Appeal No. EAT/494/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 October 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J W COLLERSON

	MR R SANDERSON OBE

LAURA ASHLEY LTD	APPELLANTS

MR G GRIER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R GREENING
(Of Counsel)
Laura Ashley Ltd
150 Bath Road
Maidenhead
Berkshire
SL6  4YS

For the Respondent	MR P CAPE
(Of Counsel)
Messrs Allan Henderson Beecham & Peacock
Solicitors
7 Collingwood Street
Newcastle upon Tyne
NE1  1JE

		JUDGE HULL QC:   This is an appeal to us by the employers, Laura Ashley Ltd, the well-known fabric and furnishing firm, against the decision of the Industrial Tribunal sitting at Newcastle for three days on 17, 18 & 24 March 1994, under the chairmanship of Mr Tavroges with his two industrial Members.  The decision was promulgated on 14 April 1994 and by that decision the Industrial Tribunal found that the complainant Mr Gary Grier had been unfairly dismissed.  He had been employed as a Sales Consultant with the employers.  His employment began on 2 July 1990, so he had been in post for about 3 years when the incident occurred which led to his dismissal.

	On 23 August 1993 there was the incident out of which it all arose.  There was a Miss Kent, who was a colleague of Mr Grier.  She was not senior to Mr Grier but she had different responsibilities from him.  There had been an agreement between the staff as to how certain batch ends should be dealt with.  Different members of staff would bring out articles of merchandise which were  at the end of the roll or whatever it might be and they were to be put in the Sale.  It was agreed that when any of them brought such articles out, that person should deal with them by labelling them and putting them aside in the proper way, rather than leaving them for others to deal with.  Miss Kent thought that Mr Grier was in breach of this informal agreement and that he had taken out some batch ends and had left them lying around.  An altercation arose out of that.  The altercation was of course unwelcome to the management and an Assistant Manager, who was present, indicated that it should not take place in the shop.

	Mr Grier left work at the appropriate time and went down to the tea-room.  He was in a very bad temper as a result of what had happened.  As he was going in, he punched the door, injuring his hand quite badly; he broke bones in one or two fingers (it is not quite clear, the exact extent of his injuries).  There were 2 or 3 ladies already in the tea-room and he told them that he had had this altercation and he could not stand Miss Kent.  He wished to carry on with the altercation, they might not like what they would hear; and when Miss Kent came down, the altercation continued with very foul language used.  At one stage Mr Grier actually laid a hand on Miss Kent.  It was said by him that he had done that with a view to defusing the situation, taking the heat out of it.  Very shortly after this, the situation not having been defused as he said he had hoped, another Assistant Manager came in and he actually swore at her, which led to further unpleasantness and eventually two of the ladies present, taking a friendly view and hoping that he would do no more and that he would not get into worse trouble than he might have already, bundled him out through the door, making remarks to the effect that he should think of the members of his family, because he is a family man.

	After this there followed enquiries.  I will not go into all of them.  First of all he was seen after certain enquiries by his Manager Miss Hunt, who was the Manager of the branch where he worked in Newcastle.  She, having collected statements, held a disciplinary hearing and she dismissed Mr Grier.  In her view he had been guilty of disgraceful behaviour.  There was an appeal heard by Miss Heath on 8 September.  On 17 September she dismissed the appeal.  There were further interviews with those staff who had given statements, except for two of them who had been out of the country.   Mr Stephenson, the Director, heard a further appeal on 12 October and on 18 October he too dismissed the appeal.  He wrote a letter confirming the dismissal of Mr Grier who then complained that he had been unfairly dismissed; and that was the subject matter of his complaint to the Industrial Tribunal.

	The employers said that he had been dismissed for gross misconduct.  They said, consistently with what their belief had been throughout apparently, that he had frightened Miss Kent and the other ladies who were present; that he had assaulted Miss Kent; and that in the circumstances his behaviour was wholly unacceptable and that he had destroyed the relationship of trust which should exist between them and him and that was a ground for summary dismissal.  The Industrial Tribunal devoted 3 days to the hearing and their decision is a long one in which they set out many of the facts in detail, to which I have already referred very shortly.  They recite when they come to page 16 of our bundle:

	"...It was the submission of Mr Quigley(the solicitor for Mr Grier) that the respondents failed to act reasonably in 3 main areas.  He urged the Tribunal to consider that the investigation of the matter by the respondents was inadequate, that they had not carried out correctly their disciplinary and appeal procedures and that in deciding that the applicant should be dismissed for gross misconduct they had imposed far too severe a penalty."....

They then go on in paragraph 4 of their decision to say how they decided the matter.  They started off with a perfectly correct direction to themselves:

	"The Tribunal has been conscious throughout the hearing of this Originating Application that there is always a danger upon hearing evidence from the parties of events that have happened leading up to a dismissal of industrial tribunals becoming involved to the extent that they are inclined to substitute their own views of what is fair and reasonable for those of employers.  In the instant case this danger has been heightened for the Tribunal by virtue of the fact that it was provided with a wealth of paper including copies of statements taken from witnesses, copies of notes of meetings, copies of internal memoranda, copies of advice given and of other documents."...

That is correct - something like a hundred pages, if as we understand the documents laid before us, relating to the various stages of this disciplinary enquiry and the appeals, were laid before them.  

