Appeal No. EAT/716/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7th December 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MISS J W COLLERSON

	MR J D DALY

NORMAN & BURGESS	APPELLANTS

MISS C WHITE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J COUCH
Solicitor
Messrs Pattinson & Brewer
Solicitors
8-12 New Road
Chatham
Kent
ME4 4QR

For the Respondent	MR J BENSON
(Of Counsel)
Messrs Brian Thompson & Partners
Richmond House
Rumford Place
Liverpool
L3 9SW

	JUDGE B HARGROVE OBE QC:  After a Full Hearing on the 14th and 15th October 1991, the Industrial Tribunal gave Full Reasons on the 29th October 1991 for a decision that the Appellant had unfairly dismissed the Respondent.

	It seems that problems had arisen between Mrs Dora Wrigley, a supervisor, and Mrs Ashton her sister-in-law and Mother of the Chapel.  The Respondent was Mrs Ashton's assistant and also a friend of Mrs Ashton.  The Respondent came into conflict with Mrs Dora Wrigley and on one occasion it appears that she stopped a printing machine because she wished to visit the lavatory.  She had requested leave to go there on three occasions but had met with a refusal from Mrs Dora Wrigley on each of those occasions.  She received a final written warning for the offence of stopping the machine.  The procedure of discipline in force at this firm was found by the Tribunal to be as follows:
"(d) At that time there was a general disciplinary procedure in force which was recorded on 2 sheets of paper and which contained very little information.  It referred to 5 stages, of which the fourth was a final written warning which was to be imposed by a Director and the fifth was dismissal, also to be imposed by a Director.  There was no mention of appeal against any of these sanctions, nor was there any list of offences which could give rise to them.  It was stated by Mr Duffin"

I interpose there that Mr Duffin was in the employ of the Appellants.
"that at that time a final written warning lasted for 12 months.  On 14 January 1991 a completely different new disciplinary policy and procedure document was agreed which went into considerable detail and which reduced the length of a final written warning to 6 months.  It was also agreed that when this document came into force all existing warnings would be automatically cancelled."

	On the 28th November 1990 there was a further incident which led to an allegation that the Respondent had failed to carry out a proper order to work a machine rather than work on making boxes.  It appears that Mrs Dora Wrigley, again, had given that instruction and had received some abuse from the Respondent.  Mrs Wrigley then complained to her superior Mrs Woodhead and the Respondent was then seen by Mrs Woodhead but was too upset on that occasion for the matter to be taken further.  Mrs Woodhead, on the following day, obtained statements from witnesses, she does not appear to have taken a statement from the Respondent, but the Respondent was suspended on full pay.  There was a disciplinary hearing on the 3rd December 1990 that hearing was adjourned until the 7th December 1990 which was the final hearing.  It was decided that the Respondent should be dismissed.  There was a further appeal hearing before an independent chairman held on the 19th December 1990 and that dismissal was upheld.

	The Tribunal approached the matter in this way.  After setting out a number of matters in the background it says:
"It was clear that the respondent, through Mr Duffin and Mr Leary, was satisfied that the applicant had refused to obey an instruction of a Supervisor and there were reasonable grounds for this belief.  Disobedience to the instructions of a Supervisor can be a serious matter, but from the written statement made by Mrs Wrigley it appeared that the applicant was working, in that she was doing one of the jobs to be done by the 3 women working on the machines, and the argument related to which particular job she should be doing.  There is no monetary advantage to any of these jobs.  According to Mrs Wrigley's statement the applicant refused to go onto the machine instead of making boxes several times, but when Mrs Wrigley returned after having finally seen Mrs Woodhead the applicant was actually working on the machine.  The Tribunal had to consider whether such an action amounted to misconduct of such a nature as to place dismissal within the band of reasonable responses to it.  It appeared to the Tribunal that it was misconduct, but not misconduct of such a serious nature as to warrant dismissal, even when coupled with the existence of the final written warning, particularly in view of the fact that that warning had little time to run under the new dispensation.  On this ground, and on this ground alone, the Tribunal considered that the dismissal was unfair."

The Tribunal also held that there was not a case here for contribution.

	The grounds of appeal, not all of which have been pursued before us, in the sense that they have not been argued, allege first of all that the Tribunal misdirected itself as to the relevance of the new disciplinary procedure.  The disciplinary procedure which is referred to lists a number of serious offences.  One of those offences is disobedience to a direct instruction, and I think it is conceded on all sides, that the behaviour of the Respondent could possibly have come under that heading;  that is said on behalf of the Respondent, subject to the caveat that direct instructions can be for all sorts of things and must vary immensely in importance.  Certainly it is said that stoppage of production without permission is also mentioned as a serious offence.  We cannot find in anything which has been found as a fact and by the Tribunal any statement that there was in fact a stoppage of production.  It seems to us that what the Tribunal has been saying is that there was, in this case, a refusal at highest, to accept an allocation of one of three jobs on a particular process.

