Appeal No. EAT/173/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7th February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MRS M L BOYLE

	MR J A SCOULLER

MR D C DESBOROUGH	APPELLANT

KENT TURF CO LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D E LANGLEY
	(Solicitor)
Langley & Co
199 Bishopsgate
London
EC2M 3TY

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from the decision of an Industrial Tribunal held at Ashford on the 8th December 1992.  For Full Reasons notified to the parties on the 4th January 1993, the Tribunal unanimously decided that the Applicant, Mr David Cecil Desborough, had been fairly dismissed.

	Mr Desborough was dissatisfied with the decision and appealed.  His initial Notice of Appeal dated 1st February 1993 stated as the ground of appeal:
		"That the Industrial Tribunal reached a decision which is perverse in that no reasonable Industrial Tribunal properly directed could have reached such a decision."

The grounds of appeal were amplified at the request of the Registrar.  There was submitted to the Tribunal three pages of detailed points arising out of the Tribunal's decision.

	The question on this preliminary hearing is whether there is an arguable point of law which justifies this matter proceeding to a full hearing of an appeal.  In order to decide that we have to look first at the facts found by the Tribunal and the law applied by them to arrive at the decision that this was a fair dismissal; and then consider the arguments which Mr Langley has advanced on Mr Desborough's behalf.

	The background to the decision is that Mr Desborough had been employed by Kent Turf Company Limited, the Respondents, for about 26 years.  The Kent Turf Company, as its name indicates, carries on business as turfing contractors and a small farm in Chislehurst.  Mr Desborough was employed principally as an HGV driver until that employment was terminated on the 30th June 1992.  Mr Desborough's job was to deliver turves to retail and wholesale customers. He also cut turves from the fields.

	The employment position was complicated in this case by the fact that a director of the Company, Mr Stanley, was the step-father of Mr Desborough's wife. They were also neighbours.

	The Tribunal throughout treated Mr Stanley as if he were the Company.  Mr Langley made an initial comment on this.  He is quite right to point out that in law the Company is a different legal entity from Mr Stanley;  but, in fact, it appears that the Tribunal were right to equate the two, since the only other director of the Company was, we are informed, Mr Stanley's wife.  There were no other directors or full-time ? employees of the Company.  Mr Stanley and Mr Desborough therefore had a close employment and family relationship.  Unfortunately this came to an end in June 1992 as a result of a row between them on the 27th June 1992.

	The Tribunal considered in detail the conflicting evidence of Mr Desborough and Mr Stanley about the circumstances in which this dispute occurred.  The Tribunal found some facts in favour of Mr Desborough and some facts against him.  The essence of the Tribunal's decision was that there had been an assault committed by Mr Desborough on Mr Stanley, but that Mr Stanley had provoked the assault by a man who was found by the Tribunal to be normally a placid man who had worked for 26 years with the Company.  The Tribunal found as a fact that Mr Stanley did make an unjustified insult at Mr Desborough, in the form of an accusation that Mr Desborough and his wife were corrupt.

	The Tribunal took into account that there was substantial provocation of Mr Desborough, but stated that no provocation justifies violence.  That was said in the context of what they described as Mr Stanley's, perhaps, unjustified and inopportune comment about corruption of Mr Desborough and his wife.

	The Tribunal considered the evidence of the bruising of Mr Stanley's arm, caused by the assault, and referred to the fact that two days later Mr Stanley dismissed Mr Desborough.

	Submissions were made on behalf of Mr Desborough that he had 26 years of long service, with an unblemished record, without warnings.  This was an isolated incident. It was a case where Mr Stanley had not acted reasonably in dismissing Mr Desborough.  Emphasis was placed on the fact that the dispute had more to do with family relationships and neighbour relationships rather than employment matters.  It was submitted that there was no reason why the employment should not have continued.

	It is clear that in this detailed and careful decision the Tribunal took full account of the relationship between the parties outside the employment relationship, and of the circumstances in which the assault occurred, in particular, the verbal provocation by Mr Stanley.  The Tribunal also took account of the fact that Mr Desborough had a long period of unblemished service.  Taking all those matters into account the Tribunal came to its conclusion, in paragraph 12:
		"The reason for the dismissal was that of conduct which is a permitted reason under the Act and we are satisfied that the respondent acted reasonably in treating it as a sufficient reason for dismissal.  We are unable to say that the respondent acted unreasonably despite the fact that we have had regard (as no doubt the respondent did as well) to his excellent long record of service, the complication of the family relationships, the complication too of the fact that not only was he an employee but he was also a neighbour.  We do find as we have said earlier that this constituted a very serious breach of the implied term of the mutual trust and confidence that ought to repose between an employer and an employee.  This Tribunal might not have come to the same decision as the respondent did in deciding whether or not to dismiss.  We find that this is one of these cases where we are unable to interfere.  For these reasons we unanimously find that the complaint is not well-founded."

In our view, that is an impeccable decision.  We echo the words of the Tribunal.  Although the Members of this Tribunal might not have come to the same decision as Mr Stanley did, that is not the test. This is a case where we, as an Appeal Tribunal, are unable to interfere with the decision of the Industrial Tribunal.

	We can only interfere with the decision of an industrial tribunal if it is erroneous in law.  Mr Langley made a number of points as to why we should regard it as erroneous in law.  He submitted that the decision was one which no reasonable tribunal could have come to.  He submitted that the Tribunal had dismissed as irrelevant its own findings on the evidence of provocation because there had been a physical assault.  He submitted that, on the basis of a number of earlier Employment Appeal Tribunal decisions, provocation along with other mitigating factors should always be taken into account.  In some cases where there has been provocation it has been held that dismissal for physical assault was unfair.  He submitted that the Tribunal had erred in treating the incident as more serious, and hence justifying dismissal, because of the long service record of Mr Desborough.  He submitted, on all these grounds, that there had been a perverse decision, because the Tribunal had misdirected itself about the relevance of provocation and long service and took an unduly narrow view of what was relevant in the application of Section 57(3) of the Employment Protection (Consolidation) Act 1978.

	The difficulty with these submissions is that they are very much based on isolated passages in the decision and then concentrate on the way in which those passages are worded.  If the passages dealing with provocation and long service are taken out of context, they might afford grounds for the submissions which Mr Langley makes.  This Tribunal has said, over and over again, however, that the Tribunal's decision must be looked at as a whole.  All the points made must be looked at in context.  The Employment Appeal Tribunal does not analyse the wording of decisions of industrial tribunals as if they were pleadings or statutes.  The Tribunal looks to see whether the reasons given for the decision of the Tribunal, viewed broadly, are sound in law.  We find, in reading this decision as a whole, that the Tribunal took great care to give full account to the factual findings on provocation and long service, and scrupulously observed the objective test which the Tribunal must apply under Section 57(3) when it came to state its conclusion in paragraph 12.

	For those reasons we are unable to find any error of law in this decision, however much sympathy the Industrial Tribunal, and this Tribunal, may have with this sad ending to a 26 year employment relationship.  For those reasons this appeal will be dismissed, because there is no arguable point of law which would justify a full hearing.