Appeal No.	 EAT/818/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2000

Before
HIS HONOUR JUDGE H WILSON
MR D J HODGKINS CB
MR P M SMITH

DUNLOP OIL & MARINE LTD	APPELLANT

MR D B HOTSON	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MR A CHOUDHURY 
(of Counsel)
Instructed by: 
Messrs Eversheds
Solicitors
Cloth Hall County
Infirmary Street
Leeds LS1 2JB	
For the Respondent	MR H FORREST
Solicitor
Humberside Law Centre
95 Alfred Gelder Street
Hull 
HU1 1EP	

JUDGE H WILSON

1.	We have been concerned with the hearing of the full argument in the appeal by the company against the unanimous decision of the Employment Tribunal that the applicant had been unfairly dismissed, and the cross appeal on behalf of the applicant that the degree of contribution should be smaller.  

2.	When the matter came before the Employment Appeal Tribunal as a preliminary issue, the President gave the judgment that the matter should go forward and identified four possible arguable points.  Mr Choudhury’s Notice of Appeal, his skeleton argument and his remarks to us today can be related to those points as indeed can Mr Forrest’s response in support of the cross appeal.  

3.	The facts of the matter are accurately and pithily set out in the decision of the Employment Tribunal.  The situation was that the applicant, who was a Senior Supervisor for the Respondent company, had required another employee to remove bolts with a spanner, rather than a tool which normally would be used but which was in fact broken.  The workman refused and became agitated and threatened to leave the premises.  Tempers became strained and at some point the employee threw what was left of a mug of tea, which struck the applicant in the face.  He lashed out with his hand and hit the other man and also pushed him away.  Disciplinary proceedings followed against both men and they were both dismissed.  The applicant followed the appeal procedure but was unsuccessful so that his dismissal stood.  He asserted that his dismissal was unfair.

4.	The Tribunal properly and accurately identified the statutory provision with which they were primarily concerned as being s.98 (4) of the Employment Rights Act 1996, that is to say whether in the circumstances of the case, including the size and the administrative resources of the Respondent’s undertaking, it had acted reasonably or unreasonably, in treating what happened as a sufficient reason for dismissal.  They also recognised and stated that they had to answer that question in accordance with equity and the substantial merits of the case.

5.	Mr Choudhury makes four substantive points about the matter.  The fourth is really a catch-all submission, which will depend upon our findings with regard to the three substantive points that he makes.  His first point follows the President’s point in paragraph 4 of the earlier judgment.  In a sentence it comes to this: what is stated and found in paragraphs 10 and 12 of the extended reasons is inconsistent with what is subsequently found in paragraph 13.  In paragraph 10 the Tribunal was dealing with Mr Bonnell’s decision to dismiss the Applicant at first instance.  It is stated that Mr Bonnell had accepted that there had been provocation, took into account the Applicant’s record and concluded however, that he could not condone any assault, particularly by a supervisor, even where the assault had been provoked.  Paragraph 12 summarises Mr Allison’s position on hearing the appeal.  He too had accepted that there was some provocation and that the Applicant’s reaction had been instinctive and out of character.  But as Mr Bonnell had done, he adopted the Applicant’s admission that he had struck the other man and the Tribunal quotes the record of what Mr Allison said at the hearing, namely: - 
12. “Whatever the provocation, whatever the circumstances violence cannot be condoned and as a supervisor it is vitally important that he behaves absolutely properly.”

7.	We note and take account of the fact that the record goes on to say that Mr Allison said that he had no choice but to uphold the dismissal and we further note that Mr Bonnell is recorded as having said that there was no alternative but to terminate employment with the company.

8.	Paragraph 13 deals with what the Tribunal found to have been the most important circumstances in the case, namely that the Applicant had served the respondent for 31 years, had an unblemished disciplinary record and was provoked by someone with a bad disciplinary record who at the material time was subject to a final warning for aggressive and abusive conduct.  

9.	It seems to us that the answer to the question whether there was inconsistency or not is in the negative because paragraph 13 is applying the provisions of .s98 (4) to the matters found amongst other things in paragraphs 10 and 12.