	It is next said in the appeal that the Tribunal did not take into account the Respondent's previous conduct.  That is quite without foundation, indeed, the passages that I have already read, and there are many others, in which the Tribunal goes into some detail concerning the background of the Respondent and it was perfectly proper for them to do so.  They took account of the previous incident;  they took account of the fact that there had been a final warning and they also took account of the fact that in this particular case there was an undercurrent of problems with the employment of four sisters in the same department two of which were plainly at loggerheads.  

	Next it is contended, that the following passage is wrong.  The Tribunal held as follows:
"In these circumstances it seemed to the Tribunal that to rely on a final written warning which was shortly to disappear under the new provisions was not reasonable.  With regard to the happenings of 28 November, 2 members of the Tribunal considered that the investigation by Mrs Woodhead was flawed, in that, before suspending the applicant, she had not taken a statement from her, since the meeting on 28th had been, in effect, adjourned because the applicant was so upset.  The other member of the Tribunal did not consider that the investigation had been unreasonable in any way."

It is said that the majority members are in error because, the investigation was, as I understand the submission, rectified by the fact that although no statement was taken, the Respondent was perfectly at liberty to put forward her case at any stage before the persons conducting disciplinary procedures.

	That approach is, in our view, unsound.  It is only proper that if you are carrying out an investigation the aspects of whether the offences being committed must be investigated in such manner as to take account of any explanation which one or more of the persons who had been engaged, or thought to be engaged in the activity, may care to give.  That was not done here but in any event that is of no importance in this case because although it formed part of a background the Tribunal had made the specific finding to which we have referred that it was upon the one ground, on this ground and on this ground alone, the Tribunal considered the dismissal was unfair.

	Next it is alleged that, in fact, what has happened here is the Tribunal substituting its own views for those of the employer.  It is clear that the Tribunal is entitled to look at all the circumstances, indeed, it would be remiss if they did not do so.  They were entitled to look at the disciplinary procedures and furthermore it was correct that they should consider what was the position on the 28th November as it came before management in making the decision they did.  They were also entitled to consider the significance of the final warning and such period as it had to run.  It is fair to say that the Tribunal seems to have made an error in one detail, namely, that they believed that the final warning would come to an end within a short period of time, which I take it they meant within six months from the date of its issue, whereas in fact it would have come to an end approximately a month later on the 14th January 1991.  This error we do not consider in any way invalidates the proper approach which the Tribunal has taken.  The Tribunal has asked itself precisely the right question, it has asked whether the response of a reasonable employer would have been within the band of reasonable responses given these circumstances and facts.  They have held as they were entitled to do that in this particular case it did not fall within that band.

	Finally it is put that there is perversity here in what the Tribunal has decided.  We have been referred to the case of Piggott Bros & Co Ltd v. Jackson [1991] IRLR 309 we consider that the Court of Appeal concisely stated the position in relation to this type of case in the following terms:
"A decision of an Industrial Tribunal can be characterised as `perverse' only if it was not a permissible option.  In order to hold that a decision was not a permissible option, the EAT will almost always have to identify a finding of fact which was unsupported by any evidence or a clear self-mis-direction in law by the Industrial Tribunal.  If it cannot do that, the EAT should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and was therefore perverse.  Reasonableness is to be characterised as a mixed issue of fact and law but the factual element predominates."

Before leaving Piggott one can look also at Lord Donaldson's comments about the way in which Tribunal's should approach matters.  He says this:
"Whether an employee was unfairly dismissed calls first for an examination of the employee's conduct and an evaluation of that conduct in the light of the circumstances as they existed, or as the employee reasonably thought or feared that they existed.  Having decided where the employee's conduct fell within a spectrum beginning with the wholly reasonable and ending with the wholly unreasonable, the Industrial Tribunal then has to evaluate the employer's reaction to that conduct.  In deciding whether the employer acted reasonably or unreasonably in treating the employee's conduct as a sufficient reason for dismissal, the Tribunal has to consider what alternative courses of action were open to the employer - for example, should he not have dismissed the employee at all or should he have taken further steps to persuade the employee to desist from such conduct and have dismissed only if that proved ineffective."

It appears to us first, there is nothing by way of perversity here within the terms defined by the Court of Appeal and secondly, Lord Donaldson's thumb-nail sketch of the proper approach in cases of dismissal seemed almost to have been followed to the letter by this Tribunal.

	Accordingly, none of the grounds put forward for appeal succeed and this Appeal fails.