THE
HONOURABLE LADY SMITH
Introduction
1.
This is an employer’s appeal against a finding by the Employment
Tribunal sitting at Glasgow, presided over by Mr R A MacKenzie, that the Claimant
contributed to his own dismissal by only 5%. The judgment was registered
on 15 June 2011.
2.
It was conceded that the Claimant’s dismissal was procedurally unfair.
The only issue for the Tribunal was remedy. Two issues then arose: (i) the Respondent’s
position was that, if there had been a fair procedure, there was a chance that
the Claimant would still have been dismissed, and (ii) that he had, in any
event, contributed to his own dismissal.
3.
We will, for clarity, continue to refer to parties as Claimant and Respondent.
4.
The Claimant was represented by Mr R MacKinnon, solicitor, before
the Tribunal and before us. The Respondent was represented by Mr J
Reilly, representative, before the Tribunal and by Mr Hay, advocate,
before us.
Background
5.
The findings of fact which were made by the Tribunal disclose the
following background and account of relevant matters and events.
6.
The Respondent is a construction company and the Claimant was employed
by them as a ground worker. At the time of his dismissal, he was working on a
building site in Dumbarton. One of his tasks was to cut monoblocks for a
driveway, with a stihl saw. The Claimant was experienced in operating the
stihl saw. When monoblocks are cut, silica dust is given off which, if
inhaled, can be injurious to health. It is an activity to which the Control
of Substances Hazardous to Health Regulations 2002 apply.
If an employer fails to protect his employees from exposure to such substances,
the Health and Safety Executive (‘HSE’) may issue a prohibition notice, the
effect of which is to direct the employer to stop carrying out any activity
which breaches health and safety regulations.
7.
The preventive mechanism which was used to control dust from the stihl
saw was an attachment called a water suppression bottle which provided a flow
of water over the cutting site to dampen the atmosphere, when the saw was being
operated. It was also possible to provide such water flow by fitting a hose to
the saw.
8.
On 31 August 2010, another employee was operating the stihl saw.
Its water jets became blocked. He, accordingly, fitted a hose to the saw
instead. On 1 September, the Claimant was cutting monoblocks using the
stihl saw. He knew how important it was to suppress dust with a water flow
when cutting with the stihl saw – indeed, before us, Mr MacKinnon
stated that the Claimant did appreciate the safety implications involved. His
position was that the only safe mechanism of dust suppression was to use
the stihl saw along with a water suppression bottle. The Claimant also knew of
the risk of the HSE taking action against the Respondent if water flow
suppression of dust was not taking place.
9.
The hose that the Claimant’s colleague had used the previous day was not
immediately available on 1 September. He proceeded to cut monoblocks with
the stihl saw, without a water suppression bottle and without a hose being
attached to it. He poured water onto the blocks from a lemonade bottle but he
was not applying water from the bottle at the same time as he was cutting the
blocks. The Tribunal’s findings are to the effect that there was, accordingly,
no dust suppression occurring during the cutting operation.
10.
The Respondent’s health and safety manager, Mr Macfarlane saw what
the Claimant was doing and told him to stop, commenting something to the
effect: “you’ll get us the jail.” The Claimant told him that the water
suppression bottle was broken and Mr MacFarlane told him to go and get
another one, from the yard if necessary. The Respondent’s site supervisor,
Mr Caloran, spoke to the Claimant and told him to use a water suppression
bottle or to attach a hose to the saw.
11.
On or about 19 August, another employee, Mr McGaw, was
observed by an HSE inspector using a stihl saw without using any water
suppression and without wearing protective clothing. As soon as he was spoken
to by the inspector he attached a water suppression bottle to the saw and
donned the appropriate protective clothing; the inspector did not then issue a
prohibition notice. Mr McGaw was disciplined. The outcome of the
disciplinary proceedings against him was that he was issued with a written
warning. He was advised, in the letter intimating the Respondent’s
decision - dated 2 September 2010 (no.19/1 in the documents before
the Tribunal) - that had it not been for his prompt action in putting on
the correct clothing and attaching water suppression to the saw, he would have
been dismissed. The letter stated:
“If it were not for your mitigating actions you would have been
dismissed, however, you are being issued with a written warning. You should
note that any further breaches of any kind in relation to health and safety by
you will result in the termination of your employment and instant dismissal.”
