Appeal No. EAT/58/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th January 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR J C RAMSAY

	MR R TODD

FMU LIMITED	APPELLANTS

MISS R SUTHERAN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants
M D HARRISON (Deputy Group Solicitor)
BBA Group plc
Whitechapel Road
Cleckheaton
West York

For the Respondent	MR S LENNARD
(Of Counsel)
Tilly Bailey & Irvine
York Chambers
York Road
Hartlepool
TS26 9DP

	JUDGE D M LEVY QC:  This is an appeal by FMU Limited against a decision of the Middlesbrough Industrial Tribunal held on the 12th November 1992, the decision having been entered into the Register and copies sent to the parties on the 8th December 1992.  By a majority the Tribunal held that the Applicant, Miss Reagan Sutheran, the Respondent here, was unfairly dismissed and further held that she had contributed to her dismissal and reduced the award to her by 50%.

	Put very shortly the employee was not a model employee, so far as the Appellant was concerned.  By the time the incident which led to her dismissal came about she had:
		"2(a)	the applicant [Miss Sutheran] had been given a final written warning in accordance with the disciplinary procedures of the respondents for breach of contract by leaving the premises without permission on Wednesday 5 June 1991.  She was fully awre of the fact that any future breach of disciplinary procedures could result in her dismissal. She was subsequently cautioned about casual days off on 2 consecutive Fridays.  She was later cautioned for unsatisfactory attendance."

The incident which led to her dismissal occurred on the 28th January 1992 when something happened on the shop floor between her, (the Applicant), and a Mrs Rooney which in the opinion of one of the employees would have led to physical violence.  That employee intervened and told the Applicant and Mrs Rooney to report his office immediately and, after the firm's disciplinary procedures were gone through, she was dismissed.

	The holding on the dismissal is set out in paragraph 4 of the Reasons:
		"In the instant case the Tribunal has unanimously decided that the respondents had in force a very full and detailed disciplinary procedure.  The majority of the Tribunal has decided that although that procedure was followed the respondents did not fully investigate all of the circumstances of the case before the disciplinary hearing which was held by Mr Colling.  The majority has taken the view that this was a case where there had been some horseplay on the factory floor.  In their view the applicant had not begun that horseplay."

We find this holding very significant because this is somebody who is on a final warning who is involved in an incident which she did not begin.  The author of it was Mrs Rooney and so far as the majority was concerned it took the view that the Applicant was not in a position to walk away from the argument once it had started.

	The majority concluded that in those particular circumstances no reasonable employer would have dismissed the Applicant even though she had received a final written warning as to her conduct.

	The majority therefore found the Respondents acted unreasonably in treating the events which happened on the 28th January 1992 as a sufficient reasons for dismissing the Applicant and it follows she must be regarded as having been unfairly dismissed.

	We are told that the minority was in fact the Chairman and he said:
		"The minority cannot, unfortunately, concur with that decision.  He feels that the applicant had been properly regarded by Mr Colling as having taken a full part in a fracas on the factory floor which in his view went beyond ordinary horseplay.  He has recognised that production ceased during this fracas and that the applicant had already received a final written warning as to her conduct.  Whilst he himself would not necessarily have dismissed the applicant in the circumstances of the case, he has been unable to find that no reasonable employer would have dismissed her and he would have found that her dismissal was fair."

It follows from the way that the Chairman has put his reasoning it seems almost certain that the Tribunal below did look into the position as to whether a reasonable employer would have dismissed her and that was a conclusion that the minority were unwilling to find.

	We are not in any way willing to substitute our opinion for that of the majority, but we are all sure that no reasonable employer in the circumstances of the case which we have been investigating would have found it necessary to dismiss the employee from the facts and in so far as it has been argued that the decision of the Tribunal was perverse we reject that submission.

