F W FARNSWORTH LTD T/A PORK FARMS BOWYERS v MR A TISO [2002] UKEAT 1290_01_0805

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1290_01_0805

Case No Appeal No. EAT/1290/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

F W FARNSWORTH LTD T/A PORK FARMS BOWYERSAPPELLANT

MR A TISORESPONDENT

Before

Her Honour Judge A Wakefield Mr J R Crosby Mr D Norman

Date 8 May 2002

[1]APPEARANCES For the Appellant Mr Mark Davis Representative Northern Foods PLC Beverley House St Stephen's Square Hull East Yorkshire HU1 3XG JUDGE A WAKEFIELD This is an ex parte preliminary hearing of an appeal by F W Farnsworth Ltd, trading as Pork Farms Bowyers against a Decision of an Employment Tribunal sitting at Nottingham, given with Extended Reasons on 13 September 2001, following a hearing on 31 August.

[2]By that Decision it was found that the Appellant had unfairly dismissed the Respondent; that he had contributed one third to the dismissal by his conduct and that there should be an Order for his reinstatement. This appeal relates only to the finding as to the extent of the Respondent's contributory conduct.

[3]The dismissal had followed an investigation into an incident of alleged violence between the Respondent and another employer, Mr Gyekye. There was then a disciplinary hearing. In reaching their conclusions as to contributory conduct, the Employment Tribunal said this at their paragraph 8: "If two people fight the harm is obvious and they are both disciplined. But if somebody reacts to verbal taunting, quite frequently the taunter gets away with it, because the harm they cause is not obvious. But depending on the nature of the taunting, and more importantly the intent of he who taunts, it well may amount to a disciplinary offence. One has only to consider racial taunting to realise that the offence might even be one of gross misconduct. It is worth repeating that the evidence before us, and the allegation which the Respondent ignored, was to the effect that Mr Gyekye intended to provoke a reaction from Mr Tiso. That was the clear message if not the precise words used, for that is what winding somebody up implies. However, Mr Gyekye has walked away scot free. Not only was he not disciplined, he was not even investigated. He was merely suspended briefly at the start of the investigation. It seems to us that it is just and equitable that we should take that into consideration at this juncture. Therefore, for that reason, as well as the mental anguish and financial loss which Mr Tiso suffered, and the view which we, rather than those representing him at the disciplinary hearing, take of the seriousness of his conduct, we impose a reduction for his contributory fault of a factor somewhat less than we would otherwise have done. We find that in these circumstances, it is just and equitable to reduce any compensatory or monetary award which we might make, by only one-third.

[4]In the grounds of appeal before us, this approach is said to have involved an error of law in that extraneous factors are introduced into what is essentially a question of pure causation. We have been referred to sections 122 and 123 of the Employment Rights Act 1996 and also to, in particular, the case of Parker Foundry Ltd -v-Slack

[1992] IRLR 11

from which it appears that the arguments which have been forward to us as to extraneous matter having been taken into account may be justified.

[5]We consider that this appeal ought to go forward to a full hearing for the arguments to be expanded on those sides. Category C, time estimate of half a day.