MR P L PALMER v CAINES FARM PARTNERSHIP [2001] UKEAT 0802_01_3110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0802_01_3110Case No Appeal No. EAT/0802/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P L PALMERAPPELLANTCAINES FARM PARTNERSHIPRESPONDENT
Before
MR COMMISSIONER HOWELL QCMS G MILLSPROFESSOR P D WICKENS OBEDate 31 October 2001
[1]APPEARANCES For the Appellant MR P L PALMER (The Appellant in person) MR COMMISSIONER HOWELL QC In this appeal which is before us for Preliminary Hearing Mr Peter Leslie Palmer seeks to have set aside as erroneous in law the decision of the Southampton Employment Tribunal sitting on 9 January 2001 hearing a complaint by him of unlawful, unfair dismissal against his former employers, the Caines Farm Partnership, in relation to his summary dismissal from the Partnership's employment at a disciplinary hearing on 22 and 23 June 2000 on the ground that in an altercation between him and his employer, Mr Peter Caines, in a field on 16 June 2000 he had assaulted Mr Caines.[2]The Tribunal's decision, embodied in Extended Reasons sent to the parties on 19 January 2001 at pages 14-16 of the appeal file, was that the complaint of unfair dismissal was not upheld. The applicant had been fairly dismissed and the principal, if not the only reason, for the Tribunal so holding was that, having heard the evidence of the two people involved, and other witnesses employed on the farm who had not themselves been present at the incident on 16 June, the Tribunal found on the balance of probabilities that Mr Palmer had indeed assaulted his employer in the field. They did not accept his denials and his explanation that Mr Caines had hurt himself by stumbling on the ground in the course of a discussion between them.[3]Against that decision Mr Palmer sought to appeal in a Notice of Appeal submitted on his behalf by solicitors dated 27 February 2001 but in fact delayed in the post and not presented to the Appeal Tribunal until 5 March 2001. Mr Palmer has appeared in front of us today armed with a skeleton argument prepared by the same firm of solicitors but otherwise presenting his case in person. I should say that the solicitors who have been advising him more recently were not his representatives before the Tribunal at the time of the original hearing. At that time he was represented by a Mr Oscar Leighton, described as an Employment Law Consultant in the IT1 application, whose advice to Mr Palmer at the time Mr Palmer is now dissatisfied with and forms one of the reasons why Mr Palmer seeks to pursue an appeal against the decision of the Tribunal.[4]There is one preliminary point to be dealt with which is that, as I have already said, the Notice of Appeal arrived at the Employment Appeal Tribunal office only on 5 March 2001 which was three days out of time for the proper lodging of an appeal against the decision of the Tribunal, the normal time limit being 42 days from the date when Extended Reasons are sent out to the parties. The question of whether the appeal should be allowed in at all, was earlier considered by the Registrar of the Employment Appeal Tribunal who, in an Order dated 6 June 2001, declined to grant even a short extension of the time for submitting Mr Palmer's appeal. Since then the Application has been renewed to us and we have listened to argument by Mr Palmer on the merits of the case that is no longer a matter of any importance as we have, in effect, waived the short delay of three days outside the normal time limit. We are all satisfied that this is a proper case for us to deal with the appeal itself on the merits rather than rejecting it on a purely procedural ground.[5]The two principal grounds on which the appeal is sought to be brought, as explained in the skeleton argument and by Mr Palmer himself in argument, are first that there was a fundamental defect in the employer's procedure in that the disciplinary hearing which was the occasion for Mr Palmer's dismissal was conducted principally by Mr Peter Caines himself, who was the principal complainant in relation to the allegation that Mr Palmer had assaulted Mr Caines. The disciplinary proceedings were not being conducted by Mr Peter Caines alone however because, as Mr Palmer informed us today, his younger brother, the other Mr Caines, was also sitting with him, but again as Mr Palmer informed us, and for this purpose we accept, it was Mr Peter Caines who was the dominant brother and took the dominant part in the proceedings. The other Mr Caines was relegated to a relatively subordinate role, though at the end of the disciplinary proceedings he did concur in the decision that Mr Palmer had to be dismissed.