Appeal No. UKEAT/0307/12/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
29 November 2012
Judgment
handed down on 6 February 2013
Before
HIS
HONOUR JUDGE PETER CLARK
MR P SMITH
MR T STANWORTH
MONTRACON
LTD APPELLANT
MR E F HARDCASTLE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL- Contributory fault
ET held; 60 percent contribution to compensatory award; nil
contribution to basic award.
Latter finding set aside; 30 percent deduction substituted.
HIS HONOUR JUDGE PETER CLARK
1.
The issue in this appeal, brought by the Respondent before the Hull Employment
Tribunal, Montracon Ltd, is whether the majority of the ET (EJ Forrest and Mr
McNesty), having found that the Claimant, Mr Hardcastle, was unfairly dismissed
from his employment with the Respondent as an HGV driver, and that by his
conduct he contributed to his dismissal to the extent of 60 percent for the
purposes of s123(6) Employment Rights Act 1996 and reduced his
compensatory award accordingly, was wrong to hold that it was not just and
equitable to reduce his basic award at all under s122(2). The minority member,
Miss Fisher, would have found the dismissal fair; alternatively, she would have
reduced both the compensatory and basic awards by 100 percent. The ET’s
Judgment is dated 8 February 2012. Written reasons were provided on 12 March
2012.
The facts
2.
The Claimant commenced employment with the Respondent as an HGV driver
on 16 July 1990. By the time of the relevant incident which took place on 15
July 2010 he was an experienced driver, with a good record and was generally
well regarded.
3.
On that day he was instructed to take a trailer on a 60 mile journey.
The trailer was unusually high, marked at 4.75 metres. The Claimant took note
of that measurement before leaving the Respondent’s depot. His destination was
a sub-contractor’s yard in Sheffield. He had made that journey a number of
times in the past. Immediately before the yard was a bridge. That bridge was
4.6 metres high, a fact advertised on warning signs on the approach to the
bridge. The Claimant approached the bridge slowly, concentrating on a left turn
immediately afterwards into the yard. Unfortunately, he forgot the height on
the trailer and collided with the bridge, causing some £2,500 worth of damage
to the trailer, which the Respondent later repaired in house.
4.
Disciplinary proceedings followed. At a disciplinary hearing he was found
guilty of gross misconduct, reckless damage of company property and summarily
dismissed. The Claimant appealed internally against his dismissal, pointing to
his 20 years’ unblemished service. The appeal was dismissed.
The Employment Tribunal decision
5.
Whilst unanimously accepting that the reason for dismissal related to
the Respondent’s conduct the majority found the dismissal to be unfair applying
s98(4) Employment Rights Act 1996. Although the tribunal found that any
procedural defect at the disciplinary stage was cured on appeal and that the
3-fold Burchell test was satisfied, the majority held that
dismissal fell outside the range of reasonable responses open to the employer
because (a) the Respondent applied an impermissible tariff-based approach; dismissal
must follow a driver hitting a bridge and (b) proper account was not taken of
his 20 year unblemished driving record with no previous accidents.
6.
On the question of contribution the majority found, for the purposes of
s123(6) Employment Rights Act (compensatory award) the Claimant’s
conduct in forgetting the height of the trailer when approaching the bridge was
clearly culpable and seriously culpable. The dismissal was to a large extent
caused or contributed to by the Claimant’s actions within s123(6). The majority
assessed the level of the Claimant’s contribution to his dismissal at 60
percent. The compensatory award fell to be reduced accordingly (there was no ‘Polkey’
deduction made under s123(1)).
7.
As to the basic award, governed by s122(2) Employment Rights Act,
the majority said this at para 33 of the reasons;
“However, this is one of those exceptional cases where the
majority of the Tribunal would make a distinction between a deduction for the
compensatory award, and a deduction for the basic award. We have referred above
to Mr Hardcastle’s long record of unblemished service with the Respondent. We
have found that a reasonable employer would give that factor significant weight
as a mitigating factor and, in combination with the other mitigating factors,
it would mean that no reasonable employer could dismiss Mr Hardcastle for the
offence. We find, applying the different test in section 122(2) for a reduction
to basic award that it would not be just and equitable to reduce Mr
Hardcastle’s basic award by any amount in this particular case. The basic award
is an award made in recognition of the employees long service; in our view, it
would not be just of equitable to deprive Mr Hardcastle of the accrued rights
he had built up in his job over the years by the single act, culpable though it
was. We therefore make no reduction to the basic award.”
