Appeal No. EAT/915/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24 July 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MR T C THOMAS CBE

	MRS P TURNER OBE

CAPTAIN B L FRIEND	APPELLANT

CIVIL AVIATION AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	MR J R MCMANUS
(of Counsel)
R J Britton
Deputy Secretary and Legal Adviser
Civil Aviation Authority
45-54 Kingsway
London
WC2B 6TE

	MR JUSTICE TUCKEY:   Before proceeding to hear this appeal, we have to decide whether Captain Friend, who is the Appellant, should be given leave to amend his Notice of Appeal.

	The decision from which the appeal is brought, is one of the Industrial Tribunal sitting at Brighton, who over a period of six days last year heard a complaint by Captain Friend that he had been unfairly dismissed.  They decided that the dismissal was procedurally unfair, but assessed Captain Friend's contribution to his dismissal at 100% and made no award of compensation.

	The original Notice of Appeal was drafted by Captain Friend.  Subsequently, he consulted Counsel and a Skeleton Argument on his behalf was submitted to this Tribunal.  Counsel does not appear for him today but the grounds of appeal which he wishes to advance have been helpfully brought together in an amended notice which is dated 10 July 1995.

	Two of those grounds (paragraphs 4(iii) and 5 (a), (b) and (c)) relate to the way in which the Industrial Tribunal made their decision and the questions they asked themselves in reaching their conclusion that Captain Friend had contributed to his dismissal to the extent of 100%.  

	The remainder of the grounds relate to what has been called "the safety case".  This needs some explanation because Captain Friend's dismissal resulted from a long and turbulent period of employment in which he had been contending that safety inspections of helicopters should always be carried out by a team which included a qualified helicopter pilot.  He held this view very strongly.  The Authority did not agree and the friction between the parties on this issue eventually resulted in Captain Friend's dismissal.

	In his IT1 Captain Friend only complained of procedural unfairness.  He has told us that in subsequent correspondence he made it clear to the Tribunal that he was contending (among other things) that the instructions that he had been given by the CAA were unlawful because it was necessary, as a matter of law, for helicopters to be inspected in the way that he was saying they should be.  This is what has been called the safety case.  Captain Friend also told us that in the run-up to the hearing he attempted to obtain witness orders from the Tribunal which were directed to proving that the instructions he had received were unlawful.  But at the hearing before the Industrial Tribunal where he was represented by Counsel and Solicitors Captain Friend's case was expressly limited to one of procedural unfairness.  So the Tribunal were not concerned with the safety case and it is apparent from the reasons which they give for their decision that they did not address that issue.

	The Respondent objects to the "safety case" being resurrected before us on the well known grounds set out in Kumchyk v Derby City Council [1978] ICR 1116.  The passage often cited in decisions of this Tribunal is to be found at page 1123 and 1124.  

	Usually, this Appeal Tribunal will not hear new points.  It will certainly not hear new points which would require further findings of fact to be made if they are to be resolved.  Here the Respondents say that this is a new point; that it is a point which requires much further evidence before it could be resolved and therefore, it is not open to Captain Friend to raise the safety case before us on appeal.

	We agree.  Captain Friend has sought to persuade us that it was open to him to make the point because he had, to use his words, "tried to make this case before the Tribunal".  He had, "been obstructed by the Tribunal who prevented him from running this point" although he accepted in argument before us, that eventually the safety case was not pursued.

	Looking at what was said in Kumchyk he suggests that in some way this amounted to a deception which should exceptionally allow us to proceed to hear him on these points.  It does not, in our judgment, amount to a deception of the kind mentioned in Kumchyk.  Captain Friend had the advantage of being represented by experienced Counsel and Solicitors and his case was conducted on the basis that it was one of procedural unfairness.  We think it would be quite wrong and unfair to the Respondents to allow him to run any other case on appeal and accordingly, we will give leave to Captain Friend to amend his Notice of Appeal, but it will be confined to the two grounds which we identified at the beginning of these reasons.

	___________________________

	This judgment should be read with the ruling which we have already given dealing with the amended Notice of Appeal.

	As a result of our ruling Captain Friend has reluctantly (because he feels we have tied both hands behind his back) pursued the two surviving grounds of Appeal and we turn now to deal with those.

