Appeal No. EAT/1010/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30 January 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MRS M L BOYLE

	MR R H PHIPPS

THE POST OFFICE	APPELLANTS

MR M LAYNE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS R DOWNING
(Of Counsel)
The Solicitor's Office
The Post Office
Impact House
2 Edridge Road
Croydon
CR9 1PJ

For the Respondent	MISS T FELLAS
Free Representation Unit
Room 140
1st Floor
49-51 Bedford Row
London
WC1R 4LR

	JUDGE LEVY QC:   The Post Office appeals against a Decision of an Industrial Tribunal sitting at London South on 9 and 27 September 1993, when that Tribunal held that Mr Michael Layne was unfairly dismissed by the Post Office within the meaning of Sections 54, 55 and 57 of the Employment Protection (Consolidation) Act 1978 (as amended) albeit that the Applicant was held by his conduct to have contributed to his dismissal to the extent of 80%.

	The circumstances behind the appeal and behind the hearing are this.  Mr Layne commenced his employment on 23 November 1987 with the Post Office.  On 1 July 1992, there was a fight in the Post Office premises in which Mr Layne worked.  The other person involved in the fight was a Mr Rami.  

	In disciplinary proceedings, the Post Office investigated the positions both of Mr Rami and Mr Layne.  On 23 July, Mr Rami attended a disciplinary hearing before a Mr Gordon.  For his part of the fight, he was placed on suspended dismissal for two years and moved to a different sorting office.  Prior to that, on 9 July Mr Layne had attended a disciplinary hearing also before Mr Gordon who had decided he should be dismissed.  A letter of dismissal was despatched on 30 July 1992.  Mr Layne appealed to the Appeals Manager Mrs Guise and his appeal was heard by her on 6 September 1992.  She made further investigations at the Sorting Office and must have known of the punishment imposed on Mr Rami.  She dismissed Mr Layne's appeal.  Subsequent to his dismissal, he commenced proceedings in the Industrial Tribunal on 30 September 1992 and Notice of Appearance by the Post Office was entered on 15 October 1993.  

	The decision of the Tribunal was notified to the parties on 20 October 1993 and, on the last day on which an appeal could have been put in, the Post Office appealed.  In summary the grounds of the appeal is that the Industrial Tribunal wrongly entered into the ring in deciding what an employer in the Post Office's situation should do.  The kernel of the decision is found in paragraph 9 of the Decision.  It reads as follows:

		"9.  In the Tribunal's view, however, the Respondent, in deciding to dismiss the Applicant and not to dismiss Mr Rami erred in that both should have been dealt with equal severity.  The Applicant was subjected to severe provocation from Mr Rami as a result of which he momentarily lost his self-control and acted out of character.  The undisputed provocation from Mr Rami was not merely vocal, it was also physical.  The Applicant was fearful as to possible injury to his remaining good eye.  The Applicant had previously complained about Mr Rami to a supervisor.  In the Tribunal's view, both Mr Rami and the Applicant should have been dismissed for their involvement in the fight.  In dismissing the Applicant and not dismissing Mr Rami, the Respondent acted unfairly towards the Applicant in all the circumstances of the case". 

	Miss Fellas, who today attempted to support the decision below, points to several aspects of the decision but principally says that there was clearly a fight on the shop floor.  It involved two people.  In those circumstances she says that just as if it takes two to tango, then if two people take part in the fight both should have the same punishment.

	But that was not the view which those who investigated the decision took.  They looked carefully into the role of each party, and came to the conclusion that Mr Layne was more culpable than Mr Rami.  That is a view which, in our judgment, a reasonable employer could have taken and what the Tribunal appears to have done here, and this appears in two places in paragraph 9, is to have substituted its own view as to what a reasonable employer would have done to that of the view of the Post Office.  That is something which it should not have done.  The passages in paragraph 9 to which we refer are:- "erred in that both should have been dealt with equal severity" and in the words "in the Tribunal's view".  

	That really is the end of the matter, because the Tribunal having entered into the ring and substituted its own decision for that of the Post Office, the appeal has to be allowed but in deference to the arguments which have been placed before us, we should refer to two of the cases to which we have been referred.  Hadjioannou  v Coral Casinos [1981] IRLR 352, is a case about consistency of approach as illustrated by The Post Office  v  Fennell [1981] IRLR 221, where the Post Office were criticised because having not dismissed those who had been involved in fight over a period of time.  It was held that at the time of the incident  there was a reasonable expectation (my words, not those of the Court of Appeal) that those who came before internal disciplinary tribunals would be disciplined by a punishment short of dismissal if they took part in a fight in a sorting office.  There can have been no such expectation by Mr Layne in 1992.  By then the Post Office's attitude to fights in the course of employment has been well established.  

