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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rentokil Ltd v Frater-Simpson [1993] UKEAT 135_93_2907 (29 July 1993) URL: http://www.bailii.org/uk/cases/UKEAT/1993/135_93_2907.html Cite as: [1993] UKEAT 135_93_2907 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MORISON
MR T S BATHO
MR D O GLADWIN CBE JP
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MISS J CONNOLLY
(of Counsel)
Rentokil Ltd
Legal Dept
Garland Road
East Grinstead
West Sussex RH19 2DR
For the Respondent MR J SUDDABY
(of Counsel)
Plumstead Community Law Centre
105 Plumstead High Street
Plumstead
London SE18 1SB
MR JUSTICE MORISON: Mrs. Frater-Simpson's application for unfair dismissal against Rentokil Ltd, her former employers, was successful. She was awarded £3,000-odd compensation on the basis that she herself was 25% to blame. The employers have appealed that decision, which was entered in the register on 16 October 1992. A matter of days ago they informed this Appeal Tribunal that they would only be pursuing their appeal on the question of contribution. As a result of the delay in having this matter brought before us, Mrs Frater-Simpson has been kept out of her money. Fortunately, she is now entitled, we think, to interest on the sum that was awarded.
She was employed by Rentokil as their site manager in charge of cleaning at Marks & Spencers' Woolwich site. She became involved in an argument with the Marks & Spencer manageress, a Mrs Wright, on 25 November 1991. She felt that she had been humiliated in front of those whom she was responsible for supervising and she complained to Rentokil about it and wrote a letter to Mrs Wright, accusing her of unprofessional behaviour. Mrs Wright then took umbrage and said that she would not have the applicant on site again and she was suspended. Whilst Mrs Wright was prepared to relent if the applicant apologised, the applicant was not prepared to apologise and she was dismissed, in effect, for refusing to apologise.
The Industrial Tribunal, in upholding her complaint, said that she had not been given a chance to put her side of the story about the incident. They said that a reasonable employer would at least have investigated and discussed the matter with the employee before making a decision to dismiss, that the applicant should have been warned specifically that if she did not apologise she would be dismissed, they failed to discuss alternative locations for her to work at, they failed to hold disciplinary proceedings in a proper place and in a structured atmosphere and environment. Such meetings as there were took place in the presence of the applicant's children, either in a fast-food outlet or in the street outside.
The Tribunal concluded that the dismissal was manifestly unfair and we agree. In our view there never was a point of law raised on the appeal against the finding of unfair dismissal. The Employment Appeal Tribunal were minded to dismiss the appeal on that ground but were dissuaded from doing so by Rentokil's Legal Department, who wrote suggesting that the decision on unfair dismissal was perverse.
It is clear, as they now accept, that such a contention is manifestly not arguable. The only point that has been argued by Miss Connolly, with her customary skill, on behalf of Rentokil is that the reduction in compensation which the Tribunal made was wrong. It was wrong for a number of reasons, firstly, because it did not reflect the full extent of the unreasonable behaviour on the part of Mrs Frater-Simpson, which was causative of her dismissal and, secondly, it was wrong because relative to the employer's own acts of default her share of responsibility was manifestly more than 25% .
We disagree. We can deal with both points shortly. So far as the first point is concerned, the Industrial Tribunal deal with the question of contributory fault in paragraph 17.(ix), which reads as follows:
"in writing a letter which could have endangered the Respondents' relationship with their client after being told to 'leave it', Mrs Frater-Simpson contributed 25% to her own dismissal."
As we have been told and as one would imagine in a case such as this, there was considerable debate before the Industrial Tribunal as to what would be the appropriate percentage reduction if they were minded to make one. On the one hand it was being submitted by the employee that 25% or 33% at the very most would be appropriate and, on the other hand, on behalf of the employers, it was suggested that 50% or more would be appropriate. The Tribunal had to choose between the two. The question as to whether a percentage reduction is 25%, 33 1/3% or 50%, is essentially a judgment which they themselves have to make and it is very unlikely, on an appeal to this Tribunal, which can only deal with points of law, that any point of law will be shown to have existed. Despite the way that the argument was put, we think it unrealistic to say that the Tribunal did not have in mind and did not take into account, the fact that it was not just the writing of the letter but also that its terms were rude and that she refused to apologise. It seems to us that those were all part and parcel of the case as it was presented and argued before them and the Industrial Tribunal's decision is not to be subjected to close critical scrutiny: Industrial Tribunals are quite capable of deciding these issues without having to go through an elaborate process of setting out each and every factor which they have taken into account and trying to pass judgment upon it relative to the employers' own fault.
It seems to us also that the argument that the use of her name and title on the letter had somehow aggravated her blameworthiness, was wholly misconceived and the Tribunal were perfectly entitled to reject it. The fact that Mrs Frater-Simpson on this letter had described herself as area manager instead of site manager, is a point of no significance whatever. The letter was addressed to Mrs Wright, who would have known perfectly well what position Mrs Frater-Simpson actually held. This is a classic example, it seems to us, of personnel at Rentokil having their noses put out of joint by Mrs Frater-Simpson having misdescribed her position in this letter. They also object to the use of the title Rentokil Plc. This letter was written on Mrs Frater-Simpson's own writing paper, containing her own domestic address, and it seems to us perfectly reasonable that she should indicate precisely who she was if there was going to be any doubt about it, by referring to herself in the way that she did and by referring to the company which employed her, since the letter was written in connection with an event that occurred while she was employed.
Accordingly, we see nothing wrong with the Tribunal ignoring that factor altogether,
if that is what they did. Accordingly, it seems to us, that there is no ground for thinking that the Tribunal have misdirected themselves or failed to take into account relevant matters in paragraph 17.(ix).
As to the argument that they have failed to weigh the respective faults of the employee and the employer, it seems to us that on the facts of this case, 25% was a perfectly reasonable decision for them to have arrived at relevant to the employers' own conduct. Mrs Frater-Simpson was never told that if she did not apologise she would be dismissed, with the implication that if she did apologise, she would not be. It seems to us perfectly clear in those circumstances that her dismissal was largely attributable to the unfair way in which the employers dealt with this matter. Proportionate to her blame we would not disagree with the proportions 25%, 75%.
Accordingly, despite the way the case has been argued, succinctly, on behalf of Rentokil, we are quite satisfied that this is not a case in which we could or should interfere. Accordingly, we will dismiss the appeal.