Appeal No.	 EAT/353/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
HIS HONOUR JUDGE D PUGSLEY
MRS T A MARSLAND
MR P A L PARKER CBE

MR C WEYMOUTH T/A SUTTON MILL RESIDENTIAL HOME	APPELLANT

MISS E CROWLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR O BRABBIN
(Representative)
Peninsula Business Services Ltd
Stamford House
361 / 365 Chapel Street
Manchester M3 5JY	
For the Respondent	DR MARY MALECKA
(Counsel)
Bar Pro Bono Unit	

	JUDGE D PUGSLEY:	This is an appeal, by virtue of an order made by his Honour Judge Peter Clark, that comes before the Tribunal arising out of a decision made by the Industrial Tribunal sitting at Norwich to the effect that the Applicant was unfairly dismissed and awarded the sum of £2,792.37.

	We have carefully listened to the arguments and the skeleton arguments which we have read and we have, of course, borne in mind from start to finish that the Industrial Tribunal had the opportunity, which we do not, of seeing the witnesses, evaluating the evidence and responding to the chemistry of the case.  Nothing that we say should in any way be construed as any attempt by us to usurp the role of the Industrial Tribunal as an Industrial jury looking at the facts of the case.

	There is, in reality, one main ground of appeal to which all others are subsidiary and it is only one main ground that we consider is the relevant one.   In the history of Employment Law that grew up after the first Employment Protection legislation became operative there soon developed a case law concerning the concept of reasonableness.   It is unnecessary for us to follow that case law through to any great extent save to say that in an seminal judgment in Iceland Frozen Foods v Jones (1982) ICR 17 it was made clear, in a passage starting at page 22, that reasonable people can come to different conclusions.

	As Philips J said in N C Watling & Co v Richardson (1978) ICR 1049:

“It has to be recognised that there are circumstances where more than one course of action may be reasonable.   In the case of redundancy, for example, and where selection of one or two employees to be dismissed for redundancy from a larger number is an issue, there may well be, and often are, cases where equally reasonable, fair, sensible and prudent employers would take different courses,  one choosing A, another B and another C.   In these circumstances for an Industrial Tribunal to say that it was unfair to select A for dismissal rather than B or C merely because had they been the employers that is what they would have done is to apply the test of what the particular Industrial Tribunal itself would have done and not the test of what a reasonable employer would have done.   It is in this sense what is said, that the test is aware of what has been done, is something which no reasonable management would have done.   In such cases more than one course of action can be considered reasonable.   If an Industrial Tribunal equates his view of what itself would have done with what a reasonable employer would have done it may mean the employer will be found to have dismissed an employee unfairly although, in the circumstances, many perfectly good and fair employers would have done as the employer did.   The moral is that none of the phrases used in the authorities, such as ‘did the employer act in a way in which no reasonable employer would have acted?’ is to be substituted as the test to be applied.  

	The test is, and always is, that provided by paragraph 6.8:  the authorities do no more than try according to the circumstances to indicate the standard to be used by the Industrial Tribunal in applying that paragraph.   There have been a series of cases following this but most notably of all, in British Leyland UK v Swift (1981) IRLR 91 the Court of Appeal reversed the decision of an Industrial Tribunal that dismissal was unfair and substituted a decision it was fair.   Lord Denning said this, at page 93:

“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 a lesser penalty was appropriate’.   I do not think that is a right test, the correct test is:  ‘was it reasonable for the employers to dismiss him?’   If no reasonable employer would have dismissed him then 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 taken another view.   One would quite reasonably dismiss the man, one would quite reasonably keep him on.   Both views may be quite reasonable.   If it is quite reasonable to dismiss him then the dismissal must be upheld as fair even though some other employers may not have dismissed him.”

	It is against this context that we look at this decision.   It is a sad case.   This Applicant employee had been employed as a care assistant.   It was no doubt a difficult and a demanding job, working in a residential home.   The Tribunal set out in clear terms their finding in paragraph 12 when, having reviewed the history of what had happened which had led to the allegations made against this employee, that she had behaved in a violent way to residents, the Tribunal said this:

“It is our finding that a reasonable employer would have considered the following points:
(a) that his actual finding of fact should have been based upon the evidence of Mrs Roberts which was merely what seemed to be a comparatively small amount of pushing of a difficult resident.
(b) the fact that the applicant had four years unblemished service.
(c) the doubts as to whether the bruise was a result of the recorded actions of the applicant or possibly had some other cause.
(d) that the locking in the room for a short period was not particularly reprehensible when carried out for good reasons.

