Appeal No.	 EAT/89/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 April 1999

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MRS R CHAPMAN
MR P DAWSON OBE

MR T D CURRANT	APPELLANT

HUNTLEIGH HEALTHCARE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D PRESTON
OF COUNSEL
INSTRUCTED BY 
HOPKINS REYNOLDS & CO
20 CARDIFF ROAD
LUTON
BEDFORDSHIRE LU1 1PP	

	MR JUSTICE LINDSAY	We have before us by way of a Preliminary Hearing the Appeal of Mr T D Currant in the matter Currant -v- Huntleigh Healthcare Ltd.  Mr Currant is an erstwhile employee of Huntleigh Healthcare Ltd.  The decision appealed against is a decision of Mr P Willans, Mr Flint and Mrs Rolph sitting at Bedford and the decision was promulgated on 1st December 1998.  It was a unanimous decision that the Applicant, Mr Currant, was not unfairly dismissed.  Today, Mr Preston has addressed on Mr Currant’s behalf but he was not the Counsel who appeared below.  The Notice of Appeal is dated the 8th January 1999.

	The Employment Tribunal set out detailed findings of fact at sub-letters (a) - (v) of their para 3.  The position that emerges is that Mr Currant, a Shop Floor Supervisor, took part in an incident with a Mr Cosme, the Manufacturing Director, on 3rd October 1997.  The Company enquired into the incident and concluded that Mr Currant was guilty of gross misconduct and he was therefore summarily dismissed on 14th October 1997.  There was a disciplinary appeal on 3rd November 1997.  There had been an independent witness of the events complained of on 3rd October 1997.  The person who heard the disciplinary appeal was a Mr Metcalfe, the director of Group Operations and the Employment Tribunal held that: 

“He took the view that personal control, particularly in a management position, was vital to maintain safety of and discipline amongst a large workforce in a production environment and consequently, upheld the decision to dismiss.”

	After an interval, the Employment Tribunal received Mr Currant’s form IT.1 on 5th January 1998 (although it is, in fact, dated 14th November 1997) complaining of unfair dismissal.  The Company lodged its IT.3 on 15th January 1998 and amongst the matters that the Company alleged was this:

“We reiterate our view that there was a full, thorough and fair investigation which was carried out with full propriety by the investigating managers and refute Mr Currant’s view that the Company procedures were not followed in this instance.”

	At the Employment Tribunal, Mr Currant was represented by Mr Kirby of Counsel and the Notice of Appeal, prepared by Mr Kirby but adopted by Mr Preston, takes 8 separate points.  Looking at those points, the first, asserting this to be an error of law, in that whether the conduct of which the Respondent found the Appellant to be guilty could properly be characterised as gross misconduct was a matter for the Tribunal to determine in considering whether the dismissal was a fair sanction and was not a matter on which the opinion of the Employer’s witnesses could be determinative.  We would accept that the opinions of the Employer’s witnesses should not be determinative of whether a dismissal is fair or unfair or within or without the band of reasonable responses, but the Employment Tribunal had specifically referred itself to Section 98 of the Employment Rights Act (although their citation is not improved by their describing it as Section 99) and had also drawn their own attention to the general principles to be applied.  In particular, attention was drawn to the paragraph which appears in Harvey entitled “In accordance with Equity and the Substantial Merits”, a paragraph which the Tribunal read and bore in mind when arriving at their decision.

	The law upon which the Employment Tribunal directed itself seems to be impeccable and it cannot be said that the Employment Tribunal merely accepted the views of the Employer’s witnesses as determinative.  What they say in their para 19(4) is: 

“On the basis of the facts that they had found” 

	that is reference to the Company’s finding at the Disciplinary stage, 

“and having regard to equity and the substantial merits of the case, it could not be said that the Employer had acted unreasonably in treating the Applicant’s conduct as sufficient reason for dismissing him.”  

	That reference to “equity and the substantial merits of the case”, particularly in view of the references earlier to Section 98(4) and to the passages in Harvey, is plainly a reference to the Employment Tribunal’s own assessment of what was the equity and what were the substantial merits of the case.  It cannot be fairly said that the Employment Tribunal was simply acting on the views of the Respondent’s witnesses.  That first round of the Notice of Appeal seems to us to include no ground that has any foundation for going further.