The Claimant’s dismissal
12.
The Claimant was dismissed on 2 September 2010 by letter stating:
“Further to your conduct yesterday in breach of the Health and
Safety Rules in that you were carrying out cutting works without the use of
water suppression which generated dust endangering both yourself and others.”
13.
The letter also pointed out:
“Your conduct has potentially caused the company to face
prosecution from the HSE and endangered the companies (sic) relationship with
one of its main clients.”
14.
The Claimant was advised of his right of appeal and an appeal hearing
took place on 21 September 2010. There were detailed notes of the appeal
hearing before the Tribunal (document no.7/1) and it is evident from them that
the Claimant was given an unrestricted opportunity to put his case to the
Respondent. His dismissal was upheld.
Relevant law
15.
The Claimant was prima facie, entitled to a basic award
and compensation.
When awarding compensation, a tribunal has to assess what is just and equitable.
In this case, that involved considering not only the nature and extent of the Claimant’s
financial losses arising from the dismissal but whether the award ought to be
reduced in either or both of two respects.
16.
There was potential for reduction of the award in accordance with the
principles laid down in Polkey v AE Dayton Services Ltd [1987]
IRLR 503 and also in accordance with sections 122(2)
and 123(5), on the basis that the Claimant had contributed to his own
dismissal.
17.
Regarding the possibility of a Polkey deduction, if
a dismissal is procedurally unfair, the Employment Tribunal requires to
consider whether, on the evidence led and facts found, there was a chance that
the employee would have been dismissed if a fair procedure had been followed.
We would refer, in that regard, to our discussion of the relevant principles in
the case of Ventrac Sheet Metals Ltd v Fairley UKEATS/0064/10/BI,
referred to by Mr Hay in the course of his submissions before us:
“1. When awarding compensation for unfair dismissal, a tribunal
requires to assess what is “just and equitable in all the circumstances having
regard to the loss sustained by the complainant in consequence of the dismissal
in so far as that loss is attributable to action taken by the employer” (Employment
Rights Act 1996 s.123(1)). If the unfairness is that the employer failed
to take the appropriate procedural steps then an obvious series of “what if?”
questions arise – what if the employer had taken the steps desiderated?
What then? Was there a chance that the employee would have been dismissed in
any event? If so, how substantial was that chance? Unless these questions are
addressed, an unsatisfactory and unacceptable situation arises namely that the
implication of the award of compensation will be that the employee would have
retained his job indefinitely when the circumstances may in fact be that it
cannot be said that that would have been the case at all.
1. The law has long been settled that
in these circumstances, the tribunal can award compensation which represents
less than 100% of the claimant’s loss. In Polkey v Dayton Ltd,
Lord Bridge of Harwich explained, at p.364-5:
‘If it is held that taking the appropriate steps which the
employer failed to take before dismissing the employee would not have affected
the outcome, this will often lead to the result that the employee, though
unfairly dismissed, will recover no compensation or, in the case of redundancy,
no compensation in excess of his redundancy payment.
…
… if the likely effect of taking the appropriate procedural
steps is only considered, as it is should be, at the stage of assessing
compensation … as Browne-Wilkinson J. put it in Sillifant’s case,
at p.96:
‘There is no need for an “all or nothing” decision. If the
industrial tribunal thinks there is a doubt whether or not the employee would
have been dismissed, this element can be reflected by reducing the normal
amount of compensation by a percentage representing the chance that the
employee would still have lost his employment.’
The second consideration is perhaps of particular
importance in redundancy cases. An industrial tribunal may conclude, as in the
instant case, that the appropriate procedural steps would not have avoided the
employee’s dismissal as redundant.”
2. The analysis of authorities set out in the Software 2000
Ltd case is directly in point and we would refer to the helpful summary of principles
set out at paragraph 54. The tribunal requires to have regard to all the
evidence and, of particular significance for the purposes of the present case,
requires to appreciate that:
“(4) … it should have regard to any
material and reliable evidence which might assist it in fixing just
compensation, even if there are limits to the extent to which it can
confidently predict what might have been; and it must appreciate that a degree
of uncertainty is an inevitable feature of the exercise. The mere fact that an
element of speculation is involved is not a reason for refusing to have regard
to the evidence.
