Appeal No. EAT/358/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 October 1994

	Before

	HIS HONOUR JUDGE BULL QC

	MRS E HART

	MR A D SCOTT

MR L JOHNSON	APPELLANT

BARHALE CONSTRUCTION PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	FULL HEARING

Revised

	APPEARANCES

For the Appellant	MISS L HASSALL
Anthony Collins Solicitors
Pearl Assurance House
4 Temple Row
Birmingham B2 5HG

For the Respondents	MR K RUTLEDGE
(OF COUNSEL)
Messrs Merricks
207-208 Moulsham Street
Chelmsford
Essex CH2 OL9

	JUDGE BULL QC:  This is an Appeal by Mr Leyland Johnson against the refusal of Derek Mellor, the Chairman of an Industrial Tribunal sitting at Birmingham, to allow an Application for a Review of the Decision of that Tribunal.  The Chairman's Decision having been given to the parties on the 7th January 1993. 	The Decision of the Industrial Tribunal had been promulgated to the parties on the 21st September 1992 after a hearing on the 17th August of that year.  

	The facts are short.  Mr Johnson is undoubtedly a crane driver of great experience and seniority, who in September 1991 was working at a paper mill where of necessity, fire precautions were strict.  No smoking signs were prominent around the site and such signs included a warning that anyone found contravening that rule would be expelled from the site.

	On the 18th September, the site manager of the Respondent firm, saw the Appellant in the cab of his crane with a cigarette in his mouth, although at such a distance, that he, the site manager could not tell whether it was lit or unlit.  He shouted to the Appellant to put it away.  A command which was immediately obeyed by Mr Johnson.  

	In his evidence before the Industrial Tribunal, to be found at page 39 of the bundle, 
Mr Johnson admitted in the course of cross-examination that:

		"He did have a cigarette in his mouth and he had a packet of cigarettes and a lighter in his pocket.  He said he did this often in the afternoon as he is a heavy smoker and found it difficult to wait for the break in his duties every three hours before having a cigarette. He was working at the time the site manger saw him.

		Mr Johnson insisted that he was not smoking.  He said that he thought the site manager was aware that the cigarette was not alight but from the office windows where the site manager was situated, this might be thought to be the case."

In other words, the cigarette might be thought to be alight when seen from the distance over which observation was kept.

	The Industrial Tribunal came to the decision that the dismissal of the Applicant had been unfair.  It is important in our view, to seek the reasoning by which they came to this view because, and I quote from paragraph 13 of their Decision on page 9:

		"The tribunal concludes that the respondents did not act reasonably or fairly in the way they pursued their own disciplinary procedures, that they did dismiss the applicant, that in the circumstances of the case the decision (taken before the disciplinary hearing) to dismiss the applicant did not fall within the band of reasonable responses which a reasonable employer might have adopted."

They amplified this earlier on in their Reasons by castigating the disciplinary process of the employers, for in paragraph 10 is this passage:

	"The disciplinary process followed by the respondents was little short of lamentable; a disciplinary interview was formally summoned after a decision had been taken by management, without hearing the applicant or allowing him to question the sole witness or even to hear that witness' evidence, to dismiss the applicant."

	Following the finding of unfair dismissal on 17th August 1992, the Tribunal re-convened on the 12th November 1992 to receive evidence and representations on compensation.  Their award was sent to the parties on the 7th December 1992.  That Decision included within it at paragraph (v): 

		"(v)		in the present case, the element of contributory fault can properly be assessed at 50% and should be applied to both the basic and the compensatory award."

	Miss Hassall criticises the Chairman's refusal in Mr Johnson's Application for Review upon these grounds.  First, she points to the inconsistency between paragraph 10 of the Full Reasons for the Tribunal Decision and paragraph C of the Reasons for the Review Decision.  Paragraph C reads in this form:

		"(c)		the applicant's contention that he was "never given the opportunity of explaining the circumstances of the incident (which eventually led to his dismissal) to his former employers" does not accord with the unchallenged evidence given to the tribunal that there was a disciplinary interview on 4 October 1991, which the applicant attended, and at which he could have given his explanation but chose not to do so;"

There is evidence that Mr Johnson had some opportunity to put forward his point of view. This is to be found at page 34 of the bundle, which describes the meeting at which Mr Egan was in the Chair and at which Mr Egan showed Mr Johnson the memorandum of Mr D'Arcy (the site manager) which reported the smoking incident.  Mr Johnson had made no reaction and no reply.  The note was that he seemed to accept that he had been smoking, in what the chairman put in his note, verbatim, as 

		"a resigned admission."

In fact Mr Johnson said nothing.	And then there is this passage:

		"Mr Egan said he had asked Mr Johnson whether he wanted to say anything and Mr Johnson's reply had been that all the crane operators smoke in the back of their cab, there were others too."

Whilst we accept that such an opportunity was not ideal, in our judgment any inconsistency which there may be between the reasoning given in paragraph 10 and the reasoning given in paragraph (c), does not affect the overall validity of the decision whether to allow a review of the quantum of the element of contributory fault.  

	Secondly, Miss Hassell draws our attention, Rule 11.1 of the 1993 Rules which defines the scope of the review to include such a power where the interest of justice require such a review.  The Employment Protection (Consolidation) Act of [1978] Section 74:

		"(6)		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."

In this case we adopt the words of Mr Justice Bristow in the case of Associated Tyre Specialists (Eastern) Ltd v P A Waterhouse [1976] IRLR 386 at the foot of page 388 where there was a cross-appeal on the basis that the Tribunal were unduly severe in reducing the award by 50%.  Mr Justice Bristow said this:

		"It is always difficult for an appellant or a cross-appellant to attack, before this Appeal Tribunal, matters of amount, because those are the essentially questions of fact for the Industrial Tribunal itself, and, provided that they addressed their minds to the right consideration and did not act without evidence, even if we ourselves disagreed with the results at which they arrived we could not say that they were wrong in law.  It is only if they were wrong in law that we could interfere."

In this case we cannot say that there was no evidence upon which the Industrial Tribunal could have come to the decision which they did in reducing the compensation by half.  Still less can we say, that they were perverse in coming to such a conclusion.  

	Miss Hassell has put her case very fairly to us, with fluency, great courtesy and persuasiveness, having been projected into the position of an advocate, on behalf of the Appellant at the shortest possible notice and Mr Johnson has not suffered in any way because of that, his case was fully and fairly presented to us.  However, for the reasons which I have set out, we are driven to the conclusion that we cannot allow this Appeal to proceed because there is no point of law raised and it must therefore be dismissed.