Appeal No. EAT/407/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16th November 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MISS A P VALE

MR R RUSSELL	APPELLANT

G E C MARCONI LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D O'DEMPSEY
(Of Counsel)
Messrs Lawford & Co
Solicitors
102-104 Sheen Road
Richmond
Surrey
TW9 1UF

For the Respondents	MR P G SCHOFIELD
(Legal Adviser)
Engineering Employers
London Association
EELA House
Station Road
Hook
Basingstoke
Hants
RG27 9TL

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 21st January 1991 Mr Robert Russell alleged that he had been unfairly dismissed by his employers, Marconi Space Defence Systems.  He had been employed by that Company from the 14th January 1956 until the date of his dismissal, the 21st December 1990, that was a period of very nearly 35 years.  His record of behaviour had been unsullied during those years.  

	The Company is involved in highly technical electronics and employs some 3,000 people on a site near Portsmouth.

	The basis upon which the decision to dismiss was made was gross misconduct, or gross negligence or industrial gross misconduct, use what phrase one will, of Mr Russell in that it was found that he had deliberately placed paper in the men's lavatories and in particular in the urinal so that over a period of some 8 weeks there were frequent occasions when there had been an overflow from the urinals which would be a mixture of water and urine.  It was, therefore, a risk not only to slipping but also to health under the Health & Safety Regulations.  It was undoubtedly considered to be a serious matter and the Industrial Tribunal so viewed it.

	Before turning to the facts themselves it is perhaps as well to record that the Tribunal found against Mr Russell in favour of GEC Marconi Limited.  He appealed.  The matter came before a different division of this Appeal Tribunal on a preliminary hearing and they directed a full hearing and asked for the Notes of Evidence of the learned Chairman.  They also gave leave to amend and it is clear from the amended Notice of Appeal that what that division had in mind as indicated in the amendments was whether or not the decision reached by this Industrial Tribunal could be said to be perverse.  Let us say at once that there is no discernible, nor is there suggested to be, error in the direction of law given to themselves by the Industrial Tribunal, nor is there any finding of fact which it is suggested is not supported by evidence or is found despite evidence to the contrary.  This therefore is a case of a free standing ground of appeal, namely, was this a decision to which no reasonable tribunal could reach.  We have been referred to a number of cases and in particular to Piggott Brothers & Co Ltd v. Jackson & Others [1992] ICR 85 and East Berkshire Health Authority v. Matadeen [1992] IRLR 336 where in this Court we reviewed the authorities and reached the conclusion that perversity was a free standing ground of appeal in law.  A number of phrases have been used, an irrational industrial decision;  a decision which just cannot stand;  one that offends reason;  one to which no reasonable tribunal could have come.  This is all on the basis of the facts and matters considered by the Industrial Tribunal.  One might preface our recital of the facts, therefore, in this way that it is essentially a situation where the views of the Industrial Members are of the greatest weight and of enormous assistance in reaching a decision.

	The history of the facts are carefully set out in the decision, but for our present purposes we can recite them as follows.  

	In October, or maybe late September 1990, the Company became aware that someone was putting paper into the urinal of the gentlemen's lavatory which was near the Wages Office.  That is the one that is relevant.  The matter was brought to the attention of Mrs Blair, who was Personnel Manager and she spoke to a Cleaning Supervisor who proceeded to deal with the problem.  The cleaners found that there was a persistent blocking of the urinal with toilet paper, that toilet paper was the Company toilet paper which was distinguishable, as we will later refer to it, from other toilet paper that may have been involved.  As a result of this, of course, the floor was flooded and it is apparent from the evidence that this was a frequent occurrence, sometimes more than once in the day.  It was occurring some 20 or 30 times.  The Applicant, Mr Russell, was suspected by the other cleaners and as a result his movements were watched.  Nothing seems to have been alleged against him until two incidents in the early part of December.  On Saturday 1st December at 8.30 am he was seen and his movements observed, so that although he was not actually seen to drop the paper in, an inference could reasonably be drawn that it was he who did so.  There was a second occasion on Monday 3rd December also at 8.30 am when a different employee reported to Mr Colverson that something very similar had occurred.  As a result of the reports that came back to Mrs Blair she took a number of statements from cleaners and others.  The matter was looked into, a disciplinary hearing was started, it was adjourned and various stages were carried through. We purposely deal with it as shortly as that because in the Notice of Appeal there was some criticism of the procedures, and indeed those criticisms had been made by the Trade Union Officer who represented Mr Russell before the Industrial Tribunal, they were not persisted in before us.

