Appeal No. EAT/781/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 October 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR L D COWAN 

	MR S M SPRINGER MBE

MR G C PIGGIN	APPELLANT

MEASOM FREER & CO LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P KILCOYNE
(Of Counsel)
Messrs Gore Brownes
Solicitors
Rutland Centre
Halford Street
Leicester
LE1  1TQ

For the Respondents	MR M GRIFFITHS
(Of Counsel)
Messrs Simmons & Simmons
Solicitors
21 Wilson Street
London
EC2M  2TQ

		JUDGE HULL Q.C.  This is an appeal by Mr Graham Christopher Piggin against a decision of the Industrial Tribunal sitting at Leicester on 18 May and 9 June 1994.  Mr Piggin complained to the Industrial Tribunal that he had been unfairly dismissed by his employer, the Respondents Measom Freer & Co Limited, by whom he had been employed for no less than 19 years.  The Respondent employers carry on a business in plastics, injection moulding, and have done since before the second world war.  They are a family business and have been throughout.  Various members of the family dominate the management of the company and at the material time Mr Paul Freer, who is the son of the founder of the company, was the Managing Director, and therefore the Senior Manager in the company.

	Mr Piggin joined the company in November 1974 and he had risen to the position of Sales Manager and was, as the Tribunal found, in large measure responsible for the continued and increasing success of the firm.  There is no doubt at all, from what we have heard and read in the decision of the Industrial Tribunal, that the company parted with him, when it dismissed him, with reluctance and regret; but nonetheless he was dismissed.  He was dismissed on 12 November 1993 for misconduct.  He was then aged 46 and of course, as will be gathered from what I have said, a man upon whom the company was entitled to place great reliance.

	I think the best way for us to set out our reasons is for me to start by reading the relevant parts of the decision of the Industrial Tribunal.  They heard Mr Piggin, Mr Freer and his wife, who is also a director of the company and who dealt with certain events in the absence of Mr Paul Freer.  After setting out the success which the Applicant had enjoyed with the company, they set out that there were three ladies in an adjoining office to his - Mrs Taylor, Miss Bramnall and another young lady.  They said at paragraph 3(c) of their decision:

	"The events which led to the Applicant's dismissal began on Monday 8 November 1993, when there was a discussion between the Applicant and Mrs Taylor concerning British Telecom and allegations in the 

	media that employees of British Telecom were engaged in large scale fraud of their employer.  Mr Piggin's brother works for B.T. and he took the comments of Mrs Taylor to heart so much so that he arrived at the office the following morning armed with newspaper clippings apparently refuting these suggestions."

They go on to what happened on 9 November 1993:

	"(d)  A considerable and disruptive argument then broke out between the Applicant and Mrs Taylor which was witnessed by Mrs Freer.  She intervened when, in her view, it became out of hand and attempted to defuse the situation.  She told Mrs Taylor to get on with her work and then spent an hour with Mr Piggin attempting to calm him down.  He was reluctant at first to identify the source of the problem, but did so after a while and then complained about the general office ladies' familiarity.  He was asked to remain calm for the rest of the day and not to react to the girls.  Mrs Freer was anxious to avoid further trouble, as her husband the managing director was away for the day.  She reported the matter to him that evening.

	(e)  On Wednesday 10 November Mr Freer took the very first opportunity to interview Mr Piggin, Mrs 	Taylor and Mrs Bramnall.  He first spoke to Mr Piggin soon after 9 a.m. and followed this by interviewing the two ladies.  The Applicant said that the ladies were too familiar and this was put to them.  Mrs Taylor in turn took exception to remarks said to have been made by Mr Piggin in connection with self employed individuals and taxation, which she believed to be directed at her husband who was in this category.  Mr Piggin brought up the matter of the remarks concerning B.T.

	(f)  Mr Freer took the view that this squabble had nothing to do with his business.  He spoke to the ladies concerning the question of familiarity and told them that Mr Piggin intended to distance himself from them.  Later in the morning, however, Mrs Taylor again came to see him.  She said she had been worried for some time and was concerned about an incident some 12 months earlier when Mr Piggin had showed her a set of company accounts making remarks about the company profits and salaries.  Mr Freer was concerned about this which appeared to him to be mischief making.  He was told that Mr Piggin had said that his brother had obtained the accounts."