…
(6) … even if a Tribunal
considers that (sic) some of the evidence or potential evidence to be too
speculative to form any sensible view as to whether dismissal would have
occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it
considers it can properly rely and from which it could in principle conclude
that the employment may have come to an end when it did, or alternatively would
not have continued indefinitely.”
3. Regarding the possibility of a tribunal making no Polkey
deduction and thus finding that the claimant’s employment would have continued
indefinitely, the President observed:
“… this … finding should be reached only where the evidence
that it might have been terminated earlier is so scant that it can effectively
be ignored.”
4. The theme of the guidance in Software 2000 Limited
was taken up recently in the case of Eversheds Legal Services Ltd
v De Belin [2011] IRLR 448 where, at paragraph 45, Underhill P
observed:
“45. We rather suspect that the Tribunal was seduced into
abandoning its proper course, as tribunals still too often are, by the siren word
“speculative”, which at para 4.16 it quotes from Mr Bacon’s own
evidence. “Speculative” is not a dyslogistic term in this field. The trouble
starts with the decision of the Inner House in King v Eaton no.2 Ltd
[1998] IRLR 6868, which appears, at least on one reading, to say that
tribunals when invited to make discounts for future contingencies should
decline to engage in speculation: another much quoted phrase from the judgment
of Lord Prosser is his reference to being unable “sensible [to]
reconstruct the work as it might have been”. But the Court of Appeal in Thornett
v Scope [2007] ICR 236 counselled against too wide a reading of King
v Eaton.”
5. He then referred to Software 2000 Ltd
and added:
“… Elias P reviewed the previous authorities (which include
also Lambe v 186K Ltd [2005] ICR 307 and Gover v Propertycare
Ltd [2006] ICR 1073, adding, at para 38 (p.832E–H) his own note
of caution against reading King v Eaton too expansively.”
6. We recognise that the chimes of caution regarding the
interpretation of King v Eaton have been rung not in Scotland but by
this Tribunal sitting south of the border and by the Court of Appeal, but we
are satisfied that, when King v Eaton is properly interpreted,
such caution is justified. We agree with Underhill P’s observations at
paragraph 45 and with his apparent anxiety that tribunals appear to shy
away from speculating in the sense of asking the “what if?” questions that we
pose above. We do not read King v Eaton as ruling out all
exercises in speculation; the references in paragraph 19 to the tribunal’s
task involving “hypothesis”, ‘impression”, to it being a matter of “judgment”,
to it being a matter of what was “possible” and to it reaching a conclusion
that can be not only with “more” confidence but with “less” confidence, all, to
our minds, show that uncertainty and speculation were accepted as being
inherent in the Polkey exercise. Whilst Lord Prosser rejected the
submission that the exercise could be carried out in King v Eaton,
referring to it involving embarking on a “sea of speculation” at paragraph 22,
that was in the context of there being “no reliable factual starting point” for
it. He was not, as we read him, saying that it was not legitimate for a
tribunal to speculate – to do so would, we consider, have been
contradictory of his discussion at paragraph 19.
7. As to the source of the evidence relied on, having regard
to certain submissions that were made on behalf of the claimant, we do not
consider that the evidence relied on by a tribunal when making a Polkey
reduction requires to have emanated either from the employer’s witness or
productions or from cross examination of the claimant’s witness(es). Whilst
Elias P’s comment at paragraph 54(2) in Software 2000,
that it is for the employer to adduce any relevant evidence on which he wishes
to rely, might, if taken out of context, be thought so to indicate, when his
comments are read in their entirety, including that he then proceeds to state:
“However, the tribunal must have regard to all the evidence
when making that assessment including any evidence from the employee himself.”
It seems clear to us that he did not intend to suggest that
there was any such rule.”
18.
It was the Respondent’s case that whilst unfairness was conceded, the
dismissal was only procedurally unfair and not substantively unfair.
19.
Regarding deductions for contribution, section 122(2) of the
1996 Act provides:
“Where the tribunal considers that any conduct of the complainant
before the dismissal … was such that it would be just and equitable to reduce
or further reduce the amount of the basic award to any extent, the tribunal
shall reduce or further reduce that amount accordingly.”
