MR S F HARRIS v PARKER PEN CO LTD [2001] UKEAT 22_01_0905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 22_01_0905Case No Appeal No. EAT/22/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S F HARRISAPPELLANTPARKER PEN CO LTDRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 9 May 2001
[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) We have before us as a preliminary hearing the appeal of Mr S F Harris in the matter Harris v Parker Pen Company Ltd. This morning Mr Harris has appeared by Mr John Horan of Counsel under the ELAAS scheme, and he has presented a thoughtful and helpful argument, and we are very grateful to him for the assistance that he has given both to us and to Mr Harris.[2]On 11 January 2000 Mr Harris presented an IT1 for unfair dismissal. He said in it that he had been dismissed for gross misconduct. That was what was alleged against him by the company. On 31 January 2000 the Parker Pen Company put in its IT3 and they said that he had been dismissed because of a fight which he had had at company premises with a colleague, Mr Weedon, and they said that his dismissal had been fair.[3]Between 18 and 20 September 2000 there was a hearing at the Employment Tribunal dealing at one and the same time both with Mr Harris's case and with the case of Mr Weedon, who had also been dismissed for misconduct, having been involved in the very same fight.[4]On 14 November the Decision was sent to the parties and it split the cases of the two men; it was the unanimous decision of the Tribunal that the complaint of Mr Harris was dismissed and it was the majority decision of the Tribunal, with the Chairman dissenting, that the Applicant, Mr Weedon, was unfairly dismissed.[5]On 15 December a Notice of Appeal was prepared by Mr Harris - that was the date on it - and it was received at the Employment Appeal Tribunal on 19 December. It is a home made instrument and it sets out a number of grounds, not all of which have been advanced by Mr Horan. Indeed it is inherent in Mr Horan's argument that he accepts (as does, through him, Mr Harris) that some parts of it are not matters with which the Employment Appeal Tribunal, limited as it is to dealing with questions of law, can deal.[6]It begins with this point; Mr Harris writes:
"My main point of appeal is that the incident of 1993 was made to be the main point of the employment tribunal's decision to dismiss my complaint. I had already paid the penalty in 1993 and it should not have been used in this tribunal."
For our part, we cannot accept that the 1993 incident was the main point of the Employment Tribunal's Decision in dismissing Mr Harris's complaint. In 1993 there had been an incident in which Mr Harris, it seems, had been an aggressor (see paragraphs 14 and 29 of the Tribunal's Decision). Mr Harris had, so held the Employment Tribunal, been left in no doubt about the consequences of any repeated violence. Thus in paragraph 23 one finds the Tribunal saying this:
"It was clear from Mr Harris's evidence, however, that he knew that he would be dismissed if ever he should be involved in violence of any kind again."
In their paragraph 29 they say:
"Mr Harris's background was completely different."
That was a comparison with Mr Weedon's position. "He was the aggressor in the serious incident of 1993 and he was left in no doubt of the consequences of a repeat. He told us that he considered himself very lucky in 1993 to keep his job and also that he was led to believe then that his record would stay with him throughout his career at Parkers. There can have been no reasonable doubt in Mr Harris' mind that if he should ever be involved in violence in the factory again, dismissal would be almost inevitable." And finally in paragraph 44 the Tribunal says:
"The second factor is the 1993 incident and its immediate aftermath, including the nature of a warning about future conduct that was given to Mr Harris at the time. He well knew that if he should be involved in any violent incident in the future he would be dismissed."
[7]Going back to paragraph 29, from which we have just cited, it is to be noted that Mr Harris's understanding would be that the record would stay with him throughout his career at Parkers; in other words he had no reason to think that the passage of time would, after a while, cause the 1993 incident to have no existing force.[8]The Tribunal found there was relevance in the 1993 incident in that it had led to Mr Harris knowing that he would be a candidate for immediate dismissal if there was any further violence. That, as it seems to us, was a point the Tribunal was entitled to have in mind and that their having it in mind led to no error of law on the Tribunal's part.[9]Mr Harris says that contrary to what the Employment Tribunal recorded he, Mr Harris, had not himself called Mr Martin to give evidence - this is a point that Mr Harris makes in his Notice of Appeal and which Mr Horan has not explicitly abandoned - and so we ought briefly to mention it. It is true that the Employment Tribunal says, in its paragraph 2, that Mr Harris had called Mr Martin, but it is not denied that Mr Martin did indeed give evidence, and, in paragraph 23, the Tribunal says:
"Mr Martin attended the Tribunal and gave evidence as to what had happened in 1993."