	What follows from those conclusions of facts is that the reason the employers dismissed was they believed that the Applicant had been involved in two incidents which are set out in paragraph 8 of the decision, that: 

“Connie kept going into the bathroom when another resident was having a bath and [the Applicant] shouted at Connie and pushed her into her bedroom and locked the door.”

	Secondly, another incident occurred when:

“Ralph was standing in front of the TV.   Liz pushed Ralph over to the chair, Ralph became angry with her and pushed her back.   Liz then held his arms... and pushed him back to the chair.”

	Having reviewed those facts and its findings therein the Tribunal go on to say:

“13.  It is our view that having considered all these matters a reasonable employer would have felt that whilst disciplinary action needed to be taken against the applicant this should stop short of dismissal.   A written warning, possibly even a final written warning, would have been more appropriate.
14.  We are influenced in reaching that view because we found that the respondent’s arrangements for the training of his staff left something to be desired.   He indicated that his training consisted of “hands on” training while at work.   There were no written instructions to staff in relation to they type of conduct complained of.
15.  For these reasons we find that the applicant’s dismissal was unfair.”

	Now, in her extremely helpful skeleton argument, for which we are very much in debt, especially if I may so because it was done on a pro bono basis, Dr Mary Malecka, Counsel for the Respondent (who did not appear below), the Applicant as she then was, being unrepresented, points out that at paragraph 6 the Tribunal do set out the correct test as to reasonableness.   That is true as far as it goes.   Because in paragraph 6 the Tribunal say in terms what their task is, which is:

“The next part of the test is that provided in section 98(4) and is whether the employer acted reasonably or unreasonably in treating that conduct as a sufficient reason for dismissing the employee.   It is the applicant’s case that the respondent did not act reasonably.”

	The difficulty we have is the language used in paragraphs 12 and 13 is directly in parallel with the language used in the British Leyland v Swift case, which was said to be the incorrect test by Lord Denning in that case.   This is not a matter of theological quibble but makes a real and practical result.   Those who have had the experience of sitting on Employment Tribunals or on Employment Appeal Tribunals will know very well that there may be occasions when a Tribunal member feels quite strongly that a dismissal is unfair.   They may feel very strongly that a reasonable employer would not have dismissed in those circumstances.   But the test is more difficult than that.   The test is:  ‘was it within the ambit of a reasonable response for an employer to dismiss?’ and there are many cases where a Tribunal finds a dismissal to be fair because, at the end of the day, it cannot be said to be outside of the range of response although many reasonable employers would not have dismissed.   This is not a liturgical formula, it is an essential part of the decision making process and while we fully accept, from the case of Dobey v Burns International Security Services UK Ltd (1984) ICR 812, CA, that there may be cases where notwithstanding a misdirection a Tribunal should stand because the decision is - despite the misdirection - plainly and unarguably right.

	This is a case where the misdirection is fundamental to the whole reasoning of the Tribunal’s decision making process.   We have enormous sympathy for the Appellant, who was unrepresented.   But we have come to the view there is a misdirection that is so fundamental that the only fair way of dealing with this is to remit it to a differently constituted Industrial Tribunal for a rehearing.   This is a matter which may come to exactly the same result:  that is a matter for them.   There is such a distinction between saying ‘a reasonable employer would not have dismissed’ and the much stricter test: ‘it is outside the range of response of a reasonable employer to dismiss’.

	The Tribunal awarded the Applicant a modest amount of money, in the sense that it did not amount to a great sum as she had been there for some four years.   They accepted there was an element of contribution and they said this:

“We find it just and equitable to reduce the compensatory award but we have decided that it would not be just and equitable to reduce the basic award.   The amount of the reduction will be 25%.”

	At one stage, solicitors acting on behalf of the Applicant and Respondent were prepared to make the concession that the two awards should be the same, but that concession is withdrawn and we do not oppose that concession being withdrawn.   We have come to this view, and it is not a view that either Counsel has sort to deflect us from, that there may be circumstances where it is possible to make a difference of reward in the case of a basic award and of a compensatory award and Mr Brabbin, on behalf of the Appellant, does not seek to dispute that.   But there must be, in our view, reasons why that should happen.   As it is a judicial decision, although it is a matter of discretion, it is a matter where the basis upon which the discretion is being exercised should be set out.   We make no order on this particular aspect of the matter because we have no wish to infringe the autonomy of the Employment Tribunal to consider the case as they think just and right.   All we would say is that as a matter of general principle, if one was going to depart from the normal position of making a similar deduction from a compensatory and a basic award, we consider it behoves a Tribunal to state why it is doing it, not merely to exercise his discretion but to give the reasons for the exercise of discretion.

	We finally conclude by thanking both representatives for the helpful way in which the case has been conducted.