Appeal No. EAT/78/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5 November 1992

	Before

	HIS HONOUR JUDGE J HULL QC

	MISS C HOLROYD

	MRS P TURNER OBE

MR R C GILROY	APPELLANT

KEN BELL (INTERNATIONAL) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR
 	REPRESENTATION ON
 	BEHALF OF THE
 	APPELLANT

For the Respondents	NO APPEARANCE BY OR
	REPRESENTATION ON 
	BEHALF OF THE
 	RESPONDENTS

	JUDGE HULL QC:  This is our decision in the case of Gilroy v Ken Bell (International) Ltd.  Mr Gilroy the Appellant is not present today and as a result of telephone calls it was thought to be established that he had made a mistake about the date.  However that may be he has since been in touch from Newcastle and has said that he is quite content for this Tribunal to determine his appeal on the basis of the papers and written submissions we have before us, including of course the decision of the Industrial Tribunal, and therefore in the interests of saving costs we are prepared to take that course; no request is made to us to adjourn and we hope that instead of dismissing the appeal shortly it will be helpful to Mr Gilroy, and we understand it to be his request, that we should decide and give our reasons for our decision on the merits of the appeal.  We do so of course without the benefit of anything Mr Gilroy might have added, but we are confident that we are able, subject to that, to reach a decision on the basis of what we have read.

	Mr Gilroy applied to the Industrial Tribunal at Newcastle upon Tyne which heard the matter on 2 or 3 days, the 16 October, 15 November and 6 December 1990, and his complaint was of unfair dismissal.  That Tribunal heard the evidence and had to decide a substantial conflict of evidence between Mr Gilroy and his employers.  Mr Gilroy was employed as a supervisor and he was also a qualified driver and occasionally helped with the driving.  I do not need to go into the facts in great detail.  He was, in addition to the matters I have mentioned, a very keen soccer fan and having taken his two weeks summer holiday in 1990 at the World Cup Competition in Sardinia, Italy, and having no doubt seen a great deal of interesting and exciting football, he returned to work on 25 June.  On that occasion he made no mention of wishing to go abroad again.  But shortly thereafter the English side won a victory and got into the semi-final, which was rightly regarded by Mr Gilroy as a matter of importance, and Mr Gilroy concluded that he wished to watch England playing in the semi-final at Turin.

	That was certainly, on the face of it, something which he had no authority to do and again I will not go into all the circumstances.  On the Friday before the England victory which led to his wish to go abroad again, he had made, the Tribunal found, a special arrangement that he would drive one of the vehicles of his employers on a long journey during the following week, starting on Monday.  He was going to drive to Edinburgh and that as I understand the Tribunal's reasons was a journey he was going to make regularly during the week - the employers were one driver short - and that was an arrangement which he had expressly made.

	At the weekend he found that there was this very pressing reason, as he saw it, to go abroad and the way in which he dealt with it was this.  He telephoned an officer of the company at 8.15 on Monday morning; he was intending very shortly afterwards to catch the train and go on the plane to Italy.  He spoke to Mr Hodgson and there was a very sharp conflict of evidence between him and Mr Hodgson about the conversation which took place.  He told Mr Hodgson he wanted to go to Italy and Mr Hodgson, though not entirely certain about what was said, told the Tribunal that he had replied:

"You realise if you do this you won't have a job to come back to"

and according to Mr Hodgson, the applicant Mr Gilroy replied:

"I'm not really bothered.  It's something I have to do."

There were attacks on Mr Hodgson's evidence but the Tribunal felt that they should accept the substance of Mr Hodgson's account and that he had in fact withheld consent from Mr Gilroy to take another week's holiday, which was what Mr Gilroy wanted.  There is no appeal, and indeed it is hard to see how there could be an appeal, against that finding of fact.  The Tribunal heard the witnesses, were obliged to make up their minds which evidence to accept and which to reject, and not without giving very good reasons for their decision they accepted the evidence of Mr Hodgson.

	In the face of that refusal of any further holiday Mr Gilroy simply went off and the employers, acting in an old-fashioned way if I can use that expression, that is to say as though the employment legislation had never been enacted, simply sent him his P45; so that when Mr Gilroy arrived home, there was the P45 waiting for him.  The Tribunal sagely observed that if there had been any misunderstanding and Mr Gilroy felt that he had been given leave to go, the first thing he would have done on finding that shocking thing and inferring quite rightly that it meant that he had got the sack summarily, would have been to go straight round to his employers and say:  Look, you told me I could go - or words to that effect.  But he did not.  He went straight to see his Solicitor and the Tribunal observed, we think justly, that that was an odd reaction for a man who believed he had permission to take his holiday, which was what he said.  

