+		Appeal No. EAT/609/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5th October 1992

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J C RAMSAY

	MRS P TURNER OBE

MR D ECCLES	APPELLANT

RIBBLE MOTOR SERVICES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR
(Of Counsel)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
London
SW19

For the Respondents	MR R A FORDHAM
(Of Counsel)
Messrs Blackhurst Parker & Yates
9 Cannon Street
Preston
PR1 3QD

	JUDGE HULL QC:  This appeal comes to us from the Decision of the Industrial Tribunal sitting at Manchester on 17th September 1990 in which they dismissed the application of Mr Eccles on the basis that he had not been unfairly dismissed by his employers Ribble Motor Services Ltd who employed him as a fitter in relation to work on public service vehicles, buses.

	Mr Eccles had been employed by the Respondents for a long time, he had first been employed by them in 1968, and then his employment ceased for a short while, and he took up employment again in 1973 and was employed by them then continuously until 1990 when the matter with which the Tribunal were concerned arose.  His work as a fitter, which was skilled work, was concerned with the public service vehicles, amongst other things, he also drove those vehicles from time to time, not when the public were using them but to get them back to depot and matters of that sort.

	The events which gave rise to this dismissal were that on the 10th May 1990, Mr Eccles was ordered to replace the wheel on one of the mini buses, one of more than twenty which the Respondents ran, there had been a puncture and he, as fitter, removed the wheel.  There are two wheels on each side of the rear of this mini bus, and he was dealing with the two wheels on the near side apparently.  He removed one, he could not replace it immediately and later that evening he was able to replace the wheel which was faulty and the bus then went back, apparently, into service.  Something was wrong, because the very next day the two wheels became detached, no doubt the faults were connected, one failed which led to the other failing.  One wheel came off altogether, the other was half off, the wheel studs were damaged because the wheels had become loose and had been playing and all the six nuts on the studs were found to be loose.  It is, of course, a source of great relief to everybody concerned, including the employers and Mr Eccles himself no doubt, that in fact there was no serious accident as a result of this and one can see perfectly, without any expertise at all, that it must be a serious matter that such a thing should happen.  Naturally, as Mr Eccles was the fitter responsible, his employers looked to him for an explanation and there was, first of all according to the procedures agreed, there was an informal hearing on the 18th just a week after the event.  That informal hearing was held by Mr Graves, the Depot Engineer, and I should say that these matters had been dealt with in accordance with the disciplinary procedure of the Respondents which is copied in our papers starting at page 24, and Mr Graves conducted, first of all, an informal enquiry to find out what had happened and he then, having heard and learned what he could, embarked upon a disciplinary hearing.  His note of what passed is at page 34 in our Bundle.  He said, amongst other things:
"I put it to Eccles that he had not secured the wheels correctly, which he denied.  I could not accept this as it was a serious matter and I would be taking disciplinary action."

Pausing at that stage, of course Mr Graves as an experienced person was entitled to form that conclusion, that was a question of fact, whether what had happened was consistent with the wheels being tightened correctly or not.  So then Mr Graves proceeded to his disciplinary hearing, and that is recorded on the same page where he deals with the way in which he dealt with the matter.  The union representative was present and of course Mr Eccles himself.  There was an account of the matter and Mr Graves records:
"I again asked if he [Mr Eccles] had an explanation as to why these wheels had fallen off, as I was taking a serious line on this matter, Eccles could offer- no explanation.  I explained that although he had not got any disciplinary awards for a few years, he had a history of incompetence with numerous warnings and reprimands, and this was now the straw that broke the camels back, as a result I was going to dismiss him for unsatisfactory workmanship.  The dismissal would be with 12 weeks salary in lieu of notice.  I informed him that he had the right to appeal should he disagree, he said he would wish to appeal."

Now there Mr Graves is saying in terms, of course he takes a serious view of this but he describes it as "the straw that broke the camel's back";  in other words in considering this matter, whether one took it very seriously, or only moderately seriously, it was to be added to all that had gone before and had led to the final decision to dismiss.  By inference one would think that Mr Graves was regarding it as a comparatively lesser matter, possibly, than the great burden of what had built up over the years.

	If one looks back to the record of Mr Eccles, one sees what is being referred to, it starts at page 20.  In 1968 Mr Eccles had been warned of serious omissions of defects on safety check sheet and then there are perhaps as many as a dozen, certainly of that order, warnings over the years of matters, some of which at any rate might relate very seriously to safety, where Mr Eccles had been warned, or given final warnings, and there were between 1974 and 1976 three or four such occasions, there were others in 1979, 1980 and 1981.  In 1984 there was a formal warning for unsatisfactory workmanship.  But after that, for the next six years there had apparently been nothing in the way of formal warnings, of warnings or reprimands of any sort relating to workmanship;  although there was in 1987 an incident of careless driving, something very different from the present matter of course, in which Mr Eccles caused some damage apparently, and a formal warning was given.

