Appeal No. UKEAT/0224/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 August 2004

Before
HIS HONOUR JUDGE D PUGSLEY
MS J DRAKE
MR J C SHRIGLEY

MRS D HOLLAND	APPELLANT

BHS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR P O'BRIEN
(Non-Practising Barrister)
	
For the Respondent	MR M SHERIDAN
(of Counsel)
Instructed by:
Messrs Field Fisher Waterhouse Solicitors
35 Vine Street
London EC3N 2AA	

SUMMARY

Unfair Dismissal

Applicant dismissed because of grabbing hold of t-shirt of fellow employee.  Employer on appeal reinstated Applicant to carry out further investigation and at its conclusion dismissed Applicant.  Issue was whether dismissal was within range of reasonable responses of a reasonable employer.  We dismissed the appeal.

HIS HONOUR JUDGE D PUGSLEY

1.	This is an appeal from a decision of the Tribunal sitting at Watford in which it dismissed the application that the Applicant was unfairly dismissed and in breach of contract.  The Appellant had sought to challenge the finding that there was gross misconduct but this was withdrawn and was the subject of the EAT Order dated 13 May 2004.

2.	The facts of the case as found by the Tribunal were depressingly familiar to those who practise in employment law, but still, despite that familiarity, very sad.

3.	The Appellant, Mrs Holland, had been a kitchen assistant for a number of years.  She was born in the late 1940s, started to work for the Respondents in January 1997, and she was dismissed by them in April 2003.  The circumstances are that she had, if her account is right, a rather cheeky young 16 year old working there, who had been rude to her.  The exchange of words which culminated in the Applicant grabbing the young 16 year old by a t-shirt.  The upshot was it was investigated and the Applicant was summarily dismissed on 27 February 2003.

4.	She wrote to appeal against that and a formal disciplinary hearing was held by Mrs Carol Cockerell the store manager of a neighbouring store.  In effect what Mrs Cockerell did was to vacate the original decision, restore the Applicant back to her same position and had a rehearing.  It was, the Tribunal found below, to the Applicant’s benefit.  In fact she had a new disciplinary hearing with the possibility of further appeal.  She was in effect given further and better opportunity of presenting her case and the Tribunal felt that the Respondent had acted fairly in this way.

5.	Further investigation took place in which Mrs Pearson was instructed to interview all the parties and then the disciplinary hearing was held on 10 April.  The Applicant was accompanied by a work colleague and was given the opportunity to present her case.  The result of all that was that Mrs Cockerell was satisfied on the evidence that the Applicant had behaved threateningly to the other restaurant assistant and she was dismissed.  She was told of the right of appeal though she in fact in the end chose not to pursue an appeal.

6.	Before us we have had the arguments put with considerable enthusiasm by the Appellant’s representative, Mr O’Brien, that we should allow this appeal.  It is said it was an error of law to find that the dismissal was fair on the evidence of the Respondent’s manager that she had taken the decision to dismiss without taking into account the Applicant’s 6 years meritorious service, an unblemished disciplinary record and the fact of provocation.  Further it is argued she felt obliged to dismiss the Applicant because the disciplinary code required it.

7.	Alternatively it is said the dismissal was perverse because it was not fair or a permissible option which was contrary to good industrial practice.  It is argued no reasonable Tribunal could find the employer had acted reasonably.  Finally it is said the Tribunal’s decision was defective in that it failed to address, or adequately address, the submissions of the parties.

8.	It is further contended that the Tribunal erred in law and was perverse in its failure to find the Applicant was unfairly dismissed by reason of the Respondent’s procedure.  What is said here is that the Respondent did not follow its own procedure and it dismissed the Applicant and then reinstated but suspended her before, after fuller investigation dismissing her.

9.	The first matter we want to say is this.  We cannot accept, although it is well intended, the submission made by Mr O’Brien that this was a dismissal on which it could be said the person making the dismissal, Mrs Cockerell, had not taken into account the Appellant’s provocation and the service.  It is true that Mr O’Brien has produced his note (and we are not suggesting he made it up or anything of that sort) in which Mrs Cockerell appears, if that verbatim note is right, not to be expressing any reliance on the fact that Mrs Holland had a considerable length of service and there was provocation.

