BRITISH BAKERIES LIMITED v MR M L O'BRIEN [2002] UKEAT 1479_00_2604

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1479_00_2604

Case No Appeal No. EAT/1479/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

BRITISH BAKERIES LIMITEDAPPELLANT

MR M L O'BRIENRESPONDENT

Before

Mr Recorder Burke

Date 26 April 2002

[1]APPEARANCES For the Appellant MR A CLARKE QC (Of Counsel) Instructed by: Jacksons Solicitors Innovation House Yarm Road Stockson on Tees TS18 3TN For the Respondent P THORNTON (Of Counsel) Instructed by: Messrs Stevens & Bolton Solicitors The Billings Walnut Tree Close Guildford Surrey GU1 4YD MR RECORDER BURKE QC The Appeal This is an appeal by British Bakeries Limited, the employers, against the decision of the Employment Tribunal, sitting at Reading, chaired by Mr. Cleugh and promulgated with extended reasons on 25 th October 2000, that the employee, Mr. O'Brien, had been wrongfully dismissed.

[2]Mr. O'Brien had complained to the Tribunal that(i) his summary dismissal on 11 th May 1999 was unfair

(ii) that dismissal was wrongful i.e. in breach of his contract of employment

(iii) the employers had required him to work hours which were in breach of the Working Time Regulations 1999 and

(iv) the employers had discriminated against him as a disabled person contrary to the provisions of the Disability Discrimination Act 1995. The Tribunal rejected the complaints of discrimination and of breach of the Working Time Regulations; they found that Mr. O'Brien had been unfairly dismissed. From these decisions there is no appeal by either party. The sole subject matter of this appeal is the Tribunal's decision as to wrongful dismissal in favour of Mr. O'Brien. The Dismissal

[3]The employers are the second biggest baker in the United Kingdom, producing bakery products under such well known brand names as "Hovis", "Mothers Pride", "Nimble" and many others. They employ 7,500 people. Mr. O'Brien joined them in 1984; he was promoted through managerial ranks until he attained the position of Senior National Account Controller. That position, which he held at the time of his dismissal, was found by the Tribunal to be one level below Director grade and was obviously one of high responsibility; his remuneration package was said to be worth, all told, about £100,000 per year. He had never been the subject of disciplinary action. He was at the date of his dismissal 51 years old.

[4]On 6 th May 1999 Mr. O'Brien was under pressure to comply with the deadline for the supply of a new Hovis product to the supermarket group, Budgens - plainly an important customer. To do so he had to ensure the provision to Budgens of a sampler bag by 2 pm. By about 9.30 a.m. he had already had 6 calls from Budgens; the pressure was obviously considerable, although the Tribunal found, at paragraph 10 of the extended reasons, that the day was not exceptional by Mr. O'Brien's standards. As a result of these calls and the urgent need to provide the sampler bag, Mr. O'Brien left his office, went into the open plan office of the Marketing Department and up to the desk of Ms. North, who was the Hovis produce contact, to ask her about the sampler bag. The Tribunal found (at paragraph 23) that he "stormed into the Marketing Department to obtain the sampler bag". Ms. North was unable to assist. Mr. O'Brien therefore grabbed the telephone from her desk in order to call someone else who might be able to help but could not get the number he required. To put the facts wholly neutrally at this stage of our judgment, the telephone left Mr. O'Brien's hand, and the receiver struck Ms. North's cheek, Mr. O'Brien swore and went back to his own office.

[5]Later that day Ms. North made a complaint to the Human Resources Manager; and at 5.30 p.m. Mr. O'Brien was told by Mr. White, the Trading Director, that there was a serious allegation against him which needed to be investigated and that he was suspended on full pay.

