KITSONS ENVIRONMENTAL EUROPE LTD v MR B HENDRY [2008] UKEAT 0002_08_2406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0002_08_2406Case No Appeal No. UKEATS/0002/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
KITSONS ENVIRONMENTAL EUROPE LTDAPPELLANTMR B HENDRYRESPONDENT
Before
Lady Smith Miss J Gaskell Mrs G SmithDate 24 June 2008
[1]APPEARANCES For the Appellant MR R. BRADLEY (Solicitor) DLA Piper Scotland LLP Solicitors 249 West George Street Glasgow G2 4RB For the Respondent MR SANTONI (Solicitor) Messrs Freelands Solicitors 139 Main Street Wishaw Lanarkshire ML2 7AU SUMMARY UNFAIR DISMISSAL: Contributory fault Compensation for unfair dismissal. Claimant dismissed after he "lost it" and punched a broke a double glazed window at his place of work. Tribunal found he had contributed to his dismissal to the extent of 20%. Finding on contribution set aside on appeal as being without adequate reasons and remitted to the same tribunal to consider of new. THE HONOURABLE LADY SMITH INTRODUCTION This is an appeal by employers against that part of the judgment of an Employment Tribunal sitting at Glasgow, Chairman Mr B M McGuire, which reduced the claimant's compensatory award by 20 pr cent. The judgment was registered on 25 October 2007.[2]We propose to continue to refer to parties as claimant and respondents.[3]Before the tribunal and before us, the claimant was represented by Mr Santoni, solicitor. The respondents were represented by Mr I Skinner, solicitor, before the tribunal and by Mr Bradley, solicitor, before us.[4]In its judgment of 25 October 2007, the tribunal made a monetary award which included compensation of £7,682.64; a sum arrived at after making a deduction of 20 per cent for contributory conduct. BACKGROUND[5]The respondents are a company which specialises in the removal of hazardous substances from buildings, particularly asbestos. The claimant had been in their employment since about a year after leaving school apart from one year when he worked in a factory. He had worked as a site supervisor but by the time of his dismissal, he was in office based employment as a supervisor.[6]The circumstances which gave rise to the claimant's dismissal were as follows. On 20 December 2006 the claimant was at work. His relationship with his girlfriend was strained at that time and he kept receiving text messages from her, despite him requesting that she desist. He evidently did not switch off his mobile telephone and evidently kept reading the messages she was sending him whilst at work. He was under emotional strain. At about 11 am, immediately after the last of her calls to him, he, to use his own words "lost the plot" and lashed out. He punched and broke a double glazed window.[7]The claimant was cut and bleeding as a result and required to go to hospital to have his wounds attended to. He telephoned the Division Director, Mr Ferguson, before doing so and told him he had smashed a window and would return the following day. The next day he apologised to Mr Ferguson, told him he had been arguing with his girlfriend and also that his state of distress was added to because his grandfather was dying from cancer. Mr Ferguson invited him to apologise to the other members of staff who had been in the building (though not in the room he was in) at the time he broke the window and he did so. That evening, the claimant went to see his doctor, told him what had happened and the doctor referred him to a psychologist.[8]The claimant was subsequently suspended, disciplined and dismissed. The disciplinary hearing was conducted by the claimant's immediate superior, Mr Livingston. The complaint against him was:
"you lost your temper and control, which resulted in you punching and breaking a glass window in the Glasgow office"
. Mr Livingston had never conducted a disciplinary hearing before. He concluded that the claimant had become and would remain a threat to the safety of his colleagues and those with whom the respondents contracted. He concluded that his remorse and apologies were not genuine. He determined that dismissal was the only appropriate sanction. The claimant considered but did not proceed with an appeal. THE TRIBUNAL'S JUDGMENT[9]The tribunal found that the dismissal was substantively unfair because Mr Livingston had not approached matters with an open mind, had had no basis for concluding that the claimant was and would remain a threat to health and safety, had had no basis for concluding that his remorse and apologies were not genuine and had failed to take into account as mitigation that the incident was clearly an isolated one-off matter, that it was unpremeditated and out of character and that the claimant had gone to see his doctor, who had in turn referred him to a psychologist.[10]At paragraph 84, the tribunal dealt with contribution:
"…we were also satisfied that the claimant's conduct did in fact contribute towards his dismissal and that accordingly his basic and compensatory award should be reduced. We considered in all the circumstances that the claimant had contributed to his dismissal to the extent of 20% and that the basic and compensatory award should be reduced accordingly."
