M & M ROAD SURFACING v GEORGE JACK [2004] UKEAT 0014_04_2405

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0014_04_2405

Case No Appeal No. EATS/0014/04

Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF

Between

M & M ROAD SURFACINGAPPELLANT

GEORGE JACKRESPONDENT

Before

Lord Johnston Miss J A Gaskell Miss G B Lenaghan

Date 24 May 2004

[1]APPEARANCES For the Appellants Mr A Reynolds, Solicitor Of- Messrs Connell & Connell Solicitors 10 Dublin Street EDINBURGH EH1 3PR For the Respondent Mr B Nelson, Solicitor Of- Messrs McKay Norwell Solicitors 5 Rutland Square EDINBURGH EH1 2AX SUMMARY UNFAIR DISMISSAL Whether on the facts contributory negligence should be established and on damages assessment of future loss. LORD JOHNSTON: This is an appeal against a decision of the Employment Tribunal sitting in Edinburgh which upheld the respondent's claim for unfair dismissal and made a monetary award.

[2]The appeal is limited to the issue of contributory negligence and the issue of future loss of earnings.

[3]The background to the matter is that the respondent employee was dismissed by the appellants subsequent to damage being caused to an engine of a lorry with which he was concerned in his employment. The main allegation on behalf of the employer was that the employee had contributed to his own dismissal by the way he had handled the lorry when it was obviously damaged or becoming more damaged.

[4]The critical findings with regard to unfair dismissal by the Tribunal are as follows:- "Mr McGowan's approach to the whole matter can, however, be understood by having regard to his misapprehension that he was entitled to dismiss the applicant with impunity. He considered him to be a new start and therefore had no rights anyway. He had made up his mind to dismiss the applicant prior to there being any enquiry with him. On any view of the matter that was unfair and unreasonable. That is so even where one has regard to the additional guidance on the Burchell guidance provided by the cases referred to above. In reaching its decision the Tribunal was throughout conscious of the importance of its not substituting its own views for that of the respondents. The Tribunal recognised that the issue before it was not whether further investigation might reasonably have been carried out but instead whether the investigation which had been carried out could be regarded by a reasonable employer as adequate. For the reasons the Tribunal has given it did not consider that the investigation which had been carried out could be regarded by a reasonable employer as adequate. In reaching its decision that the applicant's dismissal was unfair the Tribunal took into account whether or not, on the balance of probabilities, the respondents would have dismissed the applicant anyway if they had given him the opportunity to state his case. It was suggested that the respondents would have taken the decision to dismiss the applicant anyway even if they had listened to him. The Tribunal is not satisfied, on the balance of probabilities, that had the applicant been given the opportunity to properly put his case (as opposed to the respondents simply ignoring what he said) that, on the balance of probabilities, the same outcome would have occurred. The applicant had put forward an explanation which could well exculpate him from guilt and therefore, had been listened to, a different result may have followed, per Gray Dunn & Co Limited v Edwards [1980] ILR 23. The Tribunal therefore concluded that the applicant's dismissal was both procedurally and substantively unfair. So far as the issue of contribution was concerned the Tribunal did not accept the argument that the applicant was culpable or that he contributed towards his dismissal by failing to give an adequate explanation to the respondents. The Tribunal has found that the applicant did give an explanation but that any misunderstanding of the explanation lay on the part of the respondent. It was a consequence of Mr McGowan's own failures by deciding, in advance, that the applicant was responsible for the damage to the engine. In those circumstances, therefore, the Tribunal did not consider that it was just and equitable to reduce any award of compensation to the applicant on the ground of contributory fault. Similarly, as the Tribunal concluded that the dismissal was both procedurally and substantively unfair, the Tribunal did not consider that it was just and equitable to apply a deduction to any compensatory award as per Polkey v EA Dayton Services Ltd

[1988] ICR 142

[5]From this passage it will be immediately obvious that the primary concern of the Tribunal was the way the matter was handled by the employer, not least, with regard to lack of investigation and a fair hearing.

[6]In these circumstances it seems to us that the submissions made to us on behalf of the employer, to the effect that the employee must have known that the engine was being damaged and he contributed to it, are nothing to the point, because, upon the findings, the employee sought to give an explanation which was simply not accepted, nor was he given, on the findings, an adequate opportunity so to do.

[7]In these circumstances we do not consider that whether or not the employee contributed to the damage to the engine was anything to the point. Essentially, at the end of the day, the dismissal was held to be procedurally unfair and we therefore consider the Tribunal were more than entitled to make no deductions for contributory negligence.

[8]With regard to the secondary issue of future loss, the submission made on behalf of the employer, was to the effect that the Tribunal had no reason to take into account the so-called "seasonality" of the employee's employment, given particularly that he worked continuously for 12 years with the appellants. No proper enquiry, it was submitted, had been made into this aspect of the matter by the Tribunal.

[9]Again, we consider this is nothing to the point. What the Tribunal had done in this respect, is simply to deal with the matter as regards mitigation of loss against a background of the likely time that the employee would obtain employment. This, they have assessed, on a basis which we consider they are more than entitled to do and the issue of seasonality is effectively nothing to the point.

[10]For these reasons this appeal is dismissed on both counts.