Appeal No. EAT/160/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MRS M L BOYLE

	MISS D WHITTINGHAM

THE WHITBREAD BEER COMPANY	APPELLANTS

1.  R WILLIAMS	RESPONDENTS
2.  G TURNER
3.  D A STOKER

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A KORN
(of Counsel)
Messrs Dibb Lupton Broomhead
Fountain Precinct
Balm Green
Sheffield S1 1RZ

For the Respondents	MR T KIBLING
(of Counsel)
GMB
Legal Department
22-24 Worple Road
London SW19 4DD

	MR JUSTICE BUCKLEY:  This is an appeal by the Respondents, as they were, before the Industrial Tribunal, the Whitbread Beer Company (Whitbreads).  They appeal against the decision of the Industrial Tribunal at Sheffield, which accepted the contentions of the three Applicants, employees of the Respondent, that they were unfairly dismissed.

	The facts were not significantly in dispute.  Very shortly, they were these:  Mr Williams and Mr Stoker, two of the Applicants, were warehousemen employed at Sheffield by Whitbreads and Mr Turner, the third Applicant, although he is the first named, was employed as a drayman.

	Whitbreads had organized as part of a regional training programme a two-day training seminar for their workforce.  Ironically, as it turned out, this seminar was to improve behavioural skills in their workforce and it was held at an hotel, which was in fact owned by the Whitbread Group, at Clumber Park near Worksop.  The programme included discussions and lectures up to 5 o'clock, thereafter the delegates, including the Applicants, were free to enjoy the facilities of the hotel.  Dinner was at about 8 o'clock thereafter and, more to the point, a free bar.  What appears to have happened is that one of the bars of the hotel had been appropriated for the purposes of the delegates.  It is not clear to us and it may not matter whether the public were positively excluded from that bar, because the hotel was open to the public but, certainly, it was the bar that was being used by the delegates and Whitbreads had made it plain that delegates could drink at that bar - it was to be open until shortly after midnight - and Whitbreads would pick up the bill.

	Other relevant details of personnel are that a Mr Whittaker, who was a senior representative of Whitbreads at the course and he was, in fact, a regional distribution manager, was there and a Mr Hutt, also representing management, formerly the distribution service manager.  Unsurprisingly, there was against that background a great deal of drinking on the night in question, which was 10 March 1993.  

	In the case of Mr Williams, he, at about 10.15 pm started swearing loudly and abusing Mr Turner.  Mr Whittaker, Whitbreads representative, went across to Mr Williams and asked him to tone it down, to which the reply was:

		"Fuck off there are no fucking children about even if you are my manager fuck off."

That finding we take from the reasons of the Industrial Tribunal.  There were some further exchanges of the same nature, which are identified in the diary of events that Mr Hutt kept and we have been referred to those.  It was legitimate to look at those because the Tribunal themselves indicated that the diary was substantially correct and they were not impressed by the Applicants' evidence, albeit it is right to note that there were some relatively minor issues of fact.  At all events, Mr Williams was told to keep quiet and that Mr Whittaker would see him in the morning and that incident came to an end.  

	Later in the evening, in fairness to Mr Williams, the Tribunal noted that he had helped to escort one of the other two back to his bedroom after the incident in which he was involved.

	The following morning, Mr Williams was intercepted by Mr Hutt, who had been told by Mr Whittaker to deal with the problems of the previous night and Mr Hutt recounted the events that we have mentioned to Mr Williams and told him that he was being suspended, pending an investigation.  At that, Mr Williams said:

		"Its that cunt Whittaker - bring the shit in here - I was away from work so it doesn't matter."

Mr Williams then left the training course under suspension and returned to Sheffield.

	There was a disciplinary hearing and in due course an appeal and the upshot was that Mr Williams was dismissed.  No point of substance is taken on the disciplinary procedure.

	As to the other two, Mr Turner and Mr Stoker, their incident blew up rather later, at about 12.15 am when there was clearly an argument between them, shouting and abuse, and Mr Turner threw his beer over Mr Stoker.  The latter responded by swinging a punch at him, or a blow of some sort, and it was a sufficiently unnerving incident to cause the hotel staff to call on Mr Hutt to intervene.  He got between the two men and told Mr Stoker to leave.  He initially refused to do so, shouted abuse at Mr Turner and tried to provoke a fight.  Mr Hutt asked bystanders to help restrain Mr Stoker and they did so and, while that was going on Mr Turner was seen to attempt to provoke matters further and goad Mr Stoker by throwing kisses at him.  At all events, Mr Hutt accompanied Mr Turner away, told him to go to his room and lock the door and Mr Williams, as we have indicated, escorted Mr Stoker to his room.

	Again, disciplinary hearings involving them took place and they were also dismissed.  
	Mr Korn, for the Appellants before us, that is Whitbreads, has made two submissions.  The first one is that the Tribunal adopted a wrong approach and that when one reads the reasons as a whole it is sufficiently clear that all the Industrial Tribunal did was to substitute their view for the view of the employers and that is not permissible, either under the wording of s.57 or in accordance with the numerous authorities, which have sought to explain the proper interpretation of the word "reasonable" as it appears in s.57(3).

