Appeal No. EAT/317/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 March 1993

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS M E SUNDERLAND JP

	MR R TODD

MR R ULLAH	APPELLANT

UNITED GLASS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS TESS GILL
(OF COUNSEL)
MESSRS WHISKERS
SOLICITORS
GATE HOUSE
THE HIGH
HARLOW
ESSEX CM20  1LW

	

	JUDGE PEPPITT QC:  The Appellant Mr Ullah was employed by the Respondents for a period of eighteen years before his dismissal on 26 February 1991.  His job was that of a bottle selector and packer.  

	At an Industrial Tribunal for London North on 17 January 1992 the Tribunal held by a majority that he had been fairly dismissed.  The circumstances of his dismissal can be stated shortly.  He was seen by workmates involved in a fight with a Mr Khan who subsequently reported to his superintendent the fact of the fight at a time when he was covered with blood.  The Respondents made extensive investigations into the matter but were unable to find any evidence which they could accept as to whether Mr Khan or the Appellant was the aggressor.  They therefore took the view that both should be dismissed.  It was from in relation to dismissal that the Appellant applied to the Industrial Tribunal.

	Ms Gill, on his behalf, has referred us today to the discipline procedure agreement which was incorporated into the Appellant's contract of service.  That procedure agreement provided for three categories of misconduct.  The first category A described as Very Serious Offences such as stealing and wilful damage.  The second category B described as Serious Offences which included fighting, smoking in kitchens/main warehouse or the unauthorised clocking of time cards and category C Minor Offences such as lateness or leaving early. 

	Under the heading Penalties we read:

"Penalties will depend on the circumstances surrounding the alleged offence:

CATEGORY A ...
CATEGORY B

	1.In the first instance SUSPENSION
	2.A second occurrence may result in dismissal if the offence is a repeat of a Category B offence
	3.Dismissal in blatant cases."

It follows, so it seems to us from this, that fighting is prima facie a suspension offence unless it constitutes a second category B offence or is properly to be regarded as having been blatant.

	The Tribunal were divided on whether the employers were justified in regarding this fight so far as the Appellant was concerned, as a blatant case.  The minority took the view that blatant should be construed as an exceptionally serious fight, for example a premeditated one where weapons were used.  The majority of the Tribunal however, despite the difficulty of the word "blatant", held that the intention of the rule was to differentiate between a trivial or momentary fight causing no damage and a relatively serious one.

	The proper construction of the disciplinary agreement and in particular the meaning of the word "blatant" are matters of law.  If the Tribunal misdirected itself, an appeal will accordingly lie.  We do not propose to enter into the arena of construing the word "blatant" save to say that one view at least would be that the adjective was to be applied to the blameworthiness if any, of the employee under investigation but we are quite satisfied that in the absence of any evidence of the start of the fight, the Appellant has an arguable point that his participation could not be regarded as blatant.  

	It seems to us therefore that this is a case where on that ground alone the Appellant should be entitled to take his appeal to a full hearing and we so direct.