Appeal No. EAT/327/93

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MISS A MADDOCKS

	MRS M E SUNDERLAND JP

SECURICOR LTD	APPELLANTS

MR J BASELEY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T HOOPER
(OF COUNSEL)
The Solicitor
Securicor Ltd
Sutton Park House
15 Carshalton Road
Sutton
Surrey SM1 4LD

For the Respondent	MR M DUGGAN
(OF COUNSEL)
Howard Smith
44 Fore Street
Hatfield
Herts AL9 5AH

		JUDGE HULL QC:		This is an appeal to us by Securicor against a decision of the Industrial Tribunal sitting at Bedford under the Chairmanship of Mr Wheeldon, with his Industrial Members.  That Tribunal devoted a very great amount of time to the case.  They heard the case, and as they said themselves, a large volume of evidence called before them, on the 22 July and 8 September 1992; they resumed their hearing on the 15 and 16 February 1993, and there was something which I think has been referred to as a discussion on the 26 February, and then eventually they promulgated their decision on the 11 March.  Certainly, nobody could say that in the matter of time and industry they had not devoted most careful attention to the case.  

	We have to remind ourselves that this Industrial Tribunal heard a great deal of oral evidence.  We have had put before us a number of documents; we have to tell ourselves that documents may look very different in the light of the oral evidence which is given; and submissions which are made may sound very different after one has actually heard that evidence.  We are a Tribunal of law only, and have no jurisdiction whatever to review findings of fact, or findings of mixed law and fact, unless we can disentangle the law and discover some mistake in the law applied by the Tribunal.  

	Of course, if they reach a finding with no evidence at all to support it, or totally contrary to the evidence, it may be possible to say that in those circumstances there is an error of law; indeed there will be.  It may, in rather rare circumstances, be possible to say that although there is no error of law shown expressly, nonetheless the decision is so outside the bounds of what is reasonable that one must infer that they have made some error of law: it is sometimes called an irrational decision, or one which is perverse.

	Now the facts here are that Mr Baseley began his employment with Securicor at their London Colney Parcel Depot on 2 June 1986.  He has been described as a sorter/loader and he was concerned with parcels.  At that time, or at any rate shortly before the events which we are concerned with, he was on night shifts.  A particularly unpleasant thing happened in November 1990; some of his workmates had apparently conceived a grudge against him and wished to do something unpleasant and they certainly did.  They wrote on some parcels, which they knew he would see, grossly offensive and obscene remarks about Mr Baseley's wife and his mother.  He did see those.  He was very upset indeed and he could hardly be blamed for that.

	The matter was looked into by the employers.  There were three men responsible.  One, whose name was Moran, comes into the story later.  They were disciplined.  Mr Moran was given a first and final warning about his behaviour.  Unhappily that did not put matters right and ill feeling continued.  Mr Moran, apparently, continued to be objectionable to Mr Baseley.  In January 1991, Mr Baseley had a discussion with management and with his consent he was transferred to the day shift, instead of working on night shifts.  The employers hoped that in that way he would not come across the men who had been so very unpleasant to him.

	That involved, for him, a pay cut.  In his recollection it was expressly agreed that he would be transferred back to night shifts in due course when it was hoped that matters had calmed down.  It was not an insubstantial pay cut, it was something in the order of £37 a week.  To that extent Mr Baseley was suffering for something which, on the face of it, was not his fault.  Whatever the cause of this ill feeling, he was the victim of this very unpleasant behaviour.

	Thereafter, unfortunately, matters did not resolve themselves.  There seems to have been an exceedingly bad spirit abroad.  There was an incident with one of the other men involved, and there was an incident with Mr Moran himself when apparently he flung his bicycle down in front of Mr Baseley's vehicle.   Moran contrived to be unpleasant and, apparently, it was not just this one incident, there were other incidents in which Moran offered insults to Mr Baseley when he was coming to work, or going from work.  

