Appeal No.	 EAT/1317/01/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 September 2002

Before
MISS RECORDER E SLADE QC
MR R THOMSON
PROFESSOR P D WICKENS OBE

LONDON BOROUGH OF HILLINGDON	APPELLANT

MR P THOMAS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR I SCOTT
(of Counsel)
London Borough of Hillingdon
Legal Services Department
Civic Office
Uxbridge
Middx 
UB8 1UW	
For the Respondent	MR J WEST
(Solicitor)
Messrs Pearce West Solicitors
30 Westgate Galleries
Westgate Centre
Oxford
OX1 1NZ	

MISS RECORDER E SLADE QC

1	This is an appeal from the decision of an Employment Tribunal sitting in Watford which held that Mr Thomas had been unfairly dismissed.  It reduced compensation by 30% for contributory fault.  

2	The Appellant was a lead Personnel Officer with the London Borough of Hillingdon.  He was dismissed for accessing pornography at work on the internet on the computer with which he was provided.  

3	The grounds of the London Borough of Hillingdon’s appeal are, first, that the Employment Tribunal erred in law in that it substituted its own view of the seriousness of Mr Thomas’ conduct for that of the employers rather than considering whether the employer’s decision to dismiss was within the range of reasonable responses of the employer.  Secondly, it is said that the decision that dismissal of Mr Thomas was unfair was a perverse decision.  Thirdly, it is said that the Employment Tribunal erred in law in finding that the employee, Mr Thomas, had caused or contributed towards his dismissal to a considerable extent yet reduced the award made by only 30%.

4	The Employment Tribunal found that the reason for Mr Thomas’ dismissal was the London Borough of Hillingdon’s belief that Mr Thomas had misused council facilities by accessing pornographic material on the internet on several occasions.  The Tribunal found that the employers had a genuine belief in that misconduct, that that belief was founded on reasonable grounds and that a reasonable investigation was carried out by the employer.

5	Mr Ian Scott, on behalf of the London Borough of Hillingdon, submits that whereas the Tribunal posed itself the correct question in the first sentence of paragraph 25 of its decision in that it said:

“The Tribunal then considered whether the response of the Respondents in dismissing Mr Thomas was within the band of responses which a reasonable employer might have adopted in the circumstances.”

when it came to applying that approach to the facts of the case, it failed to do so in that it substituted its own view of the seriousness of the conduct of Mr Thomas rather than considering whether the employer’s view fell within the range of reasonable responses.  He draws attention to paragraph 25 of the decision in which the Tribunal said:

“The Tribunal therefore considered what were the circumstances which might make this behaviour gross misconduct.”

The Tribunal then went on to note certain factors.  The Tribunal, on this part of its reasoning, concluded by saying:

“The Tribunal found that the particular circumstances of this case did not render the behaviour of Mr Thomas more than ordinary misconduct.”

6	The Tribunal had considered, as a key consideration in its deliberations, whether the conduct was to be categorised as misconduct or gross misconduct.  It referred to the Respondent’s disciplinary procedure and stated:

“This is a type of conduct characterised by the Respondent’s Disciplinary Procedure as “misconduct”, not normally gross misconduct.  It may be gross misconduct, but only according to the circumstances or the position which the employee held.”

The Tribunal went on, in paragraph 25, to state:

“… the Tribunal did not accept the proposition that a person who views pornography is either unsuitable to be a Personnel Officer or is in breach of the rules relating to the probity of conduct in Local Government.”

They went on to say:

“It is not obvious in those circumstances that such behaviour constitutes gross misconduct…”

The Tribunal concluded by saying:

“The Tribunal therefore found that the decision to dismiss was outside the range of reasonable responses that a reasonable employer might have adopted in the circumstances.”

7	Mr West, on behalf of Mr Thomas, says that the Tribunal adopted the correct approach at the beginning of paragraph 25 and that that correct approach governed everything that followed and in its conclusion the Tribunal again returned to the correct approach.  He contends that this is a well reasoned decision, that it was a decision which was open to the Employment Tribunal on the evidence, and there is no reason to suggest an error of approach was committed by the Employment Tribunal.

8	On the first ground of appeal, in our judgment, whilst the Employment Tribunal, in its first sentence in paragraph 25, set out the correct approach to the question of whether the dismissal was fair in all the circumstances, nonetheless, in its considerations in the main body of that paragraph, and in the passages upon which Mr Scott relies, the Tribunal showed that it considered for itself whether the conduct should be categorised as misconduct or gross misconduct.  In those passages, relied upon by Mr Scott, one can see that the Tribunal approached the question of the fairness of dismissal by considering what it considered to be the proper categorisation of that conduct rather than considering whether the employers categorisation of that conduct as gross misconduct was within the band of reasonable responses.  Accordingly, in our judgment, the first ground of appeal is made out.

9	Moving on to the second ground of appeal, that the decision of the Employment Tribunal was a perverse decision.  In other words, that an Employment Tribunal applying the correct approach to the question namely, whether dismissal was within the band of reasonable responses of the employer, would have come to the conclusion that the answer would be ‘yes’.  A conclusion other than that would, it is contended, have been a perverse conclusion.  

10	The Tribunal were faced with a claim about which the facts were not in dispute.  The Tribunal had found the constituent requirements as set out in British Homes Stores Ltd v Burchell [1980] ICR 303 were made out and the only judgment it had to make was whether the sanction of dismissal was within the band of reasonable responses of the reasonable employer.  The Tribunal answered the question by labelling the conduct for themselves as misconduct rather than gross misconduct.  That labelling of the conduct as misconduct led them to the conclusion that dismissal was an inappropriate sanction for the conduct.  The Tribunal, as we have said, observed:

“It is not obvious in those circumstances that such behaviour constitutes gross misconduct…”

11	We have concluded that the Employment Tribunal erred in its approach to the question of the fairness of the dismissal and that it substituted its own view as to the categorisation of the conduct of Mr Thomas for that of the employers, rather then considering whether the categorisation of the conduct as gross misconduct was within the bank of reasonable responses.  Having considered the question, in our judgment, the ground of appeal on perversity is made out, that if a correct approach had been adopted of the question, no reasonable Employment Tribunal would have come to a conclusion other than that dismissal was within the band of reasonable responses of the employer.

12	Accordingly, the appeal succeeds.  We will invite submissions in a moment as to the appropriate Order in the circumstances in which we have found for the Appellant, not only on misdirection, but also on perversity.  

13	We will come, finally, to the ground of appeal which challenges the reduction of 30%.  If we were wrong in earlier decisions on the first two grounds of appeal we would have dismissed the third ground of appeal.  In our judgment the categorisation of 30% as considerable is not so outside the ordinary use of language to give rise to a complaint that the two are mutually inconsistent in making the contributory fault assessment.