Appeal No. EAT/552/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 October 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR L D COWAN

	MR W MORRIS

MR J WASSELL	APPELLANT

SHAPERITE PROFILES LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR F MOAT
(Of Counsel)
Messrs Hawkins & Co
199 Wolverhampton Street
Dudley
West Midlands
DY11 EA

For the Respondents	MR R E UTTING
Company Director

	JUDGE HULL QC:   This is an appeal which is in rather a small compass so far as we are concerned.  As I have already mentioned in argument, and is well known, we can consider only points of law.  We have no jurisdiction over facts at all.  We only consider findings of fact if it is suggested there is no evidence to support them, or if it is suggested that a finding of fact is perverse; that is to say in the legal sense, irrational, because it appears from the finding that there must be some error of law although it may not be obvious what that error is.

	This is a case in which Mr Wassell the Appellant was employed for ten years by the Respondents, Shaperite Profiles Limited, a very small company.  They are engaged in the business of cutting metal profiles for use in industry and Mr Wassell was employed in that. The business, whose Managing Director is Mr Utting, has varied in size and degree of activity as time has passed, sometimes there have been as many as ten, sometimes as there were on this occasion, something like four employees. 

	What happened is set out in a very short decision of the Industrial Tribunal which sat at Birmingham on 2 June last year under the chairmanship of Mr Mellor.  They record that in addition to his being employed for ten years the Applicant's conduct had generally been satisfactory, but there came a very adverse occasion on 14 October 1992.  What happened was that the Applicant was apparently seen, so Mr Utting the Managing Director said, on two occasions on that day, not at work when he should have been at work.   Mr Utting thought it right, reasonably enough, to ask the chargehand to rebuke him and call him to order, so to speak.  That was done and then, according to the evidence, Mr Wassell handed over, somewhat ostentatiously to the chargehand I think, the keys which he held.  

	In this very small firm the practice was for the first person to arrive, whether it was a member of the staff or Mr Utting himself or one of the other employees, to open up the little factory; to turn on the oxygen which is required for this skilled and specialised work; and generally prepare and get on with the work which was ready for the day:  Mr Utting would no doubt on occasion have all sorts of appointments elsewhere and there might be no deputy, so that had apparently been the practice.  So what happened was that Mr Wassell handed back the keys.  The object, as the Tribunal find, was to provoke Mr Utting, he of course having been there ten years knew Mr Utting very well.  I think rather than attempting to paraphrase all this I had better simply read what the Tribunal had to say about it:  

		"The tribunal considers that the events of 14 October last were not such as to entitle a reasonable employer to regard them as justifying dismissal, even less, summary dismissal.  

		The two perceived instances of time wasting, whether actual or imaginary, were certainly not grounds for dismissal without the strongest possible prior warning, and to be fair, they were not urged in support of the employer's action".  

	It was the Applicant's own action in returning the keys and refusing to open up the work premises in the mornings which, in the Tribunal's view, deliberately provoked a confrontation.  The Applicant did not expect the incident to lead to dismissal, but he certainly knew Mr Utting well enough to expect a lively reaction.  

	The Tribunal believed that in a four-man firm the requirement that the first to arrive at work was to open up the premises was reasonable enough.  A straight refusal to do it was not reasonable, particularly in view of the fact that the practice had already prevailed for several months.  That was their view about that.  They also found that there was no procedure for dismissal.  

	What happened was that Mr Utting had summarily dismissed Mr Wassell that very afternoon.  He called a meeting of all those working, a small gathering but a rather provocative way of dealing with a breach of discipline like this, and he called on Mr Wassell three times to, so to speak, repent of his decision, to say that he would open up the factory in the morning if he was the first to arrive; and Mr Wassell three times refused.  He was then summarily dismissed.  Apparently there was no appeal.  Indeed, there were no written terms of the contract of employment.  So there it was.  What the Tribunal found was "It is regrettable that the incident led to a peremptory, unreasonable and unfair dismissal".  There is no appeal against that part of the finding.  It was a peremptory, unreasonable and unfair dismissal of a man, one would add in parenthesis, who had been employed for ten years without complaint by the employer.

	Then the Tribunal say: "We are however satisfied that it would not be just and equitable to award compensation in this case, bearing in mind the Applicant's contributory conduct and the Tribunal decides accordingly".  It appears that there the Tribunal are referring to the provisions of Section 73 and 74 of the Employment Protection (Consolidation) Act 1978.  Under sub-section 7(B) of Section 73 it is provided with regard to the basic award:

		"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". 

	That is the basic award.  There are two provisions of Section 74 with regard to the compensatory award.  Section 74(1) provides:  

		".....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 in so far as that loss is attributable to action taken by the employer".

Subsection 6 provides:

		"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".

	Mr Wassell appeals against the decision to award him no compensation and his case could be put very shortly by saying "no reasonable tribunal, directing itself in accordance with law, could in the circumstances find that it was just and equitable to deprive me of all compensation" and he points of course to the facts.  We have been greatly assisted by submissions from Mr Moat who in support of his skeleton argument has referred us to a number of authorities in which eminent Judges, including the House of Lords in the well known case of W Devis & Sons Ltd  v  Atkins [1977] A.C.931 have dealt with the question of contribution and deductions from awards under the statute.  

