Appeal No. EAT/211/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J H GALBRAITH CB

	MR P M SMITH

MR E WORRELL	APPELLANT

DERITEND ELECTRO MECHANICAL SERVICES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J D RILEY
(OF COUNSEL)
Messrs Chitsiga & Co
Solicitors
237 Dudley Road
Winston Green
Birmingham B18 4EJ

	

	JUDGE HULL QC:	In this case Mr Worrell appeals to us against the decision of the Industrial Tribunal sitting at Birmingham on the 28 October 1993 under the Chairmanship of Mr Threlfell, sitting with Industrial Members in the usual way, at Birmingham.  The decision was promulgated on the 21 January 1994.  

	I should explain the circumstances shortly.  Mr Worrell is a skilled electrical fitter and he was employed from 27 June 1988 onwards by the Respondents, Deritend Electro Mechanical Services Ltd, whose works are at Sparkbrook.  They provide a specialist service for industry repairing motors and generators and so forth, which as everybody knows do break down from time to time, often in absolutely vital parts of the works, and indeed the whole works may have to stop if a particular machine breaks down.  It was in the speedy and efficient repair and servicing of those electrical generators, and in particular motors, that Mr Worrell worked.  

	He gave certain grounds for dissatisfaction to his employers towards the end of his period of employment.  I do not need to go into the details, but he received warnings concerned with his reliability and workmanship and clearly in such an important position any failure in those respects would cause great concern; because the potential consequences, both from the safety point of view and, of course, from an economical point of view, of any inefficiency in this service of rapid repair and servicing of electrical machinery would necessarily give rise to potentially serious claims and matters of that sort.

	After two warnings there came an occasion when, again, something happened which could have led to a disaster.  Mr Worrell was engaged with an apprentice in returning an electrical motor to a customers' works and he had, through a careless omission, failed to remove from it some delta straps, as they are called, which are put in the motor whilst it is being repaired, but have to be removed afterwards.  

	What happened on this occasion was that as a result of this failure, apparently, the fuses blew.  It will be appreciated that this is not, in the context of a works with a substantial motor, the sort of trivial matter that it usually is in the household.  Without discovering the cause of the trouble the fuses were replaced and apparently this was done with the customers' co-operation and, apparently, the wrong fuses were put in and that led to fuses blowing, as it is put, further up the line.  That would mean there was a serious short-circuit, a serious excessive flow of current, and the consequences of that might be very serious. 

	Happily, that did not happen on this occasion and the fuses worked as they should, and in spite of the mistakes which had been made no disaster ensued.  It also appeared that Mr Worrell had at any rate some mitigation for what had happened.  He was not feeling at all well on this occasion.  Furthermore, the place where he was trying to work when it happened was not well lighted and those were matters which he relied upon for saying that the mistake which he made was not as serious as it might be.  Nonetheless, that was the situation with which the employers were confronted, that there had been substantial complaints before and now this complaint.  

	All these had been matters which might have cost them dear.  So they were, of course, minded to take disciplinary action and it was therefore necessary for them, if they were to do that, to proceed fairly.  They were certainly considering dismissal.  In due course, on the 26 February 1993, Mr Worrell was dismissed.  

	He complained to the Industrial Tribunal that he had been unfairly dismissed and the Tribunal upheld his complaint.  They heard a great deal of evidence and the decision was a long and carefully drafted one.  They said, after considering all these matters, that this latest mistake was a very basic and simple error, which a man of Mr Worrell's experience should not have made.  It was potentially serious because of the effect it might have had on the customer.  Then they went on to summarise their views of the employers' behaviour.  They said:

		"The investigation carried out by the respondents does not seem to have been a thorough investigation."