	There is no doubt that Mr Baseley was suffering from a severe sense of victimisation and grievance.  He had received no apology whatever for the utterly baseless attacks on his nearest and dearest.  He resolved to do something which, as it turned out, was exceedingly unwise.  He resolved to go in the evening, about 10.50 pm, to seek out Mr Moran and have it out once and for all, as he put it.  He said there was no intention in his mind of any violent incident, he wanted to settle matters.  In view of all the insults and the unpleasantness, that is not surprising, perhaps.  

	Mr Moran came from a public house and there was a fight.  Mr Moran was injured, though fortunately not very seriously.  He was knocked down and it was thought a bone might have been broken in his face.  There was evidence that it was Mr Baseley who had started the fight.  This was on the 30 August 1991.  The management of Securicor could hardly overlook it in the circumstances, although it had happened off the works premises.  They started enquiries.

	It was on those, of course, that the Industrial Tribunal concentrated - the enquiries and subsequent disciplinary proceedings - because essentially it is for the employers to decide what to do if a disciplinary offence has been committed.  The steps which the employers take to satisfy themselves as to what has happened and the fairness of their decision in all the circumstances are matters for the Tribunal, if a complaint is made; they must look into those matters and say whether they fell within the band of responses which employers, acting reasonably, could adopt.  

	A Mr Hill was instructed to interview Mr Baseley.  He did so.  The Tribunal were not happy with the choice of Mr Hill to carry out that interview because Mr Hill had made a very contemptuous comment about Mr Baseley on a previous occasion earlier that year in connection with the matters we have referred to.  At any rate, Mr Hill did interview Mr Baseley and there was a disciplinary interview with the terminal manager, Mr Gibbs, on the 17 September: we do not need to go into all the details.  Among the documents which we have been shown is the record of these disciplinary interviews.  Mr Gibbs adjourned and further enquiries were made.

	It is right to say that these interviews do show, apparently, Mr Baseley reacting in a somewhat grudging and aggressive way.  He was anxious to take the point, among other things, that what had happened was off the company premises and therefore was not the business of management, something that he had been told on making complaints himself.  It might very well be said that he did not exactly do himself justice, according to the papers we have seen.  Again, we have to remind ourselves that we have not heard oral evidence about what passed.

	On the 30 September Mr Gibbs did dismiss Mr Baseley for gross misconduct in fighting.  Undoubtedly, Mr Gibbs took the view that Mr Baseley was the aggressor on this occasion, although of course he had been greatly provoked by the events which we have spoken of and which were in evidence.  There was a disciplinary interview with Mr Moran on that same day.  He was given a second "first and final warning" about his behaviour on the basis of course that he had behaved in a provocative way but that he was not the aggressor.           	On the 4 October Mr Baseley made his complaint of unfair dismissal to the Industrial Tribunal but he quite properly pursued the route of appeals within the Company.  He had a first appeal to Mr Collingham, a manager.  Mr Collingham enquired into it, and I would say that so far as we know these appeals appear to have been in the nature of re-hearings, they were not merely technical reviews on paper.  Mr Collingham, having heard all that he could be told about it, dismissed the appeal.

	Then there was a second appeal.  That second appeal was heard by Mr Miller, Mr Miller was the general manager for parcels, and therefore a senior manager.  At that second appeal a remarkable thing happened.  Mr Roberts, who was one of the witnesses to the fight, said, and made a written statement saying that Mr Baseley had most improperly, as it would seem, tried to get him to alter his evidence; to get him to say "well, I really cannot say that I remember who was the aggressor", matters of that sort.  

	That was put in front of Mr Miller, I should say that Mr Baseley was represented by his Trade Union officer.  Mr Roberts' story was looked into and at first it was hotly denied by Mr Baseley.  That was on the 19 December and Mr Roberts' statement about being asked to change his evidence was dated the 16 December.  Eventually it emerged, after an adjournment I think, that in fact Mr Roberts was right about this, and Mr Baseley had done this, at any rate that was the view of his Trade Union officer, who thereupon (modelling himself very correctly on the behaviour which a legal advocate would adopt) said he felt in the circumstances he could no longer represent Mr Baseley and pursue his appeal.  Mr Miller, having enquired into it, dismissed the second appeal.