	The case of Securicor Ltd  v  Smith [1989] IRLR 356 comes much nearer to the facts with which we had to consider.  There, as here, two employees were the subject of disciplinary proceedings arising out of the same incident.  In the present case it was a fight in the Sorting Office.  In the Securicor case, the disciplinary proceedings arose out of the failure of employees properly to follow the Company's "Standing orders" in what was known as the "cash in transit business".  Following an investigation, both employees were dismissed.  Their appeal against dismissal failed.  A further appeal resulted in the penalty of one employee being reduced whilst that of the other, Mr Smith, stood.  Mr Smith complained to the Industrial Tribunal. 

	The Industrial Tribunal held that the dismissal of Mr Smith was unfair.  The Industrial Tribunal found that the original decision to dismiss both employees was within the range of options open to a reasonable employer.  It further held that while the final appeal hearing was reasonably conducted, no reasonable employer in the circumstances of this case would have decided to dismiss one's appeal but to allow that of the other on the grounds that he was less blameworthy for the incident.  According to the Tribunal, equity demands that where two employees are guilty of culpable conduct and there is practically no distinction between their culpability, then they should be treated in the same manner.  

	The Employment Appeal Tribunal dismissed that appeal and Securicor applied to the Court of Appeal, which held that the Employment Appeal Tribunal were wrong to uphold the decision of the Industrial Tribunal.  Reference was made by Stocker LJ to British Leyland UK Ltd  v  Swift [1981] IRLR 91 when at page 93 Lord Dennning MR said:

		"The first question that arises is whether the Industrial Tribunal applied the wrong test.  We have had considerable argument about it.  They said:  ` .... a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate'.  I do not think that that is the right test.  The correct test is:  Was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, the dismissal was unfair.  But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.  It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view:  another quite reasonably take a different view.  One would quite reasonably dismiss the man.  The other would quite reasonably keep him on.  Both views may be quite reasonable.  If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair:  even though some other employers may not have dismissed him".

	Stocker LJ's judgment continued:

		"Put another way, in order to justify the finding which the Employment Appeal Tribunal made, it would be necessary to establish that the appeal panel's decision was so irrational that no employer could reasonably have accepted it.  The Employment Appeal Tribunal do not appear to have considered that question, although in form they did so in the passage that has been cited.  What they did not seem to ask themselves was whether on the facts found by the appeal panel, and not disturbed by the Industrial Tribunal, the finding of the Industrial Tribunal was itself perverse and irrational.  That is the question which, in my view, this Court has to answer.  When posed in that form, it seems to me that the question is bound to be answered in the affirmative.  Since no facts were found by the Industrial Tribunal to indicate that the factual basis of the appeal panel's decision was wrong, it cannot be said that the appeal panel's decision was perverse.  The Industrial Tribunal substituted their own view of the facts and the conclusions to be drawn from them.  This they were not entitled to do, although I accept that it would have been open to the appeal panel to have reached a different conclusion.  They did not do so for rational and clear reasons, and the Employment Appeal Tribunal ought to have rejected the Industrial Tribunal's reasoning as itself irrational".

	Balcome LJ's judgment commenced:

		"The question which this Industrial Tribunal had to answer was whether the employers' action in dismissing Mr Smith was within the band of responses open to a reasonable employer in the circumstances of the case.  The employers had an elaborate procedure relating to dismissal and appeals therefrom, which was operated in this case".

	As one would expect, like Securicor, the Post Office had elaborate procedures relating to dismissals and appeals therefrom which operated in this case.

	We accept Miss Downing's submission that the Industrial Tribunal erred in failing properly to consider whether the Post Office's action in dismissing Mr Smith was within the hands of responses open to a reasonable employer in the circumstances of this case, and substituting its own view of what a reasonable employer would have done.

	We can see that Mr Layne may have a sense of grievance that the person who instigated the fight escaped dismissal, but we consider that an Industrial Tribunal considering disciplinary procedures ignores at its peril the dicta of Lord Denning MR set out above.  Some employers dismiss outright any workers involved in a shop floor fight.  That, on investigation may be reasonable.  Because the Post Office, after a full investigation, treated one of its employees more or less harshly than the other is a result which may not be attractive to other employers, but we do not think that the Post Office's decision in the circumstances can be faulted.  We do think that the Industrial Tribunal erred in substituting their own views and accordingly allow this appeal.  We thank both counsel for their helpful submissions.  We substitute a finding that Mr Layne was not unfairly dismissed for that which was made below.