Appeal No. UKEAT/0310/07/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 August 2007

Before

HIS HONOUR JUDGE PUGSLEY

MR M CLANCY

SIR ALISTAIR GRAHAM KBE

TRAFFORD HOUSING TRUST	APPELLANT

1) MR E HUGHES	RESPONDENTS
2) MR D P BURKE

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant

	MR ANDREW GALVIN
(Solicitor)
EEF North West Legal Services
Mount Pleasant
Glazebrook Lane
Warrington
Cheshire
WA3 5BN	
For the First Respondent
	MR TIMOTHY GRACE
(of Counsel)
Instructed by:
Messrs EAD Solicitors
Thorne House
36 Station Road
Cheadle Hulme
Cheshire
SK8 7AB	
For the Second Respondent	MR DAVID E GRANT
(of Counsel)
Instructed by:
Messrs Rowley Ashworth Solicitors
Suite 1B
Joseph’s Well
Hanover Walk
Leeds
LS3 1AB	

SUMMARY

Unfair Dismissal:  Compensation. 

Misdirection of law in suggesting that only conduct which justified dismissal could be considered in making a finding of contributory fault.

HIS HONOUR JUDGE PUGSLEY
The Application to amend the grounds of appeal
1.	This is a case where the originating applications for unfair dismissal were received on 1 December 2005.  The case started in September 2006, but it was not until 30 May that the 2007 that the decision was handed down.  That, we understand, was due to the illness of the Chairman of which there can be no criticism.  On the other hand, the events with which we are concerned happened in 2005.  This was a long and comprehensive judgment running to numerous pages, something in the order of 24, in typewritten form dealing with a number of issues.

2.	The chronology is this: that the Appellant’s Notice of Appeal was dated 8 June 2007 and received by the Employment Tribunal on 11 June 2007.  On 18 June 2007 HHJ Burke QC gave directions for case management, including a recommendation that the matter be expedited for hearing.  On 25 June the Registrar ordered the Appeal should be listed for hearing on 8 August with an estimated time of 2 hours.  We are dealing with an Application to Amend which was sent on 9 July four weeks after the Notice of Appeal had been received.  The explanation for the delay is that Mr Galvin’s attention, the solicitor preparing on behalf of the Respondent, was solely directed to the remedies hearing, or to put it this way his immediate focus was the issue of remedy.

3.	It is now suggested that the Employment Tribunal incorrectly set out the evidence of Mr Roberts and that the decision was in effect perverse.  The Registrar has refused leave to add this as a ground of appeal.  In effect what is proposed is to considerably widen the ambit of the appeal.

4.	The first ground of appeal concerns the construction to be placed on paragraph 25 of the decision and in particular the direction as there should have been no dismissal on a fair minded view of the Claimants’ conduct that neither Claimant could have contributed to that dismissal.  The amended ground of appeal is seeking to appeal against the decision that the dismissal was unfair.

5.	In crude terms this is like a defendant appealing to the Court of Appeal in a running down action on the basis that the damages were too high and then, shortly before the hearing, announcing that it was going to be argued that there should never have been a finding that the defendant was to blame.

6.	We have the gravest reservations whether this ground of appeal would have any merit at all given that a plethora of cases have pointed out that perversity is a high hurdle to surmount.  What it said is that the Chairman has misrepresented the position as far as Mr Roberts is concerned, in that the statement he had made did refer to observations that he had carried out and not just what he had been told.  We do not see why the Chairman can be criticised for referring to it as hearsay in that it was the evidence given by the investigating officer, Mr Saunders, about what Mr Roberts was saying.  That is a classic hearsay.  We do not need to write a textbook on the evidence to say it is within the knowledge of every trade union official, every personnel manager, that what one is prepared to say orally may be rather different from what they are prepared to say in a written statement about, and even more different about that on which they are prepared to give evidence under oath.  If the fact that the Tribunal may have not appreciated that Mr Robert’s statement referred to direct observation was as crucial to the Appellant’s case as has been suggested, then it was vital that that should have been introduced into the Notice of Appeal right from the start.  

7.	We have taken into account that the application for an amendment was still made within the 42 days of the promulgation of the decision.  However, under paragraph 2.7 of the Employment Appeal Tribunal Practice Direction any application for an amendment should be made as soon as possible.  We have been much assisted by the analysis in paragraph 86 of the judgment in Khudados v Leggatt UKEAT/0026/04, in which HHJ Daniel Serota QC set out helpful guidelines.  One of the principal considerations is the extent to which any proposed amendment would cause delay.  This is not the refining of an existing point;  the fleshing out of an argument already there.  This is the raising of a perversity argument and we are entitled to take a view that it would totally alter the whole structure of this appeal.  There is a merit in finality in litigation, and we consider that allowing this amendment would almost inevitably lead to an adjournment which would cause further expense and delay.  We question whether given the difficulties of establishing perversity in the totality of the findings made by the Employment Tribunal this issue could form the basis of an arguable point.