	As a result of the various hearings the decision was taken by Mrs Blair and Mr Murray to dismiss Mr Russell.  He was told of his right to appeal, he did appeal and his appeal was dismissed.  It is right to say that he maintained to the end that he was not responsible and as the Tribunal point out in paragraph 27, there was no direct evidence.  Having seen and heard the witnesses, and this is quite apparent from the careful Notes of Evidence prepared by the learned Chairman, the Tribunal then had to consider the effect of Section 57(3) of the 1978 Act.  In paragraph 31 they say this:
"We do not think it is necessary for us to make a finding of whether or not the action was gross misconduct, or indeed what constituted gross misconduct.  We take the view that it was sufficiently serious for the reasons which we have set out above for the respondent to be able to dismiss the applicant, and for that dismissal to be reasonable in all the circumstances."

Although, strictly speaking the Tribunal should have been looking to see whether it was reasonable for the employers, the Company, to take the view that it was gross misconduct or gross negligence, nevertheless, it is not seriously contended before us that that expression affected the ultimate decision.  The nub of the matter is to be found in paragraph 30 of the decision.  The direction in law, as I have already indicated, is entirely correct, but in applying the law the Tribunal say this:-
"In reaching that conclusion [that is that it is not unreasonable] we have had regard to the applicant's length of service.  We have also had regard to the fact that this was a first offence.   We have had regard to the recommendations contained in the ACAS Code of Practice.  We take the view that the employer was faced with a serious problem which had happened over a period of time.  The evidence was that it had been going on for approximately eight weeks.  On some days it happened that toilet paper blocked the urinal on more than one occasion.  It clearly inconvenienced the respondent and its staff who were required to clean out the urinal.  Water and urine overflowed from the urinal on to the floor causing hazards to the health and safety of employees.  It may or may not have been an act of vandalism.  Certainly it was a grossly negligent act.  It was wholly foreseeable that by putting toilet paper in to the urinal problems would result."

	Mr O'Dempsey has criticised that finding and in his submission the finding, as indicated in that part of paragraph 30, is perverse in law in accordance with the principles to which we have already referred.  He divides his submissions into two, first of all he deals with the question of the decision to dismiss and whether that was within the band of reasonable response of a reasonable employer, this employer, in the circumstances of this case.  Secondly, he criticises the actual reasoning.  We propose to deal with the reasoning first although he dealt with it second.  He helpfully referred us to the case of Meek v. City of Birmingham District Council [1987] IRLR 251 and in particular to the paragraphs 8 and 9 in the leading judgment of Lord Justice Bingham, as he then was, in the Court of Appeal.  We do not feel that we need to refer to those paragraphs in detail but the essential question is, has the decision been sufficiently clearly expressed that the parties know the reason for winning or losing a case?  It is not for an industrial tribunal to set out every fact or to mention every piece of evidence, no one would expect them to do that.  Likewise, so long as it is a clear indication that they have not misdirected themselves in law, they need not set out every proposition of law.  Here, it is suggested that the Tribunal did not really express the reasons why it reached its decision, and in particular, did not refer specifically to the passages in the ACAS Code of Conduct for disciplinary procedures to which we were referred.

	Mr O'Dempsey referred us to three paragraphs in the ACAS Code of Disciplinary Practice and Procedures in Employment 1977 and in particular paragraphs 8, 9 and 10(h).  Under 8:
"8.Employers should be made aware of the likely consequences of breaking rules and in particular they should be given a clear indication of the type of conduct which may warrant summary dismissal.

 9.Disciplinary procedures should not be seen primarily as a means of imposing sanctions they should also be designed to emphasise and encourage improvements in individual conduct.