	The second ground is that the Tribunal, in correctly seeking to avoid substituting its own views for that of the Respondent, merged the approach laid down in the Burchell  for determining the question of whether the Respondent reasonably believed the Appellant to be guilty of the misconduct alleged with the need to determine the separate question of whether dismissal was a fair sanction.  Now it is true to say that two things are mentioned together in that passage at 19(4) which we have just read, both facts found by the Company and the equity and substantial merits of the case, but it cannot be right to jump from the proposition that both are mentioned in the same paragraph to a conclusion that there was therefore some confusion between the two.  They are separate and, although mentioned in the same paragraph, there is no reason to believe that the Employment Tribunal did not keep them other than separate.  Again, therefore, no ground for going further appears.

	Thirdly, the Notice of Appeal says:

“The Tribunal should have made a finding as to whether the conduct of which the Respondent found the Appellant to be guilty amounted to gross misconduct.”

	There was no need for the Employment Tribunal to make such a finding.  There is no need to enquire into whether misconduct is “gross” or “blatant” or “trivial” or “aggravated” or any other particular adjective.  The relevant question, within Section 98(4) is whether the Employer acted reasonably or unreasonably in treating the reasons shown as a sufficient reason for the dismissal, having regard to the equity and the substantial merits of the case.  Quite which adjective is best applicable to the conduct relied upon is really not a relevant consideration.  In the passage we have already cited the Employment Tribunal held that “it could not be said that the Employer had acted unreasonably in treating the conduct as sufficient” and that, it seems to us is an adequate finding without attaching any particular adjective to the nature of the misconduct.

	Then a ground that Mr Preston particularly relied upon, is the fourth, which runs as follows:

“There was no evidence, or no sufficient evidence, on which the Tribunal could find that the conclusion of the Respondent had been that “The Applicant had indeed engaged in intimidating and threatening behaviour and furthermore, that his behaviour had been insubordinate to a superior”.  
Paragraph 3(R).  The finding made by the Respondent was that he was being dismissed because of “the way you addressed a senior member of management but, more importantly, in adopting behaviour which could be construed as attempting to intimidate or threaten him”.  Emphasis added.  Letter of dismissal dated 15th October 1997.”

	Now it could be said that this is the very kind of close analysis of an Employment Tribunal’s reasoning which is so powerfully discouraged in the reported cases but, treating it at face value, what one finds at para 3(R) of the Employment Tribunal’s Reasons is that in any event, the investigation commenced by the Respondents and about which no complaint was made by the Applicant arrived at the conclusion that the Applicant had indeed, engaged in intimidating and threatening behaviour and, furthermore, that his behaviour had been insubordinate to his superior.  There is no conflict between that and the letter of 15th October 1997 quoted in the Notice of Appeal.  Para (R) said the conclusion was that Mr Currant had been intimidating and threatening and the letter said that his conduct could be construed as attempting to intimidate or threaten.  Both propositions can be correct.  The fact that the letter did not put the point more firmly, as the Employment Tribunal, in effect, held it could have done, is of no significance.  It is quite common on both sides that points are put to the other less offensively than they could be.  We see no good ground here.  It has to be remembered, also, that the Employment Tribunal heard oral evidence that therefore could have gone beyond the witness statements and letter as shown.  That could well be; we have not got the Chairman’s notes.  They have not been sought.  It could well be that in oral evidence it did appear that even at the disciplinary stage it had emerged that the Applicant had indeed engaged in intimidating and threatening behaviour, albeit that the letter put the matter in the less offensive form which it did.  It is not right, as Mr Preston has drawn to our attention, that we should be invited to dip into some little part of the written evidence and try to constitute an arguable appeal on that basis even though we have no Chairman’s notes to give us a view of the evidence as a whole.

	The fifth ground in the Notice of Appeal is this:  

“The Tribunal found that the Respondent’s opinion was that the way in which similar incidents had been dealt with in the past was irrelevant.  The Tribunal failed to consider whether, in forming that opinion, the Respondent was acting reasonably or fairly.  Further, there was no evidence on which the Tribunal could have found, nor for the avoidance of doubt, did it find that the Respondent had distinguished the way in which similar or more serious incidents had been dealt with in the past.”  

