Appeal No. EAT/532/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 October 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MS S R CORBY

	MR J H GALBRAITH CB

MR J ATKINSON	APPELLANT

THORN LIGHTING LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B HENRY
(Of Counsel)
Mark Gittins & Co
111-113 Plunginton Road
Preston
Lancs PR1 7UE

For the Respondents	MR J CAVANAGH
(Of Counsel)
Engineering Employers 
Federation
Broadway House
Tothill Street
London SW1H 9JQ

	MR JUSTICE KNOX:  This is an appeal by Mr J Atkinson from a decision of the Industrial Tribunal sitting at Leeds on 13 July and 6 August 1990 which was sent to the parties on 25 September of that year that Mr Atkinson was dismissed for a reason of his capability and that he was not unfairly dismissed.

	Mr Atkinson had been a fairly long term employee of the Respondents Thorn Lighting Ltd which I will call "the Company", in that he started work for them on 23 June 1975.  He was a Chef Manager in charge of the Company's catering and kitchens at Preston where the Company has a factory.

	The relevant history really starts in the middle of 1989.  In August of that year a Mrs Barnes became responsible within the Company's organisation for canteen and catering and it was then evident that the hygiene aspect in particular in relation to catering, was not satisfactory and the Environmental Health Authorities were thought likely to intervene with adverse results obviously, for the Company.  Steps were taken to commission a report by consultants to remedy what was perceived as being an unsatisfactory state of affairs and that was acted upon and discussed between Mrs Barnes and Mr Atkinson, the discussion being in September and some of the action, notably a cleaning company cleaning the kitchen and the dry store, running over just into October,

	Thereafter there were quite numerous occasions when either there was a meeting or Mrs Barnes wrote to Mr Atkinson pointing out various points that in her, Mrs Barnes' view, needed attention.  It is not necessary for us to go into the precise details of the several matters that were raised.  Equally there were complaints from members of the staff about the way in which the catering facilities were operated and that was brought up by Mrs Barnes too.

	Mr Atkinson on his side had matters of complaint which included the lack of ventilation in the kitchen and there was an issue between them as to the extent to which an outside door could properly be left open.

	The dreaded event of a visit from the Environmental Health Officer did in fact materialise and in January there was such a visit and on 1 February a letter was received from the Environmental Health Officer which was not calculated to allay the fears of the Company as to the state of their hygiene and the conduct of their catering activities.

	Matters effectively came to a head when on 13 February 1990, there was a disciplinary meeting between Mr Atkinson and Mrs Barnes in the course of which a schedule of some 12 matters which had happened in the past, on Mrs Barnes' view of the matter, were gone through with Mr Atkinson and discussions ensued between them.  In the result Mrs Barnes decided that the history of these 12 matters was sufficiently serious to warrant her giving an oral warning, which she did on that day, the 13th, with a written confirmation on the following day in a letter which enumerated the 12 matters, one of them being subdivided in to 3 matters, following up with this passage:

"Having catalogued instances of your failure to comply with the duties listed in your job description and relevant "Acts" we have no alternative but to inform you that should there be any further instances of non-compliance, for whatever reason, you will be dismissed."

That therefore was a final written warning which Mr Atkinson got that day.

	The very next day he gave notice of intention to appeal from that warning.  We do not have the piece of paper on which he did that, nor it would appear was it one of the exhibits before the Industrial Tribunal because we have all the exhibits that were before it and the parties before us have not been able to show us exactly what it was that Mr Atkinson said.  The more natural inference would appear to be that his desire for an appeal was expressed in fairly general terms.

	The very same day when that was received, that is to say the 15th, further matters were the subject of a further disciplinary hearing which started on 15th which was a Thursday and was resumed on the following Monday, the 19 February, when 4 specific complaints were the subject matter of Mrs Barnes' disciplinary interview with Mr Atkinson and again it is not necessary for us to go into the details of those 4 matters except perhaps to mention that certainly one, the leaving of clothes in a dry food store, had been (inter alia) the subject matter of the written warning on 14 February.

