Appeal No. EAT/325/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 September 1996

Before
HIS HONOUR JUDGE J HICKS QC
MRS R CHAPMAN
SIR GAVIN LAIRD CBE

MR J BRADY	APPELLANT	
PITGLEN LTD 	RESPONDENTS	

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D WELCH
(Representative)	
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS	

			JUDGE HICKS QC:   There is an application by letter from the Respondent employer which is certainly an application to adduce new evidence.  Perhaps, and we think probably, it is also an application to cross-appeal, either on the basis that there was no dismissal, or perhaps more likely that the contribution should be greater than the 20% awarded by the Industrial Tribunal and up to 100%.  

	So far as the application to adduce further evidence is concerned the authorities make it quite clear what the test is; first that it could not have been obtained with reasonable diligence for use at the Tribunal, secondly that not only must it be relevant but it would probably have had an important influence on the result of the case, and thirdly that it is apparently credible.  We do not need to say anything about the second or third of those criteria because it is plain to us that this proposed evidence does not comply with the first requirement, that it could not have been obtained with reasonable diligence for use at the Tribunal.

	It falls into two categories.  First, evidence about when Mr Brady, the employee, received his P45.  That was a matter that was canvassed at the hearing before the Industrial Tribunal.  The evidence in question is chiefly the Respondent’s post book, which the Respondent seeks to rely on to show when the P45 was posted.  There is absolutely no reason as far as we can see why that could not have been produced at the hearing before the Tribunal if it were thought to be relevant.  The second is a copy of a poster for reference.  There was a good deal of discussion and evidence and argument at the Tribunal about the quality of Mr Brady’s printing, and the batch in question in particular, and again there is no reason shown why that could not have been produced at the hearing and we therefore consider that this application to adduce fresh evidence falls at the first hurdle.

	We may say that had there been any doubt about that point we think that it would also have fallen at the second hurdle because, although relevant, there is no way in which a mere entry in a post book showing that something was posted to Mr Brady on a particular date be such as to have an important influence on the result of the case.  The question is what was enclosed?  Equally as to the poster, there is no reason to suppose that the mere production of a sample would have had such an important influence.  We therefore reject the application for leave to adduce fresh evidence.

	As to the application, if such it be, for leave to cross-appeal, the rules require that a cross-appeal is to be included in the answer.  The time for that has long since passed.  There is power to extend time but we see no reason why time should be extended here.  Equally there is power to allow amendment of a respondent’s notice, but no sufficient ground is shown why that should be permitted, especially since the Respondent has not attended to pursue these matters in person or by representative, and we therefore reject the application, if such it be, for leave to cross-appeal or to amend the Respondent’s notice.  We therefore proceed to hear the appeal.

			JUDGE HICKS QC:   Mr Brady was employed by the Appellants, Pitglen Ltd, as a Five Colour Minder when he started work in July 1990.  By July 1994 he was a skilled printer with 30 years’ experience, who had not only completed an apprenticeship but was able to cope with all the machines that the company used.  As the Tribunal found he did 80% of their printing.  It was a small company which employed a total of four permanent staff; the Managing Director was a Mr Sheth.  

	As the Tribunal found, the printing trade at that level is highly competitive and works under great pressure.  From time to time there are mistakes.  Mr Brady had from time to time make mistakes but he was essentially a good printer.  Mr Sheth said in evidence that he would have had him back at any time because of that and because he needed him.  It is quite apparent from the history, and the Tribunal found, that Mr Sheth was a volatile person who could lose his temper when things went wrong, that from time to time he did so and that there were explosive incidents.

	The occasion which gave rise to this application was one in which Mr Brady had run off a quantity of covers for a promotion magazine.  There was a dispute which the Industrial Tribunal did not, as we read it, resolve as to whether the quantity was 2,500 or 10,000.  What was not in dispute was that the batch went wrong.  The covers had stuck together because the ink was not feeding properly.  In fact the customer had given the specification but no-one at the printing firm had pointed out that it would not work and there was therefore this consequence.  Mr Sheth learned about it when he came in on the Monday following the Saturday on which Mr Brady had done the work.  As the magazine, including this cover, was intended to be with the customer by that Monday evening he was, with reason, as the Tribunal found, very upset and angry.  There was a confrontation between Mr Sheth and Mr Brady, at the end of which Mr Brady left the premises and did not return to work and as the Tribunal found was sent his P45 the next day.

	The crucial finding by the Tribunal is that Mr Sheth said to Mr Brady that Mr Brady was either to pay £800 or to go.  That, as the Tribunal found, is simply a reduction to the basics of what was said.  The language used was in fact much more colourful.  Then the Tribunal find in paragraph 6:
“We are quite satisfied those words were spoken.  They are words which an employee is entitled to take as words dismissing him.  Therefore there was a dismissal within the meaning of Section 55 of the Employment Protection (Consolidation) Act 1978.”