20.
Section 123 of the 1996 Act also provides for reduction of the
compensatory award for contribution:
“123(6) Where the tribunal find that the dismissal was to any
extent caused or contributed by any action of the complainant, it shall reduce
the amount of the compensatory award by such proportion as it considers just
and equitable having regard to that finding.”
21.
These provisions are designed to require a tribunal to consider reducing
compensation if an employee’s actions have in fact been causative of his
dismissal, even if those actions were not the reason for his dismissal (W Devis
and Sons Ltd v Atkins [1977] UKHL 6). The tribunal must
ask: what did he do? Did it cause or contribute to his dismissal? Is it just
and equitable that, in the light of that causative conduct, his basic award and
compensation be reduced?
22.
In the case of Parker v Slack [1993] ICR 302,
the Court of Appeal considered the principles applicable when considering the
reduction of compensation on grounds of contribution. There, two employees
involved in a fight had been treated differently – only one had been
dismissed – and the compensation of the dismissed employee had been
reduced by 50% by reason of his own contribution. It was argued that the
tribunal should have taken account of what had happened to the other employee
when considering reduction for contribution. Lords Justice Woolf,
Balcombe and Glidewell agreed that when considering reduction of compensation,
an Employment Tribunal is confined to taking account of the conduct of the
complainant, not what happened to some other employee. The words ‘all the
circumstances’ which appeared in section 74(1) of the legislation then in
force (see now s.123(1) of the 1996 Act) did not appear in
subsection (6) which provided for reduction for contribution (see now s.123(6)
of the 1996 Act, as above). The focus requires to be, according to their
Lordships, on the complainant’s own conduct and the extent to which it caused
or contributed to his dismissal.
23.
In the case of Jamieson v Aberdeen County Council [1975]
IRLR, the Inner House observed, under reference to Maris v Rotherham
Corporation [1974] IRLR 147 that the words of the statutory
provisions:
“… bring into consideration all the circumstances surrounding
the dismissal, requiring the Tribunal to take a broad commonsense view of the
situation, and to decide what, if any, part the employee’s own conduct played
in contributing to his dismissal …”
24.
Whilst that might, at first blush, seem to conflict with the approach of
the Court of Appeal in Parker, there was no suggestion that
issues of ‘comparative justice’ such as those in Parker arose in
the case of Jamieson and we note that the two courts appear to be
at one in stressing the importance of focussing on the claimant’s conduct and
whether it can be said to have been causative of his dismissal.
25.
Havering Primary Care Trust v Bidwell UKEAT/0479/07; UKEAT/0480/07
was another case where the issue of contribution was argued on appeal. A nurse
had been dismissed when it was found that she was working, in addition to the
shifts she worked for Havering PCT, shifts for another health care provider so
that her weekly working hours were excessive. It was submitted for the
employer that Parker ought to have been applied so as to exclude
from the tribunal’s considerations the fact that many NHS nurses have second
jobs and there was no system for monitoring them. That submission was rejected
by this tribunal, Underhill P presiding, on the basis not that Parker
was not authority for the proposition which we set out above but that on
the facts of that case, the circumstances relating to the conduct of other
nurses and they way it was regarded by the NHS was relevant to assessing the
nature and extent of the claimant’s culpability. That is, that it was relevant
to assessing what was the causative conduct in question.
26.
The appeal before us is on perversity grounds and could, accordingly,
only succeed if the Tribunal reached a conclusion which no reasonable tribunal
“on a proper appreciation of the evidence and the law” would have reached (Yeboah
v Crofton [2002] IRLR 634, paragraph 93).
27.
It also being submitted that, in one respect, the Tribunal’s reasoning
was inadequate, we would refer to Meek v City of Birmingham District
Council [1987] IRLR 250 where, at paragraph 8,
Lord Justice Bingham said:
“… the decision of an Industrial Tribunal is not required to be
an elaborate formalistic product of refined legal draftmanship, but it must
contain an outline of the story which has given rise to the complaint and a
summary of the Tribunal’s basic factual conclusions and a statement of the
reasons which have led them to reach the conclusion which they do on those
basic facts. The parties are entitled to be told why they have won or lost. There
should be sufficient account of the facts and of the reasoning to enable the
EAT or, on further appeal, this court to see whether any question of law
arises.”
