was to all intents and purposes exemplary; iv) the consequences of dismissal would include the loss of accommodation, what the Applicant and his family regarded as a way of life – and his pension; v) furthermore, given the proximity of the illness suffered on the night in question to the error of judgment it was, doubtless, a factor a reasonable employer would have explored given the employee's record and the singular nature of his error." As to that the Skeleton Argument says in its paragraph 12:

"The tribunal did not find that the Appellant had failed to give consideration to any of the factors they set out. The criticism is limited to the weight attached those factors. The Appellant submits that the tribunal have substituted their judgment upon the facts, thereby misapplying or misconstruing the statutory test under section 98(4) of the Employment Act 1996."

In our view a second arguable point emerges, namely that the Tribunal's paragraph 8 (6) represents an illegitimate substitution by the Tribunal of its own view for the view of the Company at the disciplinary stages.

[12]Then there is a third ground which Mr Powell advances. It concerns the evidence of a Mr Pearson who is a veterinary surgeon employed by the Company. The Skeleton Argument on this point says this:

"The tribunal allowed the expert evidence to be given. That evidence went to several key issues within the case, including, the Respondent's "fundamental explanation". - which is a reference back to the reasons why the fence between cockerels and pullets was not moved. Continuing with the Skeleton:- "

The expert witnesses' evidence was in part a response to the evidence of Mr Sharp who the tribunal described as "vastly experienced in the poultry business and sensitive to the issues in the case". The Appellant submits that Mr Daniel Pearson's evidence, given that he was admitted as an expert, stood to be considered in that same context. The tribunal make no reference whatsoever to the evidence of Mr Pearson." A little later they say:

"The Appellant is entitled to have sufficient reasons to know why the expert witnesses' evidence was accepted or rejected. The reasons given by the tribunal are not sufficient to understand this at all."

[13]We are not told precisely what Mr Pearson said, (though Mr Powell offered to show us his witness statement) nor do we know (and this would take much more time and further papers not available to us) in what respects, if at all, his evidence different from that of Mr Sharp. The Tribunal does refer to a Mr Lewson. They say simply:

"The Respondents also called Mr Lewson, a vet in their employment"

[14]And that looks as if it was simply a transcription error for Mr Pearson. There is no suggestion that there was a separate individual, Mr Lewson, who gave evidence. Whether there is truly here an arguable point depends really on what, of real relevance to the issues, Mr Pearson said, but which was not accepted by the Tribunal. It is quite impossible for us to form a view as to that on the material that we have. But we cannot say that there is not an arguable issue here and we recognise that the other issues are in any event going forward.

[15]So, in the circumstances, we do not bar that third ground from going forward. Thus a full hearing is necessary and all 3 grounds can go forward, subject to a point we will mention shortly. As the oral part of the hearing did not exceed 2 days, the burden of providing Chairman's notes would not seem to be oppressive and as it will be necessary at least to explore the evidence given by Mr Sharp at or as to the disciplinary stage and at or as to the disciplinary appeal stage in order to establish what quite is meant by the phrase we drew attention to earlier (namely that both disciplinary and appeal hearings failed to allow the Applicant's representative to develop his fundamental explanation for the Applicant's behaviour in failing to move the fence), we think the better course is to request the Chairman to give the notes of all the evidence of Mr Gibson, Mr Halls, Mr Pearson, Mr Cannings and Mr Sharp. So the matter goes forward with that request being sent off to the Chairman.

[16]At the moment the Skeleton, as we have seen, advances 3 grounds and the Notice of Appeal mentions only 2. We have not carefully studied them to see whether the 2 grounds truly include within their bounds the 3 which have later emerged. It is, of course, the Notice of Appeal that ultimately determines, subject to the views of the Tribunal, exactly what can be argued on the full hearing. So, we give the Company 10 days from receipt of the transcript of this judgment in which to consider amendment and, if thought fit, to amend the Notice of Appeal the better to specify all 3 grounds if they truly wish to advance all 3. Their argument at the full hearing will be limited to the grounds advanced in the Notice of Appeal, whether that is the Notice of Appeal as originally drafted or as finally amended. So they have a breathing space in which to consider whether they need to amend, but all 3 grounds we have described can go forward.