Appeal No.	 EAT/451/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J R CROSBY
LORD  DAVIES OF COITY  CBE

SUN VALLEY POULTRY LTD	APPELLANTS

MR J GODSALL & MR G WILLIAMS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR THOMAS KIBLING
(of Counsel)
Messrs Eversheds
Solicitors
Fitzalan House
Fitzalan Road
Cardiff
CF2 1XZ	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is any arguable point of law to be raised by the employers, Sun Valley Poultry Ltd, against a unanimous decision of an Industrial Tribunal held at Hereford on 2nd and 3rd December, whereby the complainant employees’ applications for unfair dismissal were upheld and they were awarded compensation subject to a reduction of 25% due to contributory fault.

	The decision is a clear and, if we may respectfully say so, well set out. 

	The reason why the employers dismissed their former employees was as a result of an incident which occurred on 4th April 1997 at about 8.30 p.m. at the employers’ depot. What happened was that one of the two employees, Mr Godsall, was driving a tractor unit with a trailer or alternatively an articulated lorry, it matters not, and another employee, Mr Williams, was going to be picked up by him just to spare him a walk of some 150 yards. The passenger door to the vehicle was locked, the driver lent across to open it, but the prospective passenger indicated that there was no need and he stood on the step to the vehicle holding on to the wing mirror and on to the door handle, and at walking pace the vehicle travelled some 150 yards without incident. A security guard or two security guards saw what had happened and eventually on 7th April the incident reached the ears of Mr Sparks who was essentially in charge of this depot. Both men were summoned to a disciplinary hearing, both of them were summarily dismissed.

	Mr Godsall had been employed by the appellants for just under 30 years and effectively had a good record of service with them. He was aged 62 or 63. The other employee, Mr Williams, had effectively 14 years of good service with his employers.

	The matter came before the Industrial Tribunal and as they correctly indicated in paragraph 4 of their decision:

“4.	This essentially is a case of an appeal against the imposition of the ultimate sanction of dismissal rather than against the commission.”

They indicate that they were reminded by the solicitors for the employers of their duty. They had their attention drawn to the relevant authority and they said this:

“We have to bear in mind ... the clear and consistent principle which has always been applied that it is not for us simply to substitute our own opinion for that of the employers as to whether certain conduct is reasonable or not. Bearing those two principles in mind, we are of the opinion that in the particular circumstances the decision to dismiss the two applicants fell outside the band of reasonable responses which a reasonable employer might have adopted.”

	In paragraph 5 they give their reasons as to why they have arrived at their view. 

	Essentially the Industrial Tribunal took the view that the employers’ reaction to this incident was well over the top. It was a reaction which no reasonable employer would have arrived at if they were acting fairly and reasonably. They surmise that the reason why the decision to dismiss was taken was because Mr Sparks was a new broom who was determined to stamp his authority on the depot by making an example of them. It seemed to the tribunal that the incident had been blown up out of all proportion, and they gave reasons for the view which they formed that the employers were over-egging the pudding, as they saw it.

	It has been argued on behalf of the employers by Mr Kibling that there are a number of errors in this tribunal’s decision. 

	We have to say at the outset that we do not regard it as being sensibly arguable that the Industrial Tribunal has erred in law in this particular case. It seems to us that this appeal attractively put as it has been by Mr Kibling, is a good example of an appeal which has no legal foundation for it, but is essentially a challenge to the Industrial Tribunal’s judgment on the facts of the case dressed up as points of law.

	The first point that is made is that the tribunal erred in law in having regard to the difficulty that one or both of the employees would have in obtaining alternative employment. He accepted, although it did not appear from his skeleton argument to be the case, that the Industrial Tribunal was entitled to say that any fair-minded employer would have taken into account the age and length of service of the respondents. 

	It seems to us that this is not the occasion in which to resolve the question finally as to whether an employer should also have regard to the consequences on the individual of a dismissal, that is his capacity to obtain alternative employment, but we are quite satisfied that the Industrial Tribunal did not err in law in paragraph 5(a) of their decision. If their comment about their lack of opportunities for obtaining alternative employment should not have been made, it played, in our judgment, no significant part in this decision.

	The second matter that is put before us is that the Industrial Tribunal erred in law in referring to defects, as they saw them, in the disciplinary procedure. 

	Again, we think that criticism of the Industrial Tribunal’s decision is unfair. What the Industrial Tribunal was endeavouring to do, having formed the view that the employers’ decision in this case was effectively a perverse one, was to try and reason to itself how it came about that the employers had arrived at that conclusion. In that context we see nothing wrong with their comments about the way in which the decision was taken. They plainly had not lost sight of the crucial issue which was before them, which is given the incident and the facts of the incident and given the length of service and age of these employees could any reasonable employer have treated what they did as justifying dismissal.

	The next point which is referred to is the disciplinary record of the two former employees.

	It seems to us, although this is mentioned in Mr Kibling’s skeleton argument, that that was a matter that to which the Industrial Tribunal were plainly entitled to have regard. They were also plainly entitled to form the view, if that was their view, that no reasonable employer could have treated this other than as a one-off incident which did not endanger company property. That is not an example of an Industrial Tribunal substituting its own judgment of the facts of the case for that of the employer. It is their attempt to explain why as an industrial jury they have arrived at the conclusion they had to make as to whether dismissal was within the range of reasonable responses. Their suggestion, as I have said, that Mr Sparks was a new broom, may not have been supported by any evidence as such, but it was a comment which they were perfectly entitled to make having regard to the facts as they found them to be.

	It is said that not only did they take into account which they should not have taken into account, but that they also failed to take into account the employers’ new attitude to health and safety at work issues. Reliance was placed on a letter of 27th August 1996 from Sun Valley Foods Ltd in which, under the rubric of safety, there was reference to the lack of safety in the transport department. There was reference to incidents involving property or vehicles, and in recent weeks they noted that there had been two vehicle accidents which could have resulted in fatalities, and the employees’ attention was drawn to the fact that in future the employers will be firm but fair. The letter also said:

“Neglecting to complete the basic requirements of your job is gross negligence and will result in dismissal.”

	It is not clear to us that the Industrial Tribunal was invited by the employers to take the view that what happened on this occasion amounted to a neglect by the employees to complete the basic requirements of their job and that therefore it amounted to gross negligence, but no doubt they were invited to take account of the employers’ view that. where there were safety questions in issue, the employers would be firm but fair. 

	What the tribunal have said in effect in this case is that the employers have not been fair in the way in which they have considered this incident. In the tribunals view the employers have blown out of all proportion the safety aspect of what occurred and, in our judgment, their failure expressly to mention this document does not suggest that they did not have it in mind when they gave their decision. Indeed, we suspect, that it may have underlain the comment that was made about the new broom.

	In all these circumstances, we are wholly unpersuaded that there is any arguable point of law. This was, in our judgment, a very capable decision of an Industrial Tribunal, and the result was one with which this Court would have agreed in full. Therefore, the appeal will be dismissed.