Appeal No.	 EAT/10/00 & EAT/67/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2000

Before
HIS HONOUR JUDGE COLLINS CBE
MS S R CORBY
MR B M WARMAN

EAT/10/00
MR S HACKETT	APPELLANT
VAW MOTORCAST LTD	RESPONDENTS

EAT/67/00
VAW MOTORCAST LTD	APPELLANTS
MR S HACKETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARINGS – EX PARTE

Revised

	APPEARANCES

For Mr S Hackett	MR BRUCE CARR
(of Counsel)
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London
SW19 1SE	
For VAW Motorcast Ltd	MR C GRAHAM
(Solicitor)
Messrs Ford & Warren
Solicitors
Westgate Point
Westgate
Leeds
LS1 2AX	

	JUDGE COLLINS:	

1.	There are two separate appeals listed before us arising out of the decision of an employment tribunal sitting at Leeds, whose extended reasons were promulgated on 15th November 1999. Although each party has launched a separate appeal against that decision, it is convenient for us to give judgment in both cases together. Although both parties are represented, the hearing has proceeded on the basis that each appeal is a separate preliminary hearing, so it is for this tribunal to discern whether there is a reasonably arguable point of law in each case to justify proceeding to a full hearing.

2.	The tribunal's decision was that Mr Hackett had been unfairly dismissed, but that he was 50% to blame in the circumstances; they reduced the amount which they awarded him to a net sum of £4,711.86 made up of basic award, compensatory award  until the date of the hearing and compensation for future loss. The calculations are set out in the reasons and I will not set them out in any more detail in this judgment.

3.	Mr Hackett’s appeal is based on two grounds, and I shall mention a third which has been floated. The first ground is that the tribunal were “way off the scale”, to use Mr Carr’s language, in deciding that the extent to which he contributed to his own dismissal was as much as 50%. Although Mr Carr accepts that it is rare for this tribunal to interfere with the decision of the employment tribunal on questions of contributory conduct, he submits that this is such an extreme case as to amount to perversity and that this tribunal should interfere. The second ground of Mr Hackett’s appeal is that the tribunal had an independent duty, particularly in the case of an unrepresented applicant, as Mr Hackett  then was, to investigate the possible heads of loss. One of the heads of loss was his right to a pension scheme and the tribunal did not investigate the question of his loss of that benefit. Mr Graham, who appears on behalf of the employers, has indicated that Mr Hackett was likely to have been a member of one or other of the company’s two pension schemes and that any loss he sustained would not have been de  minimis.

4.	So far as the appeal of VAW Motorcast is concerned, a number of points are made. In relation to contribution it is said first, that the tribunal made its decision as to the extent of contributory conduct without given the parties an opportunity to address the issue. It is said that there was a want of natural justice and that accordingly either the matter should be resolved by this tribunal or in due course sent back for a rehearing. The second point taken in relation to the contribution by Mr Hackett to his own dismissal, is that the tribunal were way off the scale in assessing it as little as 50%. The other ground of appeal by VAW Motorcast relates to the dismissal itself. Mr Graham in his attractively presented argument, both on paper and orally, has sought to demonstrate that throughout the reasoning of the tribunal runs a false thread. He has argued that the tribunal imposed their own decision-making on the facts of the case rather than perform their statutory duty of focussing on the conduct of the employers in connection with the dismissal. He has sought to analyse the reasoning of the tribunal so as to show that they simply failed to address the questions which the law obliged them to address.

5.	For the purposes of this hearing I can state the relevant facts very briefly. Mr Hackett was employed in the respondents' foundry;  as the tribunal pointed out in paragraph 13 of their reasons:

“… Particularly in a foundry which is necessarily a dangerous place, violence or threats of violence are always going to be treated with some seriousness by an employer and it is entirely right, we think, that Mr Hackett ought to have been facing disciplinary proceedings for threatening Mr Roach, …”

	What had happened was that there was some kind of altercation between Mr Hackett and Mr Roach some six months before the question of dismissal arose and information about this spat only came to light because Mr Hackett himself disclosed it in connection with other discussions which were taking place. In the light of his admission that  he had made threats, disciplinary proceedings were held and the result was that he was dismissed on the grounds of his conduct.

6.	In the Notice of Appearance, page 17 of the bundle, it is put in this way:

“The Applicant was employed by the Respondent as a Core Operative from the 4 January 1994 until his summary dismissal on 23 July 1999 by reason of gross misconduct.
Such gross misconduct involved threatening behaviour towards a fellow employee and threats of violence.”

	The company contended, as it has contended through Mr Graham today, that having determined the reason for the dismissal, (and the tribunal made it plain in its judgment that it accepted that the misconduct in question was an admissible reason for dismissal) the employers acted reasonably in investigating the matter and deciding that it was fair to dismiss Mr Hackett.