28.
The possibility of an uplift to the Claimant’s award arose in this case,
because it as a claim listed in Schedule A2 to the Trade Union and
Labour Relations (Consolidation) Act 1992, a relevant Code of
Practice applied to it and there had been procedural failure by the Respondent.
Section 207A of the 1992 Act applied. Section 207A(2) provides:
“(2) If, in the case of proceedings to which this section applies,
it appears to the employment tribunal that -
(a) the claim to which the
proceedings relate concerns a matter to which a relevant Code of Practice
applies,
(b) the employer has failed to comply
with that Code in relation to that matter, and
(c) that failure was unreasonable,
the employment tribunal may, if it considers it just and
equitable in all the circumstances to do so, increase any award it makes to the
employee by no more than 25%.”
29.
The ACAS Code to Discipline and Grievances at Work (2009) is a
relevant Code of Practice and applied at the time of the above events. In such
circumstances, an employment tribunal requires to ask itself: does a relevant
Code of Practice apply? Has the employer failed to comply with that Code in
any respect? If so, in what respect? Do we consider that that failure was
unreasonable? If so, why? Do we consider it just and equitable, in all the
circumstances, to increase the claimant’s award? Why is it just and equitable
to do so? If we consider that the award ought to be increased, by how much
ought it to be increased? Why do we consider that that increase is
appropriate?
The Tribunal’s Judgment and Reasons
30.
The Tribunal reduced the basic and compensatory award by 5%. They
increased the compensatory award to the Claimant by the maximum amount
of 25%. Once the 5% reductions and 25% uplift were taken into
account, they brought out a total due to the Claimant of Ł20,887.63.
31.
The Tribunal found that the dismissal was substantively unfair. They
refer to British Home Stores v Burchell [1978] IRLR 379 and
focus on the question identified by Arnold J, in his well known (but all
too often misunderstood)
analysis as the first question which a tribunal requires to address: whether or
not the employer genuinely believed that the Claimant was guilty of the
misconduct in question. They continue:
“Mr Macfarlane, the respondents’ health and safety manager
in his statement (production R 16/1) he says (sic) “under no
circumstances was he to use the saw without the proper water tank fitted to the
saw whilst cutting stone products” and reminded the site supervisor (Mr Caloran)
“that the water suppression tank must be fitted at all times when cutting stone
products.” The saw is to be used only when water suppression bottles are fitted
to the saw. However, the respondents permitted employees to use the saw when
water suppression bottles were not fitted to the saw. We conclude therefore
that the respondents did not consider the claimant was guilty of the misconduct
in question as they permitted the misconduct.”
32.
That is the reasoning on which the Tribunal found that there had been
substantive unfairness.
33.
The Tribunal went on to consider contribution. They approached matters
on the basis that the Respondent had condoned the use of the saw without water
suppression bottles being fitted to it, citing Mr McGaw’s case as evidence
of that. At paragraph 18, they state: “ The claimant’s position was no
different from Mr McGaw” and at paragraph 19, having indicated that
they would reduce both the basic award and the compensatory award, they state:
“The claimant was an experienced operator of the saw and
therefore knew the saw should only be used if water suppression bottles were
fitted to the saw. If not then there was a possibility that the HSE inspectors
would issue a prohibition notice preventing the respondents’ operation on the
site where the claimant was working. However, the respondents condoned their
employees using the saw without water suppression bottles being fitted to the
saw. Mr McGaw was an employee, fully trained, used the saw in the same
manner and without wearing ppe but was not dismissed. In all the circumstances
we consider it would be just and equitable to reduce the basic and compensatory
award by 5%.”
34.
As for their reasons for the uplift of 25%, none are given. At
paragraph 21, they simply state that the ACAS Code of Practice applied,
the Respondent clearly failed to comply with it and it would be reasonable to
award an increase of 25%.
The appeal
35.