	There was a third appeal.  Mr Benson is the Managing Director, and Mr Benson heard the appeal.  To Mr Benson was produced a letter from a Mr Payne.  This letter was dated the 23 November 1991 and so it could have been produced to Mr Miller at his appeal hearing.  Mr Payne was a friend of Mr Baseley's, who claimed to have seen the fracas and to exonerate Mr Baseley of being the aggressor.  Clearly, there were various views that might be taken about that.  Mr Benson enquired whether anything had been seen of this letter at the previous appeal.  On hearing that nothing had, he dismissed the appeal.

	So those were the matters, I have only given them in outline, which had to be enquired into by the Industrial Tribunal, which indeed heard a very great deal of evidence, including apparently the evidence of Mr Payne.  Since it is the decision which is criticised we must refer to that to some extent.  They reviewed the evidence and, of course, our statement of the facts is taken very largely from what they said.  They said:

		"... we have heard much evidence directed to establishing the proposition that the applicant was the aggressor.  We have not regarded it as our function to decide that particular question for the purposes of dealing with the substantive issue of whether the applicant was fairly or unfairly dismissed ..."

	Pausing there, it appears that is an entirely correct approach.  It was for them to review the employers conduct in dealing with the matter, not for them to retry the case.  They go on:

		"... but it is crystal clear that the fight would not have occurred if the applicant had not voluntarily gone back to the work place out of hours for the particular purpose of meeting with Moran; to that extent at least, we are satisfied that he was primarily responsible for a public fight which was seen by several witnesses, in which Moran received some not particularly serious injuries, which was fairly quickly over and from which the applicant departed without attempting to explain himself to the Securicor personnel who were quickly on the scene."

	Then they review and set out what had happened before Mr Gibbs, Mr Collingham, Mr  Miller and Mr Benson.  They referred to Mr Payne's letter and how Mr Benson had dealt with that matter.  I will start reading at paragraph 10:

		"It is clear that in these circumstances the respondents were under obligation to conduct a proper investigation of the reasons for the confrontation between the applicant and Moran and the circumstances in which it arose with a view to ensuring that the applicant was indeed guilty of the misconduct alleged against him and in considering that question we have in mind the guidance provided by the Employment Appeal Tribunal in British Home Stores Ltd v Burchell.  We have considered in particular the question whether the respondents had carried out as much investigation into this matter as was reasonable at the time when the dismissal decision was made: and, for these purposes, we regard that decision as made at the conclusion of the last appeal taken on 18 February 1992 by Mr Benson.  We are not unanimous on this point.  One of our members takes the view that the respondents had indeed carried out as much investigation as could reasonably be expected of them in that they had provided the applicant with repeated opportunities to state his case and produce the independent evidence which, in the end and in unconvincing circumstances and fashion, he produced to Mr Benson.  The Chairman and our other member are not wholly satisfied: the respondents' investigation consisted of taking written statements from witnesses of the incident in question some of whom, Depeza in particular, they well knew to be at odds with the applicant and less than "independent":  in the course of the disciplinary interviews and appeals the applicant referred to the availability of "independent witnesses" and we are of the view that, particularly given the fact that one of the allegations against the applicant at the initial disciplinary interview conducted by Mr Gibbs was that of "bringing the Company's name into disrepute", they might reasonably have been expected to take some positive investigative initiative in asking the applicant to identify the parties to whom he was referring with a view to seeking their account of the matters in issue.  Perhaps more important we are not satisfied that Mr Benson took adequate steps to deal with the new evidence in the form of Mr Payne's letter which the applicant produced to him - albeit very late in the day - at the final appeal stage: the purpose of the appeal was to ensure so far as possible that the facts of the matter had been clearly established and a majority of us are uneasy at the fact that Mr Benson decided in such comparatively short order that it was not necessary to investigate further what Mr Payne might have to say about the matter."