	It does not seem to us that we need attempt to summarise this fairly voluminous jurisprudence, although of course we accept entirely all that is said in those cases.  In 
W Devis  v  Atkins it was held that there was no reason in law why in a proper case conduct, even if it was unknown to the employer at the time of dismissal, should not lead to a 100% deduction, that is to say that no compensation should be awarded.  

	We have no doubt that there are cases, and of course the books adequately demonstrate the fact that there are cases, in which a 100% deduction will be appropriate.  If the conduct of the employee is quite iniquitous then it may well be that it will be entirely appropriate to say there should be no award.  It may be an affront to common sense and decency to think of giving an award in certain cases.  So we ask ourselves whether this is one of the type of cases in which it is, as a rather exceptional matter, just and proper and within the powers of the Industrial Tribunal to reduce the award to a nil award on the basis of 100% contribution by the employee.

	We notice that here it is not even established by the finding of the Tribunal that in doing what he did, Mr Wassell was in breach of contract.  He was in possession of keys.  That does not establish anything.  The Tribunal said that there were no written terms of the contract and it therefore behoved them, if they were thinking of finding that there had been a breach of contract on the part of Mr Wassell, to find out what the terms of the contract were.  That would mean that they would have to look at all the surrounding circumstances in the usual way and decide what necessity and convenience dictated as being the implied terms of the contract.  Plainly, some terms are implied without more, such as the duty of reciprocal good faith; the duty of obedience to reasonable orders; the duty of the employer to pay wages and provide reasonably safe conditions; the duty of the employer to take care for the safety of the employee and to provide him with necessary instruction.  

	These matters would be implied; the power of the employer, if it were to exist, to require the employee to move to some different work place; the power of the employer to order him to do different work.  All these are examples of matters which would or might be implied.  Was it implied in the contract of service of this manual worker that he should, if asked, open up the premises and make himself responsible for that?  It does seem to us that there would be a considerable difference between rejecting a duty which was part of his duty as an employee, a term of his contract, and simply saying that he would no longer carry on with doing something which was an act of grace on his part, a matter which perhaps out of a sense of decency and commonsense he was prepared to do but which was not part of his contract.  There is no finding about that and it appears to us that that is an important omission.  He had acted very provocatively, he had handed back the keys to the foreman and announced to his employer, in front of all the other employees, that he would not carry out this "duty" any further when he was pressed by his employer to do so.  

	We ask ourselves whether, in those circumstances, it was open to the Industrial Tribunal, as a matter of law, to hold that he was solely to blame for what occurred.  Of course they could have found that this was a fair dismissal but they certainly did not.  They held that it was an unfair dismissal, a peremptory and unfair dismissal.  And so far as one can see, they were very well entitled to do that and there is no appeal against that part of the decision.  They themselves spoke of the conduct of which they found Mr Wassell guilty of.  They said that it amounted to contributing to his dismissal.  They spoke of it as contributory conduct, which sounds very much as if they are looking at that part of the two sections which relates to contribution and not to Section 74(1), the general "just and equitable" provision.  Subsection 6 of Section 74 speaks of the dismissal being caused or contributed to by any action of the complainant and so does subsection 7B of Section 73.  Of course when they are considering contributory conduct, then in those circumstances they are under a duty to weigh up and balance one against the other; the wrong done by the employer in the unfairness of the dismissal, the wrong done by the employee in contributory conduct.  And here they had on the one hand an employee who, in their view, had provoked the employer.  They had not found that he had been guilty of any material breach of his contract of employment but on the other hand, they were able to look at all the facts including the fact that it was a very small business, that Mr Wassell well knew that Mr Utting operated on a rather short fuse and he was certainly expecting a lively reaction, as they put it.  

	In those circumstances, it does appear to us quite impossible that they should say that this peremptory and unfair dismissal was solely caused, contributed to the extent of 100%, by Mr Wassell's behaviour.  In all probability, any Tribunal would be likely to say that Mr Wassell had contributed to this by deliberately provoking his employer and defying him to his face in front of the other employees.  His employer was unfair.  The employer had been provoked by the employee.  The provocation did not consist of any grave breach going to the root of the contract, any dishonesty or violence or anything of that sort.  It consisted of a provocative act which Mr Wassell may or may not have been entitled, so to speak, as a matter to law to commit and about that the Industrial Tribunal are silent.  We do not know whether it was indeed a breach of contract or not.

	We have of course considered the very careful and courteous preparation of a written statement by Mr Utting himself.  At one point it did occur to me on reading this that what Mr Utting was saying, was that this was an entirely fair decision by the Company, but he has told us that he did not intend to say that and is not pursuing any cross-appeal.  He refers to a number of matters but they are not the subject of findings and we cannot consider them on this appeal which proceeds simply on the ground of the findings which are contained in the Full Reasons given by this Industrial Tribunal.

	We think, doing the best we can at the moment, that the only proper order to make is to send this back for a new hearing before a differently constituted Tribunal.  We think that it would be quite wrong to ask this Tribunal, which has reached an emphatic and clear view on the evidence they heard, to re-open their minds and hear the case further.  

	It seems to us that any Tribunal which hears this case must not be fettered by findings of another Tribunal but must hear the entire case anew and form their own view on the facts on each and every part of the case and that is the order which we propose to make.