Appeal No.	 EAT/142/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 June 2001
Judgment delivered on 28 September 2001

Before
SIR CHRISTOPHER BELLAMY QC
MS N AMIN
MR J HOUGHAM CBE

MR J MEAKIN	APPELLANT

LIVERPOOL CITY COUNCIL 
LEISURE SERVICES DIRECTORATE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MOHINDERPAL SETHI
(of Counsel)
Instructed By:
Mr K E Robinson
Messrs Jackson & Canter
3rd Floor Merseyside House
9 South John Street
London L1 8BN	
For the Respondent	MR T KENWARD
(of Counsel)
Instructed By:
Mr J S Wardle
Solicitor
Legal Services Agency
Personnel & Administration Directorate
Liverpool City Counsel
PO Box 88 
Solicitors Business Unit
Room 130, First Floor
Municipal Buildings
Dale Street, Liverpool L69 2DH	

SIR CHRISTOPHER BELLAMY QC:
1	The Appellant, Mr James Meakin, appeals from the decision of the employment tribunal sitting at Liverpool sent to the parties on 30 November 1999 by which the tribunal dismissed Mr Meakin’s claim for unfair dismissal against the Respondent, Liverpool City Council.
2	At the time of his dismissal Mr Meakin, who is now aged 45, had been employed by the Respondent for some 28 years, as a caretaker attendant.  On 15 July 1998 a fight took place at the Respondent’s premises between Mr Meakin and a Mr Forde.  Mr Meakin and Mr Forde were suspended from work the following day and a full investigation was carried out by Mr Tim Parrott (Manager – Reference Services).  On 17 February 1999 Mr Parrott presented his report to Joyce Little (Head of Library and Information Services).  This report was apparently extremely full and had annexed to it 16 witness statements and a sketch plan.  The tribunal found that Mr Parrott’s conclusion was:
“That the Applicant and Mr Forde had a violent struggle in the corridor outside the supervisor’s office, wrestled with each other while on the floor.  It was not possible to identify the applicant or Mr Forde as the single instigator of the alleged fight, equally neither appeared to have acted simply in self defence.  [The report] records that fighting on City Council premises is gross misconduct and Mr Parrott recommended that a disciplinary hearing should be convened to consider the allegation.”

3	A disciplinary hearing took place on 4 March 1999 chaired by Mr Andrew Green (Manager – Community Libraries).  According to the tribunal’s decision the minutes of this hearing cover some 35 pages.  On 10 March 1999 Mr Green communicated his finding that Mr Meakin’s conduct must be regarded as gross misconduct and that Mr Meakin was dismissed with immediate effect.  Mr Forde was also dismissed.  A subsequent appeal to Joyce Little was rejected on 29 April 1999 and a further appeal to the Respondent’s Appeal Sub-Committee made by Mr Meakin on 25 August 1999 was also rejected.
4	Mr Meakin’s IT1 claiming unfair dismissal is dated 8 April 1999.  At the hearing before the employment tribunal on 7 October 1999 he was represented by counsel.  The employment tribunal heard evidence from Mr Green and considered a bundle of documents.  Mr Meakin did not give evidence to the employment tribunal.  
5	The tribunal found as follows in paragraph 7:
“In the present case the reason for the dismissal was quite clear.  It was because on the evidence before him Mr Green entertained a reasonable suspicion amounting to a belief that the applicant had assaulted Mr Forde on the Council’s premises during working hours.  Paragraph 25 for the Respondents’ disciplinary procedure dated February 1997, provides that gross misconduct is where the act or omission by the employee is of such seriousness that his/her presence in the place of employment can no longer be tolerated and assault is one of the examples of the type of misconduct that could fall within the parameters of that definition.”