The Notice of Appeal was not drafted by a solicitor or counsel and was
not a model of clarity. We accept, however, that it provided notice of the
following grounds of appeal. First, that the Tribunal’s decision that the
dismissal was substantively unfair was perverse and led to a failure to
consider a Polkey deduction. Secondly, that the Tribunal had
erred in law in their approach to reduction for contribution in respect that
they had misunderstood the relevant facts (and failed to have regard to
relevant facts). Thirdly, that the conclusion that reduction for contribution
should be fixed at 5% was so low as to be perverse. Fourthly, that the
decision on uplift was so lacking in reasons as not to be Meek
compliant and demonstrative of error on the part of the Tribunal.
36.
In a clear and careful submission, Mr Hay referred to the
underlying background of serious health and safety issues that arose in this
case. It was, accordingly, important that there be a mechanism for the
dampening of air used when cutting with a stihl saw. The stihl saw had an
inherent part – the water suppression bottle – for achieving that but
when it was not working, another effective method was employed, namely a hose
attached to the saw. There was, however, no question of the means being
employed by the Claimant on 1 September – pouring water from a
lemonade bottle but with no water stream when the saw was in operation –
being acceptable. The Claimant knew that. He had plainly contributed to his
own dismissal in a manner of some substance. He had posed a danger to himself
and others and had put his employers in breach of the relevant statutory
obligations.
37.
Mr Hay referred to the above authorities on contribution.
38.
Turning to the Tribunal’s judgment, they had fallen into error. At paragraphs 17
and 19, they appeared to proceed on the basis that the Respondent had
condoned the use of the stihl saw without any water suppression at all. There
was no basis for that conclusion in the evidence. Further, they appeared to
regard Mr McGaw’s case as demonstrative of the Respondent having condoned
such a practice but that wholly failed to recognise that he was disciplined and
given a written warning; that was far from indicating that the Respondent
condoned it. Nor was it correct to say that the Claimant’s position was that
he was, when stopped by Mr Macfarlane, carrying out an activity that was
condoned. The Claimant himself reported Mr Macfarlane as having told him
to stop lest he got them “the jail”. Whilst it was correct to say that the Respondent
had tolerated water suppression by use of a hose as opposed to a water
suppression bottle, there was no evidence or finding in fact that they had
tolerated the method being employed by the Claimant at the relevant time. To
describe the circumstances as being that the Respondent had ‘condoned’ the
conduct in question was to offend commonsense. The Tribunal had no proper
basis for doing so.
39.
If we accepted that submission the effect was, Mr Hay said, that
the finding of substantive unfairness fell away and the level of reduction for
contribution was shown to be so low as to be perverse. The Tribunal had also
been wrong to rely on the treatment of Mr McGaw as a reason for limiting
the reduction for contribution – if that was what they had done. It was
not clear.
40.
Regarding the uplift, Mr Hay pointed to the fact that it was not
that there had been no compliance with the ACAS Code; there had been a full and
detailed appeal procedure. The Tribunal’s award of the maximum uplift was not
explained and was inexplicable.
41.
Mr Hay moved us to allow the appeal and remit the case to a freshly
constituted tribunal for a rehearing. The nature of the perversity in the Tribunal’s
conclusions was, he said, such as to make it reasonable that, as was the case,
the Respondent had lost confidence in them.
42.
For the Claimant, Mr MacKinnon accepted that there was an element
of confusion in the Tribunal’s judgment, particularly regarding dust
suppression by water suppression bottle or by hose. The Claimant was present
and he advised Mr MacKinnon that the water suppression bottle system did
not provide a continuous flow of water as it could be controlled by the
operator. He did not, however, suggest that its purpose and function was other
than referred to by the Tribunal or by Mr Hay, namely to provide water
spray to dampen the atmosphere during any cutting operation. He relied on the Tribunal’s
conclusion that the Respondent did permit the use of the stihl saw without a
water suppression bottle attached and submitted that the Claimant’s conduct
could not, accordingly, be labelled as misconduct. There was, however, no
cross appeal. He did not suggest that the Tribunal had erred in making the
reduction that they made.
43.
Mr MacKinnon said that the Claimant accepted the importance and
seriousness of the underlying health safety concerns in this case. It was his
position that the only safe method was to use the stihl saw with a water
suppression bottle attached. Mr MacKinnon did not begin to explain how
that approach on the part of the Claimant squared with his submission that the Claimant
had not been guilty of misconduct in his use of the saw on 1 September.