	That was Mr Graves' way of dealing with the matter and the Applicant, Mr Eccles, did exercise his right to appeal and he appeared shortly afterwards, on the 25th May, before Mr Geoffrey Corser, who was the Engineering Director.  Mr Corser too had been a fitter in his time, had entered management and was now the most senior engineer, as I infer from his title of Engineering Director.  This appeal again was in accordance with the disciplinary procedure, of which more later.  Mr Corser heard Mr Eccles and his union representative, a note of what passed in front of Mr Corser is from page 37 to page 40.  Mr Corser dealt with various matters and, in particular, contentions that this mishap might have occurred without any negligence on the part of Mr Eccles and he dealt with the matter at page 39.  I will not read the whole of this, he said in paragraph 1:
"it was my opinion that these wheels had not been correctly secured in the first place, therefore, I considered an offence had been committed.

. . . I did consider that a reasonable investigation had taken place."

that I think must be by Mr Graves, and then he goes on, at paragraph 3:
"Mr Graves had examined Mr Eccles' Staff Record and was appalled at the content which indicated a series of incidents, ie reprimands, warnings, final warnings and yet again further warnings and reprimands, for poor workmanship.  Taking into consideration that this was again an indication of carelessness, Mr Graves considered that this was a dismissable offence.  I [Mr Corser] examined the records and I agreed that this, in my opinion, was the case."

then he dealt with the matter, at the bottom of the page, as follows:
"Summing up, I said the Disciplinary Procedure was meant to be corrective.  Over the years this had been invoked with Mr Eccles but this did not appear to have had the desired effect, even though it was some time ago that the last warning took place.  I said I appreciated the fact that the Disciplinary Procedure indicates that after twelve months other awards would not be taken into consideration.  I explained that this meant they would not be used as `totting up', for example two warnings then a final warning.

All disciplinary matters are kept on record and this was considered as an indication of the level of incompetence of Mr Eccles.  I said that it was my opinion that Mr Eccles had not secured the wheel as he normally would and this could have resulted in a very serious accident.

I took into consideration all the facts including Mr Eccles staff record and it was my opinion that Mr Graves had treated Mr Eccles in the only way he could, that was to dispense of his services.

That makes it as plain as can be, I think, that not only Mr Graves but also Mr Corser, regarded the previous record, which I have already referred to, as being something of very great importance, if not of paramount importance, in dealing with the question whether Mr Eccles should be dismissed.  There was an appeal to the Managing Director, again, in accordance with the code of conduct, there was no evidence about that before the Tribunal, as I understand it.  One infers, since that appeal was unsuccessful, and nothing was said about it, that the Managing Director took the same view as the two senior engineers who had considered the matter and thus felt obliged to confirm what had happened.

	Then the matter came before the Industrial Tribunal and the Tribunal was pressed with the argument that the Code required that management should not look at these "spent convictions" if I may call them that, I certainly do not mean to equate it with the Rehabilitation of Offenders Act but they should not have looked at them, and the Industrial Tribunal decided that adversely to Mr Eccles.  But where I go into what the Tribunal had to say about that I must look first at the Code itself.  This is known as the Disciplinary Procedure, it has evidently been agreed between management and workforce in the usual way and it starts off with its objective at page 24:
"1.The Object of Disciplinary Action

It must be understood that disciplinary action, whenever it becomes necessary, is primarily corrective in nature rather than a punishment.  The aim is to encourage the member of staff to become a better employee - one who will do the job expected of him or her.  The ultimate action of dismissal is used only where the Company sees no hope of achieving that objective."

So that if the Disciplinary Procedure was complied with dismissal could only be on the basis that Mr Graves and his more senior colleagues saw no hope of the objective of achieving efficiency in the employee.  Then over the page at page 25 is paragraph 4 "Disciplinary Procedure" on which this case turns.  It is, after dealing with other matters, in particular in paragraph 4(ii):
"Cases of gross misconduct . . .

(iii)Action taken as a result of the interview will be dependent upon the merits of each individual case but will usually take the form of:-

(a)Reprimand - which will be noted on the employee's record card

(b)Formal Warning - which will be noted on the employee's record card

(c)Dismissal - with appropriate notice

(d)Summary Dismissal - dismissal without notice

The third Formal Warning issued will be the final warning (the employee being notified of this at the time).

Dismissal, except Summary Dismissal, will not normally take place until after the employee has received a Final Warning.

If following a Reprimand or Formal Warning no further cause for dissatisfaction with the employee's work or conduct occurs within a period of 12 months, the Reprimand or Warning will not be taken into account in any subsequent disciplinary proceedings."

