Appeal No. EAT/804/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 May 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR D O GLADWIN CBE

	MR J A SCOULLER

ART FORMA (FURNITURE) LIMITED	APPELLANTS

MR J V TURNER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M DUGGAN
(OF COUNSEL)
Browne Jacobson
44 Castle Gate
Nottingham NG1 7BJ

For the Respondent	MR J SUDDABY
(OF COUNSEL)
O H Parsons & Partners
Sovereign House
212-214 Shaftesbury Avenue
London WC2H 8PR

	JUDGE HULL QC:		This is an appeal to us by Art Forma (Furniture) Limited, the employers, who appeal to us against a decision of the Industrial Tribunal sitting at Nottingham under the Chairmanship of Mr Bellis on the 2 July 1992, when they found wholly in favour of the employee, Mr Turner, on his complaint of unfair dismissal.

	Mr Turner is a gentleman who is now aged about 48.  His employment began on the 8 November 1988 and he was employed as what is called an antiquer.  He had to give special treatment to reproduction furniture which was produced by the employers.  There had been for some months complaints about the standard of workmanship.  What was said by Mr Croydon, the General Manager, was that Mr Turner was perfectly capable of doing the work but that we he was falling below the proper standard.  Although he reacted favourably to warnings on occasion, that improvement did not last very long.

	Apparently, Mr Turner himself had rather sad personal circumstances which may have impaired his performance and his ability to concentrate, but there it is.  There came an occasion on the 7 December when Mr Turner was dismissed.  On that day, Mr Blyth, who is one of the Managing Directors of the firm, found what he thought was some bad work which was Mr Turner's responsibility.  He mentioned the matter and he called Mr Croydon, the General Manager, and there was apparently an unhappy scene.  There are no findings about it except that Mr Croydon said that he thought that he was actually going to be attacked.  There was certainly a defiant and unpleasant altercation between Mr Turner and Mr Croydon, and Mr Croydon dismissed him.  Then in due course Mr Turner complained to the Industrial Tribunal and the employers defended the case.  

	There are complaints about the way in which the hearing was conducted; directed at the Chairman, although of course the Chairman was sitting with the Industrial Members, who would have endeavoured to assist and to take a full part in the decision.  There are in particular complaints that the Chairman refused to let the Solicitor, who was appearing for the Company, make his submissions properly and that he was biased.  It does not appear to us that the allegation of bias is made out at all.  There were comments by the Chairman, perhaps there may have been too many comments and too much intervention.  No doubt that was in an endeavour to assist.  But there is the evidence of the advocate, Mr Benson, which he has sworn to, that he was prevented from making the submissions which he wished to advance.

	It does appear, and we very grateful to Mr Suddaby for pointing this out, that Mr Benson was able to make his submissions eventually, at any rate the principal ones.  But he does say that he was not able to make them in the way that he would wish.  That is a very difficult matter to say anything about when one was not present at the hearing and does not know the parties involved.  One knows that some advocates welcome interventions and of course there are ways and ways of making interventions.  Some advocates are readily put off and disturbed in their line of argument by interventions.  

	It is plain that before this Tribunal there were some features which were unsatisfactory.  The case was put forward as a case of capability, in the application.  Then when the case started it was said that it was a case of both capability and misconduct on the part of Mr Turner.  Then in the view of the Chairman, and Members eventually, it was really simply a question of conduct.  There is the decision which was announced the same day but the full reasons were given later at pages 34, 35 and 36.  What the Tribunal say in their decision is that:

"The evidence, which we accept, was that the applicant had been told about his shortcomings in relation to the quality of work which he was performing; and eventually these informal criticisms became formal verbal warnings, and ultimately a final written warning."

	So they find entirely in favour of the employer on that point.  They go on to say in paragraph 5:

"It seems, however, that on 17 December 1991 there was some further criticism of the quality of the applicant's work.  It seems from the evidence of the General Manager that the applicant lost his temper and became abusive.  The General Manager said that he thought the applicant was going to strike him, and he therefore dismissed him immediately.

It seems, therefore, that whatever the Notice of Appearance says, the principal reason for dismissal was conduct."

	The Tribunal was entitled so to conclude.  It was certainly not the only reason, looking at it in the round, this was the culmination of a series of warnings and of course it was very important to the employers, not merely that warnings should be given, but that they should be heeded and acted on in the correct spirit.  If there was defiance when the warnings were given that was a serious matter, and so the warnings were by no means irrelevant.  The Tribunal go on:

"The bizarre thing here is that the dismissal was effected by a person who was party to that conduct, namely the applicant's General Manager.  It seems to us wholly improper, and contrary to any principle of natural justice, that a participant in an incident should be the adjudicator in relation to that incident at the same time.  The applicant had an explanation.  He in fact denies threatening his General Manager or using abusive language.  He is apparently a born-again Christian and foul language is forbidden."