[6]An investigation was carried out; a number of employees were interviewed and made statements. On 11 th May a disciplinary hearing took place. The Tribunal found (paragraph 16) that Mr. O'Brien was not told of the details of the allegations against him. Ms. North had on the evening of the incident made a manuscript note in which she stated that Mr. O'Brien had thrown the telephone at her and sworn at her, saying "fuck you" and that the receiver had clipped her cheek; in a subsequent written statement she had stated that Mr. O'Brien had said "fuck you, you are fucking useless" and that he threw the phone at her across the desk from which the receiver had bounced up and clipped her on the cheek. Mr. O'Brien was only told that the allegation against him was of "objectionable and threatening behaviour"; but after giving his version of what had occurred without knowing the details of the allegation, he was shown the statements of the witnesses, including no doubt that of Ms. North. He admitted that the telephone came out of his hand and that it may have hit Ms. North but denied throwing it at her. He admitted swearing but not at Ms. North; he said that he did so out of frustration and under his breath. Mr. White, who chaired the hearing, concluded that there had been gross misconduct and that there was no option but to dismiss Mr. O'Brien, and Mr. O'Brien was, therefore, summarily dismissed. An appeal against this decision failed; the dismissal was upheld; and thus Mr. O'Brien's employment was terminated. The Decision

[7]The Tribunal considered at considerable length and in considerable detail the nature of the employers' investigation and their conduct of the disciplinary hearing and appeal. They found (paragraph 22) that the disciplinary process and investigation were not full, thorough or fair; they were critical of the employers in numerous respects which it is not necessary for present purposes to set out. They also found that mitigating factors were ignored (paragraph 31). They concluded that the dismissal was procedurally unfair and that dismissal was outside the band of reasonable responses of a reasonable employer to the conduct of which the employers believed Mr. O'Brien to have been guilty (paragraph 33).

[8]For the purposes of their analysis of the unfair dismissal claim it was not necessary for the Tribunal to base their decision on findings as to what actually happened between Ms. North and Mr. O'Brien as opposed to what was the employers' belief, how that belief was arrived at and whether it was reasonable for the employers to dismiss on the basis of that belief. In analysing the process of investigation the Tribunal (paragraph 30) identified that the employers needed to consider two factual issues, namely how did the telephone come to leave Mr. O'Brien's hand and what language was used. So far as the telephone was concerned there were three possibilities :-(1) that it was deliberately thrown at Ms. North

(2) that it was thrown down onto the desk but without any intention of hurting Ms. North and

(3) that it was accidentally dropped - the last of these possibilities being Mr. O'Brien's version given to the employers. So far as the swearing was concerned, the issue was whether Mr. O'Brien had sworn at Ms. North, as she alleged, or whether he had simply sworn in frustration in a manner not directed at Ms. North.

[9]For the purpose of the Tribunal's analysis of the wrongful dismissal claim, it was necessary for them to consider and make findings as to what actually happened between Ms. North and Mr. O'Brien. The factual issues as to what happened which we have set out above and which the Tribunal had identified were broadly the same. It was, further, necessary for the Tribunal, on the basis of its findings as to what happened, to decide whether the employers were entitled to dismiss summarily.

[10]The Tribunal set out findings of fact in paragraphs 8 to 20 of the Extended Reasons. In paragraphs 22 to 34 the Tribunal made various further findings of fact, expressed their conclusions on the unfair dismissal claim and set out their reasons for their conclusions. At paragraph 36 the Tribunal turned specifically to the wrongful dismissal claim; because of its importance we think it right to set out that paragraph in full:- "36. The applicant also claims wrongful dismissal; a dismissal will be wrongful if the respondent is in breach of contract and it would be a breach of contract to summarily dismissal an employee for a disciplinary offence other than gross misconduct and in this respect, the Tribunal must determine whether or not the applicant's conduct on 6 May amounted to gross misconduct. The Tribunal is satisfied on the balance of probabilities that the applicant was clearly in an agitated state believing the Budgen's contract was in jeopardy and picked up the phone and when unable to locate the number of the person he wished to speak to threw the phone down and it bounced coming into contact with Ms. North. Had he thrown it at Ms. North intending to strike her an injury would have inevitably resulted but no such injury was seen by any witnesses, there is no evidence that she sought medical attention and nothing was recorded in the accident book. In considering the conflict of evidence between the applicant on the one part and all the other witnesses on the other part, the Tribunal is satisfied that there was no reliable evidence to demonstrate the applicant deliberately threw the phone at Ms. North. However the circumstances do not support the applicant's excuses that it was a total accident the phone coming out of his hand when he pulled the cord. The evidence strongly suggests that the applicant threw the phone down on the desk and not at Ms. North and indeed the respondent in their Notice of Appearance which would presumably have been drafted following consideration of the respondent's evidence states that the applicant swore obscenely at Ms. North and threw down the telephone receiver, the receiver hit Ms. North's desk and bounced up clipping her face. If he had thrown the telephone down it can hardly be said at the same time that he threw it at Ms. North and the Tribunal is satisfied that this is the correct sequence of events." The Tribunal's unanimous decision was that the dismissal was wrongful and in breach of contract. The Structure of the Decision