	By this time, it hardly needs saying, that the appeal from the warning had not yet occurred and when therefore on 19 February Mrs Barnes decided, as she did, that Mr Atkinson should be dismissed for failure to comply with the relevant Act and duties listed in his job description, it was at a stage when the appeal against the warning was still unheard.  It was pointed out in the formal letter of dismissal which Mrs Barnes wrote on 20 February 1990 announcing her decision as a result of the disciplinary hearing on 15th and 19th of that month that Mr Atkinson had a right of appeal as outlined in the disciplinary procedure, a copy of which "was given to you on Thursday February 15th".  He exercised that right as was his entitlement.  That came before Miss Preece, Mrs Barnes' superior, on 1 March 1990 and Miss Preece had a re-hearing going into the whole history of the matter including the events that led up to the giving of the warning on the 13th and 14th February as well as the matters that led to the dismissal on 15th and the date of the hearing 19th February.  That appeal was unsuccessful and Miss Preece upheld Mrs Barnes' decision to dismiss.

	The appeal before us is against the Industrial Tribunal's decision that the processes gone through by the Company were not unfair.  It is clear enough that the Industrial Tribunal went through the factual background in considerable detail.  They set out their findings regarding the events that led to the giving of the warning on 13th and 14th February and they went on to examine in detail the 4 points of criticism that led to the dismissal at the end of the Disciplinary Hearing on 15th and 19th February.

	It has not been suggested to us that the Industrial Tribunal failed to address itself properly in terms of the requirements of S.57(3) of the Employment Protection (Consolidation) Act 1978.  They appear to us to have set out the effect of that subsection entirely accurately and the appeal that has been launched before us is on two specific limited grounds, both of which centre on the fact that the appeal against the warning had not run its course in any formal sense before Mr Atkinson was dismissed.  We gave leave to raise these points for reasons that I need not at this stage repeat, and the first one is that the Industrial Tribunal, it is claimed, failed to take any or any proper account of the fact that Mr Atkinson had appealed against the warning and the Company did not give him an opportunity of pursuing that appeal against the warning before dismissing him, and the second point is that in that action the Company was in breach of the Appellant's contractual entitlement to have his appeal against the final written warning determined.

	One small point in relation to the latter is that although we gave leave to raise the question of contractual entitlement, the contract was not the subject of a finding or indeed in evidence so far as one can tell, in relation to the disciplinary procedures of the Company.  There were, of course, in evidence both before the Industrial Tribunal and before us the job specification that went with Mr Atkinson's appointment.  That was examined in some detail but the disciplinary procedure was not in fact before the Industrial Tribunal although we were shown it.  It cannot therefore be assumed that this was strictly speaking a "contractual" matter as between Mr Atkinson and the Company but on the view we take of the matter that is of relatively subsidiary importance.  What is established quite clearly is that there was a disciplinary procedure which the Company was seeking to follow and that the disciplinary procedure does actually provide for an appeal to be made against a final written warning.

	The legal position where there is a dismissal following on a written warning that dismissal will ensue, before an appeal from the latter has been determined, is dealt with in TOWER HAMLETS HEALTH AUTHORITY v ANTHONY [1989] ICR 656 in which the Court of Appeal held that it was an error of law for an Industrial Tribunal to ignore a warning because it was under appeal in its assessment whether a subsequent dismissal was fair or unfair.

	Lord Justice May, at page 661 approved what had been said by Lord McDonald in an earlier Scottish case STEIN v ASSOCIATED DAIRIES LTD  [1982] IRLR 447 and put it into his own language as follows:

"In a case such as this, the fact that an employee has received a formal warning at some stage prior to the ultimate dismissal is one of the circumstances in the case which a reasonable employer should take into account and which an industrial tribunal should also, as an industrial jury, take into account in passing judgment on the actions of the employer.  Similarly the fact that that warning is still subject to an undetermined appeal is one of the circumstances of the case which a reasonable employer should take into account and which similarly an industrial tribunal should take into account in deciding whether or not the employer has acted reasonably in ultimately dismissing the employee, as in fact the employer did.  In any given case there will be a substantial number of other circumstances which the reasonable employer and thereafter the industrial tribunal, if necessary, will have to take into account; all the factors which employers and industrial tribunals do take into account in this type of application.  But where the circumstances are such as they were in the instant case and where the question is whether the requirements of the disciplinary code have been complied with, the reasonable employer is not only entitled to but should, as with the industrial tribunal, take into account the fact that there has been a formal warning, but he should also bear in mind that that formal warning is subject to an appeal which has yet to be determined.  As Mr Hochhauser suggested in the course of the argument, where the determination of the appeal will be the day after the dismissal under consideration, it may not be difficult for an industrial tribunal to take the view that an employer who dismisses the day before the determination of an appeal against the necessary formal warning was unreasonable in not waiting that day to see what the determination of the appeal might be".
He then goes on to deal with what happens when the timescale is in a matter of months and weeks which was not surprising in the circumstances of that particular case where the dates were as follows.  There was a first formal warning on 3rd or 8th May 1985.  There was a Notice of Appeal put in but the appeal remained undetermined when a second formal warning was issued on 21st October 1985 and it still remained undetermined, as indeed did the second formal warning which was also under appeal, when the employee was ultimately dismissed on 6th January 1986.  In that case the timescale was a very protracted one so that the argument that Mr Hochhauser, who was for the employer, had advanced by way of concession of an employer who acts precipitately in not waiting one more day when he knows that an appeal on a warning is coming, was one which did not apply in that particular case and certainly does not apply in this case, where the events followed very shortly on the heels of the other events.  Indeed it was that very short timescale which the Industrial Tribunal rightly in our view, regarded as posing a very substantial difficulty in this particular case because this was a case where the Industrial Tribunal was in fact divided in its views on the fairness or unfairness of the dismissal.  At para 16 one finds that difference of view crystallised.  The decision reads as follows:

"The Minority member also feels that any shortcomings in the applicant's organisation of work had been found too soon after the warning to be serious, because he feels that the applicant had not had sufficient time to respond in deciding new work practices, given the laxity which had been allowed for many years before the report in 1989.  The majority feel that it was for the applicant to consider all the practices carefully once the respondent had made it clear to him as they did in the Autumn of 1989 that their attitude had changed.  The majority feel that the applicant was incapable of the reappraisal necessary because he was too set in his ways.  He took the view that his breaches of the Regulations were minor and therefore did not matter very much.  We unanimously feel that it would not be right for the respondents to rely on the staff being allowed to go home in their overalls..." 

And that dealt with one particular point that was not a critical one in their decision that the dismissal was fair although it had been one of the points that had arisen in the course of the appeal before Miss Preece.

	Mr Henry sought to distinguish the Tower Hamlets decision which obviously is a very considerable obstacle in his path in supporting this appeal by referring to the situation where capability is the issue rather than conduct, and he drew our attention to MANSFIELD HOSIERY MILLS LTD v M BROMLEY [1977] IRLR 301 where, he submitted, it was said that in a case where capability is in issue before dismissal, the employee whose capability is the subject of a warning, should be given an opportunity of mending his or her ways and one can see, as a general proposition, that must be correct.  It is not an invariable or inflexible rule.

	The answer which was given, which seems to us a compelling one, by Mr Cavanagh for the Company was that although this was treated by the Industrial Tribunal and categorised as a capability case, it is in that area of capability which shades into conduct in that, as appears from the extract which I have read from the Industrial Tribunal, the essential basis upon which capability was found to be the reason for the dismissal was that Mr Atkinson was too set in his ways to alter and that of course is very close to misconduct.  That is reflected by the terms of IT.3 which the Company put in in answer to Mr Atkinson's Originating Application and which refers to the breaches in the regulations, the Food Hygiene (General) Regulations 1970 and the Food Act 1984, and the failure to remedy those breaches to the extent to which Mr Atkinson was responsible for them.  So this was a case where the case made against Mr Atkinson was one of his failing as a matter of conscious decision on his part, to comply with the requirements of those regulations and that Act.  His attitude as recorded, was that what was being alleged was not sufficiently serious to warrant the amount of fuss, to paraphrase his attitude, that was being made about it.

