Appeal No.	EAT/1009/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 1998
Judgment delivered on 8 March 1999

Before
HIS HONOUR JUDGE J HULL QC
MR P DAWSON OBE
MR T C THOMAS CBE

MR R BARTON	APPELLANT

THE LONDON BOROUGH OF WANDSWORTH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TONY PULLEN
(of Counsel)
Hammersmith & Fulham Law Centre
142/144 King Street
Hammersmith
London
W6 0QU	
For the Respondents	MS ALISON RUSSELL
(of Counsel)
Instructed by:
The Solicitor
London Borough of Wandsworth
Town Hall
Wandsworth High Street
London
SW18 2PU	

	JUDGE HULL QC:		This is an appeal by Mr Roger Burton, a driver now aged 41, against a decision dated 21st July 1997 of the Industrial Tribunal, sitting at London (South) under the chairmanship of Mr Lamb. The decision of the Tribunal was that Mr Barton had been unfairly dismissed by the London Borough of Wandsworth, and (by a majority) that the reason or principal reason for the decision (on appeal) of the Respondent to uphold his dismissal was that he proposed to take part in the activities of his Trade Union, within section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. Mr Barton appeals against the parts of the decision in which the Industrial Tribunal refused to make an order for reinstatement or re-engagement under sections 114 and 115 of the Employment Rights Act 1996, and found that the dismissal was contributed to by the conduct of Mr Barton, so that his awards of compensation should be reduced by 50%.

	We heard Mr Barton on appeal on 27th July 1998 and then adjourned the hearing of the Respondent’s cross-appeal to 7th December. Shortly before the adjourned hearing the cross-appeal was withdrawn, by consent.

	The history of the matter is summarised by the Industrial Tribunal in paragraphs 2 to 29 of their decision. In 1990 Mr Barton was dismissed by London Buses, allegedly for misconduct, and shortly afterwards, in December 1990, he applied to the Respondent for a permanent position as a driver. Mr Barton knew that the Respondent would not take him on if he admitted that he had been dismissed by London Buses, so where the application form required him to state his “reason for leaving” London Buses he wrote “dissatisfaction”. That, the Industrial Tribunal found, was a calculated deception: Mr Barton had sought advice “concerning the answer he could give, which would not disclose the true position, but on the other hand might be arguable as being short of an outright lie”.

	The application form expressly provided that the provision of false/misleading information would render the applicant (if appointed) liable to dismissal without notice (Documents, p.85, para. 16).

	The Industrial Tribunal, in the course of their extended reasons, set out the history of various disputes between Mr Barton and the Respondents, and the disciplinary proceedings and litigation which on occasion resulted from those disputes. The applicant became active in challenging the Respondent over matters of health and safety, was given a final warning, and complained to an Industrial Tribunal that he had been victimised. The Industrial Tribunal awarded compensation, but found that the applicant was 30% at fault. Mr Barton brought successful proceedings in the County Court asserting his right to a lump sum of £5,000. Then he was warned for not wearing his full uniform. He was elected a shop steward. In 1996 Mr Barton wrote in that capacity to third party organisations who were potential rival contractors for the provision of social services transport; that letter, at pp. 54 and 55, informed the recipients that “it will be necessary for you to allow us to check your financial background to make sure you can afford to pay for our wages and conditions” and contains other matters to which the Respondent might well have taken (and did take) exception; a disciplinary inquiry, which was eventually abandoned, resulted. The Respondent’s management perceived that Mr Barton was capable of acting in a mischievous manner.

	In February 1996 it came to the attention of management, through gossip at a party, that Mr Barton had in fact been dismissed by London Buses. The Industrial Tribunal found that the Respondent’s management accounts for what followed, and in particular a substantial delay in dealing with the matter, were unsatisfactory. They did not believe that they had heard the truth about the matter, but were unable to ascertain what the true facts might be.