[11]Mr. Clarke QC on behalf of the employers drew our attention to the fact that the Tribunal's decision does not have the structure that might ordinarily be expected in, as he put it, modern times in that it does not in separate sections identify the issues, find the facts, set out the relevant legal principles and then apply those principles to the facts as found. In contrast to that expectation, Mr. Clarke suggested, this decision, while purporting to set out findings of fact from paragraphs 8 to 20, sets out findings of fact elsewhere e.g. paragraphs 23 to 32, 35 and 36 and contains within paragraphs in which facts are found narrative as to the parties' assertions and comments as to the Tribunal's views. Further, he pointed out, the decision contains passages in which a conclusion is first stated and then facts are found or reasons are given on which such conclusion is based; he identified paragraph 22 and the following paragraphs as an example. However, Mr. Clarke, fairly, did not suggest that the structure of the decision amounted to an independent ground of appeal; his submission was, firstly, that the absence of a properly structured approach on the part of a Tribunal may lead to incorrect analysis and incorrect application of principle to fact and is therefore unsatisfactory and, secondly, that in considering his individual criticisms of the Tribunal's decision on the wrongful dismissal issue we should be wary of importing into that specific decision, as seemingly contained in paragraph 36, passages from elsewhere which were not or may not have been intended by the Tribunal to form part of their decision on that issue and may not have been findings of act or reasons relevant to that issue.

[12]It is correct that this decision does not have the structure which many decisions of Tribunals now have and that there is not always in the decision a clearly expressed dividing line between findings of fact, the parties' assertions, statements of the Tribunal's views and their reasons for their views. We accept, too, that in these circumstances we should be – and we have endeavoured to be – careful, where necessary, to consider in context in which category a statement by the Tribunal comes. To give an example, we have already identified the issue as to whether Mr. O'Brien swore at Ms. North or merely used a swear word in frustration generally and not at Ms. North. In paragraph 7 the Tribunal said : "The Tribunal found the following facts" and paragraphs 8, 9, 10 and the first part of paragraph 11 consist, it is clear, of findings of facts. Accordingly it might be thought that in the last sentence of paragraph 11 the Tribunal were making a finding in the issue as to Mr. O'Brien's use of language; but when the whole paragraph is read and is considered together with the following paragraphs which set out what other employees including Ms. North said about the incident, it can be seen that the Tribunal were in that sentence not making a finding of fact but setting out Mr. O'Brien's version of what he said. On the other hand in our judgment the decision should be read as a whole; and minute analysis or a "fine tooth-comb approach" is no more appropriate in this case than in any other. Infelicities of structure may render a decision more difficult to follow; the crucial findings of fact and self-directness on the law may be more difficult to find; but if they are present in the decision and are sufficient to satisfy the obligation upon the Tribunal, pursuant to the well known principles in Meek. V. City of Birmingham District Council (1987 IRLR 250 per Bingham LJ at para 8), to inform the parties by their decision in relation to an issue which party has won or lost and why, the fact that the decision could have been better structured does not give rise to any valid attack by way of appeal upon that decision. The Disciplinary Code

[13]There was within the employers' Policies and Procedures Manual a part entitled "Disciplinary Code for Unrepresented Management". Section F of that Code is headed "Rules".

(a) to (k) a list of 11 categories of conduct which include :

"... (d) abusive, objectionable or threatening behaviour to employees, suppliers or customers of the Company .... . .. (i) unauthorized possession of Company property" and ended : . .. (l) or any other circumstances where you may be regarded as having repudiated your contract to such an extent that no alternative to summary dismissal is practicable."

At the foot of this section of the Rules, dealing with Gross Misconduct, the following appears in capital letters and bold type (which we have not reproduced):- "In all cases of disciplinary action, the need to satisfy the test of reasonableness will apply and mitigating factors will be taken into account."

[14]It is common ground between the parties that these Rules were incorporated into Mr. O'Brien's contract of employment and that they were put before the Tribunal on that basis.