[6]There is obviously a potentially arguable point, if the procedure adopted by the employer was the crucial issue in this case, on whether it can be right, even in a small farming concern, for the principal role in a disciplinary hearing to be taken by the person who is also the main complainant. However, we have not been persuaded that that potential defect gives Mr Palmer an arguable ground to warrant directing that the appeal should be pursued on that basis, for two reasons. First of all because it is quite clear (and Mr Palmer very fairly agreed) that this point about the employer having followed a defective procedure was never taken on Mr Palmer's behalf at the Tribunal hearing at all by the representative who was then acting for him. Indeed more than that, the grounds that are annexed to the Originating Application at page 10 of the appeal bundle, expressly concede in paragraph 7 that: "…the employer reflected procedural activity in holding the hearing…" which we take it can only be meant as a concession that there was no procedural complaint being made in relation to the dismissal. That was in fact borne out by what happened at the hearing, when the representative did not pursue any argument that the procedure had been defective so that the dismissal ought to be held unfair on that basis but focused entirely on the single issue of fact also identified in paragraph 7 of the grounds annexed to the Originating Application. This was to dispute as a matter of fact the employer's actual reason for dismissal, namely, to challenge head on the issue of fact whether Mr Palmer had assaulted his employer in the field on 16 June 2000 or not.[7]So, not only was the point about the procedure not taken but also, it seems to us, that the way in which the case was put on Mr Palmer's behalf at the Tribunal made it inevitable that the procedural point would not be the deciding issue in the case. The deciding issue in the case was the single one of whether Mr Palmer's account of what took place in the field on 16 June was to be believed or not. If it was not, then the inevitable conclusion was that Mr Palmer's explanation was not a truthful one and he had assaulted his employer in the field; and summary dismissal for an act of what inevitably could properly be viewed as an act of gross misconduct was a perfectly proper sanction for an employer to apply to him regardless of any procedural defects in the process that led up to it.[8]We turn to consider the second main ground on which Mr Palmer seeks to pursue an appeal against the Tribunal's decision, which is to challenge for a number of reasons the Tribunal's express finding that it did not accept Mr Palmer's explanation so that as a matter of fact he had indeed assaulted his employer contrary to his own denials. Mr Palmer takes a number of points on the factual evidence. In particular, as set out in the skeleton argument prepared on his behalf, it is contended that the Tribunal erred in placing reliance on the evidence of a Mr Cook who was the farm foreman at the time but was then aged 72 and in poor health. According to what Mr Palmer and the skeleton argument allege he was already taking some form of medication, possibly morphine, at the time of the Tribunal hearing since he died fairly shortly afterwards from cancer of the pancreas. On that basis the submission is made that no reasonable Tribunal would have relied on the evidence of Mr Cook had it been informed that he was terminally ill with cancer and/or on morphine, and therefore no reasonable Tribunal should have found Mr Cook to be a credible witness in view of what is suggested to be the unsatisfactory nature of his evidence during the course of the hearing.[9]A second point is taken that an allegation by Mr Cook made to the Tribunal, of Mr Palmer having threatened him following the hearing and in connection with the evidence that he was being required to give to the Tribunal, should not have been taken into account by the Tribunal (as it was) as corroboration of earlier suggestions that Mr Palmer was a man prone to violence and therefore as an additional reason for not accepting Mr Palmer's own explanation that no violence on his part had taken place. A similar submission is made in relation to a third piece of evidence, referred to by the Tribunal in their Extended Reasons, about Mr Palmer himself having been involved in an assault on his own wife some years previously in 1992 when an ambulance and the police had to be called. Again, the Tribunal took that into account as evidence consistent with the Applicant having been guilty of an assault on Mr Caines and again the suggestion is made that that was an improper thing for the Tribunal to have done.[10]It is clear from the Tribunal's record of the evidence given by Mr Palmer himself that something happened to Mr Caines in the field as a result of which he got at least a bump. As recorded by the Tribunal in paragraph 3 of their Extended Reasons, this was not disputed by Mr Palmer, but as they recorded:
"The Applicant adamantly denies assaulting Mr Caines. He claims Mr Caines stumbled on the uneven ground which caused him to bump into the Applicant."
