SLIMLINE WINDOWS (YORKSHIRE LTD) v MR J WHITTINGTON [2002] UKEAT 1323_01_2704

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1323_01_2704

Case No Appeal No. EAT/1323/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SLIMLINE WINDOWS (YORKSHIRE LTD)APPELLANT

MR J WHITTINGTONRESPONDENT

Before

His Honour Judge J R Reid

Date 27 April 2002

[1]APPEARANCES For the Appellant MR A FOSTER (of Counsel) Instructed by: Messrs Milners Solicitors Crown House Great George Street Leeds LS1 3BR JUDGE J R REID QC: This is the preliminary hearing of an appeal by the Slimline Windows (Yorkshire) Limited against a decision of an Employment Tribunal sitting at Leeds on 3 September of last year. By a decision which was sent to the parties on 21 September, the Tribunal held that the Applicant, Mr Whittington had been unfairly dismissed, but that he had caused or contributed to his dismissal by a factor of 30% and that the basic award and compensatory award should be accordingly reduced by that proportion.

[2]The grounds of appeal, put in very short form, are that the Employment Tribunal fell into the trap of conducting their own examination of the matters which formed the basis of the disciplinary procedures by which Mr Whittington was dismissed and that in any event, even if they were right in their conclusion that he was unfairly dismissed, the 30% contribution figure that was fixed by the Tribunal was inadequate.

[3]So far as the first of those points is concerned, the background to the case was this: Mr Whittington was employed as Installations Manager by Slimline Windows. That is a privately owned company, owned by Mr Oakes. There was a Chief Executive, a Mr Benfield, who had been employed by Mr Oakes only for a short time and there was also a Managing Director, who was Mrs Whittington. One day when Mr Whittington was driving back to Slimline's premises, a depot in Leeds, he was told that his wife had been dismissed. He returned to the Slimline premises on an extremely short fuse. There he had a confrontation with Mr Benfield in the quality control room. He accepts that he did not act well. The allegation against him as we understand it was that it was said that he shouted and swore at Mr Benfield and leaning across a desk, held him pinned by his lapels in his chair. That led to disciplinary procedures and his dismissal.

[4]The problem was that the disciplinary procedure was conducted by Mr Lee. He took statements from Mr Benfield and others and then, when seeing Mr Whittington, appears to have slipped from investigatory mode into disciplinary mode and dismissed Mr Whittington. Mr Whittington was offered the possibility of an appeal, but that appeal would in the circumstances have had to have been conducted by Mr Lee and the finding of fact was that Mr Lee had indicated to the Applicant that he was absolutely certain that the Applicant was guilty. The result of that, needless to say, was that Mr Whittington did not pursue his appeal. What is said is that the Tribunal, instead of considering the appropriate tests, namely as to whether the employer had a reasonable belief in the matters found and whether what was then done as a result of that reasonable belief after reasonable investigation fell within the reasonable band of responses, decided that they would themselves conduct their own investigation. It is suggested that the Tribunal conducted their own investigation, decided that what had happened between Mr Benfield and Mr Whittington was very minor indeed and concluded that the decision to dismiss was therefore one which no reasonable employer could have taken.

[5]In our judgment, that is an unfair criticism of what the Tribunal did. The Tribunal found as a fact that the dismissal of Mr Whittington was because Slimline Windows genuinely believed that Mr Whittington was guilty of misconduct, that it genuinely believed, through Mr Lee who conducted the investigation and disciplinary process, that there was an assault, and genuinely believed that the assault justified the dismissal. The Tribunal held that the genuine belief was misconceived but that was not the basis on which they then went on to hold that no reasonable employer would have treated the events as being reason for dismissal. The sentence which I quote from paragraph 13:

"No reasonable employer would have treated what the Applicant was alleged to have done, let alone what we find he did, as a sufficiently important matter to justify a dismissal."

[6]So the Tribunal clearly looked at the right question. It is true that they indicate in parenthesis that they themselves would not have made the same findings of fact, but what they are finding is that no reasonable employer would have treated what Mr Whittington was alleged to have done as a sufficiently important matter to justify dismissal. It may well be that in other circumstances what was done would have justified dismissal, but they had to look at all the circumstances, they had to look at the belief of the employer and they held, having looked at everything, that no reasonable employer would have treated the matters which Slimline Windows genuinely believed Mr Whittington to be guilty of as a justifiable reason for dismissal.

[7]That was a decision which the Employment Tribunal sitting as an industrial jury were entitled to reach. They did not reach it by looking at their own conclusions as to the investigation. They looked at it quite properly through the eyes of the employer in the sense of looking at what the employer genuinely believed and it was on that basis that they made the decision that the dismissal was substantively unfair. They went on incidentally to say that the dismissal was also procedurally unfair, but that in the circumstances, takes matters no further. They then had to deal with the question of whether or not there was any element of contribution as a result of which the award should be diminished. They had indicated at the commencement of the hearing that they would deal with potential issues as to contribution at the same time as dealing with the issue of unfair dismissal. In order to deal with the issue as to contribution, they had to look, not at the employer's beliefs but at what they found as a matter of fact had occurred. In doing that they had before them the oral evidence of Mr Whittington and statements from Mr Benfield and two other persons whose statements had been used in the disciplinary process. They said that they gave less weight to the witness statements because they had not seen the witnesses live and had not seen their evidence tested by cross-examination. That was an entirely proper attitude to take.

[8]One can well understand why an employer does not for the purposes of arguing that a dismissal was fair, bring along the underlying witnesses on whose evidence the internal disciplinary procedure relied, because so far as that issue is concerned, the Tribunal are not concerned with which evidence they, the Tribunal, would have preferred. When it comes on to the question of contribution that is a matter on which an employer can quite properly call the underlying witnesses to say precisely what it was they saw and heard and the Tribunal then have to make their own decision as to that. In the circumstances of this case, the Tribunal having in our judgment, quite properly determined the issue of the reasonableness of dismissal, looked at the beliefs of the employer and then went on and properly determined the issue of contribution, looking at what it found the facts to have been. The decision contains this passage:

"He (that is Mr Whittington) should not have sworn, he should not have threatened Mr Benfield as he did, he should not have used any degree of physical force on Mr Benfield. In some circumstances, those elements that the Applicant accepts would amount to very large elements of contribution, but, again, we take note of all the circumstances. On balance, having heard the Applicant and giving less weight to the evidence of the other three persons, that is to say the three whose statements have been put in but have not given evidence orally. We have concluded the appropriate deduction by which the Applicant's compensation should be reduced is one of 30%."

[9]That again was a conclusion to which the Tribunal was entitled to come. There was no error of law in that finding and as with the primary point, it seems to us that it leaves nothing which could properly be argued at a full hearing. In those circumstances we direct that the appeal be dismissed at this stage.