10.	We note in passing that there is no reference anywhere in the decision or in the submissions which have been made to us to the provisions of sub section (1) of s.98 of the Employment Rights Act.  We therefore assume that everybody recognises that fighting can be a dismissable offence, subject to the provisions of s.98 (4).  That is the case, which leads on to the President’s second possible arguable point and Mr Choudhury’s second point of appeal.

11.	In paragraph 13 the Employment Tribunal directs itself correctly in finding that fighting is a dismissal offence.  The Employment Tribunal went on to find that the Respondent had failed to determine whether it should be dismissable in accordance with equity and the substantial merits of this case.  In other words, they failed to determine in accordance with equity and the substantial merits whether what had happened was a sufficient reason to dismiss the Applicant.  Instead they found, as indeed is not contested, that Mr Bonnell had stated that he had no alternative and Mr Allison said that he had no choice.  That the Respondent so found indicated an approach, which was outside the band of reasonable responses.  In our judgement the Employment Tribunal’s approach to the matter was correct and unimpeachable.  

12.	The President’s third point coincides with Mr Choudhury’s third point and is a complaint that, for the purpose of considering the question whether what was done was within the band of reasonable responses, the Employment Tribunal treated the question of supervisory capacity as a neutral matter and yet, when it came to consideration of the question of contribution to the dismissal, the Employment Tribunal found that it was a relevant factor to be considered.

13.	Mr Choudhury says that to find neutrality in paragraph 14 was perverse.  Having considered the matter carefully we have concluded that it is not perverse when properly construed.  In the first place we consider that it is not right to stop the construction of the words at the end of the sentence beginning “on the other hand.” Mr Choudhury contended for the completeness of the following phrase from paragraph 14 and I quote:
14. “On the one hand he was in a supervisory position because he was a valued employee.  On the other hand he acted irresponsibly by allowing himself to lash out in the circumstances of the incident on 5 January.”
We consider however, that that is not the proper place at which to stop the construction and that the next sentence must also be included, namely and I quote:
“Having said that, we think that the other 4 factors mentioned above should have overridden in the mind of the reasonable employer any question of dismissal.”
If the sentence is read with those extra words, in our view there is nothing perverse about it.  The matter goes further however because when construing the reasons fully, it is quite plain that paragraph 14 is an extension of what has been found in paragraph 13.

14.	For those reasons therefore, we reject Mr Choudhury’s contention.  It follows that he does not succeed on any of the 3 first grounds and accordingly must fail on the fourth.  There remains the fifth ground, which concerns contribution and is dealt with by the President as his fourth ground. 
15.	Mr Choudhury complains that if the Tribunal was going to find contribution, they should have found a very much larger percentage than they did find.  He says that they applied the wrong test because s.122 of the act requires that the blameworthiness of the Applicant only be taken into account and not the conduct of the employer.  Mr Choudhury says that when one looks at paragraph 15 and takes into account the final sentence namely:- 
15. “It follows that our view is that the respondent should bear the greater responsibility for the dismissal of two-thirds since the factors weighing against dismissal were substantial.”
Clearly, this indicates that the Tribunal was applying the wrong test.  Mr Forrest on behalf of the Applicant in the cross appeal, contends that the element of contribution given all the circumstances, should have been very much less than the third at which it was assessed by the Tribunal.

16.	We accept, of course that the statutory requirement is to consider only the conduct of the Applicant.  We note that the wording of paragraph 15 of the reasons deals in its initial sentences entirely with the conduct of the Applicant in striking the other man and we note that, having set out in brief form what had happened, the Employment Tribunal went on to say:
15. “In those circumstances, we think that the applicant should bear one-third of the responsibility.”

17.	That is all that is necessary to satisfy s.122 and the sentence, which followed, is an unnecessary addition, based purely on the arithmetic consequences of finding the employee one-third to blame.  We therefore find that, while both sides for different reasons say that the Tribunal got it wrong over contribution, we do not agree, save to say that it would have been better for the last sentence of that paragraph not to be included.  However that may be, in our view it is quite clear that the Tribunal who had the benefit of seeing and hearing and assessing all of the witnesses and forming a view of what had happened, was in the best possible position to assess blameworthiness.  We have no reason to think that their assessment should be disturbed.  Accordingly, both the appeal and the cross appeal fail and we uphold the decision of the Employment Tribunal as it stands.