FROGMORE INVESTMENTS LTD APELLANTS v FROGMORE INVESTMENTS LTD APELLANTS CHRISTOPHER J PARKINSON [2004] UKEAT 0027
[1]APPEARANCES For the Appellants Mr G Coll, Advocate Instructed by- Messrs Burnett & Reid Solicitors 15 Golden Square ABERDEEN AB10 1WF For the Respondent Mr D Reekie, Solicitor Of- Quantum Claims Employment Division 70 Carden Place Queens Cross ABERDEEN AB10 1UP LORD JOHNSTON: This is a limited appeal at the instance of the original respondents in relation to certain findings of the Employment Tribunal with regard to a claim by the now respondent, then applicant, for unfair dismissal from his employment with the appellants.[2]No appeal is taken against the substantive finding. The only two issues being focussed in the grounds of appeal, are, firstly, an issue as to an alleged error in calculating compensation, and, secondly, with regard to the finding of 15% contributory fault on the part of the employee, now respondent.[3]The first point was conceded at the outset, and, indeed, had been conceded for some time and we accordingly simply record that there requires to be issued in this case a Correction Certificate reducing the figure that was awarded by some £1,540, being the sum conceded by the now respondent as being the error.[4]With regard to the finding of 15% contributory fault, Counsel, appearing for the appellants, sought to argue that having regard to a number of flawed pieces of reasoning by the Tribunal, their assessment of 15% fell into the same category and should not be upheld. He argued for a finding of at least 25%. To this end, he launched into a discussion as to whether or not the Tribunal properly should have made no deduction in respect of the likelihood of dismissal in any event given their finding of unfair procedures. We do not consider this issue to be a relevant approach having regard to the fact that the Tribunal also found, and, were plainly entitled so to do, that on any view of the matter the conduct complained of, on the day in question, of the employee, would not reasonably warrant dismissal under any circumstances.[5]This therefore leaves us to assess the position of 15% as an independent issue.[6]As Mr Reekie, appearing for the respondent, pointed out, this Tribunal has said on a number of occasions that it will not interfere with findings of contributory fault which are issues of fact unless the Tribunal below has manifestly fallen into error of law. We were referred to a decision of this Tribunal being the most recent, namely, Wincanton Trans European Ltd v Ian Whiteford EATS/0022/03 and the cases cited therein.[7]In essence, Mr Coll's submission was that the position relating to 15% was perverse but in seeking, initially, at least, only an increase to 25%, we consider that submission in itself is fatal to his position because for a finding of contributory fault to be perverse it must, in our opinion, be at least 50% and probably 75% at minimum out, in respect of what should be the proper assessment. That does not correlate to the difference between 15% and 25%.[8]In any event, while there is some illogicality in any finding of contributory fault at all, given the view of the Tribunal as to the inevitability of an unfair dismissal in the absence of a cross-appeal, we will simply conclude that the Tribunal were entitled to reach the view that the conduct of the employee, although blameworthy, was fairly minimal as regards substance.[9]In these circumstances this appeal falls to be dismissed.[10]We will, however, remit the case back to the same Employment Tribunal for the issue of a Correction Certificate. We were also informed that a figure of £7,500 inclusive of interest has been paid although we were not given a date and that will no doubt be taken into account in any recalculation of the award that ultimately should be made.