	They made various criticisms.  They said it seemed unlikely that the customer had in fact suffered any loss of production.  They said of the officer responsible, Mr Letts, the Works Manager, that:

		"He was aware that Mr Worrell was not feeling well but did not go into the fact that he had then had some days away from work and therefore that he was genuinely ill which might have affected his capacity on that occasion.  More importantly Mr Letts appears to have formed the view that Mr Worrell had not told the truth about the incident.  He did not however make any further investigation into that other than his basic belief that the explanation given by Mr Worrell was not correct."

	They then said:

		"He therefore assumed the work was carried out very carelessly without looking into all of the details of what had happened.  He confirmed in evidence to us that he had decided to dismiss Mr Worrell before the final meeting at which the dismissal was notified to Mr Worrell.

		We consider that the investigation was not as thorough as it should have been and that the company ought to have obtained full details of exactly what happened on the night and given Mr Worrell full opportunity to comment about that."

	Now those are serious criticisms, how serious was a matter for the Tribunal; but they were clearly serious criticisms of the method by which the employers went about their task, and in those circumstances the Tribunal found that the dismissal was unfair.  They then had to consider, as they are bound by statute to do, the extent, if any, to which Mr Worrell had contributed to his own dismissal.  In Section 74 of the Act of 1978 it is provided by sub-Section 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."

	There is a similar provision in relation to the basic award.  

	Now those words in the statute clearly do not purport to, and cannot, impose on any Tribunal a task which could be measured precisely.  As with a Court which is considering relative blame in, say, an accident of some sort which has led to personal injury, the task has to be approached in a broad way, and as a question of degree.  In the case of the Industrial Tribunal they have the advantage that at least two of the Members have experience of industry and are therefore, in effect, able to sit (as it is sometimes called) as an industrial jury to assess not merely what has happened but the seriousness of it and the blameworthiness of it; because the blameworthiness of the behaviour of each party has to weighed in the scales and it is very important that the Tribunal should take a balanced view of that. 

	As we say, all those are questions of degree.  Questions of degree are questions of fact, by definition.  They are to be considered, so to speak, as jury matters.  It is quite idle to expect the Industrial Tribunal to express their reasons with precision or to say exactly why it should be 65%, or 75%, or whatever it may be.

	In this case this Tribunal, having very fairly considered all the issues, said that Mr Worrell was in all the circumstances 75% to blame.  He had contributed to his dismissal to the extent of 75%.  

	Now Mr Worrell appeals to us and says that the 75% is unfair and unjust.  He says, through Mr Riley, to whom we are very grateful, that the Industrial Tribunal misdirected itself.  Mr Riley says that his impression is that the Tribunal fixed the figure at 75% because of its feeling that the consequences of this latest mistake by Mr Worrell could have been catastrophic.  No doubt they may have had that in mind, but what they said was, the last thing they did say before they named the figure, was:

		"However the error that was made by Mr Worrell was an error made after a final warning had been given [we have mentioned that].  It was a very simple and basic mistake which a man of his experience should not have made.  We consider therefore that Mr Worrell contributed to a significant extent to the action that was taken against him ....."

	In those circumstances it appears to us that we could only interfere with this award if we thought that it was manifestly and obviously so irrational that it was impossible for any Tribunal, directing itself properly to the issues and correctly concerning the law, to have reached such a conclusion.  Or else, of course, if the Tribunal had said expressly they took into account something which was quite improper for them to take into account, or had said expressly that they excluded something which they ought to have taken into account, or had refused to receive evidence which was highly material to the assessment of fault.  

	None of those matters has been made to appear to us.  Of course, it is almost unnecessary to say so, but we cannot be sure that we would have reached the same figure ourselves, we might have reached very different conclusions, had we been the Tribunal of fact.  Again, it may be that a different Tribunal would have reached different conclusions, that is in the nature of all questions of fact.  

	What we have to say, having considered, and being very grateful for, Mr Riley's submissions, is that we cannot, in spite of the matters he urged on us, find that there is any error of principle or error of law disclosed by this Tribunal's findings.  In those circumstances, although this is a preliminary hearing, the appeal has to be dismissed.