10.	However, if you look at Mrs Cockerell’s statement, the very obvious matters and the very reason that she was dissatisfied with the first investigation was its lack of concern and concentration on the area of provocation.  She says at paragraph 5:

“Dot had alleged in the disciplinary hearing that she had been provoked by her colleague, but this had not been investigated properly.”

In paragraph 4 of her statement Mrs Cockerell said she had gone through Mrs Holland’s personnel file which would reveal immediately that she had in fact been with the company a number of years.

11.	The passages relied on are to be seen in the context that they are passages of transcript taken out of the larger framework.  We think it is quite clear that the Respondent’s submissions are right that this is a case where quite clearly Mrs Cockerell did know about provocation.  The only sensible interpretation of the witness statement, the Chairman’s notes and overall is that although Mrs Cockerell knew about the issue of provocation, knew about the Appellant’s good service, she did not think it affected her decision to dismiss.

12.	In her evidence Mrs Cockerell said:

“I did not think it up for debate that Laura provoked her, but the Appellant had no reason to act as she did”.

In her statement which was before the Tribunal she said:

“Regardless of whether or not the Appellant had been provoked, the Applicant in my opinion should not have grabbed Laura by the collar of her t-shirt”.

This evidence is consistent with the fact that in Mrs Cockerell’s mind, any provocation was not a matter to which she gave such weight to say that in all the circumstances that it should stand in the way of dismissal.

13.	In the final analysis, it is up to the Tribunal to make a finding of fact and to evaluate those facts.  Obviously an employer cannot merely, by calling something gross misconduct, pre-empt any consideration by a Tribunal of the fairness of the decision to dismiss.  The point was decided, if it needed to be decided, as long ago as Taylor v Parsons Peebles Nei Bruce Ltd [1981] IRLR 119, as a statement of the obvious, otherwise the employer could put down the most trivial matter as gross misconduct, and thereafter say “I dismissed you in light of my procedure therefore ask me no questions.  It corresponds with the procedure”.

14.	But in this case we simply cannot find that we can alter the view of the Tribunal below when they came to the view that they were satisfied that the Respondent acted in good faith and that they were acting reasonably.

15.	It is right to say that the Tribunal set out the rival contentions of the Appellant and the Respondent quite well.  For ourselves, we are not wishing to be overly-critical, but we think with profit the Tribunal could have set out in somewhat greater detail the issues.  But we do not in anyway think this comes anywhere near offending what could be said to be the “Meek compliant” test as set out in a number of cases.

16.	Lord Hoffman in Piglowska v Piglowski [1999] AER 543 (HL) points out the exigencies of daily courtroom life as such that reasons for judgment will always be capable of being better expressed.

17.	Lord Hoffman points out that reasons should be read on the assumption that unless it is demonstrated to the contrary the judge should know how he should perform his functions and which matters he should take into account.  This is, if we may say so, especially true when one considers a Tribunal which is an industrial jury rather than a mere judge.

18.	We consider we should note Lord Hoffman’s view when he goes on to say:

“…there is the principal of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute …  To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness.”

It is the considered view of each and every one of us that had we been the Tribunal, had we been the dismissing officer, we would have had great sympathy for the Appellant.

19.	At the end of the day we cannot say that this Tribunal was wrong.  Reading the decision the parties knew full well why they had won and why they had lost.  We cannot say the Tribunal were wrong to find that the procedure which was adopted of starting again was one that was not fair in all the circumstances.  Although the purist could criticise parts of the decision for not necessarily revisiting earlier submissions, at the end of the day it is as clear as a palm tree in the Sahara what this Tribunal found and why it found it.  The stepping stones by which it reached its ultimate decision are visible.

20.	Despite our sympathy for the Appellant on the facts of the case, we dismiss this appeal.  To do otherwise would be for us substituting our own view of the matter and to turn ourselves into a fact-finding Tribunal.  In our view there is no error of law.