	After a disciplinary hearing on 3rd June 1996, Mr Buss, Assistant Director of Technical Services, concluded that Mr Barton was guilty of providing false information to support an application for employment, which constituted gross misconduct. Mr Buss decided that Mr Barton should be summarily dismissed (letter of 3rd June 1996, EAT bundle p.29).

	Mr Barton appealed to Mr Thompson, who held a complete rehearing and dismissed the appeal (letter of 26th June, EAT bundle, p.31). Mr Thompson held that Mr Barton had deliberately provided what was at best misleading information on the application form; and that this was gross misconduct. Mr Thompson heard no evidence to suggest that Mr Barton’s day to day work was unsatisfactory in any way, but he did refer to the earlier Industrial Tribunal case in which it had been held that disciplinary action by the Respondent against Mr Barton had been justified. Mr Thompson found no evidence to support Mr Barton’s contention that he was being victimised. He concluded “6. Finally, Mr Buss argued that gross misconduct of this kind created a breach of trust regardless of the passage of five years and dismissal was the only relevant action. While I do not necessarily entirely agree with this it seems to me that Mr Barton’s continuing reliance on the word “dissatisfaction” and his reluctance to accept that he misled the Council once, may mean he would do it again.” “Regrettably, therefore, I confirm the findings of the hearing conducted by Mr Buss and hereby dismiss your appeal.”

	In drawing their conclusions, the Industrial Tribunal found (paragraph 37) that there was a strong case for believing that the Respondent’s managers were anxious to be rid of Mr Barton. There was never a time when he was not in dispute with the Respondent to some extent or in some way. Moreover, he kept being proved or admitted to be right. The key people involved in the disciplinary proceedings against him all had reason to harbour ill-will towards him.

	After referring again to the fact that they had not been told the truth by the Respondent’s witnesses, and stating that they disbelieved parts at any rate of Mr Thompson’s evidence, the Industrial Tribunal held that the conclusion of para. 6 of Mr Thompson’s decision was “not maintainable in principle.” “We do not see how it can be said that what he had done 5½ years previously could form a basis for assessing that his future conduct would be such that he should no longer be employed by the Respondent as a driver of ambulances.”

	The majority therefore concluded that the principal reason for the decision on the appeal was that Mr Barton proposed to take part in the activities of his Trade Union, within section 152(1)(b) of the Act of 1992. The Chairman, in the minority, concluded that the Respondent did not act reasonably in treating Mr Barton’s conduct as a reason for dismissal, so that it was unfair.

	There is now no appeal against the majority decision.

	Turning to the question of remedy, the Industrial Tribunal set out submissions which they received from the parties in paras. 46 and 47 of their reasons. The Respondent referred to the finding of deception, and the fact that during the hearing by Mr Thompson Mr Barton had failed to acknowledge that what he had done in 1990 was wrong; these matters should have found a holding of contribution on his part. The Respondent also referred to the fact that Mr Barton had obtained fresh employment. Mr Barton’s representative contended that the Respondent had also been at fault and that a good work record for 5½ years was more than sufficient to counter the effect of the deception. Because of the limits on compensation, the financial alternative to reinstatement involved hardship; his new job was a temporary one, with no pension rights.

	On the face of it these contentions are eminently concerned with facts, and the only tribunal which can properly assess their weight and validity is the Industrial Tribunal, which spent no less than six days in receiving evidence and hearing submissions in this case. In dealing with the facts the Industrial Tribunal made important comments and further findings:

“48.    We accept the argument of Miss Russell [for the Respondent] on contribution. We find the extent of contribution to be 50%. We do not accept the suggestion by Mr Tindall [for Mr Barton] that Mr Barton was badly advised. Everything we heard about him, and from him, indicated that he is a man well able to make his own decisions. Whilst we have stated our findings about the extent to which it was understandable that he felt the need to give a deceptive answer on the 1990 application form, it was nevertheless his position in 1996 that he had had plenty of time to consider the position, and it was open to him simply to admit what he had done but argue it was excusable. Nevertheless he continued to argue that “dissatisfaction” was not a deceptive expression. His lack of contrition ... was in all probability directly linked to the decision of Mr Thompson to uphold the dismissal. The position which Mr Barton adopted on that occasion was consistent with aspects of his approach to the case as it was heard before us. There were occasions when it was apparent that he had been unable to resist the temptation to be misleading about his position. For example, there was an occasion when he claimed to have a tape recording of a conversation, but it subsequently transpired that it was simply an aid to his own memory which he had dictated after the event. Similarly, after his suspension on 19th April, he put out a circular to union members stating that Mr Cornish, the manager who suspended him, had been angry and had shouted at him, but that not true, as revealed by the evidence of Mr Denman. Whilst we do not consider that these views about his capacity for occasional exaggeration compel us to a finding that he is not a credible witness, thus, they do confirm the impression that must have been given to Mr Thompson.
49.	We determined that neither reinstatement nor re-engagement was the proper order to make in this case. Our reasons for doing so were as follows:-
(i)	In its decision in the case of Nothman v London Borough of Barnet No. 2) [1980] IRLR 65, the Court of Appeal stated that where the employee believed himself to be the victim of a conspiracy by his employers, he is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged. That is the position in the present case, where throughout, Mr Barton has maintained that he is being victimised, and indeed the effect of our decision is to accept that his view was well founded. Nevertheless, in practical terms, it is difficult to see how any sort of viable employment relationship could be reconstructed in the circumstances which result from this situation.
(ii)	We also took into consideration the very substantial level of contribution which we have determined to be appropriate.
(iii)	Given our decision that the complaint under section 152 is well founded, Mr Barton is entitled to additional sums of compensation, compared to those which would be attracted by a finding of simple unfair dismissal. The extent to which he is thereby substantially compensated for his dismissal, very significantly offsets any hardship resulting from a decision not to reinstate or re-engage him.”

	On the fact of it, these findings are full or good sense (if we may say so). Recent decisions of the Court of Appeal, and of our own Tribunal, contain many references to the mutual trust and confidence which must exist between employer and employee, and the fundamental character of any breach calculated to destroy that trust and confidence. No one reading the extensive reasons given by this Industrial Tribunal could seriously suppose that, if Mr Barton were restored of his employment, a satisfactory working relationship would be likely to result. Nor could any such reader suppose that the Industrial Tribunal were holding that Mr Barton was entirely blameless in the breakdown of trust and confidence which had occurred.

	Nonetheless, the decision of the Industrial Tribunal, both with regard to reinstatement and re-engagement and contribution, is challenged on this appeal.

	Dealing with contribution, Mr Pullen contended that there were only two possible reasons for the finding of contributory fault. These were the deception practised by Mr Barton at the outset, and his lack of contrition in not accepting that this was a deception. It appears to us that this contention is not supportable; the Industrial Tribunal refer among other matters to the finding of an earlier Industrial Tribunal critical of Mr Barton; and also to his conduct in writing to potential contractors who wished to provide social services transport; as well as his conduct which led to a two-year final warning. Mr Pullen said that it was “arguable” that it was not the Industrial Tribunal’s view that Mr Barton’s “deception” amounted to conduct justifying a finding of contribution. He also suggested that Mr Barton’s conduct as found by the Industrial Tribunal could not be said to be blameworthy or to have a causal link with the dismissal.

	We do not see how any fair reading of the reasons as a whole, and in particular paragraph 48, can possibly support these contentions. The Industrial Tribunal expressly accepted Miss Russell’s contention and held that Mr Barton’s lack of contrition was in all probability directly linked to Mr Thompson’s decision to uphold the dismissal; and said that Mr Barton’s position, there, was consistent with the fact that on occasions he was unable to resist the temptation to be misleading about his position. A man who deceives his employer, refuses to show contrition when unmasked, and is unable on occasion to resist the temptation to mislead, has done enough and more than enough (one would have thought) to destroy the relationship of trust and confidence.