[15]None of the members of the division of the Employment Appeal Tribunal concerned in this appeal has come across these terms or similar terms in a contract of employment or in a non-contractual disciplinary procedure before. On the employers' submissions they provide that any behaviour which falls within categories (a) to (l) is gross misconduct however trivial. On the other hand they provide that summary dismissal is only justified: (1) where the behaviour is such that it is unreasonable to expect the employers to accept or risk a continuation or repetition of the same or similar behaviour; (2) where it is reasonable to dismiss summarily; and (3) where the employers have taken into account mitigating factors. The Arguments

[16]Mr. Clarke's submissions, in summary, were that:-(i) the express terms of the contract were such that the Tribunal was not entitled to consider whether the conduct complained of was gross misconduct in the ordinary sense i.e. conduct so serious as to be repudiatory and to entitle the employer to dismiss summarily but was entitled to consider only whether the conduct fell within the contractual definition of gross misconduct.

(ii) the Tribunal did not direct itself to consider the employers' entitlement summarily to dismiss in the context of the material terms of the contract.

(iii) the Tribunal's decision as to summary dismissal was to be found in paragraph 36 alone, particularly in the absence of any cross reference in that paragraph to earlier parts of the decision.

(iv) the Tribunal in paragraph 36 did not make any clear finding as to whether Mr. O'Brien's acts in relation to the telephone amounted to gross misconduct and did not make any such finding at all as to Mr. O'Brien's language. (iv) if it was permissible to look outside paragraph 36, the absence of clear findings in paragraph 36 was not cured by findings in other paragraphs.

(v) the Tribunal did not evaluate the factors which went to mitigation and to reasonableness for the purposes of the issue of wrongful dismissal.

(vi) the Tribunal's decision on wrongful dismissal was perverse as set out in paragraphs 6.11 and 6.12 of the Notice of Appeal.

[17]Mr. Thornton's submissions in response, were, in summary, that:-(i) if the conduct complained of fell within the contractual definition of gross misconduct, it did not follow that summary dismissal was automatically justified, for two reasons. Firstly if such conduct fell within the contractual definition, that opened a gate to a finding of misconduct, but the fact finding Tribunal still had to consider whether the conduct was so serious as to be repudiatory and thus to justify summary dismissal; and, secondly, the Tribunal on the specific contractual terms in this case, had also to take into account the risk of repetition, mitigating factors and reasonableness.

(ii) the Tribunal had the contractual terms well in mind and correctly directed itself in accordance with them.

(iii) the decision had to be considered as a whole and that paragraph 36 should not be regarded as standing alone.

(iv) whether the conduct was sufficient to justify summary dismissal was a question of fact; the decision, viewed as a whole and not confined to paragraph 36 contained ample findings of fact on both Mr. O'Brien's handling of the telephone and his language.

(v) the Tribunal had considered and taken into account the factors which went to mitigation, risk of repetition and reasonableness and

(vi) the Tribunal having reached conclusions of fact in all those matters, with which conclusion we could not and should not interfere, the appeal should fail. Contractual Effect

[18]These submissions appear to us to raise at the outset a potentially important point of principle, namely whether, where types of conduct are defined in a contract of employment as entitling the employer to dismiss summarily, is it sufficient for the employer to prove that there has been conduct falling within the definition, however trivial that conduct may be or whether the employer needs also to prove that that conduct was repudiatory. We put the example during argument of a case in which an employee accidentally took home an office calculator and returned it next morning; he would have been guilty overnight of "unauthorized possession of company property" falling within category (i) of the list of conduct amounting to gross misconduct in this case, yet not of repudiatory conduct; examples of "objectionable" behaviour falling within category (d) which could not by any flight of fancy be regarded as repudiatory can easily be imagined.