	Now that is criticised on various grounds by Mr Hooper, for the Appellant employers.  It is said that here the Industrial Tribunal were not properly distinguishing between the duties of Mr Gibbs, who held the first disciplinary enquiry and reached the decision to dismiss, and those managers who heard the appeals.  Mr Hooper points very justly to a number of factors which make it, so to speak, surprising, or could be said to make it surprising, that this view was taken by the Industrial Tribunal.  There were other factors on which he addressed us which might well have led to a different conclusion.  

	It is of course true that it is for the employers to say how they conduct their enquiry and as long as they do so fairly, no Industrial Tribunal can intervene.  But here this Industrial Tribunal clearly took the view that each of these appeals was in the nature of a re-hearing.  At each of them Mr Baseley was present, at each of them he could say what he wished.  Here, having intimated that earlier there were independent witnesses, he actually and belatedly produced a letter from, at any rate, one of them, contradicting the other evidence.  

	Now, it might well be that the Industrial Tribunal might have said "well really this was too late".  They might have said "well really Mr Benson was justified in treating this with disdain" - "it was something which an honest man would have produced at an earlier stage"; but of course, one reminds oneself, they heard all the evidence, they saw the witnesses.  They did not take that view.  They thought it was so important, in the light of all that had passed and the very unpleasant behaviour that had been shown to Mr Baseley, that Mr Benson, even at that late stage, should have taken further steps: should perhaps have asked Mr Gibbs, or one of the other managers, to look into this matter and hear Mr Payne, if he thought it right to do so.   

	As it was, having heard what was said about it, Mr Benson simply dismissed the appeal.  This letter had not been produced earlier and he took no further step.  The Industrial Tribunal thought that he should have done.  It is for them to say whether they think the employer has conducted his enquiry fairly within, as I say, the band of possible ways in which it could be conducted.  

	Here, the employers having set up this very long system of appeals, on the face of it very fair, the Tribunal clearly took the view that in this way, at any rate, fairness had broken down.  We think that they were entitled to take that view, the majority.  It is clear that a different view would be perfectly possible.  One of the members took a different view.  It might well be that we would take a different view, but we cannot say, looking at it, that there is any error of law shown in the deliberations of the Tribunal, or any misapplication of the law, or that their decision is perverse.     

	Then the Tribunal go on:

		"However, it is not solely on that basis that we have concluded that the dismissal was unfair but also, and more fundamentally, on the unanimous view we take that in all the circumstances the dismissal penalty imposed upon the applicant for the offence in question was not a penalty which a reasonable employer could have imposed.  There could have been no possible doubt but that the applicant was grievously abused by Moran and his colleagues in the parcels incident referred to at paragraph 4 above; an incident which resulted in Moran being given a first and final written warning indicating that any further misconduct would result in his dismissal and in the applicant, blameless as he was, having to accept a move to day shift involving him in a pay cut.  As a result of his investigations after the fight between the applicant and Moran Mr Gibbs expressed himself satisfied that Moran had played a part in provoking the applicant to the confrontation in question - this only some nine months after he had already received a "first and final" written warning of dismissal for provoking and abusing the applicant.  Nevertheless the respondents thought it right to retain Moran's services - albeit under another first and final warning - but to dismiss the applicant. In circumstances such as these any reasonable employer will strive to apply and be seen to apply an even handed approach to the offending parties and we cannot accept that any such employer would have concluded that it was reasonable and proper to dismiss the applicant, who was not under any current warning for misconduct of any kind, while at the same time giving Moran, who was under such a final warning for misconduct relating to abuse of the applicant himself, yet another chance.  Applying what we see to be equity and the substantial merits of the case we conclude that, given the treatment afforded to Moran, dismissal of the applicant fell outside what has been described as the band of reasonable responses  which a reasonable employer might have adopted in these circumstances and that the applicant's dismissal was therefore unfair."

