Appeal No. EAT/388/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR D J HODGKINS CB
SIR GAVIN LAIRD CBE

AEROSTRUCTURE HAMBLE LTD	APPELLANTS

MR B E MORSE & MR C E PIPER
	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D BROWN
(Of Counsel)
Engineering Employers Federation
Broadway House
Tothill Street
London
SW1H  9NQ	
For the Respondents	MR T LINDEN
(Of Counsel)
Messrs Pattinson & Brewer
30 Great James Street
London
WC1N  3HA	

			MRS JUSTICE SMITH:   This is an appeal from the decision of an Industrial Tribunal sitting at Southampton on 15 February 1996.  The Industrial Tribunal held that that the two Respondents had been unfairly dismissed from their employment with the Appellants.

	The Appellants manufacture aircraft components.  At the material time they were building sections of the fuselage of the Harrier Jump jet for British Aerospace, and indirectly for the Ministry of Defence.  The Respondents were skilled riveters working as a team of two.  On the Friday afternoon and Saturday morning of 26/27 May 1995, the Respondents worked on the forward bottom titanium skin and then on the rear titanium skin of a section of fuselage.  The job entailed riveting a skin on to formers and stretchers which had previously been pinned into position by fitters.  Mr Morse worked on the outside of the section.  He would put the rivets into the hole already prepared and operate the rivet gun.  Mr Piper working on the inside, had the task of blocking the rivet tails with a tungsten block, which had to be taped to prevent damage to the structure.  A high quality of work was required because of the nature of the product.

	When the men completed their work shortly before lunchtime on the Saturday, they went home.  They had not reported any difficulty with their work.  They were later to tell the Tribunal that they had been satisfied with it.  A few days later, a fitter noticed that the work on this section of the fuselage was defective.  A quality control inspector examined the work and on Thursday 1 June produced a fourteen page report, which was before the Industrial Tribunal.  We have not seen it.  On Friday 2 June the section of fuselage was stripped down to establish the extent of the damage to the structure.  The Appellants claim to have found that rectification work was necessary, which cost of the order of £70,000-£80,000.  Also this work resulted in a delay of some three to four weeks in delivery of the components to the customer and delay in receipt of nearly £¼m of revenue from the contract.  In short, the Appellants’ claim to the Tribunal was that the defects in the work on this section had presented them with a very serious problem.

	On Monday 5 June the Respondents were suspended, pending disciplinary hearings.  On that day they were told briefly the nature of the damage which had been found and were asked to mark-up on drawings the section of the work that they had been responsible for.  Two other riveters had also worked on the same section and they too were asked on that day to mark up what they had done.  The following day, 6 June, a disciplinary hearing was held for each man.  Each man was represented by a trade union representative, Mr Gardiner.  

	The Tribunal had before it detailed notes of all that was said at the hearings which were conducted by Mr Jukes, the Appellants’ production manager.  However, as we shall see when we look at the Tribunal’s decision, no reference to the issues which were raised at the hearings appears in the decision.  We shall say more of that in due course.  Mr Jukes decided to dismiss both Respondents.  We have not seen the letter or memorandum which he wrote explaining his reasons for that decision.  But we are told that that document was before the Industrial Tribunal.  In any event, Mr Jukes told the Industrial Tribunal that his reason for dismissing both Respondents was not so much his conclusion that they were responsible for defective workmanship in itself, although it is plain that he was satisfied that these two men had been responsible for the defective work, but the fact that they had not reported their problems to anyone.  They had simply carried on.  He said to the Tribunal that he believed that the two men just did not care.  He said that his main reason for dismissal was that they had failed to disclose that they had made an obvious error; they had left it to the inspectors to find the defective work.

	Under the Appellants’ disciplinary code the employees were entitled to appeal from their dismissal.  The appeal hearings were heard separately on 13 June and again each man was represented by Mr Gardiner.  The appeals were conducted by Mr West.  Each appeal was dismissed and the reasons for that decision were given at the time.  They are appended to the very full notes of the submissions that had been made by Mr Gardiner on the men’s behalf and we have seen those notes, as did the Tribunal.  In their decision the Tribunal refer to the appeals but do not refer to the reasons for their rejection.

	The Tribunal then went on to summarise the evidence that the men had given at the Tribunal.  Each man had told the Tribunal that when he had finished working on the Saturday morning, he had been unaware of any damage caused.  He was satisfied with the work that he had done.  Each man complained to the Tribunal that he had not been invited by management to inspect the allegedly bad work, either before or after it had been stripped down.

