INSTRUMENT TRANSFORMERS LTD v DARREN KEYES [2004] UKEAT 0001_04_0107
[1]APPEARANCES For the Appellants Mrs S Stark, Advocate Instructed by- EEF Legal Section Broadway House Tothill Street LONDON SW1H 9NQ For the Respondents Mr M O'Hanlon, Solicitor Of- Messrs Mains Solicitors 55 Strathmore House EAST KILBRIDE G74 1LS SUMMARY UNFAIR DISMISSAL Reason for dismissal – fairness - compensation LORD JOHNSTON: This is an appeal at the instance of the employer against a decision of the Employment Tribunal sitting in Glasgow that the respondent employee had been unfairly dismissed from his employment.[2]The background to the matter is, that, in a comparatively short time of his employment, the respondent had run up a disciplinary record and had had a number of warnings which were still extant at the time of the incident which led to his dismissal.[3]The decision of the Tribunal is in the following terms:- "In considering the incident of 6 June which gave rise to the dismissal we were of the view that it was trivial in nature. Our only account of it was from R1 + 2 (and the applicant). We could not understand the reason for Mr Simpson being "at boiling point" when he was seen by Mr Lockhart. There was no evidence from Mr Simpson himself. In view of our understanding of the incident itself being trivial we were unable to see that dismissal fell within the reasonable bands of responses to it. Moreover, in reaching the decision to dismiss, Mr Lockhart took into account events subsequent to the final warning. It did not seem to us that these events as recorded in R6-9 were disciplinary in nature. Indeed R6 was expressly not a disciplinary matter. It follows that we thought that Mr Lockhart had misdirected himself in taking these into account. Consequently, we found the dismissal to have been unfair."[4]Mrs Stark, Advocate, appearing for the appellants, submitted that the Tribunal had misdirected itself by considering only the last incident in relation to the issue of dismissal. It was perfectly clear, she submitted, under reference to document R11, that the employer considered the entire track record, and, that the incident in question which the Tribunal had regarded as trivial in itself, was merely the last straw.[5]Mr O'Hanlon, appearing for the respondent employee, argued that the matter was one for the industrial jury, as the Employment Tribunal's task effectively was, and they had reached a decision they were entitled to make upon the evidence.[6]We might have been persuaded that was so, save we were shown a document, R11, to which we have made reference, namely, the reasons why the employer at the time gave for the dismissal. It is perfectly apparent to us that the employer was taking into account the entire track record of this employee, which could be said to be dismal, and, that, accordingly, the final straw argument was one which materially weighed with the employer.[7]In these circumstances we consider this Tribunal misdirected itself in reaching the conclusion that it did.[8]Furthermore, bearing in the mind the narrow base upon which this Tribunal may overturn and substitute a decision of the Employment Tribunal, we are satisfied under reference to the relevant document that the only decision that was reasonably open to the Tribunal was that this employee, given his track record, had been fairly dismissed against the background of it.[9]A separate issue arose as to the way the Tribunal had approached compensation. All we need say in this respect is that we consider the approach of the Tribunal was wholly inadequate, it has failed to give adequate reasons, intertwining mitigation and contribution for the arbitrary reduction of 50%. If, therefore, we had been with the respondent in this matter, we would have ordered a re-investigation to the question of contribution and mitigation.[10]However, for the reasons we have already given, this appeal will be allowed, the decision of the Tribunal quashed and the application for unfair dismissal refused.