	Again, this is a decision which might not have appealed to a different Tribunal.  It might or might not have done.  But this was the Tribunal of course who had heard all the evidence and they had formed the view of the seriousness and weight which they ought to give to all these matters.  It is of course notoriously difficult to compare one case with another and dangerous for an Industrial Tribunal to try to hold the scales level and decide a case on that basis, saying that the employer has not.  But here there were really serious grounds, it seems to us, for that Tribunal to take the view which they did.  It is a strong view, of course, to say that no employer in the circumstances could reasonably have dismissed, but that is the view which they formed.

	We have already referred to the facts and we will not repeat them.  This was a case where Mr Baseley had been subjected to grievous provocation by this man Moran and his friends.  Mr Baseley was the one who had suffered for it, and Mr Baseley had gone on suffering for it in financial terms, and had been subjected to further abuse and provocation.  The Tribunal took the view in those circumstances that even on the view which the employers took of it, it was outside reason to dismiss him in all the circumstances.

	Having heard all that is said, we are not satisfied that there was any error of law by the Tribunal here.  They correctly directed themselves on the test.  Was it within the band of what an employer could reasonably do, not what they themselves would have done?  They came to the conclusion that it was outside that band of responses and so much so that they felt able to say that no reasonable employer would in the circumstances have imposed such a penalty.  Again, without saying whether we would, or would not, have reached such a decision, we have all agreed that this was decision which was open to a matter of law to the Tribunal; that it is not perverse or irrational; and that no error of law is to be found in the way in which the Tribunal dealt with the case after their immensely patient and long investigation of all the facts.

	Then they went on to consider the question of contributory fault and there they rely on Section 74(6) of the Act 1978 which says:

		"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

	They went on as follows:

		"We note that the applicant seeks reinstatement and the Tribunal has not heard evidence or submissions directed to that particular issue.  If the applicant wishes to pursue that claim he is of course at liberty to seek a further hearing for the presentation of his case.  If he does not now wish to pursue that claim or if, having pursued it, the Tribunal were to decline to order reinstatement then the parties should be aware that the Tribunal will reduce any compensation for the unfair dismissal which might otherwise be ordered in favour of the applicant by a factor of 80%.  In our view he was to a very high degree the author of his own misfortune in having voluntarily returned to his employers' premises outside his own working hours but within Moran's working hours for the express purpose of seeking him out in the knowledge, which he must have had at the time, that such action might well have the consequences which in fact ensued."

	Mr Duggan has pointed out to us that if an employee is to be convicted of contributory fault under Section 74(6), it must be blameworthy behaviour, culpable behaviour, and he sought to persuade us that there is an error law here by the Industrial Tribunal because on any rational view, this was not culpable behaviour on the part of Mr Baseley in going to seek out Mr Moran at night and getting into an altercation with him.

	We can only say, with great respect to Mr Duggan, that that is not our view and  it was not the view of the Tribunal and we think that the Tribunal were well entitled to form the view which they did, and they were not acting in any way under a misapprehension of law in forming the view, as a matter of common sense, that this was blameworthy behaviour.  Mr Baseley, after all these insults, was going down to sort it out for good, he hoped, with a man who had persistently insulted and provoked him in company with others.  As I say, it was fairly late at night.  

	The Tribunal were fully entitled to take the view that he was the principal author of the fracas which developed with such unpleasant consequences.  We cannot find any error of law or principle.  It might very will be, and we think this would be the position trying it simply on paper that we would have reached a different decision and taken a less unfavourable view of Mr Baseley.  But that would be simply on the papers and on the argument which we have heard and we have not had the advantage, as I say, of seeing the witnesses; moreover we are not entitled to give effect to our own view of the facts, which are for the Industrial Tribunal alone.

	Therefore, with considerable sympathy for Mr Baseley in the circumstances, we say we cannot interfere with that finding of fact which was reached by the one Tribunal entitled to do so.  Both appeal and cross appeal must be dismissed because we are satisfied that all the alleged matters of law, which are raised on either side here, are in truth comments and arguments about the facts.  The Industrial Tribunal were entitled to form the view which they did.