[19]In this individual case the potentially harsh consequences of Mr. Clarke's argument in this issue are mitigated by the unusual provisions which we have summarized in paragraph 16 above; and if the Tribunal reached their decision, as in our judgment they did, on the basis of their conclusions upon the effect of those provisions, it is perhaps strictly unnecessary for us to resolve the issue of principle identified by the submissions put before us. It is tempting to refrain from doing so in particular because neither party put before us any authority which supported or indeed which undermined the arguments advanced. However, having regard to the importance of the point and the prominence of the submissions on this point of principle in the arguments overall, we feel it necessary to express our view which is that where, as in this case, a series of categories of conduct is set out under the heading of gross misconduct, it is not the law that any conduct which falls within one or more of these categories must be treated automatically as amounting to gross misconduct justifying summary dismissal in the absence of specific words making it clear that that will be so. In the absence of words from which it is plain that the intention of the parties was to achieve the effect for which Mr. Clarke argued, that effect is in our judgment not achieved and the Tribunal or court which is considering whether the summary dismissal is wrongful is not shut out from considering and, indeed, needs to consider whether the conduct relied upon is sufficiently serious to be repudiatory. The effect of setting out categories in the contract is to establish between the parties what kind of conduct may be regarded by the employers as gross misconduct; in the absence of sufficiently specific words, it is not to produce the result that conduct falling into one of the categories is automatically to be treated as sufficient to justify summary dismissal, however trivial that conduct may be.

[20]In Laws v. London Chronicle (Indicator Newspapers) Ltd. (1959) 2 AER 285, at p.288, Lord Evershed MR said :

"I do however think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract or one of its essential conditions ..."

The principle is similarly set out in what is perhaps the most recent relevant authority, Neary v. Dean of Westminster

(1999) IRLR 288

at paragraph 22, per Lord Jauncey of Tullichettle said:- "Conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment." We see no reason, in the absence of clear words to the contrary, why this well established principle should not apply in this case.

[21]Even if we are wrong in this conclusion, the particular terms in this case, including as they do the provisions we have referred to, produce a position more favourable to the employee than in an ordinary case where there are no contractual terms at all; at common law consideration of whether the conduct complained of was repudiatory would not involve consideration of overall reasonableness or of mitigating factors. Should Paragraph 36 be considered alone

[22]We propose to consider next the submission that the Tribunal's decision as to wrongful dismissal should be considered on the basis of paragraph 36 alone. It is clear that in that paragraph the Tribunal turned to examine the issue of wrongful dismissal on its own and that it did not expressly examine that issue elsewhere in its decision. However in our judgment it does not follow that in reaching the conclusion that the summary dismissal was wrongful - which conclusion is not expressly stated in paragraph 36 and is only to be found in paragraph 2 of the decision itself - the Tribunal should be taken to have relied only on what is set out in paragraph 36. Paragraph 36 is only part of the Tribunal's reasons for reaching their decision; the reasons should be considered as a whole. Findings of fact and expressions of view which are relevant to the issue of wrongful dismissal but which appear in the reasons before paragraph 36 (or, for that matter, after paragraph 36) are not, as we see it, to be ignored; they were in the mind of the Tribunal and formed part of the reasons given as a whole for the Tribunal's decision.

[23]We entirely accept Mr. Clarke's point that a finding or expression of view which was not relevant to the issue of wrongful dismissal could not be relied upon in support of the Tribunal's decision upon that issue. Thus, the Tribunal's conclusion that the disciplinary process was fundamentally flawed (paragraph 29), obviously of central importance to its conclusion as to unfair dismissal, might be said to have been irrelevant to the issue of wrongful dismissal in a standard case which did not contain a term incorporating reasonableness. However the findings of fact in paragraphs 8 to 20 form part of the reasons as a whole which, where relevant, should be taken as forming part of the reasons on the wrongful dismissal issue; and paragraphs 22 to 35 contain findings of fact and expressions of view some of which are relevant to and should be taken as forming part of the Tribunal's reasons on that issue. For example the finding of fact, at paragraph 23, that Mr. O'Brien threw the phone down - and therefore not at Ms. North - was one which the Tribunal should not be regarded as having forgotten when it came to consider wrongful dismissal - although, as it happens, the tribunal repeated its conclusion as to that in paragraph 36. There was, as we see it, no need for the Tribunal to recite again in paragraph 36 all relevant findings and expressions of views which had preceded that paragraph, nor was it necessary for the Tribunal to have incorporated them by express reference into that paragraph. As Bingham LJ said in Meek , at para.8:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which had led them to reach the conclusion which they do on these basic facts."

