Appeal No.	 EAT/832/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 February 1998

Before
HIS HONOUR JUDGE H J BYRT QC
DR D GRIEVES CBE
MRS P TURNER OBE

DENNIS HORTON & SON	APPELLANTS

MR H ASHTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G PRITCHARD
(of Counsel)
Legal Department
Retail Motor Industry Federation
201 Great Portland Street
London
W1N 6AB	
For the Respondent	THE RESPONDENT NOT PRESENT NOR REPRESENTED	

	JUDGE BYRT QC:	This is an appeal against the decision of an Industrial Tribunal sitting in Lincoln. Their decision was promulgated on 12th May 1997, and by a majority, they held that Mr Ashton, the employee in this case, had been unfairly dismissed, but they went on to find that he had contributed to his dismissal to the extent of 75%.

	The employers, Dennis Horton & Son now appeal that decision.

	The background facts are that the respondent Company are a family business. They run a garage with a motor dealership, petrol forecourt and they undertake servicing and repairs. They have some seven employees including Mr Ashton, and three mechanics. It is a garage in a reasonably substantial way of business.

	Mr Ashton started work with them in November 1963 when he would have been a man of 27. His employment terminated in May 1996 when he was 60. During that career with the respondent Company he had become a foreman, but he relinquished that position in January 1979. A tragedy befell him in the early 1980’s in that he lost his son and it is said that subsequent to that he became short-tempered and aggressive, and that the quality of his workmanship deteriorated. Latterly, Mr Horton the leader of the appellant firm, started keeping notes of the various instances which were cause of complaint.

	In November 1989 there was a verbal warning given to Mr Ashton. In October 1990 he upset management again when they took on the responsibilities of a Skoda dealership. He refused to work on Skoda cars referring to them as “crap”. Thereafter, there were many other complaints.

	In July 1994 he was given a written warning. At the same time he was told that certain privileges he had previously enjoyed were being withdrawn. First, he was instructed that he should no longer maintain his car at the appellants’ premises. Secondly, he had been able to buy spare parts for his car through the appellant Company at a discount. Thereafter, that also was stopped. The same notice warned him that in future any misconduct on his part might lead to disciplinary proceedings and his eventual dismissal.

	There was an unfortunate incident in the February 1995 when a Volvo motor car he was maintaining or servicing got out of control as a result of his own negligence and it caused substantial damage to the garage.

	The culminating event occurred on 26th September 1995, when Mr Horton senior went into the workshops and found Mr Ashton carrying out servicing or maintenance work on his motor car. The result was that he was promptly suspended from duty, and informed that disciplinary proceedings would follow.

	However, shortly after that, before a date could be fixed for such disciplinary proceedings, Mr Ashton fell ill and he was away from work from the end of September 1995 until May 1996. However, during that period of time he had medical certificates warranting his absence from work, but there came a time in the Spring when he was fit enough, or it was thought that he was fit enough to attend a disciplinary hearing. This was set up on 2nd May 1996.

	At that hearing it was stated that there would be an enquiry into the circumstances leading up to the events which involved his suspension. As a result of that disciplinary hearing, it was decided by the appellant Company that he should be dismissed, and in fact, in due course he was.

	Mr Ashton then indicated that he wished to appeal. However, before that appeal came on for hearing, he withdrew his appeal and instead issued his Originating Application bringing his case before the Industrial Tribunal.

	When the matter came on for hearing before the tribunal, the dismissal was admitted. The sole question before the tribunal was the reasonableness of the employers treating Mr Ashton’s conduct as sufficient grounds for dismissing him. 

	The majority came to a decision that the employers had acted unreasonably in this matter. In so determining, they took into account a number of factors. One was the very long service that Mr Ashton had given the Company; another was his exemplary conduct up until the time his son was killed; and thereafter, they attached considerable significance to his illness in the period of time between his suspension in September 1995 and the disciplinary hearing in the May of 1996. They blamed the employers for not raising those points themselves so that they could be taken into account during the disciplinary proceedings. In addition, they took into account the fact that there had been this delay of 7½ months between the suspension and the disciplinary hearing, and in all the circumstances, they felt that the employers had not taken those relevant factors, sufficiently into account before dismissing him. Accordingly, they found that he had been unfairly dismissed, though, as I have already indicated, they said that Mr Ashton himself had contributed to his own dismissal to the extent of 75%.

	The minority member of the tribunal came to the view that Mr Ashton’s misconduct over the course of time was ample justification for the view the employers had taken. He took the view that a reasonable employer might have dismissed Mr Ashton as indeed these employers did.

	Mr Pritchard has attended to argue the case on behalf the Company today. There has been no presence by Mr Ashton nor has he been represented, but he had the courtesy to make sure that the court was informed that he was not going to be doing so. 

	Mr Pritchard has raised a number of points in support of the appeal. We hope that we do no injustice to his argument if we go straight to what we believe to be the crucial matter in this case. The Industrial Tribunal, of their own volition, weighed heavily into account the medical evidence that was adduced of his illness between the date of suspension and the disciplinary hearing. Mr Pritchard says that, in taking those matters into account, they took a line which was totally their own in that neither the employers had taken it into account either at the disciplinary hearing, or indeed, before the Industrial Tribunal, but nor had Mr Ashton. He told us that the employers had never considered Mr Ashton was suffering from any ill health prior to 26th September which might account for his conduct prior to that date; but equally so, Mr Ashton had not taken that view either. Indeed, it would seem that when he went into the disciplinary proceedings he was on the attack claiming that his ill health was due to the employer’s conduct towards him. In his IT1 before the Industrial Tribunal he sought to base his case upon the fact that the employers themselves were guilty of unreasonable conduct in placing him under an embargo for servicing his own car on their premises. There was no suggestion that he was then pleading any mitigation. Mr Pritchard says that had he intended or wished to plead medical grounds in mitigation of his conduct, it was incumbent upon him to bring those matters to the employer’s attention and indeed in due course before the Industrial Tribunal. In support of that proposition he cites the case of Barratt Construction Ltd v Dalrymple [1984] IRLR 385. 

	The fact that the Industrial Tribunal brought into account this medical issue suggests that they were advancing the basis upon which they themselves would have decided this case. That comment or observation echoes the first sentence of paragraph 15 of their extended reasons, when the Industrial Tribunal says this:

“It is upon that evidence that the Tribunal have to decide whether the applicant was unfairly dismissed.”

They came up with the answer that they thought that he had been unfairly dismissed. In fact the correct question would have been, as to whether the decision the employers came to was one which no reasonable employer could have come to.

	In our judgment, the Industrial Tribunal in this case having asked the wrong question, came up with a view which was entirely their own. Instead of questioning the reasonableness of the employer’s decision, they substituted that of their own, namely saying that they would have taken into account the medical evidence and a number of other matters before coming to the conclusion that it was not reasonable to dismiss the employee. This is the view indeed of the minority member of the Industrial Tribunal, who with great respect, we think, posed the right question, namely as to whether the dismissal was a decision which a reasonable employer might have come to.

	In those circumstances, we think we have no alternative but to allow this appeal and therefore remit the case back to a freshly constituted Industrial Tribunal.