It is not said that the Tribunal misunderstood the evidence that he had given and it seems to us to be, in the event, of no significance who precisely had called him, so there is no material error of law in the point that Mr Harris was making in his Notice of Appeal.[10]Next, Mr Harris says very simply that the agreed bundle was incomplete; one's first reaction to that would be that that could hardly be an error of law on the part of the Tribunal, if the agreed bundle (and one notices "agreed") was incomplete; that surely would simply be a complaint of one party against another. But Mr Horan has amplified the point and given it new significance by indicating that what Mr Harris truly had in mind was that the Tribunal had declined to hear, on the grounds that it would be irrelevant, a number of tape recordings of interviews or calls that had been recorded relative to his grievance against the company. Mr Harris sought to introduce this evidence but the Tribunal declined to look at it, saying that it was irrelevant.[11]It is necessary, it seems to us, to have in mind the chronology of the matter, as it has been given to us. The fight, to call it that, the incident, was of 4 October 1999. There was a meeting to dismiss the grievance on 18 October 1999; there was a letter dismissing the grievance on 20 October 1999. The dismissal of Mr Harris was on 27 October 1999, and the final closure of the grievance was in December of 1999.[12]As it seems to us, events spoken of in the tape recordings can only have been of events months before the fight incident on 4 October 1999. It is hard, therefore, to see what relevance the taped evidence could have had to the chief matters in front of the Tribunal, and the chief matters in front of the Tribunal were whether the company, on the evidence which it had been given, had good ground for immediately dismissing Mr Harris, or at any rate dismissing him after the conclusion of the disciplinary and investigatory stages that were concluded.[13]The tapes of earlier events are very hard to have in mind in such a way that they would have thrown any real light on the chief events. Mr Horan says that if only the tapes had been listened to, the Tribunal would have been more likely to have seen that there was an alternative reason that the company had for getting rid of Mr Harris, namely to avoid dealing with the grievance, rather than simply getting rid of him because of the fight incident.[14]This we have not found easy to assimilate. We have not, of course, heard the tapes or had precisely explained to us what was on them, but, given that they deal only with events a good deal before the fight, we cannot see that it was an error of law on the part of the Tribunal to take the view that it need not, and indeed should not, have listened to them as part of the overall complaint. It is hard to see how it was a motive to get rid of the grievance, when the grievance was in fact concluded, as it would seem, all but the final letter, before Mr Harris, was dismissed.[15]Reverting - because that is a point that was not really amplified at all in the Notice of Appeal - to the Notice of Appeal, Mr Harris next raises several disputes of fact, and as to the reliability or credibility of evidence given. But Mr Horan, of course, has advised Mr Harris that it is for the Employment Tribunal to find facts, and that in the course of their doing so, it is for them also to assess the credibility of witnesses, and to judge the weight to be given to this fact or that, and no error of law emerges in that part of the case.[16]In their paragraph 27 the Tribunal begin by saying:
"We were told of 5 incidents in the workshop all involving Mr Harris during the latter part of 1998 and 1998 that could be regarded as relatively serious. They may not have amounted to physical violence, but involved harsh and violent words."