The Tribunal's Self-Direction

[24]We accept that it is not clear from paragraph 36 alone that the Tribunal directed themselves to consider wrongful dismissal on the basis of the contractual terms rather than the common law; but in our judgment it is sufficiently clear that they did so when the decision and reasons are looked at as a whole. Leaving on one side, as we do, the fact that Mr. Clarke's submission on this point was canvassed in the Notice of Appeal only in relation to perversity, we conclude without much hesitation that the Tribunal approached the issue on the basis of the contractual provisions, the application of which was common ground between the parties; the relevant terms were referred to frequently by the parties during the hearing and in submissions; and the Tribunal referred to them at paragraphs 16 and 31. When the Tribunal referred to gross misconduct in paragraph 36 they were, in our judgment, considering, as they were entitled to do, whether the conduct complained of amounted to gross misconduct in the sense of conduct so serious as to be repudiatory; but in their decision as a whole they were also taking into account the employers' entitlement to dismiss pursuant to those terms which was the basis upon which both sides had put their case before them. The Findings

[25]We do not accept that there is not a sufficiently clear finding of fact or conclusion as to Mr. O'Brien's actions in relation to the telephone. It is not, in our judgment, necessary to look far outside paragraph 36 for this purpose. The Tribunal there express themselves as satisfied:

"that there was no reliable evidence to demonstrate that (Mr. O'Brien) deliberately threw the phone at Ms. North. However the circumstances do not support (Mr. O'Brien's) excuses that it was a total accident ..."

This plainly amounts to a conclusion that he deliberately threw the phone down but that it accidentally struck Ms. North. However the Tribunal go on in the remainder of the paragraph to elaborate upon their reasons for considering that the correct sequence of events was that Mr. O'Brien threw the telephone down and not at Ms. North. This finding is consistent with the more succinctly expressed finding to the same effect in paragraph 23. The decision that the dismissal was wrongful necessarily connotes the Tribunal's conclusion that, in all the circumstances which they had set out earlier, the employers were not entitled summarily to dismiss on the basis of Mr. O'Brien's handling of the telephone.

[26]Mr. Clarke is manifestly correct in his submission that paragraph 36 does not refer at all to the language used by Mr. O'Brien. This may be because the Tribunal did not regard the language issue as being of the same importance as the handling of the telephone issue; Mr. Thornton tells us - and he was counsel for Mr. O'Brien throughout the lengthy Tribunal hearing - that the language issue did not become prominent until it emerged in cross-examination of the employers' managers that, at the end of their investigations, they did not reach any conclusion as to whether or not the telephone had been thrown deliberately at Ms. North; and it is surely only common sense that the Tribunal would not have considered the language, even taking the employers' case at its highest, to have been sufficient to justify the summary dismissal on its own if they concluded, as they did, that the telephone was not deliberately thrown at Ms. North.

[27]Thus the absence of any reference to the language in paragraph 36 itself may be satisfactorily explained; but in any event we accept Mr. Thornton's submission that there are sufficient findings of fact to be found elsewhere in the decision. In paragraph 23 the Tribunal set out findings of fact as to what Mr. O'Brien did; it said:

"He threw down the phone at the same time uttering expletives that ... included the word "fuck"."

At paragraph 24 the Tribunal said:

"All the witnesses heard the conversation saying (Mr. O'Brien) has a loud voice and always talks loudly but none are able to quote the obscene expletives and this lends some support to (Mr. O'Brien's) explanation that it was uttered sotto voce and not directed toward (Ms. North)."

[28]Mr. Clarke submitted that there was no reference in the decision to a change of emphasis in the employers' case, that the finding in paragraph 23 was incomplete and that paragraph 24 did not contain a finding at all. Change of emphasis or not, we take the view that paragraphs 23 and 24, particularly in the light of the description in paragraph 12 of what others in the marketing department office heard, amount to a finding that, although Mr. O'Brien had admittedly sworn, he did not swear at Ms. North as opposed to swearing out of frustration and not loudly but sotto voce. Thus we conclude that the Tribunal did make a finding as to the language and had that finding in mind in its conclusion that Mr. O'Brien's conduct was not such as to justify his summary dismissal. Reasonableness and Mitigation