	The Tribunal, not surprisingly, found the way in which he had been dismissed entirely unsatisfactory.  As to the basis of the dismissal, which was not explained to them - the responsible person did not give evidence - they dealt with it like this:

"..we do not know who took the decision to dismiss or what affected the mind of the dismisser when he took that decision.  Mr Hesselberth [ the advocate for the company] argued that it was clear that the reason was Mr Gilroy's conduct in taking his holiday without permission when he knew he was booked for the Edinburgh trip, but we cannot accept that.  We heard no evidence from the dismisser.  We understand Mr Mewitt took the decision to dismiss.  If that is right then he should have been called as a witness.  As far as we are concerned it was a fundamental omission.  It follows that the decision is unfair."
 
	There is no appeal against that part of the decision and in the circumstances it cannot be criticised.  The Tribunal were finding that the dismissal was unfair, and indeed they say in those circumstances we do not need to go on to consider whether the employers acted reasonably in all the circumstances; but, they add, we would have held that they did not act reasonably because we heard no evidence of any proper investigation by the dismisser.  Mr Gilroy was successful because the employer had entirely ignored the normal and lawful and proper ways of dismissing an employee.

	Having said that the Tribunal went on to consider the other part of the case, which was the question of compensation.  What compensation, if any, should they give to Mr Gilroy? In sub-paragraph (c) of paragraph 3 they say this:

"Nevertheless, on the facts we have found, we do not think it would be just and equitable to make either a Basic Award or a Compensatory Award.  Section 73(7)(b) of the Act provides:-

"Where the Tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) 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."

and then they go on to cite S.74 which relates to the compensatory award and is very similar.  They say correctly citing from that:

"The amount of the Compensatory Award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer."

	They say that a number of reasons had been advanced on behalf of Mr Gilroy why a reasonable employer might not dismiss but they say:
"However, as we have found, Mr Gilroy was prepared to leave his employers in the lurch.  He told us that he would never have sacrificed his career for the sake of a football match but we believe that he did just that.  In his excitement at the prospect of seeing England play in the semi-finals he became careless of the consequences and we conclude that Mr Gilroy committed misconduct which would justify a reasonable employer taking the decision to dismiss.  Therefore, despite the respondents' evidential and procedural failures, we do not think Mr Gilroy deserves any compensation."

	Mr Gilroy criticises, by his appeal, the decision of the Tribunal.  Of course he can only do so on the basis that they have made an error of law.  As we have already said, it is not open to us to interfere with any finding of fact of the Tribunal and that includes all proper inferences of fact and conclusions which they draw from their findings of fact.  We have set out above what they found.  On the face of it therefore their decision cannot be attacked, but Mr Gilroy says this, having set out the findings of the Tribunal:

" the Tribunal then went on to decide that it was just and equitable in all the circumstances to reduce the appellant's basic and compensatory awards to nil.

In accordance with principle set out in Gibson -v- British Transport Docks Board 1982 IRLR 228 it is submitted that such a reduction by an Industrial Tribunal can only be justified when the employees conduct can be said to be the sole cause of the dismissal."

	So we have looked as requested by Mr Gilroy, or his representatives, at that decision.  It was a very different case.  Ten employees of the British Transport Docks Board had been involved in picketing during an industrial dispute.  Two women employees had been trying to go to work and the result was, unhappily, that they were assaulted by certain members of the picket.  The employers conducted an enquiry and decided to treat all the picket as being equally involved in the matter and they decided to dismiss them all.  There was a complaint to the Tribunal.

	The Tribunal found that although the dismissals had been unfair, there should be a 100% deduction in respect of the contribution by the employees to their own dismissal; and that led to an appeal to the Employment Appeal Tribunal, presided over by Mr Justice Browne-Wilkinson.  I will read from the headnote as I understand Mr Gilroy will read a transcript of our Judgement, or may wish to do so:

"The Employment Appeal Tribunal held:

The majority of the Industrial Tribunal had erred in law in holding that the respondents' failure to consider on an individual basis the cases of 10 people involved in a physical assault on another employee did not render unfair the dismissals of the five appellants, even though the respondents admitted that had they looked at each case individually, they might not have dismissed the appellants who were not directly involved in carrying out the assault.  In reaching their decision, the Industrial Tribunal had applied the wrong test.  In assessing whether, if the employers had rightly treated the cases individually, a decision to dismiss would have been fair, the Industrial Tribunal had not, on the evidence, assessed what the employers would have done.  They had substituted their own view of what was fair for that of the employers.