Therefore, on the undisputed evidence before the Tribunal there was a physical incident in the field as a result of which the two men came into contact and Mr Caines the employer sustained a bump. Whether to accept Mr Palmer's explanation as there given, or whether to accept the evidence of Mr Caines himself given to the Tribunal supported by the evidence of Mr Cook, the foreman, and Mr Cartwright the junior herdsman, also employed on the farm in a subordinate position to Mr Palmer himself, which they gave to the Tribunal describing Mr Palmer as an aggressive person, someone who took things personally, boiled up easily, was quick off the mark and had a short temper, must be matters of fact for the Tribunal which hears the evidence and sees the witnesses to determine.[11]This Appeal Tribunal has no right or power to interfere in findings reached by an Employment Tribunal on the basis of such evidence unless the Tribunal's decision can be seen to fly in the face of the evidence before it or its decision can be seen to be perverse in the sense that no reasonable Tribunal on the evidence before it could have reached such a decision. The Tribunal's reasons for rejecting the evidence of Mr Palmer and accepting the evidence of the employer supported by that of the other witnesses, and for therefore finding that an assault had in fact taken place are adequately and clearly given in their Extended Reasons, in particular in paragraph 8 where they record that:
"This has not been a criminal trial where an allegation must be proved beyond reasonable doubt to sustain a finding of guilt. In resolving conflicts in the evidence the standard of proof is the balance of probabilities. In other words, we must determine whether it is more likely than not that the Applicant assaulted Mr Caines and, if so, whether dismissal came within a range of reasonable responses. We resolve the conflict of evidence in favour of the Respondent. When giving evidence the Applicant's former workmates, Mr Cartwright and Mr Cook, described him as aggressive, someone who took things personally, boiled up easily, was quick off the mark and had a short temper. Mr Cook was a wholly credible witness and we accept his version of events, including the way he was threatened by the Applicant on 16 December 2000. Mr Cook would not have reported the incident to the Police had it not taken place in the way he described. The Applicant's claim that Mr Cook approached him to ask if the statement he had made was satisfactory is not credible. The threat to Mr Cook, who is aged 72, was the cowardly act of a bully. In 1992 the Applicant assaulted his wife, knocking her to the ground before leaving the house. On that occasion his eleven year old daughter called the ambulance and the police were involved. The evidence is wholly consistent with the Applicant having assaulted Mr Caines and we find as a fact that the assault took place as described by Mr Caines on 16 June 2000."
On that basis the Tribunal concluded that assault by an employee on his employer is always a serious matter. They did not feel able to say that no reasonable employer would have dismissed in the circumstances of this case. They recorded their view that a reasonable employer might reasonably dismiss and it was their unanimous decision that the dismissal of the Applicant was fair for the act of gross misconduct of assault.[12]We have given anxious consideration to whether there is any ground for this Tribunal to say that this is the kind of case we have indicated where it could be said that the Tribunal's decision flies in the face of the evidence before it, or the decision was perverse and unreasonable. We have found this an anxious case, in view of the well reasoned and moderate way Mr Palmer has himself put his case before us today and also in view of the obviously harsh effects his dismissal after 9 years' satisfactory employment has had on him; and more particularly on his wife who, we were told, has lost her employment as a result of the incident as well. Such events are frankly a tragedy and it is extremely sad that what might have started as only a relatively trivial incident should have come to have such consequences for everybody involved. We have also been less than happy about the way in which the case was originally presented to the Tribunal on behalf of Mr Palmer by his representative at the time. We think that if the solicitors more recently acting for him who prepared the skeleton had been doing the job at the time, the case might have been better put forward on his behalf.[13]However, at the end of the day we have not been able to say that as a matter of law this Employment Tribunal, on the way the case and the evidence was presented to them, were not entitled to come to the factual conclusion that they clearly did. It was for the Tribunal to judge the credibility and quality of the evidence. On the basis that we can see no ground in law for attacking their factual conclusion that an assault did take place, and that Mr Palmer's explanation to the Tribunal was rejected, we can see no ground on which this appeal could succeed if we sent it forward for a Full Hearing before the Employment Appeal Tribunal, such appeals only being on questions of law. Accordingly since we have had to come to that view, we now unanimously dismiss the appeal.