Appeal No. EAT/0039/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 April 2003

Before
HIS HONOUR JUDGE PROPHET
MS S R CORBY
MR J R CROSBY

SOUTH WEST TRAINS	APPELLANTS

MR D E MILES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised
________________________________________________________________________________

	APPEARANCES

For the Appellant	MR JAMES TODD
(of Counsel)
Instructed By:
Messrs Kennedys
Longbow House
14-20 Chiswell Street
London EC1Y 4TW
	
For the Respondent	MR TIM DRACASS
(of Counsel)
Instructed By:
Messrs Lamport Bassitt
Solicitors
46 The Avenue
Southampton SO17 1AX	

HIS HONOUR JUDGE PROPHET 

1.	Mr Miles was employed by South West Trains Limited as a Conductor Standards Manager from September 1986 to 30 October 2001.  There was submitted to the Southampton Employment Tribunal on 18 January 2002 an originating application complaining of unfair dismissal, wrongful dismissal and non-payment of holiday pay.

2.	The Notice of Appearance from his former employer, submitted on their behalf by Messrs Kennedy, Solicitors, pleaded that Mr Miles had been fairly dismissed for gross misconduct, i.e., for deliberately deleting computer files, and that there was no wrongful dismissal.  Nothing was said in the Notice of Appearance about contribution should the Employment Tribunal find an unfair dismissal nor was there any defence in respect of alleged non-payment of holiday pay.

3.	An Employment Tribunal sitting at Southampton on 25 June and 3 September 2002 with Mr Davey as Chairman and Mr Dickenson and Mrs Wallace as the Lay Members, found unanimously that Mr Miles had been unfairly dismissed.  At that hearing Mr Miles was represented by Mr Lapthorne, Solicitor and the employer by Mr Todd, of Counsel.  The parties then agreed terms of settlement in respect of compensation in the sum of £15,587.34.  Precisely what happened to the wrongful dismissal and holiday pay claims cannot be ascertained from the decision and reasons, but no issues on those matters fall for our consideration today.  Although not mentioned in the Decision itself, which would have been appropriate, it can be ascertained from the Reasons that the Tribunal considered and rejected a submission that there was contribution.

4.	The Notice of Appeal is from the employer and has three grounds.  First, that the Employment Tribunal’s finding that Mr Miles’ dismissal was unfair on the grounds that the appellants had no reasonable grounds for its belief that Mr Miles had committed gross misconduct, was perverse.  Secondly, that the Employment Tribunal substituted its own view instead of that of a reasonable employer.  Thirdly, there is a challenge to the finding of no contribution.

5.	There has been no preliminary hearing before the Employment Appeal Tribunal it having been decided by a Judge in Chambers that the appeal be dealt with at a full hearing.  We have convened for that hearing today with Mr Todd, of Counsel, addressing us in support of his written Skeleton argument (Mr Todd, of course, having been at the original Employment Tribunal hearing) and Mr Dracass, of Counsel, addressing us in support of his written Skeleton argument on behalf of Mr Miles.

6.	In respect of the first ground of appeal, Mr Dracass emphasises what Mr Todd is obliged to accept from well known authorities i.e that perversity is a very high hurdle to overcome in a Notice of Appeal to this Tribunal.

7.	What was important in this case was not whether Mr Miles deleted files from his computer (of that there was no dispute) but proper consideration by the Employment Tribunal of all the relevant circumstances which applied to Mr Miles’ actions and its effects.  Remarks made by Mr Miles at investigatory and disciplinary hearings which seemed to suggest some recognition on his part that he had acted blameworthy, do not necessarily have to be regarded as confessions, as Mr Todd suggests to us.  Those matters must be for the Employment Tribunal to evaluate.

8.	We read the finding of a presumption of spite as being a view concluded by the Tribunal that this factor affected the employers’ assessment as reasonable employers of the situation which they were examining.  Again, that is a matter which the Employment Tribunal was entitled to weigh up in their consideration of the evidence which they received.

9.	Mr Todd’s argument about the Employment Tribunal substituting its own view for that of a reasonable employer, has to be examined in the context of the Tribunal’s reasons as set out by them.  What the Tribunal was required to establish, since there was no dispute as to the reason for dismissal, was whether the decision to dismiss Mr Miles in all the circumstances, fell within a range of reasonable options open to a reasonable employer and, to that extent, they would take into account all relevant matters, including the previous satisfactory and long service record of Mr Miles.

10.	Perhaps the Employment Tribunal did not set out their conclusions as well as they might have done in their reasons.  That might itself have been a consequence of their not setting out at an early part in the reasons, the issues which they had to determine, as is common practice by many Employment Tribunals today.  In particular, there is no specific reference to section 98(4). We recognise that it is sometimes possible for Employment Tribunals to apply their minds primarily to the well-known Burchell test in conduct dismissals, without fully appreciating the statutory test under section 98(4) of the Employment Rights Act 1996.

11.	We are, however, satisfied that the Employment Tribunal, although not specifically stating that it was reminding itself of its duty to examine fairness from the perspective of a reasonable employer, did not fall into error in that respect, and that their reasons, as they set them out, can properly be interpreted as a finding by them on the evidence before them that dismissal was outside the range of reasonable responses by a reasonable employer.  We have unanimously decided to dismiss the appeal in this respect.

12.	We turn now to the third ground of appeal which is a matter of contribution.  It is usually understood that assessment of contribution is a matter for the Employment Tribunal, which hears all the evidence, and is in the best position to assess the circumstances of each particular case.  However, as set out in the case of Nelson v British Broadcasting Corporation (No.2) [1979] IRLR 346, there is helpful guidance given in that case in respect of how an Employment Tribunal should consider the issue of contribution.  In particular, reference is made to the need to ascertain whether the actions of the employee can be regarded as either culpable or blameworthy.  

13.	It follows from that that an Employment Tribunal considering contribution, ought, if it is going to find no contribution at all, to make a clear finding with proper reasons that the employee was neither blameless nor culpable.  The problem we have here, is that all the evidence and the conclusions of fact by the Employment Tribunal, indicate that there was blameworthy or culpable conduct on the part of Mr Miles.  Indeed, Mr Dracass has given us some indication that he finds it difficult to support the finding of no contribution.  Although he did not directly say so, we inferred that from his reaction to some of our questions.

14.	We could, of course, on that basis have simply referred back to the Employment Tribunal the whole issue of contribution.  However our unanimous view in this particular case is that, not only that the Employment Tribunal failed to meet the Meek test in clearly indicating why they were not finding blameworthy or culpable conduct on the part of Mr Miles, but also that everything points to the fact that they ought as a reasonable Tribunal to have concluded that there was contribution on Mr Miles’ part to his dismissal.  That being the case, we have decided that the correct action on our part is to allow the appeal in respect of no contribution and to make an alternative finding that there was contribution on the part of Mr Miles.  Thus we refer back to the Employment Tribunal only the issue of the appropriate percentage for them to assess.  It may be that the parties can come to terms on that matter to avoid the need for another Tribunal hearing but that of course is a matter which we will leave to them.