	It was also emphasised to us, and this we accept, that the House of Lords in WEST MIDLANDS CO-OPERATIVE SOCIETY LTD v TIPTON [1986] ICR 192 and in particular Lord Bridge at page 202, has emphasised that rights of appeal form part of, and an important part of the employee's rights under a contract of employment and that it is both unrealistic and wrong to have regard only to the earlier stages of disciplinary industrial procedures in deciding whether a dismissal has been fair or unfair and to disregard the rights of appeal that the relevant disciplinary code may give.

	That of course, we accept.  The question that arises in this case seems to us to be somewhat different and to be whether the right that Mr Atkinson we assume had, whether by way of contract or by way of established procedure, it matters little, to have his final written warning examined on appeal was overtaken by the further events in the series of failure to comply with the requirements of the regulations and the Food Act and that question - whether the appeal is fairly treated as having been overtaken by the subsequent disciplinary proceeding with regard to the later offences - is something which is capable of being the subject matter of a decision that the dismissal is not unfair.  That seems to us to be implicit in the TOWER HAMLETS' decision and we therefore are driven back to the situation that in essence this appeal is in our view, one which really raises the question whether the Industrial Tribunal was in its majority perverse in reaching the conclusion that it did reach.

	We are not persuaded of that.  Certainly there was evidence which was capable of leading to the conclusion that they did reach.  They did state the issues that they had to consider under S.57(3) of the 1978 Act perfectly accurately, and the TOWER HAMLETS' decision is authority for the proposition that it would have been wrong for them to ignore the final written warning but of course, they should take into account the fact that it was under appeal.  They do not in terms say that they have taken that into account in their decision, but for two reasons we feel unable to say that that amounts to an error in law on their part.  The first reason is that there is every indication, although there is not a verbatim account, that, when the matter was before the Industrial Tribunal and Mr Henry did not appear on that occasion, it was not put as clearly or as firmly on the issue, whether the warning appeal procedure had been fatally abridged, as it was before us so that to that extent it is not altogether surprising if the Industrial Tribunal did not specifically deal with a point that was not emphasised, so far as one can tell, in argument before them.  Indeed, there were arguments at an earlier stage as to whether this was not an entirely new point such as we ought to exclude, and Mr Henry was not in a position, (it was not his fault but he did not have the ammunition), to tell us that the point had been argued before the Industrial Tribunal and indeed the recollection on the other side was that it had not.  So all the indications are that the Industrial Tribunal was not alerted to this point as a separate point upon which Mr Atkinson sought to rely.

	On the other hand there is quite clear evidence before us that the Industrial Tribunal had every reason to appreciate the fact that the appeal against the warning had not been heard.  The Notes of Evidence of Mrs Barnes show that in the course of her cross-examination she said this:  

"15 February 90 was not his appeal against the warning.  I received notification of an appeal from the warning.  It was overtaken by events.  I told him I adjourned the meeting on the 15th to decide what to do".

So that the evidence before the Industrial Tribunal was quite clear that there was an appeal from the warning and that it was overtaken by the subsequent events.  That is confirmed by what Miss Preece said in chief, right at the end of her examination in chief.  The note of that is:
"Final warning - I felt it was justified on the basis that it was a final straw situation.  Mrs Barnes had been trying to assist.  She had been buying things for him.  A first oral warning would have trivialised it ourselves."

	Those indications, and there are others, but those are the most compelling ones, show to our mind conclusively, that there was ample material before the Industrial Tribunal to alert it to the fact that the appeal against the warning (a) had been made and (b) had not been heard.

	When one puts that fact beside the fact that both Mrs Barnes' procedure and Miss Preece's appeal went in some considerable detail through the events that led to the warning, and that the Industrial Tribunal did the same, it seems to us unrealistic to suggest that the Industrial Tribunal did not have in mind the fact that the appeal from the warning had not actually been heard when the dismissal ensued.  It seems to us that they must have had that in mind and their failure, if that is the right word, to mention it in terms in their decision seems to us entirely venial given that the point was not taken on behalf of Mr Atkinson.

	In those circumstances it seems to us that the criticisms that have been levelled at the Industrial Tribunal's decision are not made out as amounting to an error in law, which is of course the only thing that we have jurisdiction to interfere with and the appeal will therefore be dismissed.