6	The tribunal then went on to consider whether the Respondent had acted reasonably or unreasonably in deciding to dismiss Mr Meakin for that reason, having regard to Section 98 of the Employment Rights Act 1996.  The tribunal’s conclusion is expressed as follows in paragraphs 8 to 10:
“8	The question then is whether the respondent acted reasonably or unreasonably in deciding to dismiss for that reason.  The guidelines for our consideration of a case such as this are those suggested by the Employment Appeal tribunal in the case of British Home Stores Ltd –v– Burchell (1978) IRLR 379 as approved and expanded by the Court of Appeal in the case of Weddel –v– Tepper (1980) IRLR 1996.  Put shortly the questions which we had to ask ourselves are: (i) did the employer believe, as distinct from merely suspecting, that misconduct had occurred (ii) was that a reasonable belief in the light of what was known to the employer at the time (iii) was it a belief arrived at after as much investigation as was reasonable in the circumstances and (iv) was it reasonable to dismiss having regard to the gravity of the misconduct which the employer believed had occurred?  In all the cases the belief is to be on the balance of probabilities.  An employer does not have to prove beyond reasonable doubt that an employee has been guilty of industrial misconduct.  The employer is not conducting a criminal investigation but assessing the probability of industrial misconduct having occurred.  Moreover the question is not whether we ourselves would have dismissed in the circumstances which the employer believed had occurred, but whether dismissal was within the range of options open to a reasonable employer in the light of that belief.
9	Mr Benson on the applicant’s behalf fairly and formally conceded that there was no issue with regard to the investigation or its reasonableness nor Mr Green’s conclusion that the applicant had assaulted Mr Forde.  However he contended that a different sanction should have been applied to the applicant, having regard to his length of service and disciplinary record which were respectively longer and better when compared with those of Mr Forde.  He admitted that it was unusual in a case of gross misconduct to find the dismissal was not a reasonable response, but the test was whether it was a reasonable response to what had occurred.  It was a matter of discretion for the employer with which in principle the tribunal should not interfere.  It was contended on behalf of the application that no reasonable employer would have dismissed the applicant; Mr Green knew the applicant had 28 years unblemished service.  It was a tragedy and the incident should be regarded as a wholly isolated and exception incident.  Although Mr Forde had been dismissed there was material for the reasonable employer reasonably to have distinguished the two cases leading to different disciplinary sanctions.  Mr Benson questioned what was the initial information which Mr Green had on which he based his findings?  He gave as examples firstly that Mr Forde had alleged racist behaviour which had been rejected, secondly the cause of tension was believed by Mr Green to be suggestions made by Mr Forde about the applicant’s sister which were unwarranted and thirdly Mr Forde had alleged an incident in the kitchen on which Mr Green was unpersuaded, but Mr Forde had armed himself with a table leg immediately after.  Mr Benson invited the tribunal to consider Mr Green had concluded both were equally blameworthy, there being statements both ways.  He did not criticise that but violence had occurred on the floor and no reasonable employer could have concluded what happened on the floor was six-of-one and half-a-dozen of the other.  Mr Green knew or ought to have known that Mr Forde was on top and had his hands round the applicant’s neck.  He had information that Mr Forde had taken the more active and more culpable role and was the instigator.  A reasonable employer would have so concluded.  It was a dangerous exercise to compartmentalise the incidents.  Mr Green ought to have had regard to the fact that Mr Forde’s behaviour led to tension and that the way Mr Forde defended himself was spurious.  The applicant made a clean breast, not a fanciful explanation.  Once Mr Green had decided there had been violence in the workplace amounting to gross misconduct he became tram-lined and dismissed.  He was the dismissing officer but had not made a detailed investigation into the background of both individuals and to that extent had failed to investigate fully.  Further not much consideration had been given to any alternative penalty, and this was a classic example of an isolated occasion with no lingering animosity where a reasonable employer would have considered it appropriate to impose a lesser sanction, in particular a final warning to both men.  Even if Mr Green took the view that Mr Forde should be dismissed it did not necessarily follow that the applicant should be.  He invited the tribunal not to shirk from a robust decision and to find for the applicant.