Under s.57(3) of the Employment Protection (Consolidation) Act, the Industrial Tribunal is not to substitute its view of what was fair for the employer's but to look at the actual decision of the employer and see if that decision fell within the band of conduct which a reasonable employer might have adopted.  The approach that where there has been a failure to follow a correct procedure, that does not automatically render the dismissal unfair if the Industrial Tribunal is satisfied that had the correct procedure been followed it would not have altered the result, must be adopted with considerable caution.  It is of obvious application where the departure from procedure is a slight one.  Where there is a major procedural error, however, as there was in the present case, the dangers of an Industrial Tribunal speculating and guessing as to the outcome become substantial.

In the present case, the majority of the Industrial Tribunal had taken this approach one step further by saying that, notwithstanding that there had been a fundamental error and that it had been shown that that fundamental error might have affected the decision of the employers, they considered that dismissal would still have been fair even if the matter had been considered individually.  That was not a permissible approach under s.57(3) and the decision of the Industrial Tribunal that the dismissals were fair could not be accepted as correct.

The majority of the Industrial Tribunal had also erred in law in holding, in the alternative, that had the dismissals been unfair, compensation would have been reduced by 100% on grounds of the employees' contribution to the dismissals.

A 100% contribution on the part of the employees could not be justified since the employers were to some extent at fault in dismissing without considering the individual cases.  Therefore, at least part of the cause of the dismissal was not conduct attributable to the appellants.

However, the argument advanced on behalf of the appellants that their conduct did not justify any reduction since the dismissals were caused or contributed to by the failure of the respondents to take the necessary procedures could not be accepted.  In determining whether compensation should be reduced what has to be shown is that the conduct of the employee contributed to the dismissal.  If the employee has been guilty of improper conduct which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the Tribunal to find that the conduct contributed to the dismissal.

In the present case, though none of the five appellants was actually guilty of the assault on the other employee, they were parties to a joint enterprise which, on the findings of the Industrial Tribunal, set out to intimidate, if necessary by the use of physical force, two of their workfellows whose conduct they disapproved of.  There was physical violence and they stood by.  That was conduct of a kind which was wholly unacceptable.  No just and equitable approach to this case could depart from the view that the overwhelming blame for the dismissals lay at the door of the appellants.  In the circumstances, their contribution would be assessed at 90%, leaving 10% as being referable to the failure by the respondents to treat each case individually."

	It is to that part of the decision to which Mr Gilroy asks us to pay attention and I would just say before I go on to refer to the parts of the decision which justify that headnote that of course that decision was before the POLKEY decision.  The conflict of approach between various Tribunals which the case of POLKEY resolved had not been resolved at this time and there is evidence of that confusion of thought in some of the matters that are dealt with by the Employment Appeal Tribunal.

	What this Employment Appeal Tribunal said in the case of GIBSON at page 232, the vital part of their decision so far as this is concerned, was (at para 24):

"The Industrial Tribunal obviously regarded the failure to look at each case separately as a substantial failure.  It is the more important because of the surprising evidence, accepted by the Industrial Tribunal, that if the cases had been looked at individually, it might have altered the outcome."

and then they go on in para 25:

"...In this case there was no need to speculate or guess because it is clear that the Tribunal could not and did not come to the conclusion that the result would have been the same if the procedure had been correct, ie if each case had been considered individually." 

and in paras 27 and 28 they say:

"We then come on to consider contributory fault.  As we have said, the majority of the Tribunal assessed the extent of the contribution to be made, if they were wrong in finding the dismissal was fair, at 100%.  The question of contribution is dealt with in s.74(6) in these terms:

"Where the Tribunal finds that the dismissal was to any extent caused or contributed to 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."