	It is quite plain that the Employment Tribunal did have in mind that there had been earlier events and that they had been differently treated.  What they say in their paras 11 and 12 is this:

“It was drawn to the Tribunal’s attention that disciplinary matters had been dealt with differently previously, in that what was advanced as a more serious incident in 1993 involving a physical assault on an employee had only resulted in a written warning, whereas in the Applicant’s submission, the less serious incident had resulted in him being dismissed for gross misconduct.  The Respondents, it was argued, had simply considered the facts of the incident on 3rd October 1997 and had not taken into account the history of the poor relationship between the two men, nor the way in which the 1993 matter had been dealt with.  Their failure to do this contributed to the Applicant’s submission that their decision to dismiss did not fall within the band of reasonable responses.”

	For all that, the Employment Tribunal expressly held the Respondents had formed a reasonable view based on a reasonable investigation.  It was clear that they had come to the conclusion that the Applicant’s conduct had amounted to gross misconduct.  We do not cite again para 19(4) from which we have already quoted.  So the Employment Tribunal did, indeed, consider whether the Employer was acting fairly or unfairly.  It cannot be the case that because, on an earlier occasion, a more serious offence had been lightly treated, that when offences recur they cannot be met with more severe treatment.  Few things are more common than warnings such as “We will let you off lightly this once, but if it happens again, you will be likely to meet with a tougher sanction”.  We see no good ground for the Appeal going further in that fifth of the eight grounds.

	The sixth ground is this:  

“In simply accepting the opinion of the Respondent that it was irrelevant how other incidents had been dealt with, the Tribunal failed to consider either properly or at all, whether the decision to dismiss was one reached in accordance with equity and the substantial merits of the case.”  

	But para 19(4), which we have already cited, together with the Employment Tribunal’s having drawn to its own attention Section 98(4) and the passages in Harvey, shows that it did not simply accept the Respondent’s opinion but rather directed its own mind to the question of whether, having regard to equity and the substantial merits of the case (which is the language used in para 19(4)) the Employer had acted unreasonably in treating the Applicant’s conduct as sufficient reason for dismissing him.  There was no simple acceptance of the Respondent’s view.

	The seventh ground is that: 

“The Tribunal found that the Respondent had looked at the facts in isolation (para 19) but the Tribunal failed to consider whether the Respondent acted reasonably in looking at the facts in isolation.”  

	The Employment Tribunal concluded, as we have already cited, that the Respondent Employers had formed a reasonable view based upon reasonable investigation.  We have no reason to think that that was not a decision at which they could properly arrive.

	The eighth and last ground is that: 

“There was no evidence on which the Tribunal could find that a more serious case incident in 1993 had resulted in the Applicant receiving a verbal warning as evidenced by the documents produced by the Respondent during the course of the Hearing.”  

	This refers to the passage in para 11 which we have already read, about the incident in 1993.  In fact, that isn’t within the Section described as Findings of Fact, but in any event, nothing can be made of it.  No-one can assume that the seriousness of sanctions, their severity, will not increase as the number of offences increase.  There seems to be no good ground there for allowing the matter to go further.

	All in all, although it would, no doubt, have been convenient if the Employment Tribunal had spelled out in perhaps greater detail what they had had in mind, if one asks oneself whether the familiar test posed in Meek -v- The City of Birmingham is satisfied, one would have to indicate that it was satisfied.  The Employee knows precisely why he lost.  It had been concluded that there had been a reasonable view, based upon a reasonable investigation, and that reasonable view was that the Applicant’s conduct amounted to gross misconduct.  The Employment Tribunal directing their minds to the appropriate law, concluded that having regard to the equity and the substantial merits of the case, it could not be said that the Employer acted unreasonably.  The City of Birmingham test - whether the parties know why they have respectively won and lost - is adequately satisfied and, doing the best we can, we see no error of law that has any prospect of success and so we dismiss the Appeal even at this preliminary stage.