Appeal No. EAT/639/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30th November 1993

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR A C BLYGHTON

	MR J A SCOULLER

MR A DOUGHTY	APPELLANT

BRITISH WATERWAYS BOARD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR RICHARD CLAYTON
(Of Counsel)
Messrs Nelsons
Solicitors
Penning House
8 Stanford Street
Nottingham
NG1 7BD

For the Respondents	MR RICHARD GREENING
(Of Counsel)
Mr R J Duffy
Solicitor and Secretary
British Waterways
Willow Grange
Church Road
Watford
WD1 3QA

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from a decision of the Industrial Tribunal held at Nottingham in 1991.  The hearing was spread over five days the 11th March, 11th and 12th July the 9th and 21st August 1991.  The Tribunal unanimously decided that the Applicant, Mr Doughty, was not unfairly dismissed by the British Waterways Board within the provisions of Section 57(3) of the 1978 Act and his complaint of unfair dismissal was therefore dismissed.

	Mr Doughty was employed as a plant operator by British Waterways from the 6th October 1975 until he was dismissed on the 23rd April 1990.  He was dismissed for persistent serious misconduct following two incidents.

	The first incident occurred on the 1st December 1989.  His supervisor, Mr Curry, found Mr Doughty in a pub during working hours.  That incident led to a final written warning being given to Mr Doughty on the 14th December 1989.  He appealed against that on the 19th January 1990.  His appeal was dismissed.  

	The second incident occurred on the 11th and 12th April 1990.  On each day Mr Doughty was given a lift to work by Mr Curry.  He refused to wear a seat belt, despite being instructed by Mr Curry to do so.

	Mr Doughty was dismissed on the 23rd April 1990.  He unsuccessfully appealed against that decision on the 14th May 1990.

	On the 21st May a letter was sent to Mr Doughty by the Personnel Manager of British Waterways referring to the appeal which had been heard on the 14th May attended by Mr Doughty and his representatives.  The letter states the submissions that were made to the Disciplinary Hearing, on behalf of British Waterways, who indicated that the decision to dismiss Mr Doughty had been based on three grounds:
1.	refusal to obey Mr Curry's reasonable instruction;
2.	disrespect and disregard of his instructions, despite repeated offers to rectify the situation and;
3.	disregard of safety rules endangering himself and others.
The letter also recorded that, in response to those points, and on Mr Doughty's behalf, it was suggested that (1) there was a personality clash between him and Mr Curry and that he had been aggressive in his dealings with Mr Doughty over the instruction that he should wear a seat belt, and (2) that Mr Doughty had sought a transfer to avoid the personality clash in the past.  There were other matters mentioned in the letter which went on to dispute the allegations against Mr Doughty of disrespect or of deliberately provoking misconduct.  Among the points mentioned was the allegation that Mr Curry had deliberately set out to create a confrontation with Mr Doughty and provoke his misconduct.  The letter concluded:
"Having considered all of the above, it was concluded that you were guilty of misconduct on the grounds suggested by Mr Sawicki, [who presented the case on behalf of British Waterways] and that there was no indication of provocation or aggression on the part of your Foreman, that disrespectful behaviour had been proven and that a transfer would be inappropriate in these circumstances.

Given your disciplinary record, it was decided that the decision to dismiss was reasonable and this decision was, therefore, upheld.  You were therefore dismissed from British Waterways' employment with effect from 14th May and you would be offered a sum of money in compensation for your agreement to give up your right of notice."

Mr Doughty presented a complaint of unfair dismissal to the Industrial Tribunal.  At the five day hearing, witnesses were called on both sides.  Evidence was given on behalf of Mr Doughty by a number of colleagues relevant to the question of the personality clash between Mr Doughty and Mr Curry referred to in the letter of 21st May.

	After the complaint of unfair dismissal had been dismissed a Notice of Appeal to this Tribunal was issued.  The main complaint in the Notice of Appeal was that there had been an error of law on the part of the Industrial Tribunal in the direction which it gave itself regarding Section 57(3) of the 1978 Act.  That is the main ground on which submissions made to this Tribunal.