	The first of those is a complaint that when considering the question of contribution the Tribunal misdirected themselves.  Essentially, what is said (and we take the point from the Skeleton Argument which Captain Friend's former Counsel prepared) is that the Tribunal erred in failing adequately to distinguish between the fact that the relationship had broken down and whether that break-down had been caused by the Applicant's blameworthy conduct.  
	In other words, it is said that the Tribunal proceeded to make a finding that Captain Friend had contributed 100% to his dismissal, simply on the basis that the relationship of mutual trust and confidence had broken down entirely between employer and employee.  If that is the approach which the Tribunal adopted, this is a valid point.  But is  this really what they did do?  The relevant paragraphs are 3 and 11 of the reasons.  In paragraph 3 they find that the reason for the dismissal was 

		"3 .... the Applicant's conduct which had led to an irretrievable breakdown in the mutual trust and confidence ...." 

	And they then go on, at the end of that paragraph, to say:

		".... The conduct which led to his dismissal by the Respondents was, not that he had formed the view which differed from the Respondents, but the manner in which and the extent to which he pursued that dispute."

	In other words, they are saying that it was the way he went about putting his point of view which resulted in his dismissal.  In paragraph 11, where they deal specifically with the finding of contribution they say:

		"11 .... we find that the Applicant contributed to his dismissal and assess that contribution as being 100 per cent. .... .  What is clear, nevertheless, from the evidence and the documents we have seen, is that in our judgment the Applicant had pursued the matter in a way and to the extent that must inevitably have led to the situation whereby he could no longer continue to be employed by the Respondents.  There are many examples of this in the correspondence ... ." .

	So that is what they say.  Did they misdirect themselves in the way which is suggested?.  We think not.  They are not saying simply that the 100% contribution follows from the complete breakdown of mutual trust and confidence.  They are saying that the Applicant contributed to his dismissal by the way in which he pursued his point of view and the extent to which he did so.  So there is no misdirection and the first of the two grounds therefore fails.

	The second ground is to be found in paragraph 6 of the Skeleton Argument.  What is said is that the Tribunal were required to specify the conduct they relied on as contributing to the dismissal and make appropriate findings about it.  From the passages which we have quoted it is said that one cannot discern precisely what conduct it is that the Tribunal found gave rise to this 100% contribution.  

	The law is that those who are parties to a decision of this kind should be informed by the reasons which the Tribunal subsequently gives for its decision why they have won or lost. In relation to findings about contribution, Parkers Bakeries Ltd v R E Palmer [1977] IRLR page 215, makes it clear that it is not enough for a Tribunal simply to say "We find contribution as a result of the conduct of the Applicant" without more.  They must identify the nature of the conduct which gives rise to the finding.  

	The other case referred to in the Skeleton Argument, Sulemanji v Toughened Glass Ltd [1979] ICR 799, does not, we think, help.  It is a case where 100% contribution was found.  It says that such a finding is exceptional, but it does not require a Tribunal to give reasons for its finding with any greater particularity, when it makes such a finding than in any other case.

	So the question for us is "Do the Tribunal's reasons on this issue inform the parties why they won or lost.  Is the Applicant's conduct sufficiently identified when they say that he pursued his point of view in a way and to an extent which must inevitably have led to his dismissal?".  

	We have already recorded that this hearing took place over six days.  There was a mass of evidence as to the manner and extent to which this argument was pursued by the Applicant. 

	It is not suggested in any of the appeal documents that there was no evidence upon which the Industrial Tribunal could have reached the conclusion it did.  They make it clear that they are basing their decision on the evidence and the documents they have seen, and we can confirm, in view of the fact that we have five full ring files of documents, that they are voluminous.  Applying the acid test as to whether the parties involved knew why they won or lost, we conclude that it passes, but we think it is right to add "only just".

	We are bound to say that the reasoning is minimal.  It would have been better not at any great length, for the Tribunal to have spelt out in a little more detail, the ways and the extent to which they felt that this Applicant had pursued this point so as to bring about his dismissal but we think that there is just enough reasoning to indicate why they reached the conclusion they did.

	We have concentrated in this judgment upon the way the Tribunal appeared to have  reached their decision, namely via the section 74(6) route, that is to say "conduct of the employee contributing to dismissal".  But from paragraph 11 of their decision we think the Tribunal could have reached precisely the same conclusion by the section 74(1) route.  In other words because dismissal was inevitable no loss would result from the fact that they dismissed in a manner which was procedurally unfair.  These routes are different as was made clear in Roa v Civil Aviation Authority [1994] ICR 495, which we are told was cited to the Industrial Tribunal.  It may be therefore that by using the word "inevitably" they were reaching this conclusion via both routes. 

	However for the reasons we have given, we think that the appeal on the two surviving points should be dismissed.    

Nigel Cookson	2 August 1995

Captain B L Friend v Civil Aviation Authority

See page 5 (paragraph 11) of yellow draft of the above judgment.

	As the Judge is quoting from paragraph 11 of the Industrial Tribunal decision I have added the word "nevertheless" as this then is the exact quote.

Iris Pain