Appeal No. EAT/613/89

	ZZZZZZZZZZ APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 14th January 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A C BLYTON

	MR J A SCOULLER

BOC LTD	APPELLANTS

MR D McCONNON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS ANN KOEKKOEK
(Legal Adviser)
The BOC Group
Group Legal Department
The Priestley Centre
10 Priestley Road
The Surrey Research Park
Guildford 
Surrey GU2 5XY

For the Respondent	MR PAUL MENDELLE
(Of Counsel)
Messrs Magrath & Co
Solicitors
52/54 Maddox Street
London
W1R 9PA

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which is dated 5th June 1989, the Applicant Mr McConnon alleged that he had been unfairly dismissed by his employers the British Oxygen Company Limited.  He had been dismissed on the 21st March 1989.  He had been employed by the Company for some 19 years during which he had given unblemished service.  He was a fork-lift truck driver.  He worked at one of their branches and the hierarchy of management was that he had two supervisors above him, a Mr Walsh and a Mr Daley.  Over them were three foremen, Mr Attwood, Mr Richards and Mr Oliver and above that was the Acting Branch Manager, a Mr Styler.  He was responsible, as we have understood it, for half of the particular branch.  The other half, his opposite number, was under a Mr McCubbin.  Over both of them was a Mr Davidson.  

	At the time when all this occurred Mr Davidson was away on holiday, and indeed much of the criticism levelled by the Tribunal at the procedure here, would not have happened if Mr Davidson had been at work.

	The Tribunal found that there was a dismissal.  The phrase used during the ultimate interview by Mr McConnon was "I resign" but it was found to be a dismissal.  Secondly, the Tribunal found that the procedure was to be criticised and was not fair.  Thirdly, the Tribunal found that the penalty of dismissal was too severe a punishment on the usual principles of the Iceland Frozen Foods v. Jones [1983] ICR 17 case and lastly, the Tribunal found that the compensation payable to Mr McConnon should be reduced by 60%, in other words he would receive 40%.  

	Miss Koekkoek who appears for the Company has argued that the Tribunal were wrong on each and every one of those four issues.

	The facts fall within a very short compass.  Friday 17th March 1989 was St Patrick's Day.  Mr McConnon is of Irish origin and on the 15th, the Wednesday, he asked Mr Attwood for a day's holiday;  he was told he could not have it.  Later on he then said could he have "a pass-out" and Mr Attwood granted him "a pass-out".  So that at just before 2 o'clock on Friday 17th March Mr McConnon had his "pass-out" and he went to a nearby public house.  He had some drinks and some rolls;  he met there a friend of his, Mr McKenna, who had been given a "pass-out" by Mr Daley, so obviously he was another employee of the Company.  They left the public house just before 3 and drove back about half a mile to the depot.  At 10 past 4, an hour and a bit later, Mr Attwood found the Applicant asleep in his truck;  he was drunk.  Mr Attwood reported to Mr Styler;  Mr Styler rang up a Mr Adams, who is the Regional Personnel Officer, for advice and the advice was that Mr Styler had better go round and look at the situation for himself.

	The drunkenness seems to have been quite apparent and there seems to be no doubt about that whatsoever;  indeed Mr Oliver, another foreman, also reported on the matter.  Mr Styler, quite rightly sent the Applicant home at once, and told him to get off the premises and not to come into work until the Monday morning.  It meant that he had to be covered for the work later but in the light of the dangerous gases in cylinders which were around, it was clear that you could not have a drunken man on those premises, there was a danger to all.

	Thereafter what happened is described by the Tribunal thus, in the latter part of paragraph 4:
"Mr Adams, the regional personnel officer, arrived and a meeting was held between Mr Styler, Mr Adams, Mr McCubbin, Mr Oliver and Mr Attwood.  It was agreed that dismissal would follow unless the applicant came up with something very strong.  They tried to anticipate what points the applicant might raise at the meeting on Monday.  Mr Styler asked Mr Attwood to make a written statement of his part in the matter.  It was agreed that Messrs Styler, McCubbin, Attwood and Oliver should meet on Sunday evening to consider Mr Attwood's written statement.  This meeting was held in the car park of a public house.  Mr Attwood read out his statement to the others, and it was discussed."

That is what happened over the weekend.