	Mr Clayton, who appeared on behalf of Mr Doughty, presented the oral submissions very clearly and forcibly, supported by a detailed skeleton argument.  The essence of his submission is that the Tribunal misdirected itself in law, as contained in paragraph 41 of the decision.  I should read the whole paragraph in order to get into context the single sentence which Mr Clayton identifies as containing a misdirection of law on Section 57(3):
"We do not regard this as a simple and straightforward case.  There are certain disturbing aspects about the evidence which we are not sure were fully considered by the respondents prior to the applicant's dismissal, but on the other hand the applicant's full case as it emerged before the Tribunal was not put to the respondents, and therefore they cannot be faulted for not expressly dealing with matters that were not canvassed before them.  The witness evidence given on the applicant's behalf unfortunately has to be disregarded virtually in toto, precisely because it was not made available at the disciplinary hearings.  Under the terms of Section 57(3), the employer's decision, or the reasonableness of it, has to be judged in the light of the facts that were known to employers at the time."

I pause there to highlight that sentence as the one that forms the basis of this appeal.
"The employers were concerned with the events of this incident.  We find that the facts indicated that Mr Curry was giving the applicant entirely legitimate instructions, but was heavy handed or overbearing in doing so.  The applicant overreacted in the way described.  If there is a personality clash, then normally the onus is on the respondents to resolve such a situation, but the applicant's case was simply not argued before the respondents on that basis.  We have no way of knowing what the situation would, or might, have been had the applicant put his case at the disciplinary or appeal hearing in the way he has put it to us."

There is no dispute that the Tribunal correctly directed itself under Section 57(1) when it found that there was a reason shown by the employer for the dismissal, namely, insubordination in the incidents described.  There is no dispute that the Tribunal correctly directed itself in relation to Section 57(2) in concluding that that reason related to the conduct of Mr Doughty as an employee.  The complaint is that the sentence highlighted in paragraph 41 of the decision, is a misdirection as to the effect of Section 57(3). That requires the Tribunal to determine whether the employer has acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee.

	Mr Clayton submits that the Tribunal, in consequence of the way that it stated the effect of Section 57(3), failed to make factual findings as to the extent to which British Waterways were aware of the personality conflict between Mr Doughty and Mr Curry and whether British Waterways ought reasonably to have known of these matters.  He submitted that it was well established by authority that the question under Section 57(3) is whether the employer has acted reasonably in treating the reason as a sufficient reason in the circumstances known to the employers, or, in the circumstances which the employers ought reasonably to have known.  He relies for that proposition on St Anne's Board Mill Co. Limited v. Brien [1973] ICR 444 and Devis (W) & Sons Ltd v. Atkins [1977] ICR 662 at 677D-G. He reinforced that submission by reference to Polkey v. A Dayton Services Ltd [1988] ICR 142 for the proposition that the reasonableness of the employer's decision to dismiss must be assessed in the circumstances prevailing at the time of the dismissal itself.  On a true construction of Section 57(3), when considering all the circumstances of the case, the Industrial Tribunal should have directed itself not only to the circumstances known to the employer but also to the circumstances which he ought reasonably to have known.  

	On the basis of these submissions, and by reference to the Tribunal decision as a whole, it is submitted that the Tribunal erred in law and misconstrued or misapplied Section 57(3) by holding that the reasonableness of the Respondents' conduct, that is British Waterways' conduct, fell to be assessed solely by reference to facts known to the employers at the time of dismissal.

	We are unable to accept that submission.  There might be grounds for criticising that one sentence in paragraph 41 if it were read in isolation from the context of the paragraph read as a whole and if it were isolated from the context of the whole decision.  In our judgment, it is clear, in reading the decision as a whole, that there was no misdirection in law by the Tribunal.  We refer particularly to the following points.  Paragraphs 28 and 29 make it clear that the Tribunal was correctly directing itself on these matters. It said at 28:
"The Tribunal is satisfied that Mr Doughty was dismissed for a reason relating to his conduct."

That disposed of Sections 57(1) and (2).  The next question is whether the Respondents acted reasonably in treating the Applicant's conduct as a sufficient reason for his dismissal in terms of the criteria set out in Section 57(3) of the 1978 Act and in accordance with equity and the general merits of the case.  That is a correct direction in relation to Section 57(3).  It then added in paragraph 29:
"Since the allegation is that of persistent misconduct, the Tribunal has further to consider whether respondents complied with the three Burchell requirements, namely a genuine belief held or formed on reasonable grounds, after such investigation into the facts of the matter as was reasonable in the circumstances."