And Mr Harris says that there was no mention of that at the Employment Tribunal. But the Employment Tribunal had said, as we have already quoted, that Mr Martin attended the Tribunal and gave evidence as to what had happened in 1993. The incidents in 1998 were not said to be necessarily involving physical violence; the fact that Mr Harris cannot remember them, as he says in his Notice of Appeal, is irrelevant, and we are unable to hold that there had been no mention of the 1993 incidents to the Tribunal, as it is intrinsically improbable that the Tribunal would refer to a specific number of incidents, and, indeed, to refer to the number twice, (because they referred to it also in their paragraph 28) if no evidence at all had been given on the point. So there is nothing, as it seems to us, in that point.[17]Then, and this is a point that touches on the tape recordings that were not looked into as well, Mr Harris makes the point that, by dismissing him, the company solved the otherwise difficult issue of his grievance, the inference being that he was dismissed as a convenient way of getting rid of the grievance. But there is no doubt that the Tribunal had this possibility in mind; what they say in their paragraph 30 is this: "A further aspect of the grievance that was important was the contention by Mr Wilson that it created a serious problem for management. Mr Wilson was a friend of Mr Harris who was appearing for him, or representing him. The incident of 4 October gave management the opportunity to solve the problem of Mr Harris's grievance by dismissing him. We considered this contention very carefully and found there was no evidence to support it, So the Tribunal plainly had the issue in mind, and considered it carefully and rejected it, and Mr Horan says that if only the tapes had been listened to, as we mentioned earlier, that would have been an alternative, and more thoroughly fleshed out, that the Tribunal would have been able to consider an alternative to the fight being the true reason for the dismissal. But, as we mentioned earlier, it is difficult to see how the detail of tape recordings, months before, could have thrown any real useful light on whether the dismissal was because of the fight or for some other hidden reason. It is not as if the Tribunal did not have in mind that in this particular works there was an atmosphere of verbal violence being commonplace and physical violence being close to the surface, because that is what they specifically hold in their paragraph 27.[18]We, for reasons we have given, find it impossible to see how the evidence which the Tribunal failed to look at, namely the evidence of the tapes, relating to events months before, would have thrown light or to have likely to have led the Tribunal to come to any different conclusion than they did, when they said, considering this possibility of an ulterior motive, that they had considered it carefully, and found no evidence to support it.[19]Mr Weedon, the Tribunal held, was unfairly dismissed, and yet, says Mr Harris in his Notice of Appeal:
"Mr Weedon and myself both had exactly the same work records; ie both started at the same time, both worked on the same machinery and both been involved in past incidents. I had one incident in 1993 but Mr Weedon was involved in more than one, but the tribunal have not looked at this."
Well, there were, as the Tribunal found, big differences between the Weedon position and the Harris position. Mr Weedon, unlike Mr Harris, did not know and was held not to have known, of the company's new tougher policy as to workplace violence. In their paragraph 25 the Tribunal says:
"We are equally clear that Mr Weedon did not know of the existence of the new policy. The respondents did not keep any record of the employees who attended the team briefings and it seems likely that Mr Weedon was on holiday in August 1997 when they took place. As indicated above, the document was subsequently removed from the notice board by Mr Harris. We are satisfied that Mr Weedon was telling the truth when he said that he had not seen the policy."
So that was a material distinction between the position of the two men.[20]Secondly, Mr Weedon did not have a background in which he knew that one more event of violence might very lead to his dismissal. In paragraph 28 the Tribunal sets out the background:
" when Mr Weedon went to report the fight of 4 October to his manager, he believed that he was not at risk of dismissal."
And they set out their reasons for that and in paragraph 31 they say:
"The third consideration in the dismissal decision was the respective records of the two applicants. It is clear that Mr Weedon was, apart from the very occasional hiccup and the event of 4 October 1999, a very good employee. His appraisals from his first employment to March 1999 were very good indeed, particularly the report of March 1999. Mr Harris was regarded as a good worker, though there was, of course, the very large blot on his record of the 1993 events."
[21]So the Tribunal did have in mind that they needed to compare and contrast the position of the two men involved in the fight, and they claim they found that there were relevant distinctions between the two and that Harris, in a sense, was worse placed than Weedon. That is very much a matter for factual assessment by the Tribunal and we detect no arguable error of law in the distinction that the Tribunal sought to draw between the two combatants.[22]The position is, therefore, that having dealt with, firstly, all the arguments that are raised that have a ghost of a chance in the Notice of Appeal, and secondly, with the further argument that Mr Horan has developed, we are unable, we fear, to find any discernible arguable error of law, and it has to be emphasised that it is only errors of law with which we can deal. Finding no arguable error of law, we must dismiss the appeal, even at the preliminary stage.