	Again, the Tribunal do not seem to have decided whether in fact Mr Turner did threaten his General Manager with an assault.  They say that he had an explanation, that is to say that he wished to deny using foul language.  Again they do not seem to have decided whether he did in fact do so.  They go on to say:

"It seems to us odd that the question of conduct was raised at the hearing, when it properly could and should have been raised in the IT3, if in fact it took place at all."

So there they are again leaving the matter in the air.   

	If the Tribunal were deciding the question of fairness on the basis that it was wholly improper for the General Manager, in the circumstances, to dismiss, that seems to us to be going too far.  It might very well be that it was imprudent, but to say that when the General Manager had actually been sworn at and threathened, if that did happen, he is not entitled as a matter of fairness, as a matter of principle, in any circumstances to dismiss the employee seems to us to be going too far.

	They do not leave it there because they go on to say:

"It seems to us that to dismiss an employee in the circumstances under which the applicant was dismissed must be unfair.  Mr Benson said that, even if it was unfair for the reason I have stated, then the applicant ought to receive no compensation because he had received ample warning with regard to the quality of his work and dismissal could have taken place because of a further fall-down in quality on 17 December.  We do not agree with that, because the dismissal was clearly in relation to conduct, if nothing else, [they do not say and nothing else, they leave that question hanging in the air] at that time.  A disciplinary hearing could have resolved the matter without any further argument."

	Now it seems to us that there are a number of criticisms which can legitimately be levelled at this.  It is not right to say that it was automatically unfair for this General Manager to dismiss.  It was a matter which had to be considered; in particular the fact that he was the person involved, but this was a small Company.  The Tribunal do not seem to have asked themselves the question whether it was in fact unfair.  They seem in paragraph 6, which I have read, to have adopted a formalistic attitude and referred to him as the adjudicator.  An employer is not an adjudicator, and the General Manager would not have been the adjudicator;  like any other employer in this position he had to act fairly.  

	Then we are told by Mr Suddaby that the true ground of the decision here was that a disciplinary enquiry should have been held.  If that is so, then the Tribunal should have asked themselves what would have been the likely result of that enquiry, looked at in the round.  It seems likely that they would have found, as such an enquiry would undoubtedly have found, that there had been an altercation, might well have found that the Manager had been threatened and would have found that there had been a history of inadequate work and repeated warnings coupled with a final warning which were the background to the altercation when a similar matter was taken up yet again with the employee.

	What would have been the likely result?  The Tribunal appears not to have asked themselves that question.  But it was essential to the assessment of compensation under Section 74 of the Act.  Under Section 74 (1):

"The amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances...."

and under 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."

	This Tribunal appears not to have addressed its mind to these matters and looked at the cases in the round to consider these important matters.  Instead it seems to have made up its mind that the ground for resisting the complaint, put as capability, had been wholly abandoned and was now irrelevant; and conduct was the cause.  Then it failed to make up its mind about the exact circumstances of the conduct on the basis that it was automatically unfair for the General Manager to dismiss and to dismiss without an enquiry; then having held as it certainly did that an enquiry would have been preferable (and we cannot criticise the Tribunal on that ground) it did not ask itself what the likely result would have been.  We think that these criticisms, which we make of the Industrial Tribunal's decision, cannot be dissociated from the fact that the advocate has sworn that he found it impossible to make his submissions plain in the circumstances.

	We are not prepared to overlook such a statement by a professional man, in good conscience we assume it is made and on oath.  But at the same time we want to say quite clearly there is no evidence of bias by this Chairman or any intention to make the advocate's task impossible.  The fact is though that the Solicitor advocate did on this occasion say that he found it impossible to make his submissions clearly, although he did eventually, apparently, manage to make them.  

	It is these matters which ground the criticism of the decision.  We think that the Chairman was probably endeavouring to be helpful, because apparently it was made clear to the Tribunal that it was very inconvenient for Mr Blyth, at rate, to be kept waiting because he had to catch an aeroplane that evening.  That may have put pressure on the Tribunal.  We notice also that the Chairman resisted certain evidence.  He said he did not want to hear a lot of evidence about the actual process of antiquing and was interested in the good faith of the employers' views;  he did not wish to hear about other matters.  What he was concerned with was the fairness of the decision.  All that indicates a perfectly fair and correct approach and it is unfortunate that the decision, as finally given, does give weight to the criticisms which are made of it.

	In those circumstances we have considered whether it would be right to send the case back only for a decision on the questions under Section 74.  We think, however, that the whole evidence should be looked at again, so that the matter can be adjudicated on in accordance with the requirements of the Act.  We think it should go back to a different Tribunal so that the matter can be approached afresh and we say no more about the grounds of criticism except that they make us think that there may have been, and indeed probably were errors in several ways in the approach of this Tribunal to the problem which was put before it.  So we say there must be a re-hearing.