So again, in relation to this incident 12 months before, Mr Piggin's brother, of whom he is evidently very fond, was brought in.

	"(g)  Mr Freer was concerned about the correct approach to take in these circumstances and sought legal advice.  He also spoke to fellow directors and as a result of this he put the matter to Mr Piggin, giving him the opportunity to be accompanied at the interview.  This interview took place at 4.50 p.m. on 10 November and Mr Adam Freer, another director, was present.  Mr Piggin was immediately accused of disloyalty and not unnaturally was upset and stormed out of the meeting.  He returned less than an hour later and a further meeting was arranged for 9 a.m. the following morning.

	(h)  This meeting took place and again Mr Paul Freer and Mr Adrian Freer attended.  Mr Piggin chose to attend alone.  The matter of the accounts was put to him.  He said that a customer had given them to him in confidence and in an attempt to obtain a discount.  Mr Paul Freer asked him seven or eight times the identity of the customers, but although pressed he refused to divulge the name.  He placed what he perceived to be his duty of confidentiality to the customer above the requirement to be frank with his employers, as he feared that his relationship with the customer might be jeopardised.

	(j)  Mr Paul Freer then went on to address the matter of the relationship between Mr Piggin and the general office staff.  Mr Piggin was positively instructed to avoid the subject of B.T. and self employed taxation and he agreed to do this.  This discussion took 45 minutes to an hour and he left calmly.  He then immediately went into the general office and told Jean Taylor that his brother took exception to her remarks about B.T.  This complete disregard of his employer's instructions and the agreement, caused Mrs Taylor further distress and the office further disruption.  He prefaced the remark by saying "Now don't go hysterical Jean", indicating that he anticipated that his remark would upset Mrs Taylor.

	(k)  He was immediately called back to Mr Freer's office but chose not to return immediately.  When he did go he proffered assurances that he would avoid such comments in the future, but not unnaturally Mr Freer had no confidence in such word and concluded that staff relationships had broken down irretrievably.

	(l)  Mr Freer took further advice and discussed matters with his directors that evening.  He formed the belief that Mr Piggin was flouting his authority and was deliberately mischief making and that despite warnings and assurances, had undermined staff relationships to such an extent that they were irretrievably damaged.

	(m)  Mr Freer dismissed the Applicant the following day.  The Tribunal are unanimous in their view that all aspects of the matter were investigated properly and Mr Freer had taken steps to remedy the breakdown in staff relationships.  However, his efforts had been completely sabotaged by Mr Piggin's subsequent conduct.

	(n)  Mr Freer was particularly concerned over the matter of the accounts and Mr Piggin's persistent refusals to divulge the name of the customer led him to conclude there was a fundamental breach in the trust required between employer and employee.  Mr Piggin said he would have been prepared to name the customer at a later date."

They went on:

	4.  The reason for dismissal was misconduct manifesting itself in a series of incidents over the period 8 	to 11 November 1993, when the Applicant refused to obey his employers reasonable request to divulge the name of a customer who gave him a copy of the company accounts; immediately breached an agreement to avoid inflammatory subjects, which he well knew would cause disruption and undermine staff relationships and refused to immediately attend the managing director's office when requested to do so."

They continue by saying:

	6.	Having established the reason for the dismissal, the Tribunal is required to consider the issue of 	fairness in accordance with section 57(3) of the Act which states that this shall depend whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer has acted reasonably or unreasonably in treating the reason as sufficient reason for dismissing the employee, and the question should be determined in accordance with equity and the substantial merits of the case.

	7.	The Applicant was a man of good service of considerable length who had been promoted to a 	managerial post.  However, he showed himself to be a compulsive mischief maker.  He could not be trusted to promote good relationships and had shown this in a flagrant manner.  He had been given an opportunity to demonstrate his good intentions and had failed to do so.  Further, he had defied his employers in the matter of the accounts and had implied that his judgement in the matter of identifying the customer was superior to the directors.

	8.	Having regard to the provisions of section 57(3) of the Act, the Tribunal unanimously find that 	the dismissal was within the range of reasonable responses of a reasonable employer, and the conduct of the Applicant overall was calculated to destroy all trust and confidence between him and his employers."

and so they dismissed the application.