	In reaching their conclusion at paragraphs 16 and 17 of the decision the Tribunal said:

“16.  Thus we get the position that the Applicants ceased work about mid-day on Saturday 27 May 1995 satisfied with the quality of their own work.  That satisfaction was not shared by the Respondents who took the view that the Applicants should have been aware that it was not up to standard and alerted management.  Management, without further reference to the Applicants, proceeded to destroy the evidence on which they based their opinion by dismantling the structure and then accused the Applicants.  It may well be that the Respondents believed that the Applicants’ work was not up to standard and that the Applicants should have drawn managements attention to that fact.  However, in order to rely on that belief as a good ground for dismissing the Applicants, the Respondents should (a) have alerted the Applicants to the fact that failure to disclose/alert management to defective work would lead to dismissal and (b) have given the Applicants an opportunity to inspect and give an explanation of the allegedly defective work before it was stripped out.

17.  By reason of these omissions it cannot be said,, having regard to equity and the substantial merits of the case, that the Respondents acted reasonably in treating their belief as a reason for dismissing the Applicants.  From this it follows that the Applicants were unfairly dismissed.”
	We note that no finding of contribution was made.  

	In this appeal, Mr Brown for the Appellants, has submitted first that the Industrial Tribunal has not expressly stated what they had found to be the reason for the dismissal.  That is true.  But we do not think that omission significant.  It is quite clear that the Tribunal have accepted what Mr Jukes said: that he dismissed the Respondents for their misconduct, not so much for the defective work itself, but mainly for not saying anything about it.  

	Second, Mr Brown complains that in purporting to consider Section 57(3) of the Employment Protection (Consolidation) Act 1978, the Tribunal have not asked themselves the proper statutory question.  He points out first of all that they have not set out the question as Tribunals have been urged to do by the Employment Appeal Tribunal.  Once again that is true, but as submitted on behalf of the Respondents to this appeal, at paragraph 17 of the decision the Tribunal have paraphrased the statutory question.  We think that paraphrase was adequate.

	The real question in this appeal is whether the Tribunal have in fact posed and answered the statutory question under Section 57(3) or whether they have, as Mr Brown submits, really substituted their own view of the reasonableness of the dismissal.  

	For the Respondents it is said that this is really an attempt to allege that the decision is perverse, by, as it were, a back door.  We accept that it is not open to the Appellants to allege that this decision was perverse.  We have not seen all the documents which were before the Tribunal; nor have we seen the Chairman’s Notes of Evidence.  For the Respondents, Mr Linden accepts that the reasoning as set out in paragraph 16 is not entirely satisfactory, but he says we must look at it broadly; we must try to make sense of it, rather than try to pick holes in it.  Of course that too is right.  But it does seem to us that the fundamental error that this Tribunal have fallen into is that they have failed to ask themselves what was in the employer’s mind at the time of the dismissal and the time of the appeal.  If they do not do that, they cannot consider whether the employer acted reasonably in deciding that the misconduct in this case was a sufficient reason to warrant dismissal.

	This Tribunal has failed manifestly to focus upon the thought processes of the employer at the time the decisions were taken.  That can be seen most clearly from paragraph 11 of the Tribunal’s decision where they say simply this:

“Following full disciplinary hearings Mr Jukes, the Respondents’ Production Manager, took the decision to dismiss both Applicants.  Both Applicants unsuccessfully appealed against that decision.”

Nowhere do we find any discussion of the issues raised at the initial disciplinary hearings.  Nor do we find any reference to Mr Jukes’ contemporaneous expression of his reasons.  Similarly with the appeals to Mr West, we find no reference to the arguments raised and no reference to the reasons given, which we have seen.  Had the Tribunal considered these materials, they would have seen that, although the employees were represented, no complaint was made at the disciplinary hearings of the failure to grant facilities to inspect the defective work.  Nor was any complaint made until a very late stage of the second appeal.  Even then the complaint was more in the nature of an expression of regret.

	We do not wish to express any view at all about the merits of this case.  We do not think we are in a position to do so.  What we are satisfied about is that this decision cannot stand because the Tribunal has not asked itself the right statutory question under Section 57(3).  Accordingly it is our decision that the appeal be allowed and that the matter be remitted for a re-hearing before a freshly constituted Tribunal.