MR A C PARRY v B & Q PLC [2001] UKEAT 1360_00_0905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1360_00_0905Case No Appeal No. EAT/1360/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A C PARRYAPPELLANTB & Q PLCRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 9 May 2001
[1]APPEARANCES For the Appellant Mr Michael Martin Solicitor Messrs Woollcombe Beer Watts Solicitors County Chambers 75 Queen Street Exeter Devon EX4 3RX MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a preliminary hearing the appeal of Mr A C Parry (Tony Parry, as he is referred to) in the matter Parry v B & Q PLC It gives rise to the question of whether the employer, B & Q, was entitled to conclude that Mr Parry had been guilty of gross misconduct.[2]The gross misconduct that was alleged was anti-social behaviour involving physical violence against another employee at a company social function, at a club in the early hours of the morning after, it would seem, most or all concerned had been consuming drink and dancing for some hours and some, indeed, it was said (although this was gone into and not found) had taken drugs.[3]The particular kind of misconduct alleged was fighting; the company did conduct an investigation. There was, indeed, some evidence given of Mr Parry hitting one Richard Smith. "They were punching each other" said Mr Harrison (and I will give some page numbers which are page numbers in the bottom right hand corner of a bundle produced to us called "Appellant's documents" and I think the bottom right hand page numbers were the numbers as the matter was presented at the Employment Tribunal.) Tony "started on Richard" said Mr Lawless on page 41 - but that does not in terms say that Parry hit Richard Smith, or even tried to: one needs to know quite what was intended to be meant by the words "started on". And then Richard Smith said Tony went for him (Richard Smith) but " went to the floor" It was not said at what point he (Smith) had been hit by Tony Parry - see page 69:
"Tony was hitting me" said Mr Smith, but then he added: "could have been Steve"
See page 71. And in any event, page 69 indicates there was at least a possibility that Mr Smith could not see who was hitting him, which would explain, of course, why he did not know for certain who it was, and that it could have been Steve. "Tony had his fists up" See page 93, says Tony Squibs, but that does not indicate that he actually hit Richard Smith, merely that he had his fists up. He looked as if he was going to hit him (page 93), but indeed, at page 94 it seems that Tony Squibs was not saying that Parry had in fact hit Smith. "I saw Tony Parry fighting with Richard" said Harrison "and them having a go at each other" Page 98 Smith was held back by another so that Parry could hit him, but that does not indicate that Parry did in fact hit him, merely that Smith had been held back so that Parry could do so, and that, I might add, was an answer to a leading question put to Mr Harrison, see page 31.[4]So there was some evidence - it was not at all clear - but some evidence. Against that, Mr Parry was told in the course of the interviews that no one had suggested that he had laid a hand on Richard Smith (see page 54). Moreover, the ability of Mr Harrison to give independent and fair material evidence was challenged, and his evidence was, at one point, misdescribed during the course of the investigation (see page 58), and the evidence that Tony Smith gave about Mr Parry was, it seems, misdescribed to Mr Parry during the course of the investigation, page 101.[5]The general drift of the evidence, as given to the company at the disciplinary stage - and one here distinguishes between evidence given to the company and evidence later given to the Tribunal - appears to have been that Mr Parry's role in actual violence was relatively slight. He was at the time injured; he had some form of foot injury. He had, said a number of witnesses, told the parties to stop fighting. Whether that was to avoid being caught or out of a rather higher motive, it does not perhaps very much matter; he was saying to others "Stop fighting".[6]It was also the case that he may, to some extent, have been provoked, and the most telling evidence against him, that of Harrison, was given by a person whom there was some reason to believe might not have been fair in his consideration of Parry's position. The Tribunal itself said:
"Mr Smith's evidence was that both applicants had hit him."
But they failed to add that Mr Smith himself had added " It could have been Steve" And they failed to mention the fact that Mr Smith had said that he could not see who it was, and they failed to describe at what point it was said that Parry had hit Smith, as Smith's evidence was that he had pushed Parry to the floor (page 69) and if Parry had hit him after he had been pushed to the floor then that might well have been self-defence or some justified reaction. Indeed, when one looks at page 69, that would seem to be a possible scenario, because Mr Smith there says:
"Tony went for Richard to stop Richard interfering - Tony went to floor. I was hesitant about attacking Tony. I pushed Tony went to floor. I went to and Matt, Steve turned on me - both were hitting me."
So that, in that sequence it would seem that Smith was hit after he had pushed Parry to the floor, and that again is the quotation which ends:
"I couldn't see who but back of head badly hurt"
[7]It could well be that the Tribunal was confusing a view they formed of the evidence which they had received with an assessment of the view that the company could properly have formed on the evidence that the company had received at the conclusion of its investigatory and disciplinary stages. It is arguable that there was a substitution by the Tribunal of its view of the events, rather than a concentration on what should have been concentrated upon, namely whether the evidence that the company received did or did not justify the view it took.[8]There is no doubt that the Appellant's argument, which is in part, at least, one of perversity, is a difficult argument to run, but we do see that it is just arguable, and hence we permit it to go to a full hearing, but so far the Notice of Appeal is a very informal homemade Notice of Appeal by Mr Parry himself. He now has the assistance of solicitors and we will invite Mr Martin to tell us whether he would wish to have the opportunity of amending the Notice of Appeal to incorporate perhaps more precisely the points that he would wish to have ventilated at the full hearing. What do you say Mr Martin - it is not a very convenient document at the moment. It would be helpful to all of us ………………. Would you be able to do that within 14 days? We will give you leave then within 14 days to amend the Notices of Appeal. We do not put terms on the nature of the amendment but both your argument and our response has indicated where we think there may be some territory that you could take advantage of, and so, without making a formal direction, we just give you general liberty to amend, but expect it to confine itself to the areas we have been speaking about - 14 days. An hour and a half, Category B ………