8.	This is a case that came before the Employment Tribunal in September 2006.  As has already been pointed out this case had a long and chequered history;  the Tribunal proceedings which started in 19 September had its final hearing on 26 - 27 February.  There were then two days in Chambers on 18 April and 10 May 2007, and the decision was finally drafted and promulgated on 30 May.

9.	There is often an air of artificiality about an appeal hearing.  A Tribunal has a host of issues to define and adjudicate upon.  In this case the Tribunal’s decision went to over 25 pages of typescript and the upshot was the Tribunal decided the Claimants were unfairly dismissed.

10.	The basis of that decision is that they were of the view that the Respondents had acted outside the range of reasonable response in dismissing the Claimants.  The Tribunal considered that the conclusion reached by the Respondents that the Claimants were involved in what is known in some provincial areas as “doing a foreigner”, namely working on their own or their own customers’ work when they should be engaged about their employer’s work, was misconceived and in regard to the investigations that were made there was no basis upon which the employers can conclude that either Claimant was engaged in private business.

11.	The Tribunal did think that both the Claimants had in fact exceeded their time for lunch and that that was a matter that merited some disciplinary action, but they made no reduction for reasons they set out in paragraph 25 that this was a matter which would not have led to summary dismissal or dismissal at all.  It would have either been an oral warning or possibly a written warning but what they say at Paragraph 25 is this:

“As far as contribution is concerned the Tribunal cannot accept that either claimant contributed to the dismissal.  As the only appropriate action in the view of the Tribunal could have been a warning then clearly the Tribunal accept Miss Belgrave’s submission [she appeared for the Claimants] that this was a case where there had been no dismissal at all.  As there had been no dismissal, neither Claimant could have contributed to that dismissal.  Disciplinary action was clearly merited but even then allowances could, and should have been made for the circumstances on that particular day.”

12.	Neither Counsel have suggested that that was a felicitous way of putting the matter.  There has been no authority put before us to suggest that there is a statement of the law which can be viewed as a proper statement.  The reality is that a tribunal can have regard in considering contribution to conduct, albeit that that conduct was not so culpable as to lead any fair-minded employer to take any action by way of dismissal.

13.	What concerns us is this.  The employees had gone to a house owned by one of them, and the suggestion was being made that on the particular day with which we were concerned, namely 6 July, because they were there for a time well in excess of the 45 minutes allowed for lunch they were in fact on work renovating Mr Burke’s property in the company’s time.  There had been complaints from a witness who wishes his anonymity to be preserved, that they were there on more than one occasion, and what the Tribunal was saying was that the Respondents failed to deal with this adequately and that in reality, whilst the employees did take a long break on that particular day, there was no evidence before the employers that this was a way of life, as it were.

14.	However what the Tribunal have done by misdirecting themselves in the terms we have set out in Paragraph 25 is that they failed to ask this question: 
“to what extent in the wider context of matters does the fact that they took a much longer lunch break than 45 minutes bring suspicion on themselves as to an ulterior reason for being there rather than just eating lunch, namely doing work on the house and to what extent the fact of the relatively minor disciplinary infraction of taking a longer lunch contributed to the dismissal because it did lead to an inference of improper and more grave behaviour on part of the employees merely by virtue of the length of time taken?”

15.	With the greatest respect to this decision – which in so many parts is so well drafted and so comprehensive – there is a fundamental flaw in paragraph 25 in finding that disciplinary action was clearly merited and refused then to make any deduction for contributory fault.  The suggestion that a deduction for contributory fault can only be made when the behaviour could lead to dismissal is a proposition that is far too wide.  In the wide discretion which they have a Tribunal might, on the particular facts of a case, decline to make a deduction on the basis that the culpability was so small but Tribunals have frequently made deductions in the range of  10 –49 per cent when, by definition, the employee role is defined as less culpable than that of the employer.

16.	We have decided the appropriate step is to remit this to the self same tribunal.  On the basis they misdirected themselves on the law in paragraph 25 of the reserve decision they now, in the light of the direction they should have made, should consider the matter afresh and decide on the issue of contributory fault and to consider whether or not it was just and proper having regard to the statutory provisions to reduce the basic and compensatory award.  They should have decided whether taking a longer lunch hour was in any way a contribution to the dismissal as a matter of fact in the process of this matter becoming a disciplinary issue and to consider whether having regard to statutory revisions there is any basis for reducing the basic or compensatory award. 

17.	In this case we are sending it back to the same tribunal.  They will no doubt wish to consider any conduct along the lines set out in the case of Robert Whiting Designs Ltd v Lamb [1978] ICR 89, Maris v Rotherham Corporation [1974] 2 All ER 776 and the criteria set out in Optikinetics Ltd v Whooley [1999] ICR 984.  To that extent the appeal is allowed and it is remitted to the same tribunal to direct its attention to those issues.