What Mr Eccles said, quite shortly, was "not only were all my previous warnings and reprimands taken into account but they were given a paramount importance.  What I had done most recently was treated only as `the straw the broke the camels back' it was my appalling record, as it was referred to, or very bad record, that led the Company to conclude that there was no alternative to dismissing me" and he said "the alternative might have been for the Company to say that this was such a grave matter that it should be dealt with by summary dismissal, at any rate they were entitled to consider that, and deal with it as so serious that quite without regard to anything else it merited dismissal".  But the Company expressly did not do that.  That was dealt with by the Tribunal principally at the top of page 11, where the Decision is given as follows:
"It was argued on behalf of the applicant that it was unfair for the respondents to take into account the applicant's previous record.  It was pointed out, on the applicant's behalf, that under the disciplinary rules at Paragraph 4, it is provided `if following a reprimand or formal warning no further cause for dissatisfaction with the employee's work or conduct occurs within the period of 12 months, the reprimand or warning will not be taken into account in any subsequent disciplinary proceedings.'  It was contended on behalf of the respondents that, in effect, that clause really relates to conduct, as it would be possible, if that were not the case, for an employee to be guilty of negligent workmanship, receive a warning and then commit a further act of poor workmanship immediately after the period of the warning had expired and so on.  We are satisfied that the respondents were entitled to regard this as a grave piece of negligence on the part of the applicant.  The respondents are in the business of operating a fleet of public service vehicles.  The wheel of a bus came off.  It was fortunate that that happened whilst the bus was stationary or virtually stationary.  The respondents were entitled to conclude that it could quite easily have come off whilst the vehicle was travelling at, say, 40 miles per hour, with possible disastrous consequences to the passengers and/or members of the public outside the bus itself.  We consider that in deciding whether an employee is capable of carrying out the work he is employed to do, it is permissible for the respondents to look at the applicant's history of poor workmanship whilst he had been in their employment."
If this was a case of incompetence at the job, pure and simple, that is to say, a fitter was taken on and it was found that he was not capable of doing his work as a fitter properly, further training was provided and those responsible for the training said "we really do not feel that this man is ever going to come up to the standard required to be a reliable and skilful fitter, we think you will have to keep him on less skilful duties" of course that would be something quite different, but throughout what is relied on as showing the lack of capability of Mr Eccles for his task and as justifying this dismissal is a series of incidents which were dealt with as disciplinary incidents and which, it is fair to say, may represent a measure of incompetence, but which were undoubtedly concerned with carelessness, that is to say, they were treated as matters of discipline and it seems to us that to treat the conduct which preceded and led to the reprimands and warnings as being something quite separate from the reprimands and warnings, so that one would have to put out of one's mind if one were the manager, the question of the reprimands and final warnings themselves but could still consider the conduct which led to those, is too sophisticated a construction possibly to be put on these matters.  If one must pursue the analogy of criminal proceedings it would be as though the prosecution were entitled at a criminal trial, having of course been properly prevented from telling the jury about previous convictions, nonetheless to prove the burglaries, the facts of the various burglaries or robberies, or whatever it may be, that underlay those convictions.  We think that that may be regarded as ridiculous, and we do, with very great respect, regard this conclusion as untenable.  We think that this was the disciplinary procedure which was, of course, agreed between management and workforce, it is accepted that it formed part of the contract and that the employee, in this case Mr Eccles, was entitled, when the question of disciplining him came into question, to rely upon the terms of the document which expressly related to that.  It is clear, in our view, on the true construction of this document, which we believe is the commonsensical one, that all those concerned, that is to say Mr Graves, Mr Corser, the Managing Director, as we infer, and of course the Industrial Tribunal, all those concerned with this dismissal have gravely misconstrued this document.  It was said by Mr Fordham that it is clear now that it is a document which should be redrafted.  That may very well be so, it may very well be that a responsible employer would feel that this document had various defects, it is not up to us of course to tell employers and employees how to reach agreements or what to put in them, we are satisfied that as this document stands it governed the procedures and there was a serious departure from them which could only be justified on the basis of a construction which we regard as impossible.  It is clear that this was no incidental matter, as I have already said, all those concerned with this dismissal relied heavily, if not in a paramount way, on all that had passed before.  Certainly, speaking for myself, I learnt that with particular misgiving because, of course, six years had elapsed, and one would infer that if the object of a disciplinary code was to produce improvement in employees' performance it might be said that a man who had persistently been warned on earlier occasions, and had now gone six years without any further warning, had, at any rate, in large part, complied with the objects of the code and met its requirements and that his performance had improved.  That would of course be the sort of comment which is really a matter of fact for the employers.  Be that as it may be, we do not think that the employers were entitled to rely on these earlier matters, we think that they misconstrued the code which was binding both on them and on Mr Eccles himself and we therefore consider that since they did not proceed in accordance with the code it is impossible for this dismissal to be fair.  There was a departure from fairness in that there was a departure from what had been agreed between the parties with express reference to the situation which did in fact arise.  In those circumstances, it not being a trivial breach or a breach without consequences, but going absolutely to the root of the matter, we feel obliged to allow this appeal.

	There is another matter on which there is no dispute between the parties and that is that when they reached the end of their decision the Industrial Tribunal said that if they had reached a different conclusion, that is to say, had come to the conclusion that Mr Eccles had been unfairly dismissed, they would have been of opinion on the facts that he was guilty of a very high degree of contribution to his dismissal and would have reduced his award by 80%.  It is contended by Mr Carr that he was not given a proper opportunity to address the Tribunal and call any evidence that he wanted to with regard to that matter and it is conceded by Mr Fordham that in the event that we were in favour of the Appellant in this appeal we should give leave to deal with that matter by remitting the matter.

	Our conclusion is, that this appeal must be allowed and that the case must be remitted to a tribunal, differently constituted, to consider those matters which arise under Section 74(6) of the Act.