Appeal No. EAT/262/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23rd March 1993

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MR R H PHIPPS

	MR G H WRIGHT MBE

A H CARTER & SONS	APPELLANTS

MR H CLIFF	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR H DAVIES
(Of Counsel)
Roythorne & Co
10 Pinchbeck Road
Spalding
Lincs
PE11 1PZ

For the Respondent	MR J STOBART
(Of Counsel)
Mossop & Bowser
11 West End
Holbeach
Spalding
Lincs
PE12 7LP

	JUDGE J PEPPITT QC:  The Appellants, A H Carter & Sons, appeal against two decisions of the Norwich Industrial Tribunal.  By the first dated 12th April 1991, the Tribunal held that the Respondent, Mr Cliff, had been unfairly dismissed by the Appellants and that his compensatory award should not be reduced under Section 74(6) of the Employment Protection (Consolidation) Act 1978 by reason of his actions.

	By the second dated 1st July 1991 the Tribunal assessed that compensation at £14,445. 

	The appeal is limited to the Tribunal's finding adverse to the Appellants under Section 74(6) of the Act and its consequent effect upon the award of compensation.

	It was argued on the Appellants' behalf that the Tribunal failed to apply the correct principles when considering under that Section the Respondent's contribution to his dismissal, or alternatively if they did, their finding that the Respondent did not contribute to the dismissal was perverse.

	The hearing before the Tribunal extended over two days and nine witnesses were called.  Both parties were legally represented.  The case turned upon the Respondent's employment as a foreman at the Appellants' Tydd Manor Farm in Norfolk.  The farm comprises some 2,500 acres.  The Respondent started with the Appellants as a farm-hand in 1954 and was promoted to foreman in 1977, a post he held until his dismissal in October 1990.  He was 62 years old at the date of the hearing.

	The Respondent was dismissed by a letter of 3rd October 1990 following an incident involving another employee of the Appellants, a Mr Reed.  The Tribunal accepted Mr Cliff's evidence of the incident.  There had been an altercation between the two men on the 2nd October 1990, which culminated in Mr Reed punching the Respondent as he stood holding his bicycle, about to go home.  A brief scuffle followed before the parties separated.  But the Appellant's letter of dismissal, the following day, was more widely based.  It read as follows:
"With regret I find your recent action leaves me no alternative but to give you immediate dismissal.  After many warnings and much advice you still seem incapable of treating the farm staff in a considerate and humane manner.  For the sake of farm morale I cannot, as manager, allow this state of affairs to continue.

Please find enclosed 12 weeks' pay in lieu of notice plus 1 week's pay for week ending 3rd October, 1990 also your P45."

The writer of this letter was Mr Horsfall, the Appellants' Farm Manager.

	There was evidence before the Tribunal that over a period of years the Respondent had been involved in a number of arguments and disputes with those working under him in the course of which strong language had been used on both sides.  There was also evidence that the Respondents had on several occasions received oral warnings or advice from Mr Horsfall about his part in these arguments and disputes and in 1987 had received a written warning to the same effect.  But as the Tribunal found Mr Horsfall had no complaint of the performance by the Respondent of his duties as Farm Manager.  It was his conduct towards fellow employees of which complaint was made.

	In the Tribunal's decision only three specific findings of conduct by Mr Cliff relevant to Section 74(6) were made by the Tribunal.  The first was in relation to the incident of the 2nd October 1990, which we have described, and which led immediately to Mr Cliff's dismissal.  The relevant findings on this issue appear at paragraphs 5 (xii) to 5 (xv) of the judgment.

	Secondly, the Tribunal found that in August 1990 there had been a severe disagreement between the Respondent and Mr Reed which Mr Horsfall viewed seriously enough to tell the Respondent to "cool it".  That finding is at paragraph 5 (xii) of the decision. 

	Thirdly, at paragraph 14 of the decision the Tribunal found that the Respondent had behaved in a robust and firm way, that on occasion he had sworn, had lost his temper and had become extremely angry.

	For the rest the Tribunal made no specific findings contenting themselves with a general comment at paragraph (ix) of the decision, that sub-paragraph reads as follows:
"A number of incidents took place, commencing in November of 1989 and culminating in the dismissal.  It is not necessary - for the reasons which I shall give shortly - for us to go into the precise detail of each of these incidents.  It is not for the tribunal to decide the rights and wrongs of what happened in the incidents themselves but suffice to say that, in November of 1989, there was a severe disagreement between Mr Horsfall and the applicant because of complaints that the applicant had been abusing the staff by using unnecessarily oppressive and vindictive language in rebuking them for what Mr Horsfall regarded as relatively minor shortcomings."

We stress the words contained in that passage.  It is not necessary for the reasons which we shall give shortly for us to go into the precise detail of each of these incidents.