10	We are satisfied that Mr Green, whose evidence was accepted, in the light of the relevant facts which were not materially in dispute, believed that there were reasonable grounds on which to suspect the applicant of gross misconduct in fighting on Council property with another employee.  There were reasonable grounds on which to sustain that belief and at the stage at which Mr Green formed that belief the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  Accordingly we are unanimously satisfied that it was reasonable for the respondent to take the view that the applicant had been guilty of gross misconduct.”
7	At paragraph 11 the tribunal further considered whether summary dismissal for that gross misconduct was within the band of reasonable responses of a reasonable employer.  Having reminded itself that the tribunal should not substitute its own opinion for that of the employer, the tribunal came to the conclusion that:
“A reasonable employer would have dismissed the Applicant after taking account of all the facts known at the time of dismissal.  The Respondents’ disciplinary procedure is clear.  Both men had been employed by the Respondents for many years, the Applicant for 28 years without any disciplinary action being taken against him, which was recognised for two of the matters relied on as meriting leniency when dismissing him for this incident.  We concluded that the differences as between the two men were matters of emphasis rather than substance and did not affect the gross misconduct on which the dismissal was based and would not have led a reasonable employer to impose anything other than dismissal on this Applicant – albeit that we recognise that some may think that in all the circumstances the Respondents’ decision may not have been to dismiss either man.”

8	On this appeal we have to determine whether, in so deciding, the employment tribunal made an error of law in the way it approached the matters to be decided.  An error of law may of course arise if the conclusion reached by an employment tribunal is one that no reasonable tribunal properly directing itself could have come to, or is otherwise perverse.
9	It is argued first on Mr Meakin’s behalf that the tribunal made an error of law in basing itself, at paragraph 10 of the decision, on Mr Green’s belief “that there were reasonable grounds on which to suspect the applicant of gross misconduct in fighting on Council property with another employee”, whereas according to the test set out in the Burchell case, it must be proved that the employer had reasonable grounds to believe that the misconduct had occurred, not merely reasonable grounds to suspect that it had occurred.  
10	We reject this argument.  In our view it is clear from the overall tenor of the tribunal’s decision that it had no doubt that the Respondent in this case entertained a reasonable belief, as distinct from a mere suspicion, that misconduct had occurred.  Paragraph 7 of the decision, cited above, makes that quite clear when it says that the reason for the dismissal was that “Mr Green entertained a reasonable suspicion amounting to a belief”.  Similarly in paragraph 10, in the sentence that immediately follows the sentence relied on by Mr Meakin, the tribunal states “There were reasonable grounds on which to sustain that belief” and further refers to “the stage at which Mr Green formed that belief”.  It is therefore abundantly clear that the whole matter is proceeding on the basis of belief, rather than suspicion, and that the tribunal was addressing itself to the Burchell test, as expressly appears from paragraph 8 of the decision.  Moreover, it is apparent from the opening sentence of paragraph 9 of the tribunal’s decision, that it was conceded on behalf of Mr Meakin before the tribunal that there was “no issue with regard to the investigation or its reasonableness nor Mr Green’s conclusion that the applicant had assaulted Mr Forde”.  
11	The primary argument addressed to us on this appeal was that the employment tribunal had not made adequate findings of fact on the question whether dismissal was a fair sanction for the Respondent to impose in the circumstances of this case, in particular on the question whether the penalty imposed was proportional to the offence and the Appellant’s length of service and past conduct.  Alternatively, the tribunal had not applied the correct legal approach to the facts as found.  According to Mr Meakin, in addition to the requirements of the Burchell test the employment tribunal must be satisfied that dismissal was a fair sanction to impose:  see Louies v Coventry Hood and Seating Co Ltd [1990] ICR 54, Harvey on Industrial Relations and Employment Law, paragraphs 1460 and 1535.  In the present case the tribunal erred in failing properly to distinguish between the situation of Mr Meakin, on the one hand, and the situation of Mr Forde on the other, nor did it satisfy itself that the Respondent had done so prior to dismissing Mr Meakin:  see Gibson v British Transport Docks Board [1982] IRLR 228.  In particular, due account was not taken, either by the employer or the tribunal, of the mitigating factors that appear from paragraph 9 of the tribunal’s decision, namely that Mr Green had rejected the allegations of racist behaviour made by Mr Forde against Mr Meakin; that the cause of the tension between Mr Forde and Mr Meakin had been unwarranted suggestions made by Mr Forde about Mr Meakin’s sister; that Mr Green had disbelieved Mr Forde’s allegations about an incident in the kitchen, and had found that Mr Forde had armed himself with a table leg immediately thereafter; and that during the fight Mr Forde was on top and had his hands round the Appellant’s neck.  From all those considerations, it is said, Mr Green believed or should have believed that Mr Forde bore a greater responsibility than did Mr Meakin.