	Mr Korn's second submission is that the decision of the Tribunal is perverse.  That so clear is it that the response of the employers was within the realm of reasonable responses in the circumstances that, for the Tribunal to say that it was not, was so clearly wrong that this Appeal Tribunal should put it right.

	As to the first submission, there is no doubt that Mr Korn was able to muster some ammunition from the reasons.  He pointed to paragraphs 17 and 19 perhaps in particular to which we will return in due course, which are the paragraphs where the Tribunal set out the reasons or their conclusions and there are words or phrases beginning, "We bear in mind" or "we think" and so forth.  The way Mr Korn puts his submission is that although the Tribunal set out on the right road, by which he means, they did express the correct test in several places in their reasons, and there is no doubt they did, they took a wrong turn, once they got into the details of the evidence.  Again, he means by that that they lost sight of the markers they had put down for themselves as to the proper approach to the employers' decision and, in fact, substituted their own and did no more than that.

	At the end of the day we are unpersuaded by that argument.  It is a perfectly valid argument and if we thought that the Tribunal had done that, of course, we would have upset their decision on that ground.  But one must look at the reasons as a whole and we are unable to accept that.  For example, on page 5 there are two references to the test.  In paragraph 15 this appears:

		"We have to say whether the respondents acted reasonably or unreasonably in the light of the evidence as they reasonably understood it to be at the time they made their decision."

Lower down, in paragraph 17:

		"Dismissal was not within the band of reasonable responses of a reasonable employer."

There may be other references and, indeed, there is one.  In paragraph 14, another similar reference is to be found:

		We must say whether the decisions to dismiss fell within the band of reasonable responses of a reasonable employer."

	There is no doubt the Tribunal had the correct test in mind.  They set it out more than once and, reading their reasons as a whole and fairly, we think that they did, in truth, apply the right approach.  The question, to our mind, is whether this is one of those rare cases and they are rare cases, where this Tribunal is bound to say that they have gone sufficiently wrong in their conclusion that we must intervene.

	On that, in other words, the perversity argument, Mr Kibling, for the three Applicants - Respondents, as they now are - reminded us that we should not lightly interfere.  That the question for us was whether the Tribunal had adopted the right approach, if they had, that was almost always the end of it or should be.  We, certainly, should not simply substitute our view and, if no point of law emerged, we should be very slow indeed to say that the decision of the Tribunal was one that they could not themselves reasonably come to.  He referred to various features of this case, which supported the Tribunal's view.  He drew attention, in particular, to the background to the case, the nature of the employment, the nature of the employees, warehousemen and draymen.  The fact that the whole environment was one of alcohol.  That the bar had been thrown open from 5 pm to the early hours of the morning.  That management were there in the shape of Mr Whittaker and Mr Hutt and no suggestion that they misbehaved or drank too much but they were there.  There had been a warning that people were expected to behave themselves and, indeed, he suggested one could infer some mismanagement even, in the sense that clearly the atmosphere and the feeling must have degenerated as the evening went on and yet there is no suggestion that Mr Whittaker and Mr Hutt did anything to step in and curtail the position, for example, by closing the bar, which they could very easily have done.  He prays in aid in addition to that, as the Tribunal themselves noted, that in the event no harm was done.  No one was injured, no property was damaged, the matter was over relatively quickly.  Those are the factors that Mr Kibling submitted strongly were, on any view, a sufficient basis for the Tribunal's decision.  Those were factors they clearly had in mind in reaching their decision and there is enough there to justify it and we should not interfere.

	It is necessary for us very briefly to say a little more about the reasons.  Two paragraphs are particularly relevant.  We have already described the factual circumstances but in paragraph 17 the Tribunal describe why they concluded as they did in Mr Williams' case and we will read it:

		"In the case of Mr Williams we accept that his behaviour was deplorable.  It was made more serious in that it was directed to his superior Mr Whittaker who was in overall charge of the whole seminar.  We accept that Mr Whittaker was placed in an embarrassing position when his credibility as a manager was openly challenged.  However, we note that the personal abuse was not witnessed by more than perhaps one or two people and the incident was over and done with in a matter of seconds.  We think that if Mr Whittaker had been sufficiently mortified or upset he would have taken steps to have Mr Williams removed from the bar and he would have personally conducted the disciplinary procedure that followed.  As it was Mr Whittaker returned to his seat in the bar and continued drinking with his colleagues and other delegates and he left the disciplinary matter to Mr Hutt who had not even witnessed the incident itself.  We bear in mind that Mr Williams made no attempt to apologise and that in the absence of Mr Whittaker he expressed abusive contempt the following day.  Nevertheless we have come to the unanimous conclusion that dismissal was not justified.  In our view the respondents' reaction to Mr Williams' behaviour was 'over the top'.  Dismissal was not within the band of reasonable responses of a reasonable employer.  We therefore conclude that Mr Williams was unfairly dismissed."