	On the Monday 20th March, a meeting was held and at that the Applicant was represented by his Trade Union representative, Mr Ahern.  They met Mr Styler and Mr McCubbin;  it was Mr Styler who conducted the meeting and as the Tribunal found he asked at one point:
"`Are you admitting to me you were drunk?'  And the applicant replied:  `No point in telling lies.'"

Mr Attwood's statement was not read out.  The meeting was adjourned until the following day, Tuesday 21st March, and the Applicant was told to
"`consider his position'".

On that Tuesday 21st the meeting resumed and the Tribunal found that Mr Styler had summarised the position to the Applicant in this way, by saying:
"`These actions constitute gross industrial misconduct for which you may be summarily dismissed.  I suggest you adjourn to consider your position.' After which Mr Ahern and the Applicant withdrew.  A few minutes later Mr Ahern asked to speak to Mr Styler and he came in and asked Mr Styler what he had meant by the word `summarily'.  Mr Styler said it mean `with immediate effect, without notice.'"

Mr Ahern then left, went back outside, and returned with the Applicant.  The Applicant was the first to speak when they came in and the note of what was said is to be found in the bundle here and is recorded as follows after the words "ADJOURN" and then "RETURN". 
"D.M.	I'm left with no option.

P.S.		You have an option Dominic.

		D.M.		To resign

P.S.		Yes.

D.M.		In that case, I resign.

P.S.I will have a letter typed for you to sign, please clear your locker out before you leave site."

Then the letter is typed out, it is two lines: 
"Dear Mr Styler

I wish to resign from employment at BOC Ltd as of Tuesday 21 March 1989.

D McCONNON"

	The first issue therefore on those simple set of facts was whether there had been a dismissal on that day the 21st March 1989.  The Tribunal were clearly familiar with the law and they referred to two cases, the third case has been cited to us by Miss Koekkoek called Martin v. Glynwed Distribution Ltd [1983] ICR 511.  The simplest way in which the issue is put there by Sir John Donaldson, the learned Master of the Rolls, is to be found at page 519 at G.  Having cited amongst other cases East Sussex County Council v. Walker [1972] ITR 280, which was cited by this Industrial Tribunal, the learned Master of the Rolls goes on to say this:
"It is tempting to give other examples of circumstances in which either the only conclusion, or a possible conclusion, is that it was really the employer who was terminating the contract and not the employee, notwithstanding that the employee went through the motions of resigning.  However experience shows that industrial tribunals tend to treat illustrations as being what they are not - an explanation or qualification of the parliamentary definition.  Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, `Who really terminated the contract of employment?'  If the answer is the employer, there was a dismissal within paragraph (a) of section 55(2) of the Act of 1978.  If the answer is the employee, a further question may then arise, namely, `Did he do so in circumstances such that he was entitled to do so without notice by reason of the employer's conduct?"

So the issue here for the Tribunal was "who really terminated the contract of employment?"  The Tribunal say this:
"there was here no negotiation, not even discussion, between the parties, as to the terms of the resignation.  This applicant was dismissed."

Miss Koekkoek submits that the resignation was caused by the fact that the pension provisions might have been relevant, according to whether there was a dismissal or a resignation and that that was the cause of the resignation and none other.  It seems to us on the evidence that we have seen here of the notes of the meetings and the evidence within the simple facts as so stated, that there was evidence upon which the Tribunal were entitled to reach that Decision which was essentially a Decision of fact.

	The second issue raised was the question of procedure.  The Tribunal were critical of the way in which this matter was handled in that, Mr Styler not only had been himself to investigate the situation and found the Applicant drunk and had sent him home, but that he had discussed this matter carefully and looked at possible defences, or possible explanations and generally entered into the arena of discussing the evidence during that weekend and then he had himself taken the disciplinary hearing at the beginning of the following week.  There is some slight issue as to whether the disciplinary hearing started on the 20th or 21st.  The Tribunal seems to have taken the view that it was really all one matter and it was a disciplinary hearing.

	Miss Koekkoek has explained to us that if Mr Davidson had been present Mr Styler would have investigated the matter, found out what happened and if there was a recommendation that there should be a dismissal, there would have been a disciplinary hearing in front of Mr Davidson who would have heard the matter afresh and then reached a decision on whether or not there should be a dismissal.  Indeed the problems arose because of the absence of Mr Davidson.  