	We have to consider how our responsibilities lie in dealing with a case like this.  It is for the Industrial Tribunal to consider the matters which they set out in their decision.  The facts are solely for them.  It is their duty, as what has been called the Industrial jury, to decide all matters of fact, which includes all such inferences and conclusions as they draw from those facts and all legitimate opinions which they form on them.  Those are for them alone.  We have nothing to say about those matters.  If they find that the Applicant was a compulsive mischief-maker or could not be trusted to promote good relationships, that was a matter for them.  They have of course the incomparable advantage of seeing the witnesses, hearing exactly how matters took place and sizing them up in the light of their wide experience which they must have, of industrial and commercial matters.  

	Looking at a case on paper we cannot possibly go, and are not allowed to go, into matters in the way that the Industrial Tribunal does.  As I say they devoted two days to it.  We are required by Parliament in the Act itself to hear appeals on matters of law.  Those include obvious errors of law, such as placing the burden of proof on the wrong party, or reaching a quite wrong conclusion about the law as set out in the cases, or in the statute itself, or in regulations, or as the case may be.  It includes other matters too.  If for example there is no evidence to support a particular finding of fact; there is nothing from which the Tribunal could reach their conclusion, then that is a matter of law.  If the evidence is all one way and the Tribunal go completely contrary to that evidence, having said that they find it truthful but nonetheless they are going to disregard it, that again is an error of law.  

	Sometimes errors of law can be perceived although they are not shown in the plain ways I have indicated.  It may be that a Tribunal will simply reach a wholly irrational conclusion.  They may do certain calculations and it may be perfectly obvious looking at the calculations which they have carried out that they are quite simply wrong as a matter of arithmetic or whatever it may be.  That too would be an error of law.  There are cases, although necessarily they are rare, where no such errors of law are obvious on the face of the Tribunal's decision, but nonetheless it is obvious to us that it is wholly irrational; so that we say to ourselves, to quote one famous judge, `my goodness, that must be wrong'.  It is true that we cannot put our finger on it by saying what error of law there is, but no rational tribunal acting sensibly could reach such a decision unless they had made an error of law and the explanation must be that they have made an error of law, although they have not actually expressed it.  If that happens then the decision is said to be perverse. 

	That is exactly what is said in this case by Mr Kilcoyne, who said, shortly and well, all that can be said on behalf of the Appellant.  He says when you look at this decision it is perverse.  He makes a number of complaints which I will deal with in a moment.  He says that we ought to say to ourselves, looking at this, `my goodness that must be wrong'.  

	Concerning this decision, as in a great many decisions of fact, when we look at them coldly on paper, we are bound to say we might have reached a different decision.  It may be, we say to ourselves, that this witness would not have appeared to us to be a reliable witness or of course we might say well we would take a rather different view of the facts.  It is of course the responsibility of the employer to act fairly.  It is for the employer to show why he has dismissed the employee and as the Tribunal quite rightly say it is then for the Tribunal to consider whether the employer acted reasonably in all the circumstances in treating it as a reason for dismissal.  The employer therefore has the primary responsibility.  Parliament has said it is for the employer to act reasonably and fairly in the circumstances and in those circumstances there will inevitably be a range of responses to any breach of discipline or disloyalty or anything of that sort by an employee.  It may well be that one employer might take a reasonable decision to dismiss and another employer might quite reasonably decide not to dismiss.  One employer may say (and it might even have happened in these circumstances) "this is a storm in a teacup"; this is a possible view of the facts.  

	Mr Piggin was unwise to allow himself to be embroiled in a row with ladies from the office and he was very unwise not to report immediately the incident over the company accounts.  Certainly he was extremely unwise, and indeed reckless, to refuse to disclose the identity of the company which was apparently endeavouring to use these accounts to disrupt the pricing structures of his employers.  Those might have been the views of an employer and such an employer might have said: I think the right thing to do here is, first of all, to make Mr Piggin aware (as he should have been aware from the first) that it was very unwise of him to behave in this way and that he had been disloyal; but to give him an opportunity to put matters right and to suspend him and to tell him that when he is ready to come back and divulge the name of the customer and to express regret and assurances as to the future, then he will be reinstated - but this is to be treated as a final warning.  That would be a possible view.  We only put it forward as being one possible view.  The question whether that was the right view was, on the face of it, one for the employers.  Then it was of course for the Tribunal to say whether that response fell within the range of responses open to a reasonable employer, not as the only response, but one of the possible responses and of course it was also the responsibility of the Tribunal to say whether the employers had acted fairly.  Those were questions of fact for them.  They did that and they held that the employer had acted fairly and reasonably and that the dismissal was within the range of reasonable responses.  