[29]Not surprisingly, Mr. Clarke's argument on this issue was not that the Tribunal had erred in law by failing to consider reasonableness and mitigating factors in reaching its decision as to wrongful dismissal; it was that the Tribunal's failure to express any view on reasonableness and mitigating factors supported the employers' general submission that the Tribunal did not have the relevant terms of the contract in mind at all in making its decision as to wrongful dismissal in paragraph 36. He further submitted that if it was permissible to look outside paragraph 36 and to the passages in which the Tribunal considered reasonableness for the purposes of s.98(4) of the Act i.e. whether the dismissal of Mr. O'Brien was fair or unfair, it was necessary to examine those passages with caution because s.98(4), concentrating the focus of the Tribunal as it does in a conduct case on what was the employee's state of mind and state of knowledge in circumstances in which it was not necessary to prove the misconduct relied upon but only a reasonable belief that the employee has committed that misconduct, required a different approach to reasonableness from that which would apply in the case of wrongful dismissal.

[30]Mr. Thornton argued that it was relevant to consider the whole of the Tribunal's conclusions on the issue of reasonableness which went just as much to the wrongful dismissal as to the unfair dismissal claim. The words "the test of reasonableness", he submitted, imported into the decision as to whether summary dismissal was or was not lawful all elements of reasonableness, including elements which, in the absence of those words, would not, normally, be relevant to wrongful dismissal such as whether the employers had conducted a proper and satisfactory investigation. The only difference, he submitted, was that the Tribunal had to decide reasonableness on the basis of their finding of the primary facts as to what happened rather than only on the basis of the employer's belief as to what had happened. Alternatively, he submitted, the introduction of "the test of reasonableness" had the effect that summary dismissal would only be justified if, on the facts as found, the conduct complained of was such as so to undermine the relationship of trust and confidence that the employers should no longer be required to retain the employee in his employment.

[31]We prefer Mr. Thornton's submissions. It is, of course, correct, and was not in dispute before us, that a Tribunal in considering whether a dismissal for alleged misconduct was fair or unfair does not have to carry out the task of deciding whether the employee committed the misconduct alleged (although they may do so and, where there is an allegation of contributory fault on the part of the employee, may have to do so) but has to decide whether the employers reasonably believed that he had committed that misconduct and whether it was fair to dismiss on the basis of the employers' belief and knowledge. That the Tribunal plainly recognized this difference can be seen by comparing paragraph 23 ("it was reasonable for Mr. White to conclude that there was an element of misconduct on the part of the applicant") with paragraph 36. However, in our view, the words "the test of reasonableness" are sufficiently broad to entitle - and indeed to require - the Tribunal to consider, in deciding whether a dismissal is wrongful, all facts and matters which could sensibly be relevant to the question - in all the circumstances was it reasonable for the employers summarily to dismiss? The difference between the task in relation to the primary facts facing the Tribunal in considering unfair dismissal and that facing the Tribunal in considering wrongful dismissal does not, in our judgment, limit the factors which the Tribunal may properly regard as going to the issue of reasonableness once that element is introduced into wrongful dismissal. Thus, procedural defects on the part of the employers, for example failing to provide the employee with a right of appeal or a fair hearing, might be relevant to "the test of reasonableness" even though the Tribunal has concluded that the conduct complained of had been committed; in such circumstances the Tribunal might conclude that, had factors relating to the seriousness of or circumstances of the misconduct emerged from a fair hearing or an appeal, the employers would not have dismissed and, therefore, that it was unreasonable to dismiss for that misconduct.

[32]The Tribunal plainly did direct themselves to consider reasonableness. At paragraph 31 they said:

"Such dismissal must still be reasonable and the Tribunal has referred itself to the case of Taylor v. Parson Peebles NEI Bruce Peebles Ltd. (1981 IRLR 119) where the EAT held that the proper test was 'what the reaction of a reasonable employer would have been to the circumstances; that reaction would have taken into account the long period of service and good conduct which the appellant was in a position to claim'."

While Taylor v. Parson Peebles was an unfair dismissal case and the Tribunal was, in paragraph 31, primarily considering unfair dismissal, the principle applies equally to the test for wrongful dismissal which, because of the unusual wording of the contractual provisions, applies in the present case. While the Tribunal does not refer to reasonableness in paragraph 36, there is in our judgment no basis for concluding that, in their decision as to wrongful dismissal, they did not have reasonableness in mind; they had been dealing with the issue of reasonableness at length in paragraphs 23 to 35; for the reasons which we have already set out, the decision should be read as a whole; and when it is read as a whole, the Tribunal's views as to reasonableness – namely that it was not reasonable to dismiss at all – emerge with clarity and should be taken to have formed part of the process by which the Tribunal reached their conclusion as to wrongful dismissal.

