Appeal No.	 EAT/818/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 November 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MRS D M PALMER
MR S M SPRINGER MBE

DUNLOP OIL & MARINE LTD	APPELLANTS

MR D B HOTSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR A CHOUDHURY
(of Counsel)
Eversheds
Solicitors
Cloth Hall Court
Infirmary Street
Leeds
LS1 2JB	

	MR JUSTICE LINDSAY (PRESIDENT):		We have before us, by way of a preliminary hearing, the appeal of Dunlop Oil & Marine Limited in the matter Mr D B Hotson –v- Dunlop Oil & Marine Limited. There is a decision of the Employment Tribunal at Hull that followed a hearing on 28th April 1999. The decision was sent to the parties on 10th May 1999.

1.	The case was concerned with an unpleasant brief situation in which one employee struck another at the Dunlop Oil & Marine Limited premises. Mr Hotson struck a Mr Melin and the circumstances are set out in the extended reasons.

2.	The company, Dunlop, dismissed Mr Hotson as, indeed, they also dismissed Mr Melin. Mr Hotson lodged an IT1 for unfair dismissal and the tribunal unanimously decided that the applicant, Mr Hotson, had been unfairly dismissed and awarded him compensation which came to £15,960. Against that Dunlop appeals.

3.	We have had from Mr Choudhury, on behalf of Dunlop, a thoughtful skeleton argument and we are persuaded that this matter should go to a full hearing.

4.	There may be an arguable point of law in that whilst paragraph 13 of the extended reasons suggested that at the disciplinary stage regard had not been paid to Mr Hotson’s 31 years of service, to his unblemished record and to the provocation that he had received from Mr Melin, paragraphs 10 and 12 tend to show that the long and unblemished service and the provocation were indeed in Mr Bonnell’s mind at the disciplinary hearing. It may therefore be that there is an inconsistency that may amount to an error of law. That is one point.

5.	Secondly, there may be an arguable point of law in considering whether the case of Taylor v Parsons Peebles [1981] IRLR 119 is wrong, if that case suggests that the existence of a “fighting equals dismissal” policy is nothing to the point. It may be arguable that if there is a recognised and enforced policy of such a kind or of similar effect which is given consistent application throughout the workforce (and especially if it has contractual force) then such a policy would be a material factor (of course, no one would say necessarily a conclusive factor) in determining what the broad band of reasonable responses included. It may be, therefore, that the Employment Tribunal discounted rather more than they should have done the policy of the employer in this particular case. That is an arguable point of law.

6.	Thirdly, there may be arguable areas of law in relation to the reduction made to the award. There may be inconsistency between the tribunal’s approach to reductions and their approach to what is the reasonable band of responses. Reductions are provided for in s. 122(2) of the Employment Rights Act 1996, which requires them to be fixed by reference to the complainant’s conduct and the justice and equity of the case. They are also provided for under s.123(6) of the Act, which is operative if the dismissal is to any extent caused by the action of the complainant. The tribunal here held that Mr Hotson’s supervisory role was relevant to the question of such reductions - see paragraph 15 of the decision - and yet they regarded it as a neutral factor so far as concerned the reasonable band of responses. Again the question arises, is there an inconsistency, and, if there is, does it amount to an error of law? 

7.	Fourthly, so far as concerns reductions on the grounds of contribution in the way that we have spoken of, there may be an arguable point of law to judge from the way in which the tribunal spoke of responsibility to be as to one-third Mr Hotson’s, two thirds Dunlop’s in their finding at paragraph 15. They may have proceeded on the basis that it was of the nature of the apportionment required by the statute that one somehow had to have an apportionment that added up to 100%. They may have considered that part of their task was to apportion blame to the employer whereas the sections, as we have mentioned, look only to the action and conduct of the complainant. So there may an error of law there.

8.	So there are four possible arguable errors of law. We think it right therefore to let the matter to go to a full hearing and we do not, in terms, restrict the Notice of Appeal to those four, nor do we refuse leave to amend if any of the points that we have mentioned require amendment.

9.	The Chairman’s Notes of Evidence will be necessary. A request is to be made to the Chairman on the subject of the evidence as to what was in Mr Bonnell’s  and Mr Allison’s minds at the disciplinary stages? What was it that the evidence said was in their minds or was not in their minds? That is likely to be a material question at the full hearing.

10.	Also what will be needed is a full copy of Mr Bonnell’s note which was before the Employment Tribunal and part of which they cite in their paragraph 12. It is undesirable to have only part of a document in front of the full hearing.

11.	We do not think that there are any other directions that need to be given at this stage. On the basis that we have indicated, the matter is to go to a full hearing.