[11]No other reasons are given. RELEVANT LAW[12]Compensation for unfair dismissal is covered by s123 of the Employment Rights Act 1996 and it provides for a reduction in the event of an employee contributing to his own dismissal:
"123 Compensatory award (1) Subject to the provisions of this section … the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss in attributable to action taken by the employer. … (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
[13]Section 122(2) of the 1996 Act provides, similarly, for a reduction in the basic award on conduct grounds if the tribunal considers it just and equitable to do so.[14]Thus, in a case where an issue of contributory conduct arises, the tribunal requires to consider: "……..what, if any, part the employee's own conduct played in causing or contributing to his or her dismissal and then, in the light of that finding, decide what, if any, reduction should be made in assessment of his or her loss." ( Hollier v Plysu Ltd [1983] IRLR 260)[15]In Hollier , the Court of Appeal also referred, with apparent approval, to the following broad guidance that had been set out by the Employment Appeal Tribunal at paragraph 18, where reference is made to Mr

Justice Kilner Brown having divided cases on contribution into four general categories:

"..first, when the employee was wholly to blame and the reduction could be 100%; second, when the employee was largely responsible, and in that case, said the judge, nobody would quarrel with the figure of 75%. Third, there was the case in which both parties were equally to blame, and that was obviously his view when he gave his opinion that the reduction should be 50%. The fourth category was the one into which the majority of the Appeal Tribunal put this case, namely, the case in which the employee is to a much lesser degree to blame."
[16]As was explained in the case of Nelson v BBC [1979] IRLR 346, the tribunal requires firstly, to ask whether the claimant conducted himself in a culpable fashion, secondly to make a finding as to whether the matters to which the complaint relates were caused or contributed to by that conduct and thirdly, to make a finding that it is just and equitable to reduce compensation accordingly, to a specified extent.[17]It follows that, to comply with the requirement to give reasons ( Meek v Birmingham City Council [1987] IRLR 250 ; Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 reg 30(6)), a tribunal must explain its reasoning in respect of each of the above three matters. THE APPEAL Submissions for the Respondents[18]Mr Bradley, for the respondents, submitted that the tribunal had erred in law. This was a case in which the claimant had lost the plot. His conduct was a serious matter. No-one else was involved; it was his sole responsibility. The respondents had regarded it as dangerous behaviour. Both parties had lodged written submissions. The respondents had set out detailed submissions under the heading of contributory conduct, including references to Nelson and Hollier , including the guidance on percentages in the latter. The submissions had specifically referred to the need to give proper reasons. The tribunal had failed to do so.[19]In support of his submissions, Mr Bradley referred to the cases of Nelson and Hollier . He also referred to Pirelli General Cable Works Ltd v Murray [1979] IRLR 190 and to the comments made by the Employment Appeal Tribunal there at paragraph 16 to the effect that the tribunal needed to spell out why they determined on the particular percentage reduction and to spell out what was the claimant's contributory fault, the purpose of that being to enable parties:
" …to evaluate the propriety of their decision."
[20]Pirelli was, Mr Bradley pointed out, referred to by the Inner House in the case of Nairne v Highland and Islands Fire Brigade [1989] IRLR 366 , a case where they found themselves satisfied that the tribunal had failed to explain its reasons for fixing the degree of contribution by the claimant to his dismissal. Submissions for the Claimant[21]Mr Santoni submitted that the appeal should be refused. The tribunal stated that it had considered the written submissions and it was implicit in their finding that contribution should be fixed at 20 per cent that they had taken them and the findings in fact into account. DECISION AND DISCUSSION[22]We are persuaded that this appeal should be upheld.[23]We have already referred to the questions a tribunal requires to address when considering whether or not a claimant contributed to his dismissal and whether, in the circumstances, it is just and equitable to reduce the monetary award. It is inherent in that exercise that a tribunal explains how and why it reaches its conclusions. This tribunal did not do so. Paragraph 84 contains no explanation or reasons for the 20 per cent and we are not persuaded that it is implicit that the submissions and findings in fact were considered. Even if it was, that would not deal with the problem of explaining the reasons as to why on those facts and in the light of the submissions and the relevant law, 20 per cent was considered to be the appropriate reduction.[24]A tribunal considering whether a reduction for contribution by the claimant is appropriate requires to identify the conduct in question, consider its nature and decide whether the claimant was culpable in respect of it, to any extent. That will usually involve reaching a view as the characterisation of the conduct. In this case the respondents submitted that it was a blameworthy act of uncontrolled violence which could be characterised as dangerous. The claimant's written submission referred to it as being reckless behaviour. We are left in the dark as to the tribunal's view regarding the appropriate characterisation of the conduct, as the judgment does not mention it. That said, the tribunal did make findings in fact that the claimant "immediately lashed out" (paragraph 12) and that "his anger had built up to such an extent that he 'lost the plot' and punched the window", and in those circumstances we would have expected their starting point to be that the conduct was certainly blameworthy and could reasonably be characterised as dangerous.[25]The tribunal then required to consider whether there was a causal link between the conduct and the dismissal. There is no doubt that there was. The conduct was the only reason for the dismissal.[26]In these circumstances, the 20 per cent finding strikes us as surprisingly low. It may be that the tribunal has been influenced by the mitigatory factors relied on by the claimant, but if that is so it required to give clear reasons as to how, why and to what extent those subjective factors affected their considerations, always bearing in mind the starting point of admittedly reckless and violent voluntary conduct on the part of the claimant. It is not at all clear how or why such factors as could be relied on had or could have had the effect of bringing out only 20 per cent as the appropriate reduction. Disposal[27]There requires, in these circumstances, to be a remit to the same tribunal to consider of new the question of the extent to which the monetary award should be reduced in respect of the claimant's contributory conduct. We will pronounce an order to that effect.