	This appeal is brought to us on the basis that the decision was perverse.  There are certain indications of that says Mr Kilcoyne which can be drawn from the facts of the evidence which we have read.  There was here a failure to warn the Appellant, Mr Piggin.  A man of his seniority; his value to the company; his previous good service, should have been warned on this occasion and not dismissed.  Most certainly he should have been warned that this was a disciplinary hearing and in that way he was not warned and that was a piece of unfairness.  He was never told that his job was on the line at these various interviews.  Also it is said that the reasonable response would have fallen short of dismissal.  Those are the substantial complaints made by Mr Kilcoyne.

	One asks oneself: were these matters which the Industrial Tribunal overlooked?  Clearly the statute does not say in terms that an employee must be given a warning on the first occasion of misconduct, it does not say that the employee must be told that this is a disciplinary hearing when he is being seen by the Managing Director.  The statute does not say that he must be told that his job is on the line.  The statute does not say that the response of the employers must be within a reasonable band of responses of a reasonable employer.  All those are glosses on the statute which various eminent judges have made when dealing with particular cases and they are also of course to be found in industrial codes of practice.  They are commonsense matters which are necessary to fairness in many cases and the Tribunal must and invariably will look to see whether these matters were neglected and whether that led to unfairness.  One has to look at the facts here to see what justice there is in this complaint.  It is perfectly obvious to us, and we think it must have been perfectly obvious to the Tribunal, that this was a disciplinary hearing in a matter which the employers were taking very seriously indeed.  When one hears that Mr Piggin was asked whether he wanted a friend to be present, and when one hears that the managing director demanded of him seven or eight times the identity of the company which was endeavouring to use the employers' accounts to attack the pricing structure and was refused on each occasion, one says it would have been impossible for Mr Piggin to suppose that this was not an occasion when his job, to say the least of it, was in mortal danger; and he took the line that he was going to refuse.  He had already failed to report this important matter a year before and he was still now obstinately refusing to disclose the name.  He did indeed refuse in front of the Tribunal to disclose the name. 

	It seems to us not only that the Tribunal did not overlook this but they must have taken it fully into account.  They set out the facts very fully in reaching their view that the matter was fairly dealt with.  It seems to us that these objections are in the nature of afterthoughts and that Mr Piggin was never in any doubt about what was being raised; and we feel that these objections are on the facts of this case ill-judged.  They were matters which could properly have been raised and certainly in one case were raised before the Industrial Tribunal and should be and were considered by the Industrial Tribunal, along with all the other facts of the case.  The real ground here is said by Mr Kilcoyne to be perversity.  No doubt that is the way in which he feels bound to put it.  Is this a decision of which we say, when we have read it and looked at all the facts and heard all the argument, that the decision of the Industrial Tribunal "must be wrong;" here, although it is not spelt out in terms, they must be making some error of law in their approach?  On the contrary.  As we have said, as we could say in many cases, they might have reached a different conclusion.  They might have taken a different view of the evidence which they heard and of the seriousness of the matters which they heard, and even of the fairness in the way in which the employers carried on; those were all matters for them.  We certainly do not feel able to say that this was a matter where the decision of the Industrial Tribunal was plainly wrong.  On the contrary, they set out the principles of law with admirable clarity.  They set out their findings fully and it is self-evident that those findings are fully supported by the evidence.  We think that this Tribunal did their duty and that there is no error of law and that, in effect, this appeal is something with which we are regrettably only too familiar: an attempt to cause us to re-try the case and give different weight to various factors, in particular such matters as the long service of the Applicant and his distinguished performance in his office; also the fact that the woman employee with whom he had quarrelled was not disciplined.

	All these are matters which of course could properly be laid before the Industrial Tribunal to see whether they thought that the employers had dealt with it fairly or unfairly.  They were apparently laid before the Industrial Tribunal.  The Industrial Tribunal heard all the evidence and we are not prepared and we are not entitled to embark on a further enquiry into the facts or to re-try the case.  All we can say, and it is all that our duty entitles us to say, is that we are none of us able here to find any error of law, either on the face of this decision or what accompanied it, or on the basis that this decision is a perverse one.  In those circumstances the appeal must be dismissed.