Appeal No. UKEAT/0469/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 March 2011

Before
HIS HONOUR JUDGE REID QC
MS G MILLS CBE
MS H PITCHER

MR M A SANDERS	APPELLANT

KINGSTON TRANSPORT LTD T/S SUSSEX SKIPS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS HELEN BELL
(of Counsel)
Instructed by:
Martin Searle Solicitors
9 Marlborough Place
Brighton
BN1 1UB 	
For the Respondent	MR JOSE NUNES
(Representative)
&
MR M A SANDERS
(The Respondent in Person) 	

SUMMARY
UNFAIR DISMISSAL – Polkey deduction

A dismissed R for gross misconduct.  It was alleged that he tried to strike a director of A during an investigation that A was conducting into a road accident involving R as a driver of one of A’s vehicles (his 6th in 4 months).  ET held that R did not attempt to strike A and therefore no Polkey deduction point arose.  A had specifically raised the point that (assault or not) R would have inevitably have been dismissed as a result of his driving record.  Remitted to ET to consider deduction point.

HIS HONOUR JUDGE REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at Brighton on 24 March of last year.  The reserve judgment was apparently sent to the parties on or about 27 April although unfortunately it is not dated and indeed, when it was first sent out it was sent out unsigned.  The Claimant claimed unfair dismissal and succeeded.  He was awarded compensation which amounted to £17,852.50.  

2.	The Respondent, who is the Appellant, appeals against that decision, not against the finding of unfair dismissal but simply saying that the Tribunal failed to deal with the argument that the award should have been reduced under the Polkey principle and that there was what might be described as contributory fault on the part of the Claimant.  

3.	The background to the case is that Mr Sanders was employed by the Respondent, which trades as Sussex Skips, from 15 January 2008.  He was an HGV driver and for the first 12 months or so, all went well.  From May 2009, there were problems.  There were incidents on 26 May 2009 when a lorry he was driving struck a vehicle at the southern roundabout in Lewes.  On 29 May, he left the handbrake off his lorry and it rolled into a van causing damage.  On 8 July, he struck the canopy of a petrol station and then, on 22 July there was another incident which appears to be a matter of some dispute where it said that he delivered a skip containing rubbish rather than an empty one and that there was some altercation with the customer, to which the Claimant says that the delivery ticket was signed and the customer was happy.  The Tribunal made no findings about what actually occurred on that occasion.  On the same day, he drove under some trees and damaged the auto sheet, which is the roof that covers the skip.  The Claimant accepts that the auto sheet was damaged by trees while he was driving but points out that the lorry did not have a height indicator and he blamed the local authority for the overhanging branches.

4.	On 5 August 2009, he was signed off by his GP for two weeks with stress related problems.  As a result of the incidence, he was called to a disciplinary hearing on 6 August and on that occasion there was some suggestion that he might on terms leave but he decided that he wished to continue and the result was that he was given a written warning.

5.	He returned to work on 4 September, but on 21 September, there was a further incident.  The lorry that he was driving had a damaged front bumper.  The employer says the damage was due to the Claimant.  The Claimant says that the lorry was already damaged when his shift began, but that the damage was not noted on the inspection report at the beginning of the shift.  As I understand it, he suggests that bumper damage of that sort would not be regularly noted anyway.

6.	Then, also on 21 September, there was an incident at about 11.45am when the Claimant’s lorry and a grey Fiat Punto came into contact at a junction after which the two lanes in which the Punto and the Claimant’s lorry were proceeding, merge into one lane.  It is not necessary for the purposes of this appeal to make any findings, or to attempt to make any findings about whose fault that may have been.  

7.	The result of that was that he was called in to the office and he saw Mr Talbot, who was the site manager.  Then, at the end of the working day, he was called in to see Mr Hudson, one of the directors and it was from that meeting that the dismissal arose.  Mr Hudson’s account was that the Claimant tried to strike him.  The Claimant denied that.  The Tribunal in resounding terms preferred the evidence of the Claimant to that of Mr Hudson and then went on to hold that this was the issue that they had to decide.  At paragraph 36 of the Judgment, the Tribunal said:

“The issue for the Tribunal to decide is which version of events in respect of the alleged altercation at the end of the day on 21 September 2009 it prefers.”

8.	The Tribunal, having reached its conclusion in relation to that, at paragraph 58 of its judgment said this:

“The Tribunal therefore finds that the Claimant did not act in the manner alleged by the Respondent and that his dismissal was unfair.  In view of that finding, the Tribunal does not need to address the other issues raised by the Respondent in its submissions.”

9.	It is unclear from the decision that precisely what the Tribunal was finding was the reason for dismissal.  By inference, it must be that the Tribunal thought that the dismissal arose from either the accident of 21 September alone or the accident on 21 September as a culmination on top of the other earlier five incidents.  The employer had firmly put in its case a submission that the Claimant’s dismissal was caused or contributed to by his conduct for the purposes of section 123 sub-section 6 of the Employment Rights Act serves to make it just and equitable to reduce the compensatory award and also that the Claimant’s conduct before dismissal was such as to make it just and equitable to reduce the basic award pursuant to section 122(2) of the Employment Rights Act.

10.	As has been seen from what I have read at paragraph 58 of the decision, the Tribunal did not attempt to address that issue.  The Tribunal appears to have narrowed down what it regarded as being the issue which it had to determine to which version of the events of 21 September it preferred.  It is true that it then at paragraph 38 set out the Respondent’s, the employer’s submissions, in particular at 3 and 4 its submissions in relation to the Polkey reduction or a reduction in respect of section 123(6) or 122(2), but thereafter it does not appear to have made any reference to, or decision on, those issues.

11.	We are not in any position to say what the Tribunal should or would have found if it had made a determination in relation to those issues.  It had set out the six matters on which the Respondent employer relied and indeed, so far as four of them go, it appears there was no real dispute about them and at least in relation to three, the Claimant accepts his responsibility.

12.	In these circumstances, it seems to us that the only proper course is for the matter to be remitted to the same Tribunal so that the Tribunal can consider the arguments raised by the employer in relation to the Polkey section 122 and section 123 matters, make any further findings a fact that it feels necessary in order to deal with those points and to then make its decision on the issue.  

13.	This Tribunal is not saying one way or the other whether the Employment Tribunal should make any reduction.  That is a matter entirely for the Tribunal.  It is not a matter for the Employment Appeal Tribunal, but it does appear to us that these were points properly raised before the Tribunal which the Tribunal should have dealt with but failed to deal with.  It is illogical for the Tribunal to have said that because it preferred the Claimant’s claim of version of events on the evening of 21 September, therefore the other points did not arise.

14.	On the Tribunal’s finding, the dismissal must have taken place as a result of the various earlier incidents, or one or more of them and in those circumstances though it found the proper procedures had not been gone through, it was necessary for the Tribunal to deal properly with the issue of possible reduction of compensation.  We will therefore direct that the matter be remitted to the same Tribunal for further consideration of those matters and for the Tribunal to reach its conclusion in relation to them.

15.	Needless to say, as we have already indicated to the parties, it would be perhaps to the advantage of everybody if the delay and expense necessarily incurred in the matter going back to the Tribunal could be resolved by some form of compromise between the parties, but that is not a matter for us to force upon the parties.  It is up to them to consider it and if there is anything in it, to reach some agreement.  Otherwise, as I say, the matter will go back to the Tribunal for further consideration by the Tribunal.

16.	In conclusion, we would like to thank Ms Bell and in particular, Mr Nunes, the representative on behalf of Mr Sanders for their assistance this morning.