They go on to find that the dismissal was unfair and the importance of the finding that there was dismissal was that one of the main issues, certainly, at the hearing had been whether Mr Brady had been dismissed or as the employers contended had resigned.

	The finding that the dismissal was unfair involved a consideration of the nature of Mr Brady’s mistake, the extent to which that was a fault which justified a dismissal, and so on, and all that area of dispute was clearly canvassed both in evidence and in submissions very fully.

	Having dealt with the issue of whether there was dismissal and found that in Mr Brady’s favour, and whether it was unfair and found that in his favour, the Tribunal then in paragraph 8 say this:
“We then have to consider whether Mr Brady contributed to his dismissal.  The circumstances in this case are unique in that Mr Brady was a man with 30 years experience in the industry.  He had been four years with the Respondent.  He knew Mr Chef (sic) was volatile.  He had been sacked once before and on that occasion Mr Chef (sic) telephoned him and asked him to come back and he did.  He says on this occasion there is no way he wanted to be dismissed, they had just gone on to a 12 hour shift system which meant that he would have eight days off at regular intervals which would enable him to enjoy a boat he had just purchased.  He knew Mr Chef’s (sic) temperament as did everyone else in this establishment.  We are well aware that it is normally not for an employee to beg for his job back and we are not suggesting that Mr Brady should have begged for his job back.  Having regard to all the circumstances we find that he could have spoken to Mr Chef (sic) if he really wanted to remain.  To that extent in the unique circumstances of this case we find he has contributed.  That contribution is not high, doing the best we can we assess it at 20%.”

	Mr Welch for Mr Brady submits that that is not a finding that can be sustained, that the Tribunal erred in law in that they have taken into account, as contributory conduct, what happened after the dismissal.  On the face of the words used, that seems plainly to be the case.  It is such a surprising transition in paragraph 8 from the Tribunal’s recognition that, as they put it, it is not normally for an employee to beg for his job back and that they were not suggesting that Mr Brady should have begged for his job back - it is such a surprising transition from that - to finding that his failure to do so was contributory conduct, for the purpose of reducing the award, that we asked Mr Welch, who appeared below, to help us as to the course of the proceedings.  He told us that the Chair of the Tribunal raised the question of whether there was contributory conduct, as one would perhaps expect and as would be normal, that both parties addressed the Tribunal on that point, but both parties did so in terms of conduct prior to the conversation in question, in particular, of course, the relevance of the failure on Mr Brady’s part - the production of the bad batch that had given rise to the problem - the employer naturally submitting that that was conduct which contributed to the dismissal.  Mr Welch for Mr Brady argued successfully, as the Tribunal found, that it was not the sort of mistake that justified or even contributed to the dismissal.  Neither in the way the question was raised, so far as Mr Welch can recall, nor certainly in the way in which it was addressed by either party, was any attention given to the question whether Mr Brady’s failure to ask for the job back could be contributory conduct.  

	Of course, conduct after dismissal may be of relevance in a different way.  It may be of relevance in assessing the amount of the award under the head of failure to mitigate loss, which as the Act expressly provides is to be dealt with in the same way as it is in the ordinary courts when dealing with breach of contract.  Indeed, as Mr Welch tells us and not at all surprisingly, the question of mitigation was canvassed, but purely in terms of whether Mr Brady should and did seek other work and with what success, not in relation to the question whether he should have asked for his own job back, that is to say should have applied not only to other employers but to the Respondents.  It is quite apparent on the face of the Industrial Tribunal’s reasons that their ground for taking into account Mr Brady’s failure to speak to Mr Sheth if he wanted to remain was not dealt with in terms of failure to mitigate loss, but in terms of conduct contributing to the dismissal.

	We are forced to the conclusion that the Tribunal did fall into an error, because what is required by the statute on this point is conduct which has caused or contributed to the dismissal.  It is a matter of simple understanding of the principles of causation and contribution that only that which occurs before an event can be said to have caused or contributed to it.  Since the Tribunal finds that the dismissal was the utterance of the words that Mr Brady was to pay £800 or go then it seems to us plain that nothing that happens after that can amount to a contribution to that dismissal.  It may be that on other findings of fact one can envisage circumstances in which something is said hastily in the course of an interview which then continues for some time and it would be wrong, or at least a Tribunal might be entitled to find as a fact that it was wrong, to treat one particular moment as being the only crucial moment, so that the conversation would have to be looked at as a whole, including the question whether there was a chance for either side to draw back from the brink or be conciliatory towards the other.  That is not the way in which the facts are dealt with in the reasons and decision of this Tribunal.  The ultimatum “pay £800 or go” is treated as being the dismissal and we simply cannot see how one can, as a matter of law or logic, then attribute as a contribution to that matters which happened or failed to happen afterwards.

	In our judgment therefore the Tribunal did err in law.  There is no need, we believe, to remit the matter for further findings because the findings are all there in the decision of the Tribunal and the appeal should be allowed and the deduction of 20% annulled.  The result of that is simple arithmetic because all the figures are to be found in the Tribunal’s decision.