12	Moreover, the tribunal did not properly consider, or satisfy itself that the Respondent had properly considered, whether any sanction short of dismissal was appropriate in the case of Mr Meakin, taking into account his length of service and past conduct (see Trust House Forte (Catering) Ltd v Adonis [1984] IRLR 382).  The tribunal did not properly compare Mr Meakin’s length of service with that of Mr Forde (about twice as long), nor make any finding about Mr Forde’s previous disciplinary record, Mr Meakin’s disciplinary record being exemplary.  The tribunal therefore fell into error in concluding that “the differences between the two men were matters of emphasis rather than substance” and that those differences “did not affect the gross misconduct on which the dismissal was based and would not have led a reasonable employer to impose any sanction other than dismissal (paragraph 11 of the decision)”.  The tribunal itself said “that some may think that in all the circumstances the Respondent’s decision may have been not to dismiss either man”, which is a further indication that the tribunal had not addressed itself separately to the situation of Mr Meakin as distinct from that of Mr Forde.  As a result, so it is argued, the tribunal’s decision is not properly reasoned in accordance with the principles of Meek v City of Birmingham District Council [1987] IRLR 250, or, alternatively, is one that no reasonable tribunal could have reached.
13	The Respondent submits that the question of the fairness of the sanction of dismissal is a matter of fact.  The tribunal addressed all the relevant considerations, and correctly applied the relevant legal principles.  There is accordingly no error of law in the tribunal’s decision.  The Respondent points out that the issue before the tribunal was the dismissal of Mr Meakin and not the dismissal of Mr Forde.  If Mr Meakin’s conduct standing alone was sufficient gross misconduct to justify Mr Meakin’s dismissal, it is irrelevant to that issue that Mr Forde may have had even less mitigation available to him than did Mr Meakin.  In fact the tribunal concluded that the only differences between the two men were matters of emphasis and not matters of substance.
14	We have come to the conclusion that we must reject the arguments advanced on behalf of Mr Meakin.  In deciding this appeal we, like the employment tribunal, cannot approach the matter on the basis of what we would have done had we been in the position of the employer.  The question for us is one of law, namely whether it is shown that the employment tribunal has erred in law in deciding that, in this case, dismissal was within the range of reasonable responses of a reasonable employer in the face of Mr Meakin’s admitted gross misconduct.
15	In our view the facts of Gibson v British Transport Docks Board, cited above, are some way from the present case but we accept that, in the case of an incident involving more than one employee, the position of each employee should, in principle, be separately considered.  What to our mind is not established is that either the Respondent or the employment tribunal failed to do so in this case.
16	As far as the Respondent is concerned, an extensive inquiry was conducted which led to Mr Parrott’s voluminous report and witness statements.  Mr Parrott’s conclusion (paragraph 3 of the tribunal’s decision) was that it was not possible to identify either Mr Meakin or Mr Forde as the principal instigator of the fight, but that equally neither appeared to have acted simply in self-defence.  Mr Green then held a disciplinary hearing, and found Mr Meakin’s actions to amount to gross misconduct.  As a result he was dismissed.  There was then an appeal to Joyce Little, and then a yet further appeal to the Appeal Sub-Committee of the Respondent.  We find it very difficult to believe that, after such a lengthy investigation, a hearing and two further internal appeals, the Respondent had not had drawn to its attention and considered all the points that could conceivably have been made on behalf of Mr Meakin, including Mr Meakin’s account of his role in the fight, his long service and good conduct record.  There is nothing before us to indicate, still less establish, that the Respondent did not give separate attention to the situation of Mr Meakin.