[33]We take the same view as to mitigating factors. At paragraph 31 the Tribunal expressly addressed themselves to mitigating factors and found that there were numerous such factors which they identified, namely that(i) Mr. O'Brien had worked for 14½ years for the employers without previous complaint or disciplinary procedure

(ii) Mr. O'Brien's conduct occurred in the course of doing something in the employers' interests

(iii) there was evidence that Mr. O'Brien was under considerable pressure at the time. At paragraph 35 the Tribunal repeated some of the above and referred to further mitigating factors, namely

(iv) that Mr. O'Brien worked hard, put in many hours and was at times under-resourced

(v) that he had since the disciplinary hearing made a written apology to Ms. North. We see no basis for concluding that, in reaching its conclusion as to wrongful dismissal, the Tribunal did not take into account, as the contractual provisions required, these mitigating factors.

[34]Mr. Clarke submitted that it was the Tribunal's duty to set out and evaluate the mitigating factors and the factors which went to reasonableness and that the Tribunal did not do so. Mr. Clarke accepted that, by this, he meant that the Tribunal were under a duty to identify the factors which they regarded as relevant and to demonstrate that they had taken them into account. We take the view that, in the passages to which we have referred, the Tribunal did identify the factors which they regarded as relevant to reasonableness and as mitigating factors and made it clear that they had taken these factors into account. The weight or value which they gave to those factors was a matter solely for the Tribunal as the fact-finding body.

[35]We have not sought in this judgment to deal separately with the risk of repetition element in the contractual provisions. Mr. Clarke addressed no separate argument upon that element. We see no basis for believing that the Tribunal left it out of account. The Tribunal do not refer to it expressly, probably because it was not the subject of particular focus during the hearing; in the light of their findings as to what happened and as to reasonableness and the mitigating factors, it was not in our judgment necessary for the Tribunal to give it separate consideration. Perversity

[36]The employers' case as to perversity can be shortly stated. It is that the conclusion that the dismissal was wrongful, in the light of the Tribunal's finding that Mr. O'Brien had thrown down the telephone in such a way as to cause part of it to hit Ms. North and of the undisputed fact that Mr. O'Brien had used foul language, was perverse because(i) no Tribunal properly directing itself could have reached that conclusion,

(ii) that such conduct, even if it did not entitle the employers to dismiss summarily on the basis that it fell within one of the specified categories of gross misconduct defined in the contractual terms, was plainly conduct which seriously undermined trust and confidence between employer and employee and thus justified the summary dismissal.

[37]The Tribunal was entitled and was indeed bound, having regard to the contractual terms, to consider whether it was reasonable for the employers to dismiss summarily for the conduct which the Tribunal found to have occurred and to take into account mitigating factors. In our judgment it cannot be said that no reasonable Tribunal which took into account the full facts of this case and considered whether, in all the circumstances, it was reasonable to dismiss could have reached the conclusion that summary dismissal or indeed dismissal at all was not justified. The employers' argument necessarily involves the assertion that, having regard to all the circumstances, the only decision which any reasonable and properly directed Tribunal could reach in the light of their findings as to Mr. O'Brien's conduct was that summary dismissal was justified; but in our judgment, leaving aside the test of reasonableness and the mitigating factors, once the Tribunal had concluded that Mr. O'Brien did not deliberately throw the telephone at Ms. North, it was open to the Tribunal to find that summary dismissal was not justified; even more so was it open to them so to conclude when the test of reasonableness and the mitigating factors were taken into account; indeed it would probably have been open to the Tribunal so to conclude even if they had reached conclusions as to Mr. O'Brien's conduct which were more adverse to him. However that may be, we have no hesitation in concluding that, on the findings of fact which the Tribunal made and in particular on the finding which the Tribunal made as to the handling of the telephone, their conclusion that the dismissal was wrongful was not one which no reasonable Tribunal could reach and was, therefore, not perverse. Result

[38]For the reasons we have set out, this appeal fails and must be dismissed. __