Under that section, before the Tribunal can make any reduction in the amount of compensation, it has to find that the dismissal was to any extent caused or contributed to by the applicant's actions.  Then it makes the reduction by such amount as it considers just and equitable having regard to that finding."

and then in para 30:

"Mr Moxon-Browne [who appeared in the case] next submits that it is difficult, in the circumstances of this case, to see how a contribution of 100% is justified.  We put to Mr Jenkins [Counsel for the employers] the proposition that the possible causes of this dismissal were threefold:  first, the conduct of the appellants on 9 August; [that was the assaults of course] secondly their lies told to the disciplinary hearing; and, thirdly, the failure of the employers to treat the case of each of them individually.  Whilst Mr Jenkins did not, of course, accept that the third factor was a failure by the employers, he did accept that if the employers were at fault in dismissing without considering the individual cases, then that analysis of the causes of the dismissal was correct.  If that is so, then at least part of the cause for the dismissal was not conduct attributable to these complainants.  Therefore, a finding of 100% as their contribution cannot be justified since their conduct cannot have been the sole cause of the dismissal.  We think that that finding of 100% cannot be justified for those reasons."

  	That is the decision - of course, very different on its facts - in which strict logic was applied by this Tribunal to show that a finding 100% was inappropriate; but it seems to us that that was a completely different case.  There the Industrial Tribunal, having found that the procedure was unfair, and having found that if a fair procedure had been adopted the result might have been different, went on to speculate about the actual result which would have followed, putting their own judgment (as the Appeal Tribunal found) in place of that of the employers, which they are not allowed to do.  Accordingly, this Tribunal dealt with it under s.74(6) which is the way in which the case had been put, considering the extent to which the dismissal caused by the employees' actions.  It is necessary therefore to contrast s.74(6) with what goes before.  In that subsection it is provided:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to 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."

	The Industrial Tribunal had found that the dismissal procedure was flawed and had gone on to consider what would have happened if it had been carried out properly.

	In the present case it was not a case of the dismissal procedure being flawed or speculating about those matters.  The Tribunal expressly said that, having heard no evidence about those matters, they were bound to find the dismissal unfair; and they did not consider the question of s.74(6) at all because they were not concerning themselves with that.  They considered s.74(1), as is shown by the citations from the statute which I have already read and the corresponding subsection with regard to the basic award which they also cited.  S.74(1) says:

"Subject to sections 75 and 76 the amount of the Compensatory Award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer."

	That is the provision at which this Industrial Tribunal was looking in the case of Mr Gilroy and it is well settled that under that subsection a Tribunal, if satisfied that the employee has been unfairly dismissed, may nonetheless reduce his compensation award, and indeed his basic award, to nil if it is just and equitable to do so having regard to his behaviour.  It is under those provisions that this Industrial Tribunal was acting, not under the provision with which this Appeal Tribunal was concerned in the case of GIBSON, to which I have made such extensive reference.

	Their finding was as follows.  They say, at the bottom of page 10A:

"Mr Gilroy was prepared to leave his employers in the lurch.  He told us that he would never have sacrificed his career for the sake of a football match but we believe that he did just that.  In his excitement at the prospect of seeing England play in the semi-finals he became careless of the consequences and we conclude that Mr Gilroy committed misconduct which would justify a reasonable employer taking the decision to dismiss.  Therefore, despite the respondents' evidential and procedural failures, we do not think Mr Gilroy deserves any compensation."

Therefore having cited the appropriate statutory provisions that is their conclusion.  It is a conclusion of fact.  They were entitled to conclude that in view of, the flagrant disregard of the employers' interests and the direct defiance of what the company's officer had said when Mr Gilroy said he wanted to take himself off  for another week, he was not a man who deserved any compensation, notwithstanding that his dismissal was in the sense provided by the statute quite unfair; and notwithstanding that it had not been justified in any way by the employers showing it to be reasonable.  They put all that out of their minds, assuming all that in favour of Mr Gilroy, and they said "he does not deserve any compensation in those circumstances".  It is well settled as a matter of law that a Tribunal, in cases where an employee has misconducted himself very seriously, are entitled to say - he deserves no compensation.  This Tribunal said this was such a case.

	Whether or not we would reach the same conclusion is entirely immaterial but we think as a matter of law that this Industrial Tribunal was, on the facts found by them, entitled to reach their conclusion.  We think that the reference to the case of GIBSON is, on the analysis we have made, irrelevant, and does not carry the matter any further forward.  We cannot find any error of law in the Industrial Tribunal's decision and we are therefore obliged - as I say, not having heard Mr Gilroy but at his express request - to dismiss his appeal.  That is the decision of us all.