17	As far as the employment tribunal is concerned, the main argument before them was that Mr Meakin’s case was different from that of Mr Forde.  We must assume that the tribunal had drawn to its attention, by Mr Meakin’s counsel, all the points that could have been made to distinguish Mr Meakin’s case from that of Mr Forde (paragraph 9 of the tribunal’s decision).  The tribunal found, at paragraph 10 “that the differences between the two men were matters of emphasis rather than substance”.  That is a finding of fact that we cannot go behind unless it is demonstrated to our satisfaction that the finding is perverse.  We do not think that it is so demonstrated.
18	As regards Mr Meakin’s culpability for the fight, the only material placed before us consists of the submissions of Mr Meakin’s counsel, as recorded in paragraph 9 of the tribunal’s decision.  Unlike ourselves, the tribunal had the benefit of Mr Green’s report, and the evidence of Mr Green himself.  As regards culpability for the fight, we simply have no basis on which we could conclude that no reasonable tribunal could have come to the conclusion that the differences between Mr Forde and Mr Meakin were “matters of emphasis rather than substance”.  
19	As regards the disciplinary record of Mr Meakin and Mr Forde, we have not been informed of any relevant facts to enable us to assess whether there was a fundamental difference between the two.  All we have is that counsel for Mr Meakin apparently submitted to the employment tribunal that Mr Meakin’s record was “better” than that of Mr Forde.  That is quite insufficient to enable us to say that the tribunal’s conclusion that the differences between the two men were “differences of emphasis” was a perverse conclusion as regards their disciplinary record.
20	As regards Mr Meakin’s length of service, the tribunal found that “both men had been employed by the Respondents for many years”.  We are informed (although we have no evidence) that Mr Forde’s length of service was half that of Mr Meakin’s, which gives Mr Forde some 14 years service.  Both are periods of long service.  Although it is true that the difference between 14 years service and 28 years service may be more than “a difference of emphasis”, in our view that fact alone does not necessarily take Mr Meakin’s dismissal outside the range of reasonable response of a reasonable employer in the circumstances as known to that employer at the time of dismissal.  
21	That last comment takes us to what we consider to be the logical fallacy of the submissions made on Mr Meakin’s behalf.  As we have indicated, we think the tribunal did take into account, but rejected, the various differences that there were said to be between Mr Meakin and Mr Forde.  But the logical problem is that, even if there were some differences between Mr Meakin and Mr Forde – length of service being one example – it does not follow that Mr Meakin’s gross misconduct did not merit dismissal.  If the misconduct merited dismissal, even taking into account long service and past good conduct, the fact that the other employee involved had a less good record is neither here nor there.  To put the matter the other way round, the fact that Mr Forde had even less mitigation than Mr Meakin does not mean that Mr Meakin’s conduct dropped below the threshold at which a reasonable employer would be justified in dismissing.
22	It is clear from paragraph 11 of the decision that the tribunal took into account all the matters relied on as regards Mr Meakin, notably his length of service and disciplinary record and found that they “did not affect the gross misconduct on which the dismissal was based” and “would not have led a reasonable employer to impose any sanction other than dismissal on this applicant”.  The reference to “this applicant” confirms, if confirmation is needed, that the tribunal is considering the situation of Mr Meakin separately from that of Mr Forde.
23	As regards the tribunal’s final comment to the effect that some might think that the Respondents’ decision might have been “not to dismiss either man” we do not think it can be inferred that the tribunal had trapped itself into believing it was a case of both or neither being dismissed.  The tribunal was plainly considering the individual situation of Mr Meakin as the whole tenor of the decision makes clear.
24	For those reasons, we do not feel we have any sufficient basis for impugning the tribunal’s findings as perverse or otherwise erroneous in law.  Nor do we think that the tribunal’s reasons are in breach of the principles set out in the case of Meek.
25	In the result the appeal must be dismissed.