Appeal No.	EAT/1206/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MRS P TURNER OBE

MR J DOYLE	APPELLANT

BRITAX WINGARD LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE PETER CLARK:     This is an appeal by Mr Doyle, the applicant before the Southampton Industrial Tribunal sitting on 7th July 1997, against that tribunal’s decision that although his dismissal by his former employer, Britax Wingard Ltd, was unfair, he had nevertheless contributed to his dismissal by his own conduct to the extent of 100%, and that accordingly he was disentitled to either a basic award or a compensatory award.

	The misconduct for which he was dismissed consisted of an admitted act of gross negligence in the course of his employment as an acting setter in that he failed to refix a machine guard after changing the mould on a machine. In the result the machine was run on the following day unguarded. Happily, it appears that no injury resulted to the machine operator or operators.

	The basis on which the tribunal found the dismissal to be unfair was that another employee, Mr Mayall, a setter who occupied a senior position to that of the appellant, had passed the machine as safe on the following morning when the guard was missing as a result of the appellant’s omission to reposition it.

	The disciplinary penalty imposed on Mr Mayall was that of demotion from setter to machine operator. He was not dismissed.

	The tribunal concluded that the disparity of treatment between the appellant and Mr Mayall rendered his dismissal unfair.

	The appellant acknowledges that he contributed to his dismissal by his own negligent conduct, but he argues that the tribunal was wrong in law to fix level the of contribution at 100% for the purposes of both the basic and compensatory awards.

	The House of Lords affirmed in Devis v Atkins [1977] ICR 662 that it is open to an Industrial Tribunal to make a finding of 100% contribution. Such findings have since been affirmed by this Appeal Tribunal. It is generally a matter for the tribunal’s discretion as to the appropriate degree of contribution.

	However, there is authority for the proposition that a 100% deduction cannot be justified where the employee’s conduct is not the sole cause of the dismissal. See Gibson v British Transport Docks Board [1982] IRLR 228.

	It seems to us that where there is a finding of disparate treatment, the effect of which is that had the appellant been afforded parity of treatment with Mr Mayall he would not have been dismissed at all, it is arguable that his conduct was not the sole cause of dismissal and that accordingly the tribunal’s finding of 100% contribution was wrong in principle.

	In these circumstances and on this issue, we shall therefore grant leave to the appellant to proceed to a full hearing before the Appeal Tribunal. The case will be listed for two hours. Category C. The parties to exchange skeleton arguments not less than 14 days before the date fixed for the full appeal hearing, and to lodge copies with this tribunal.