7.	The tribunal’s essential reasons for disagreeing with the employer’s submissions are set out in paragraph 12 of their decision. They draw attention to what they consider were some procedural failings on the part of the employers.  Mr Graham has suggested that the approach of the tribunal was wrong because the tribunal should have not made their own findings of fact about any of the matters in issue but should at all times have focussed solely on the question of the employers' behaviour. While we agree that the ultimate question which the tribunal had to answer was whether the employers acted fairly and reasonably in all the circumstances, we do not take the view that that means that the tribunal should fall over themselves to avoid coming to some findings on the evidence. It seems to us that the approach taken by the tribunal was a legitimate one. They heard evidence about what had happened and in the light of their findings they decided whether the respondents were reasonable. That is not to say that they decided the case on the basis that they put themselves in the employers' shoes and decided what they would have done if they had been the employers. That would have been a ground of criticism if they had approached the matter in that way, but we do not think they did. 

8.	In the event, it seems to us that what can be extracted from the tribunal’s decision is some key questions of fact. They had regard to the undisputed fact that the conduct of Mr Hackett complained of happened some six months before he was dismissed. There had never been any question before or after that date that Mr Hackett had been guilty of similar behaviour. In those circumstances, they took the view that it was simply quite unreasonable for the employer to decide on dismissal without Mr Hackett having been given a warning about the repetition of such conduct. The decision of the tribunal, properly analysed, amounts to no more than that they decided, having regard to all the circumstances of the case and in particular the length of time which had passed without Mr Hackett having repeated his behaviour,  that it  was not reasonable for the employers to dismiss. It seems to us that that was a decision which they were entitled to come to.

9.	On the question of compensation, Mr Graham represented the employers at the tribunal and he has told us that the tribunal retired at lunchtime and after lunch announced their decision, both that Mr Hackett had been unfairly dismissed and that his compensation was to be reduced by 50% on the ground of his conduct. Although further evidence was called to deal with the question of loss and Mr Graham was, presumably, able to deal with that evidence and make submissions about it, he made no complaint or observation to the tribunal  that he had been denied the opportunity to address them on the question of contribution. We are not surprised that he made no complaint about it at the time. The entire hearing concerned the question of whether or not Mr Hackett’s conduct was so grave that the employers were entitled to treat it as a reason for dismissing him. Therefore, the whole question, if I could put it in very broad terms, of his contribution to what happened to him was in the melting pot and, in our judgment, it is inconceivable that Mr Graham, as an obviously experienced and competent advocate in these matters, can have been unaware that the question of Mr Hackett's contribution to his own dismissal had to fall for consideration by the tribunal. 

10.	I mentioned at the opening of this judgment that there was a third matter in relation to Mr Hackett’s appeal. His notice of  appeal does not include a criticism of the tribunal for not inviting  submissions on this question, but not surprisingly, now he has learned about it, Mr Carr wants an opportunity to take the point that if Mr Graham did not have an opportunity to address the tribunal on the point neither did Mr Hackett. If Mr Graham is right it must be correct for Mr Hackett to be able to take the point as well. But, in our judgment, all the relevant facts were before the tribunal and recited in their judgment. The question of Mr Hackett’s own responsibility for what had happened was at the centre of the proceedings before the tribunal and, in our judgment, it is simply not realistic for the parties to say they were taken by surprise or did not have an opportunity to address the tribunal on this point. The parties’ closing submissions were an opportunity which they could have taken to deal with this point and if they did not take it, it does not seem to us that that is a matter about which they can legitimately complain now. In any event, looking at the matter more broadly, as both Counsel accept, this tribunal will only interfere with the decision of the tribunal below on questions of contribution in rare circumstances. Essentially, the question of contribution must have been a matter for the tribunal who heard the witnesses and who had a much better feel for the interpersonal relationships than this tribunal can possibly have ; we conclude that neither party has an arguable point of law as to the 50% deduction.
11.	Now that leaves one question to be determined on this appeal and that is the question of the failure of the tribunal to investigate the question of Mr Hackett’s pension rights. We accept that on the authorities it is reasonably arguable that the tribunal should have investigated those questions for themselves, even if Mr Hackett did not bring them up, and on that ground alone we think that Mr Hackett’s appeal should proceed to a full hearing. However, it is plainly a case where the parties may wish to consider negotiations. Mr Graham will be aware of the authorities, he will be a position to obtain instructions, which he does not have the moment, about the quantum of any lost rights. We would certainly hope that the parties will be able to come to a settlement of the appeal in relation to loss of pension rights without the matter having to come forward for a full hearing.