	However the other arguments which are put forward on behalf of the Appellant need some further consideration.  We start, as we are invited to by Mr Lennard, by reminding ourselves of the tests which this Tribunal is asked to remind itself of day-in and day-out, namely, the test in Piggott Brothers  & Co Ltd v. Jackson and Others [1991] ICR 85, Lord Donaldson MR put two points, first of all on page 96D:
		"It is at this point that I think we are being invited to fall into another trap for unwary appellate courts, namely, to construe an industrial tribunal's reasons as if they were a statute or deed.  As I put it in Union of Construction, Allied Trades and Technicans v. Brain [1981] ICR 542,551:

			`[The purpose reasons] is to tell the parties in broad terms why they lose or, as the case may be, win.  I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.  This, to my mind, is to misuse the purpose for which reasons are given.'"

We were also reminded that a Tribunal "should not scrutinise the decision of a court line by line" and that was a quotation which came from The Royal Society for the Protection of Birds v. Croucher [1984] IRLR 425.

	 Against that background we consider the arguments put forward by Mr Harrison on behalf of the Appellant.  He submits that the Tribunal substituted its own view for that of the employers.  He accepts that it is a correct approach for an industrial tribunal to consider whether a reasonable employer would have dismissed the Applicant in the position of the parties to dismiss for industrial misconduct.  He submits the decision was one the Employers were entitled to take and it was not for the Tribunal to substitute its own views for what it would have done.  Here, the majority concluded in the particular circumstances no reasonable employer would have dismissed the Applicant even though she had received a final warning.  In our view, the dismissal fell outside the bands of reasonable responses which a reasonable employer might have adopted in the circumstances.  Reasonableness is a mixed issue of law and fact but the factual element predominates.  What happened here was that there was a scuffle on the floor in which it was found that the Applicant below was not the instigator. In such circumstances, the scuffle having been stopped before it got out of hand, it seems to us clear beyond peradventure that dismissal was outside the bands of reasonable responses.

	It is also submitted that the finding that the employers did not fully investigate all the matters of the case was one that the Tribunal was not entitled to make.  The word "fully" was questioned but that, we think, is nit-picking.  We think on the facts which were found the Tribunal was entitled to make that finding and there is nothing which suggests that if the employers had reasonably investigated a position to consider whether their employee had instigated rather than taken part in a fracas that they would have come to the same conclusion.

	In the context ofthe procedure adopted by the employers our attention to their Code of "Disciplinary Procedure" Section 1 deals with investigation and commences:-
		"No disciplinary action should be taken without a full investigation of the facts and circumstances surrounding each case."

The section includes a reference to "comprehensive investigation".  A reference to a "thorough investigation" is found in Section 2, dealing with suspension.

	What seems to have happened here is the employers have taken an admission that the Applicant was involved in a fight, as meaning she was guilty of misconduct, is a jump which they were not entitled to make.

	It is submitted by Mr Harrison that the Tribunal failed to consider admissions which were made by the Applicant below on her behalf.  It is clear from the conclusions of the Tribunal that it was mindful of those admissions.

	We repeat what seems to have happened here is that the employers have jumped from finding that subsequent to a final warning the Applicant became involved in a situation which led to a stoppage on the shop floor, to equate that conduct without more ado, to misconduct.  In his submissions to us Mr Harrison accepted that his case was based on this.  He submitted that if a person is involved in an argument on the shop floor after a final warning, the employee is entitled to dismiss him forthwith provided the disciplinary procedures are followed.

	That is, in our view, quite clearly wrong, because it means that if an employer wishes to get rid of an employee after a final warning he is able to provoke him in some way and then he can be sacked without more ado.  That quite clearly is a submission which we cannot accept.

	In the circumstances, for the reasons which we have given, this is an appeal which was doomed to failure and we dismiss it.

	We can quite understand the holding that the contributory conduct of the Applicant properly reduced her award to 50%.  We do not think this in any way detracts from the fact that the dismissal itself was one which was in collquial words "over the top" in the circumstances.

	There will be no order for costs.