There was no question of him having a water suppression bottle attached at that
time nor was there any question of him having been instructed to use it without
one.
44.
Regarding paragraph 19 of the Tribunal’s judgment,
Mr MacKinnon said that he believed that the Tribunal were referring to the
Claimant’s conduct having been condoned, not Mr McGaw’s. Overall, there
was nothing to allow us to conclude that the finding of unfairness was perverse
and contribution and uplift were, he submitted, a matter for the Tribunal.
Discussion and decision
45.
We accept that this appeal is well founded in all respects.
46.
Dealing first with the finding of substantive unfairness, the Tribunal
has misapplied the Burchell test. This was not a case where the
facts of what happened on 1 September were at issue. The Respondents were
plainly entitled to believe that the Claimant had conducted himself in the
manner referred to above that is, he had been using a stihl saw without the use
of water suppression. That was the conduct for which he was dismissed. It
simply does not make sense to say, as the Tribunal do, that the Respondent did
not consider that he was guilty of the misconduct alleged. Further, we accept
that the Tribunal had no basis in the facts found for concluding that the Respondent
had condoned the conduct for which the Claimant was dismissed. They had not.
There was no evidence or finding that the Claimant had been instructed to
operate the saw in the manner in which he was operating it on
1 September. Nor was there any basis on which they could refer to
Mr McGaw’s case as an example of such conduct having been condoned; his
conduct had not been condoned. He had been disciplined, received a written
warning and advised that any further health and safety breaches would
lead to instant dismissal. That is not to condone conduct at all.
47.
Those being the only considerations on which the Tribunal based its
finding of substantive unfairness, their conclusion is shown to be one which
they were not entitled to reach and was perverse. A finding of procedural
unfairness would, of course, have remained but consideration would then have to
have been given to the issue of whether or not a Polkey deduction
ought to be made. The Tribunal did not, because of their erroneous conclusion
of substantively unfair dismissal, do so.
48.
The Tribunal’s conclusion on substantive unfairness may also have arisen
from their failing to have regard to the fact that on their findings, fitting a
water suppression bottle to the saw was not the only way to achieve effective
water suppression . It could also be achieved, on their findings, by using a
hose. When it comes to their conclusions, however, they read as though the
only possible way to achieve effective water suppression of dust was by means
of a water suppression bottle. They appear to have forgotten their earlier
finding, thus failing to have regard to a relevant factor. Moreover, they seem
to have become bogged down in the matter of the mechanism of water suppression
rather than recognising, as was apparent, for instance, from the reason given
for the Claimant’s dismissal, that the Respondent’s concern was the lack of
effective water suppression of dust in the way that the Claimant was working on
1 September not that he was not using a water suppression bottle.
49.
Turning to contribution, again the Tribunal’s approach is flawed as
having been based on the Respondent having condoned the conduct in question.
Further, they may have adopted a “comparative justice” approach, considering
that since Mr McGaw was not dismissed, the reduction in the Claimant’s
award should be limited. It is not clear. If, however, that is what they have
done, they were wrong to do so. We would refer in that regard to the “Relevant
law” section above where we discuss the authorities relevant to this issue.
50.
Separately, we would add that the Claimant’s conduct having been
deliberate, having involved a serious health and safety risk, having put his
employers at risk of being found to be in breach of their statutory
obligations, all without any apparent excuse, the extent of his contribution
was on any view of some substance. The Tribunal’s finding of 5% is so low
as to provoke the reaction – “that must be wrong” – and is,
accordingly, perverse.
51.
Turning to the uplift, we have no difficulty in accepting Mr Hay’s
submission. We would refer to the list of questions that arise when an uplift
is sought, as referred in our “Relevant law” section. Other than finding that
the ACAS Code applied, was breached and that they have decided to award the
maximum uplift, the Tribunal do not answer them. In particular, they wholly
fail to explain how and why the maximum uplift was justified when, whilst there
was breach of the Code, there was also compliance in respect that there was an
appeal procedure about which there was no apparent complaint.
Disposal
52.
In these circumstances, we will pronounce an order upholding the appeal
and remitting the case to a freshly constituted Employment Tribunal for a
rehearing. We accept that it is reasonable for the respondents to feel a loss
of confidence such as to make it inappropriate to remit to the same Tribunal.