	Then Mr Pullen went further and said that the Industrial Tribunal were wrong to hold that Mr Barton had been guilty of deception and that the use of the word “dissatisfaction” was merely “deliberately ambiguous”. But a “deliberate ambiguity” is almost a definition of an attempt to deceive. Mr Pullen also invited our attention to the fact that the Industrial Tribunal found the deception “understandable” - but in many serious crimes are “understandable”. “Tout comprendre, c’est tour pardonner” is not a maxim of English law or, we assume, any other legal system.

	Mr Pullen also criticised the finding that Mr Barton’s lack of contrition “was in all probability directly linked to the decision of Mr Thompson to uphold the dismissal” as being a finding upon pure conjecture and not based on any evidence. We do not of course consider any evidence apart from the documents, but it would seem from paragraph 6 of Mr Thompson’s letter (p.32 of the EAT bundle) that this was precisely what Mr Thompson himself said.

	It was also submitted that a finding of 50% was perverse, and Mr Pullen referred us to Hollier v Plysu (EAT/434/81) in which Kilner Brown J envisaged findings of contribution to 100% downwards, in various circumstances. It seems to us that there is no inconsistency whatever between the findings in the present case and what was said in Hollier v Plysu.

	Mr Pullen also submitted that the 50% contribution could not be squared with the Industrial Tribunal’s central finding that the principal reason for Mr Barton’s dismissal was his trade union activities.

	In our judgment, all these contentions are persuasive and could well have persuaded any tribunal of fact to reach a different conclusion of fact on the measure of contribution. Equally, such a tribunal, having heard the evidence in the case (and of course we have not heard a word of it) might have reached precisely the same conclusion as the Industrial Tribunal in the present case. We simply do not feel able to say that the decision of this Industrial Tribunal, which spent six days on the case and gave very full reasons, was irrational or perverse of illogical. Our jurisdiction is purely over points of law. It is quite irrelevant that we may think that we would or might have reached different conclusions of fact.

	Finally, it was contended that the reasons for not making a “re-employment order” (i.e. for reinstatement or re-engagement) were set out in paragraph 49 of the reasons, and all were unsound. We disagree. Mr Pullen pointed out that the facts in Nothman v London Borough of Barnet (No. 2) [1980] IRLR 65 were very different; in the present case Mr Barton’s belief that he was victimised was well founded. But the proposition cited from Nothman is self-evident and not a proposition of law, however distinguished the Judges who enunciated it; and wherever the fault lies, any Industrial Tribunal must consider the practical effects of ordering re-employment where the employment relationship has broken down. This criticism by the appellant seems to us simply to be an argument on the facts which should have been, and no doubt was, addressed to the Industrial Tribunal. The same applies to the arguments set out in paragraphs 2.08 and 2.09 of the Skeleton Argument.

	We have already rejected the contention that the finding of contribution was erroneous in law. Clearly the Industrial Tribunal were right to take it into consideration.

	With regard to the extra compensation arising from the finding that the complaint under section 152 was well founded, it was submitted by Mr Pullen that this was irrelevant. We cannot see why this should be so. Mr Pullen pointed to the three matters which section 116(1) requires the Industrial Tribunal to consider and said that the Tribunal had not specifically addressed themselves to these and that had led to their taking into consideration irrelevant considerations.

	It is apparent to us that the Industrial Tribunal had well in mind that Mr Barton wished to be re-employed by the Respondent and expressly considered the other matters in section 116(1). Moreover, we reject the suggestion that it is implicit in section 116(1) that the Industrial Tribunal should consider the three statutory requirements and no others. In our judgment, the Industrial Tribunal were fully entitled to consider the size of the compensation award in considering any hardship to Mr Barton caused by refusing an order for re-deployment, as being a matter relevant to the exercise of their discretion.

	For all those reasons, we dismiss the appeal. The cross-appeal as we have said is withdrawn by consent.