Appeal No.	 EAT/931/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 May 1997

Before
HIS HONOUR JUDGE D M LEVY QC
MR A C BLYGHTON
MRS R CHAPMAN

MR S G KIRK	APPELLANT

SHEFFIELD ASSAY OFFICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D CRYSTAL-KIRK
(Attorney)
Mean Business
Law Attorneys
6 Agden Road
Kenwood
Sheffield
S7  1LY	
For the Respondents	MR A SENDALL
(Of Counsel)
Dibb Lupton Alsop
Fountain Precinct
Balm Green
Sheffield
S1  1RZ	

		JUDGE LEVY QC:   This is an appeal by Mr Steven Glenn Kirk (“Mr Kirk”) against the decision of an Industrial Tribunal held at Sheffield on Friday 7 June.  The Tribunal decided that Mr Kirk was not unfairly dismissed by his employer, the Sheffield Assay Office (“the Employer”) and accordingly dismissed the application.  The decision of the Tribunal was sent to the parties on 5 July 1996.  

	What had led to the hearing before the Industrial Tribunal was an application dated 19 December 1996 by Mr Kirk, when he claimed he had been unfairly dismissed by the Employer in circumstances thus stated in his IT1:
“1.	On Saturday 16th December 1995 I attended with others at my employer’s dinner and dance at Tankersley Manor.
2.	While returning from the bar holding drinks I suffered a serious and entirely unprovoked assault by a supervisor who without warning punched me to the ground and continued to punch and kick me.
3.	When I defended myself I was restrained.  The supervisor continued to act provocatively inviting me to strike him.
4.	My manager Ashley Carson was trying to calm me and I swore at him twice.  He told me I was sacked.
5.	I was suspended from work the following Monday.
6.	I was dismissed instantly the following Tuesday.
7.	My dismissal was unfair.”

	The Employer’s answer read:
“(a)  The Applicant attended a function held by the Respondent Company on 16 	December 1995 and was involved in a fight with another employee.	
(b)	Several other employees including the Assay Master, Ashley Carson then intervened and attempted to stop the fighting.  The Applicant was then abusive towards the Assay Master and swore at him several times.
(c)	A disciplinary hearing regarding the incident was then held on 19 December 1995.  As a result of this hearing the Respondent Company decided that the Applicant’s conduct towards the Assay Master amounted to gross misconduct and he was therefore summarily dismissed.
(d)	The Applicant appealed against his dismissal and following an appeal the decision to dismiss the Applicant was upheld.
(e)	The Respondent Company acted fairly and reasonably in all the circumstances of the case.”
	At the Industrial Tribunal there was evidence from both parties.  In the Extended Reasons at paragraph 7 the Industrial Tribunal make these findings of fact after setting out what happened between Mr Kirk and the man with whom he was fighting:
“... A circle of spectators formed round the applicant and Mr Carson came over and asked him to leave the dance floor.  The applicant was immediately abusive and colleagues were restraining him.  He shouted at Mr Carson “fuck off this is nothing to do with you”.  Mr Carson asked the applicant again to leave the dance area but the applicant said “get out of my fucking way and keep your nose out”.  Some of the applicant’s friends then intervened and managed to persuade the applicant to go out into the foyer of the hotel where he continued to attempt to break free and pursue a fight with Mr Johnson.  Mr Carson followed into the foyer where the applicant again abused him in similar terms as before.  The applicant then refused to leave the hotel and the management called the Police but before the Police arrived the applicant was finally persuaded to leave.
8.	During the course of the confrontation between the applicant and Mr Carson, Mr Carson in the heat of the moment did tell the applicant to leave and added “don’t bother coming back to work on Monday”.  However before the applicant left Mr Carson made it clear that he would discuss the matter on the following Tuesday when he returned to the office after a visit to London.”

	The Tribunal having found facts, directed themselves on the test in British Home Stores v Burchell [1978] IRLR 379.  They asked themselves the appropriate questions and came to appropriate answers.  They say in paragraph 14:
“We next have to ask ourselves whether the respondents acted reasonably or unreasonably in treating that conduct as a sufficient reason for dismissing the applicant.  We remind ourselves that we must be very careful not to decide this question by substituting our opinions for those of the respondents.  What we have to say is, was the decision that the respondents made namely a decision to summarily dismiss a decision which comes within the band of reasonable decisions of a reasonable employer.  We have no hesitation in saying that the decision is within that band.  It seems to us that where the general manager of an organisation like the respondents is confronted with such abuse in a public place in front of his staff and their spouses and partners as well as members of the public there really was little alternative to dismissal at the end of the day.  We have no hesitation in saying that the decision to dismiss summarily was a reasonable decision.”

Mr Crystal-Kirk, Attorney (a retired solicitor who is no longer on the Record of Solicitors) appeared for Mr Kirk at one of the internal hearings of the Employer and appeared for him at the Industrial Tribunal and I think appeared before the EAT on 14 January 1997, when the Tribunal ordered the appeal be allowed to proceed to a full hearing of the Appeal Tribunal.  He has addressed us at some length on the shortcomings of the disciplinary procedures of the Employer and addressed us on what he says is the unfairness of the fact that the Employer failed either to investigate what happened before Mr Carson was involved in the incident, alternatively, did investigate it, but did not give Mr Kirk the opportunity to comment or to give evidence on the decisions.

	For our part we agree with the findings of the Industrial Tribunal that there were shortcomings in the disciplinary procedures of the Employer, but in our judgement these do not vitiate the decision which the employer made, nor do they vitiate the decision which the Industrial Tribunal made.  

	Mr Crystal-Kirk has referred us to the decision of an Industrial Tribunal in Rosenthal v Louis Butler [1972] IRLR 39.  The facts there were very different.  What Mr Crystal-Kirk has submitted is that because there was an apology tendered in this case, there was no apology in the Rosenthal case, that is a difference of significance.  We think it is of no significance.  Here there was conduct which the employer as the Industrial Tribunal held, was entitled to take the conduct of the employee very seriously indeed and the fact that an apology was offered later is nihil ad rem.  

	Mr Crystal-Kirk has also referred us to the decision in Shortland v Chantril [1975] IRLR 208, where a company appealed against an Industrial Tribunal’s reasoning in reaching the decision that the dismissal was unfair and against the compensation of damages.  The High Court on the appeal held that the Tribunal had not erred in accepting a submission made on behalf of the employee that the company had failed to discharge the onus of showing the dismissal was not unfair.

	In this case, the Industrial Tribunal looked carefully at the facts and came to a decision which it was entitled to reach.  It may be that other employers would not have treated Mr Kirk as the Employer in this case did, but there is a clear finding by the Industrial Tribunal, having properly addressed itself, that this was a reasonable response by an employer.  They criticise the Employer for its disciplinary procedures, but at the end of the day we are satisfied that the decision of the Industrial Tribunal was certainly not perverse and their findings of fact cannot be criticised, nor can their decision in law.  In the circumstances we thank Mr Crystal-Kirk for his careful and full submissions but he has not satisfied us that the decision of the Industrial Tribunal was in any way wrong.  Accordingly we dismiss this appeal.