In paragraph 42 the Tribunal returned to the matter of Burchell in order to set out its conclusions the Tribunal stated:
"On the whole, wholly as a matter of probability and not without certain misgivings, the Tribunal is satisfied that the respondents met the criteria in the Burchell case and have acted reasonably in accordance with the criteria of Section 57(3).  We say so for the following reasons:-

1.	The applicant has never denied being in the wrong over these events.  He agrees that he is a stubborn man who sticks to his principles, right or wrong.

2.	We find ample confirmation of the Company's submission that the applicant was guilty of deliberate refusal to accept supervision, and in particular he would not do what he even advised by his union to do, namely carry out his instructions first and complain afterwards.

3.	On the other side it can be said that Mr Curry was by no means faultless in the way he handled these events of 11/12 of April and management do seem to have taken a rather pro Curry stance at the disciplinary hearings.  Nevertheless Mr Curry's instructions were entirely reasonable in the circumstances.  Where an employee is dismissed for failure to obey instructions, one normally has to have regard to the reason for such failure, and we cannot say that we are satisfied that irritation with a supervisor's attitude is a sufficient reason for disobeying perfectly legitimate instructions.

4.	The full procedure was carried out.  The matter was fully investigated.  The applicant had full opportunity to state his case and the procedures were those agreed with the union.

5.	The applicant was vulnerable because he was on a final warning at the time, and he should therefore have been on his guard against behaving in the way that he did on 11 and 12 April.

43.	For all these reasons, on the probabilities of the matter, the Tribunal has finally come to the conclusion according to the legal principles already stated, that the respondents were not unreasonable to treat Mr Doughty's conduct as a sufficient reason for his dismissal in accordance with equity and the substantial merits of the case"

	One may well ask, having referred to those paragraphs, what in law is wrong with this decision?  Mr Clayton's answer to that question is this - what is wrong is the sentence highlighted in paragraph 41 relating to Section 57(3) - which he says shows that the Tribunal misdirected itself in this way, that it only had to judge the employer's decision by the facts known to the employers at the time. It did not consider, because it did not think it had to consider, the facts which would have been known to the employers at the time if they had carried out a reasonable investigation.  He says that, as a result of that misinterpretation of Section 57(3), it was led into the conclusions that it states in paragraphs 42 and 43.  He says that his point is reinforced by the fact that nowhere in Section 42 does the Tribunal expressly spell out the matter of the personality clash that figured so prominently in the evidence and arguments before the Industrial Tribunal.

	This submission does not, in our view, bear close examination.  Besides the paragraphs which I have quoted, 28, 29, 42 and 43, there are other paragraphs in the decision which have been drawn to our attention by Mr Greening in his submissions they show that the question of the personality clash between Mr Curry and Mr Doughty was fully in the mind of the Tribunal when it came to consider the application of Section 57(3).  Those paragraphs also show that the employers were aware of the personality clash between Mr Curry and Mr Doughty.  The letter of the 21st May showed that the matter of the personality clash was put before the disciplinary tribunal held by the employers and the arguments and evidence given about that were not accepted.  What happened before the Industrial Tribunal was that more evidence was given.  More time was spent on this question, but that was rather beside the point.  If the point was - what the employers knew or ought reasonably to have known at the time of the dismissal on the 23rd April 1990 - the relevant time on which to concentrate attention was that date and not at the date of the hearing of the Industrial Tribunal.

	This is a case in which the employers held an investigation.  It was a full investigation in accordance with agreed union procedures.  They found out about the personality clash. That was a matter that was taken into account when they decided to dismiss and to confirm the dismissal.

	In those circumstances we conclude that there was no misdirection in law on Section 57(3).  On all the material available to the Tribunal about the employer's state of knowledge and the investigations which they conducted, the Tribunal was entitled to conclude that British Waterways had acted reasonably in treating insubordination by Mr Doughty as a sufficient reason for dismissing him.

	In those circumstances the appeal is dismissed. 

	There were other points mentioned in the skeleton argument which were not pursued in detail at the hearing because Mr Clayton realistically recognised that, if he could not succeed on this primary point of misdirection under Section 57(3), he would not succeed on the other points.  Two other points were that, on the evidence the Respondents in fact knew that there was a personality clash between Mr Curry and Mr Doughty and if the Tribunal had correctly approached the question of judging reasonableness, then might well have found that the dismissal was unfair.  There was a contention that there was wilful blindness on the part of the British Waterways.  That stood no serious chance of succeeding.  The final submission that there was perversity in the findings of the Tribunal on this issue was not followed up with any oral submissions in support of it.  The claim of perversity was one which could not succeed in this case.  For all those reasons the appeal is dismissed.