	There was no reference to contribution by the Respondent until the final paragraph of the judgment, paragraph 15 in which the Tribunal said:
"For those reasons and in all the circumstances, the tribunal have come to the unanimous decision that the dismissal was unfair and that, in all the circumstances, the applicant did not in any way contribute to the decision which was taken against him."

	Against this background Mr Davies referred us to Section 74(6) of the Act and the three stage process of its application explained by the Court of Appeal in Nelson v. British Broadcasting Corporation No.2 [1980] ICR 110.  
For the purpose of this judgment it is necessary for us to read only paragraph 2 of the holding on page 111.
"That before an order for contribution could be made under paragraph 19 (3) of Schedule 1 to the Act of 1974 [Section 74(6)'s predecessor] the industrial tribunal had to be satisfied that the conduct of the employee was culpable or blameworthy in the sense that, whether or not it amounted to a breach of contract or tort, it was foolish or perverse or unreasonable in the circumstances, secondly, that the conduct caused or contributed to the dismissal and, thirdly, that it was just and equitable to reduce the assessment of the employee's loss; . ."

	The Tribunal, said Mr Davies, appeared not to have gone through this process in the light of the cryptic manner in which they disposed of the question under Section 74(6) of the Act in the last sentence of its judgment.  We cannot accept this submission.  The fact that a tribunal does not set out stage by stage the course of its deliberations does not without more mean that any relevant stage was omitted.  It is not appropriate to subject tribunal's decisions to a minute analysis in the hope of discovering an error of law based on an omission rather than a misdirection.  In our judgment there is nothing in the decision which satisfies us that the Tribunal did not apply the correct test to the issue under Section 74(6) of the Act.  Mr Davies' alternative submission was that if the Tribunal did in fact apply the correct test the decision was perverse.  The facts found by the Tribunal, he said, were of culpable or blameworthy conduct by the Respondent in at least three respects.  That this conduct caused or contributed to the dismissal was self evident from the terms of the Appellant's dismissal letter.  Accordingly, said Mr Davies, it must have been just and equitable for a finding of some contribution to have been made.  Furthermore, said Mr Davies since the Tribunal made no findings on a number of the Appellant's complaints of culpable and blameworthy conduct his clients were not able to rely upon them in support of this appeal.  The decision must therefore properly be described as perverse so as to entitle us to intervene.

	We have found this the hardest part of the case.  We accept that the Respondent's letter of the 3rd October 1990 was sufficient to establish the link between the Respondent's conduct and the dismissal.  But on our reading of the decision it appears that in all the circumstances of this case the Tribunal did not find that conduct culpable or blameworthy.  We refer again to the decision at paragraph 14 which reads as follows:
"Weighing all these matters it seems clear to the tribunal that the fears of a `Judas conspiracy' [that is a conspiracy among Mr Cliff's fellow workmen designed to prejudice him] which were aired by Mr Horsfall - so much so that he felt it sufficiently important to make a note of it in a diary note of 3 April, recorded on the page of 2 April 1989 in his diary - were wholly justified and that so much of the complaints which drifted through to the respondent and, latterly, to Mr Horsfall about the applicant were, in the view of this tribunal, probably much more to do with the conspiracy - which is there referred to - than with any realistic complaints against the applicant.  We have no doubt the applicant behaved in a robust and firm way;  we have no doubt that he swore on occasions;  we have no doubt that he lost his temper and was extremely angry on occasions.  None of these things, in themselves, are sufficient to justify dismissal and certainly nothing in the case that we have heard justifies the dismissal on notice which was taken - without proper enquiry and without any real consultation; . . ."

We read that passage as indicating that the Tribunal had serious reservations about those of the complaints in relation to which no findings of fact were made, but that the Tribunal did not find any of the conduct alleged against the Respondent whether or not found to have been proved to be such as to justify his dismissal and not culpable or blameworthy.  We consider that this passage provides the explanation anticipated in paragraph 5(ix) of the decision for the Tribunal's refusal to go into the precise details of the complaints made against the Respondent.  This we consider is the explanation for the Tribunal's decision.  It should not be thought that we would necessarily have come to the same conclusion, but we are not judges of the facts;  our only jurisdiction is to correct errors of law.  The Tribunal heard the witnesses examined and cross-examined and were addressed by lawyers on behalf of each party.  They no doubt applied to the case their industrial experience and whether one applies Lord Justice May's colourful test in Hereford & Worcester County Council v. Neale [1986] IRLR 168, "my goodness, that was certainly wrong", or Lord Donaldson's more sober permissible option test in Piggott Brothers & Co Ltd v. Jackson & Others [1991] IRLR 309, we cannot say that this was a decision which a reasonable tribunal could not have reached.

	In the circumstances our unanimous view is that this appeal must be dismissed.