	We should, perhaps, mention one small point.  Mr Korn did take exception to the reference there to the comment that:

		"... if Mr Whittaker had been sufficiently mortified or upset"

he would have removed Mr Williams from the bar but, more to the point:

		"... he would have personally conducted the disciplinary procedure that followed."

That, we have to say, does strike us as an odd comment by the Tribunal.  We do not think in the overall context it was decisive one way or the other but we have to agree with Mr Korn that it would, in our view, have been wholly inappropriate for Mr Whittaker, in the circumstances, to have directly conducted the disciplinary procedures since he was the one who was personally abused.

	As to Messrs Turner and Stoker, paragraph 19 sets out the Tribunal's conclusion in their case and they say this:

		"As far as Mr Turner and Mr Stoker are concerned for the reasons already given we do not think we can usefully differentiate between them.  They were both involved in a violent confrontation and the hotel management were forced to look to Mr Hutt to intervene.  Fortunately no bodily injury or damage to property resulted.  They had both drunk far more than they should have done and by any standards their behaviour was disgraceful and it could have had very serious consequences.  Nevertheless both men were persuaded to leave the bar and there was no threat to Mr Hutt or to any of the respondents' management or supervision.  We accept that if such a violence had occurred during the working day dismissal would have probably followed but in circumstances where a free bar had been provided from 5.00 pm until after midnight we think the considerations are different.  We have come to the unanimous conclusion that dismissal was not justified in these circumstances.  We think that a final written warning or perhaps a suspension without pay would have marked the limit of what we would regard as the band of reasonable penalties.  We conclude that both Mr Turner and Mr Stoker were unfairly dismissed."

	The essential facts and conclusion on the facts are contained in those paragraphs.  It is clear that the Tribunal found that Mr Williams' behaviour was deplorable and that Messrs Turner and Stoker had been involved in disgraceful behaviour.  In Mr Williams' case it was made more serious because it was directed at Mr Whittaker, his superior, that he made no attempt to apologise and, as we indicated earlier, the following day he expressed, in the Tribunal's words, abusive comment directed at Mr Whittaker.

	As far as Messrs Stoker and Turner are concerned, again the essence of their conduct was threatening and abusive.  They were attempting to fight, attempting to provoke a fight, to such an extent that the hotel management called upon Mr Hutt to intervene.  He, in turn, had to call upon others to hold the men apart whilst he sought to calm matters down and there was considerable abuse being hurled around at the same time.  We have not thought it necessary to quote any more of the foul language that was used than we have but the diary of events of Mr Hutt gives some further details of it and there is no doubt that it was strong, foul and abusive language, either aimed at or in the presence of management and in a public place, albeit not on the shop floor during conventional working hours it was, loosely speaking, on company business in that this whole seminar was organized by Whitbreads as an adjunct to the employment.

	At the end of the day we have focused on the essential conduct that was complained of and which was not significantly in dispute.  We have asked ourselves the following questions:  was that conduct to which a reasonable employer, having gone through the proper and fair procedures and found it to be as we have described, could reasonably respond by dismissing?  We have unhesitatingly and unanimously come to the view that it was, that is, that it was a reasonable response by the employer.

	The next question we have asked ourselves, is whether that is so manifestly the case that it was unreasonable for the Tribunal to take a contrary view, in other words were the Tribunal perverse in their conclusion?  Again, we are unanimous in our view that this was a perverse decision.  We do think the employers' response to this behaviour was manifestly reasonable.  Whether this Tribunal or whether the Industrial Tribunal itself would have made the same decision had we been called upon to make it, is neither here nor there, as everyone accepts, but it does seem to us that this conduct so undermined the whole relationship of employer-employee and was in modern parlance, so out of order, that the employers' response to it on any view must fall within the realms of reasonableness and as we have indicated, we cannot feel that an industrial tribunal could reasonably take a contrary view.  That being so, this appeal must be allowed.

	There were subsidiary arguments before us on the amount of contribution.  In the event it is not strictly necessary for us to go into those in any detail but, for completeness, we will express our view.  The Tribunal found that, in the case of Mr Williams, there should be a 40% reduction in his compensation on the basis that - and we quote their words, that:

		"he contributed substantially to his own dismissal."

	In the case of Messrs Stoker and Turner the Tribunal's finding was that:

		"they were largely responsible for what followed"

and an assessment of 60% was made.

	We had argument addressed to us on the meaning of "substantially and largely responsible" and whether "substantially" means, or should be understood to mean something more than 40% or even more than 50%, at the end of the day we were unpersuaded by such subtleties.  We think it is perfectly plain in common parlance what the Tribunal were getting at here and, perchance we are wrong in the main view we have taken, we would not have thought it right to interfere with the Tribunal's findings on those matters.