The statutory provisions
(a) Compensatory award
8.
S123(6) Employment Rights Act provides;
“Where the Tribunal finds that the dismissal was to any extent
contributed to by any action of the complainant, it shall reduce the amount of
the compensatory award by such proportion as it considers just and equitable
having regard to that finding.”
(b) Basic award
9.
S122(2) Employment Rights Act provides;
“Where the Tribunal considers that any conduct of the
complainant before the dismissal […] was such that it would be just and
equitable to reduce or further reduce the amount of the basic award to any
extent, the Tribunal shall reduce or further reduce that amount accordingly.”
Interpretation
10.
Those two statutory provisions have been the subject of extensive
judicial consideration; we are grateful to both counsel for drawing our
attention to the relevant authorities, which we have carefully considered.
11.
It is now well-established that different percentage assessments may be
appropriate to the effect of the employee’s conduct (synonymous with ‘action’
in s123(6) in reducing the compensatory and basic awards; see, for example, Optikinetics
Ltd v Whooley (1999) ICR 984; Compass Group v Baldwin
(UKEAT/0447/05/DM, 5 January 2006)), applying the Court of Appeal approach in Rao
v CAA (1994) ICR 495.
12.
The question under both provisions is whether any and if so what
reduction ought to be made in respect of the Claimant’s conduct.
13.
The Tribunal is not concerned with the Respondent employer’s conduct,
nor that of other employees; see particularly Parker Foundry Ltd v Slack
(1992) IRLR 11, paras 18-24, per Woolf LJ.
14.
Of particular relevance to the present appeal is the question as to what
factors a Tribunal may permissibly take into account when deciding what is just
and equitable for the purposes of s122(2). In Optikinetics we
referred to the Tribunal’s wide discretion (990A); in Baldwin HHJ
McMullen QC stated (para 32);
“We cannot see any limit on what may be taken into account in
justice and equity in refusing to award a deduction’[from the basic award].
15.
Mr Smith submitted that the Employment Appeal Tribunal in Baldwin
was wrong to say, at para 31, that Parker does not give any illumination
of the issues which may be taken into account in the exercise of the (s122(2))
discretion, other than that it is the conduct of the Claimant which must be
considered and not that of other employees. We disagree. Having considered the
Judgments in Parker we can see no error in the EAT’s analysis of
that case in Baldwin.
The appeal
16.
Mr Smith argued that, in making a nil reduction to the basic award the
ET impermissibly took into account an irrelevant factor, namely the Claimant’s
unblemished long service with the Respondent. We do not accept that that was an
irrelevant factor, it was a matter which the majority was entitled to take into
account when assessing his overall conduct in deciding whether of not to reduce
the basic award under s122(2).
17.
However, we think that Mr Smith is on stronger ground in submitting that
the ET appear to have taken into account the employer’s action in unfairly
dismissing the Claimant. That is not a relevant factor in the assessment of the
Claimant’s contribution.
18.
More significantly, in our view, is the proposition that, in making a
nil reduction to the basic award, the majority has failed to attach any weight
to the Claimant’s own conduct, ‘culpable though it was’ (para 33).
19.
It is at this point in the analysis that in our judgment the majority
fell into error. Given the majority’s findings as to the Claimant’s level of
culpability no reasonable Tribunal, properly directing itself, could conclude
that a nil deduction was appropriate. That is the ground on which we feel
obliged to interfere with the majority’s finding at para 33.
20.
All necessary primary findings of fact having been made we are in a
position to substitute a finding that it is just and equitable (as between the
parties) to reduce the basic award on the grounds of the Claimant’s conduct in
driving into the bridge. Consistent with the majority findings, balancing that
conduct against his long unblemished service, we have concluded that the proper
deduction from the basic award is 30 percent, reflecting a difference between
the unchallenged deduction from the compensatory award under s123(6) of 60 percent
and what is just and equitable under s122(2).
Disposal
21.
It follows that this appeal is allowed to the extent that the basic
award is reduced by 30 percent.