	The Tribunal took the view that in the light of the meetings that had been held over the weekend it was really a breach of the rules of fairness that Mr Styler should sit as the decision maker at the disciplinary hearing on the Monday and later on the Tuesday.  He was the person who had in fact been preparing the case and Mr McCubbin could quite easily have conducted the disciplinary hearing, so that they felt that there was a failure in procedure which was not entirely fair.  They mentioned the fact that Mr Attwood's statement was not read out to the Applicant, but the facts are so simple here and so obviously established and well known, that it seems doubtful that that was ever part of their reasoning and indeed we would not ourselves have thought of criticising that particular point.  The real issue here was that Mr McCubbin could have heard the disciplinary proceedings.  Mr Styler had been involved himself in the preparation of the case, the investigation, and he therefore could not come to the situation with an open mind, at least could not be seen to be doing so.

	We have been referred to a number of cases and the law is not difficult to understand. It is a question of fairness but fairness and natural justice set against the scene of industry and industrial relations, the shop floor and what goes on within a factory or a depôt, a distribution centre or whatever it may be, in all the circumstances of the case. It has been said time and time again that this is all a matter of degree, essentially, unless they misdirect themselves, for the industrial tribunal who see and hear the witnesses.  Some of them themselves may have had experience of the sort of depôt or the sort of factory where the incident took place and they are well able to assess whether or not in all the circumstances the procedure was fair.

	Miss Koekkoek has submitted that the Tribunal were unrealistic;  they did not look at the background of industry and that really Mr Styler was simply carrying out the function of a line manager.  She submits that Mr McCubbin had no right to hold the disciplinary hearing and therefore Mr Styler had to hear it.  Those comments may be a matter for internal arrangements at BOC we do not in any way, lest it be suggested that we do, personally criticise Mr Styler nor do we believe that the Industrial Tribunal did so.  He thought that what he was doing was appropriate and he was acting in accordance with his duties and his function.  However, the criticism was made and we feel there was evidence here upon which this Tribunal could reach the conclusion that there was a lapse in the procedure in the way in which it was criticised.  If, in fact, Mr McCubbin could not take the disciplinary hearing perhaps it could be arranged in the future that someone of equal ranking can do so in the absence of the manager of that particular branch.  That is a matter for internal arrangement and perhaps is the lesson to be learnt from this particular case.  It is not a very difficult thing to arrange and we feel also that it is important, which may have been the case here, it is not entirely clear, to distinguish between an investigation prior to a disciplinary hearing and the actual disciplinary hearing.  It may be that that again was also part of the problem which the Industrial Tribunal found in this case.

	We are unable to find that the Tribunal misdirected itself in its approach and indeed there was evidence upon which it could reach the decision which it did.

	The third issue was the criticism that the Tribunal found that the penalty was too severe. Here the criticism seems to be that there was an Applicant with 19 years unblemished service with the Company.  Miss Koekkoek has pointed out that in fact that period of service was taken into account and the Tribunal were therefore in error in criticising the Company for not taking that into account.  In so far as it was sufficiently considered that was essentially, she says, part of the function of management.  

	There is however, another aspect of criticism which she raises which may very well be well founded and that is that the Tribunal took into account some evidence given at the hearing which was not in the possession of the employers when they reached the decision.  Therefore it may be that if that issue had stood alone there might have been some basis for the criticism which was made.  However, in the circumstances it does not alter the situation which arises in this case.  There was an unfairness in procedure and therefore the dismissal was unfair.

	Lastly there is the question of the percentage reduction.  Miss Koekkoek before the Industrial Tribunal was arguing for 75% reduction;  the Tribunal decided upon 60% they do not say whether they reached that decision under Section 74(1) or 74(6) and it seems to us that this was essentially a matter for the Industrial Tribunal.  There are decisions on the difference between those two subsections if you are relying on 74(6) which is sometimes called the Contributory Negligence Section then, as was indicated by Lord Brandon on one occasion, it is important that the actual facts, or the actual contribution to contributory negligence should be spelt out.  But where one is looking at the Just and Equitable provision it seems to us and indeed it seems to us desirable, that the Tribunal should be able to balance up the whole of the case and to decide whether in the circumstances an award of compensation is merited.  Indeed, in the more recent case in the House of Lords of Polkey v. A E Dayton Services Ltd [1988] ICR 142, this was envisaged as a possibility depending upon certain findings notably where the criticism is of the procedural aspects.

	It follows therefore, that we can find no grounds here for criticising this Decision in any way and this Appeal must be dismissed.