10.(h)the procedure should ensure that except for gross misconduct no employees are dismissed for a first breach of discipline."

	Mr Scholfield in his submissions has pointed out that the representative of the Trade Union, Mr Budd, pointed expressly to the terms of the ACAS Code when addressing the Industrial Tribunal and we cannot think that the Tribunal did not have those paragraphs in mind when they reached their decision.  So far as the mentioning of the paragraph is concerned, we do not think it reasonable to criticise them for not specifying which paragraphs they had in mind, especially in the light of the fact that they had been referred to the Code during submissions before them.

	As to the reasoning in paragraph 30, the factors taken into account are set out and it seems to us that the reasoning there is not open to criticism.

	Turning then to the first ground of appeal, namely, was this a decision which this employer in all the circumstances of this case, acting reasonably, could properly reach?  The criticisms which are made by Mr O'Dempsey are really as follows.  First of all, he submits, that insufficient weight was given to the length of service of 34 years together with a clean record.  Secondly, he submits, was there an alternative short of dismissal which could have been taken?  And that that was not properly considered.  Thirdly, he says that the mere fact of misconduct should not necessarily lead to dismissal on the first occasion and he also submits that this was not really a case of a breach of trust and confidence.  This was a conduct case which was scarcely related to that particular implied term.  He submits here that there was insufficient warning and in looking at the whole circumstances this Tribunal, if it had taken into account everything that was before it, could not have reached the decision which it did.

	The Industrial Members have examined the whole of these cases with the greatest care and they have reached the conclusion, not only that they would have reached the same decision themselves but that this decision of the Industrial Tribunal is not one which falls within the category of a decision which is, on its own, as a separate category in law perverse. 

	I confess that my anxieties perhaps stretched further but it is their vast experience which has persuaded me that they are right.  My worries came under a number of heads.  It seemed to me that there was no sufficient notice posted of the happening in the urinal and that could very easily have been done.  There was no notice on the Notice Board or on the door of the toilet or on the wall above the urinal.  Secondly, it seemed to me that it was such an irrational act, if in fact, it was continuing on all these occasions, over all these weeks that, I personally, would have thought it reasonable to make some enquiry as to whether or not there was a grudge;  whether or not there was an obsession of some kind.  Thirdly, there was the question of a medical condition, which might or might not have been relevant.  There was also, fourthly, the issue of whether the same type of paper was being used and kept in his pocket by Mr Russell, as opposed to the Company paper which he said was roughish, and it was the Company paper that was found to be blocking up the drains in the urinals.  So that, if I had been starting from scratch as a Member of the Industrial Tribunal, there are a considerable number of facets to this case that would have caused me worry.  It might not be possible in industrial terms to interview someone whom you suspect, but it might have been possible to have a word with a trade union official saying "something is going on here and it is something that I would like your help with because, obviously, we do not want to blame people unnecessarily and at the same time is a serious matter" that sort of approach.  However, it is going too far to take the view that those matters did not go through the minds of the employers, but speaking for myself, I would have been enquiring closely into the overall handing of this problem in the particular circumstances of this case.  Because however much harm is caused in possible injury to health, by this particular act, against the background of 34 years of service without criticism as to conduct, it seems to me to have been rather a drastic matter.  So speaking entirely for myself I might not have reached the same decision as the Industrial Tribunal but that would depend upon the evidence that came forward from the overall investigation and the questions I would have asked. 

	However, in the circumstances this is a case where, as we have said many times, it is not a question of whether we would have reached a different conclusion.  It is a question of whether the Industrial Tribunal who saw and heard the witnesses were entitled to come to the view that they did.  I bow to the experience and the views of the Industrial Members and I could not say in the circumstances that the Tribunal went beyond the edge albeit that I think probably, depending upon the evidence before me, I would not have reached the same conclusion as did the Industrial Tribunal.  It is due to the great assistance and the essential presence of the Industrial Members in this Appeal Tribunal that this Tribunal has the respect in its decisions which we hope it has, and I am grateful to them.

	In the circumstances therefore, it is the unanimous decision, that this appeal is dismissed.