	The employers had called the members of management responsible for these appeals before the Industrial Tribunal.  That course is normally enough.  If there is a complaint of unfair dismissal it is for the employers to show by their evidence what the cause of dismissal is.  There is no doubt about that in this case.  The Tribunal accept it.  It is then for the Industrial Tribunal to enquire whether in treating that as the cause for the dismissal, the employers have acted reasonably.  It is well said by much authority that that means that the employers must first of all have had a reasonable belief in the matters on which they acted.  Secondly, it means that they must have conducted a proper enquiry and that they have conducted the enquiry in a way fair to the employee.  The Tribunal had heard submissions from Mr Quigley on that topic.  

	The Tribunal went on:

	"The Tribunal has been able to detect a large number of inconsistencies in the evidence given by various witnesses, a large number of areas in which the Tribunal feels that the respondents might have taken further steps to acquaint themselves with matters which would have been favourable to the applicant and of the relationship between various members of staff. (Pausing there, one might say here the Tribunal are concluding that there have been procedural faults, failures to ascertain the facts in a fair and proper way.  It seems that on the face of it at any rate it is possible that was very far from what they were meaning to say here because they go on)  However the Tribunal has reminded itself that its task is to decide whether or not dismissal was reasonable."...

It sounds rather as if they were putting these matters on one side.  Mr Cape has suggested to us that this is a finding and a sufficient finding, that there were these procedural irregularities.  But we hold that this was a quite inadequate finding.  If the Tribunal were going to find that there were matters which would have been favourable to the Applicant, that further steps should have been taken by the Employers to acquaint themselves with those, then they should surely have set out the principal ones; the principal matters on which the employers should have made further enquiries; and what those enquiries would or would probably have revealed.  There was no need to do so at great length, but the employers were entitled to know, if there were procedural defects in what they had done, what those were.  It seems so at any rate to the majority of us, because we are not by any means unanimous on our views of the facts here.  But it seems to the majority of us more probable that here the Tribunal were putting these allegations of procedural irregularity on one side and going further.  What they say is this:

	"...However the Tribunal has reminded itself that its task is to decide whether or not dismissal was reasonable.  The facts of the matter are very simple.  An altercation developed in a private room on the premises of the respondents late one afternoon.  The whole incident can only have lasted 15 minutes or thereabouts.  It took place between 2 people who were angry.  Both of them contributed to the abuse that took place.  The applicant was male and 6ft in height and Ms Kent was a foot shorter.  However she was known by the manager to be resilient and to be a "tough cookie".  No damage was done to company property.  Although a suggestion was made that Ms Kent became frightened as the result of the incident it was known to management or ought reasonably to have been known to management that she was by no means frightened and that she played her full part in the events that happened.  The assault that took place was at best a technical assault and this was known or ought reasonably to have been known by management."...

	The employers here object that this is a strange way of putting it.  So far from it being "known to management", Miss Kent had made a statement that she was indeed frightened by what took place and other witnesses had said that they were frightened.   When the Tribunal say that management knew that this was the position, it sounds very like a finding that management were being dishonest; that is to say they knew perfectly well that was said in her statement was false and that when they said they acted on that, they were not indeed acting on that.  When it is said that they "ought to have known", this could only be justified, it seems to us, on the basis that they ought to have made further enquiries and those enquiries would probably have revealed a particular state of affairs.  As I have endeavoured to explain, to the majority of us that is a dark saying.  They have not set out what the enquiries should have been and why they say they would have yielded different results.  They go on to say:

	"...The incident took place in private and was not observed or heard by customers.  Ms Kent received a warning for her part in the affair and remains in the employment of the respondents.  The Tribunal has reminded itself of the conclusion of Mr Stephenson that the applicant had "blown his top" and that that was the crux of the matter.  At the end of the day the Tribunal has decided that having regard to all the matters that were known to the respondents or ought reasonably to have been known to them, the decision that the applicant should be dismissed was completely outside the range of responses to be expected from a band of reasonable employers in the circumstances of the case.  At worst a reasonable employer would have given the applicant a final written warning.  The Tribunal having drawn upon its industrial experience has decided that no reasonable employer would have dismissed an employee in the circumstances of the instant case.  His dismissal must be regarded as unfair."

	That is attacked by Mr Greening for the Appellants as being a finding they were not entitled to make.  They might have been entitled to find, indeed they would have been entitled to find, that some employers might have overlooked this and might have felt able to deal with it by a warning.  But Mr Greening says it really is perverse to say that to dismiss an employee who had behaved in this way was outside the band of reasonable responses.  Mr Cape explains it in this way.  He says they were entitled to reach that conclusion in the light of their earlier findings that there had been procedural irregularities, that further enquiries should have been made and that those would have had a particular result.

	The majority of us are clearly of the opinion that that is an insufficient account of the matter to satisfy justice.  It appears to us that if the Tribunal were indeed finding that there were procedural irregularities here, they should have set out what those procedural irregularities were and why, if further enquiries should have been made, they said those enquiries would probably have led the Employers to acquire knowledge which they should have had.  We note that two witnesses, that is to say two ladies who were present on this occasion, who were on any view favourably disposed to Mr Grier, were called to give evidence before the Industrial Tribunal but the Industrial Tribunal, in accordance with what has certainly become the ordinary practice, heard the managers on the other side but not the other witnesses.  There were 3 or 4 witnesses who were present who were not called by management.  Management evidently took the view, by their Counsel, that it was a matter of satisfying the Tribunal that they, the management, had behaved fairly, had conducted a proper enquiry and had reached reasonable conclusions.  One wonders if the Tribunal were going so far as to say that Miss Kent was by no means frightened.  Was it right for them to do that, having heard two witnesses but not the other witnesses who were present and in particular not Miss Kent who had made a plain statement that she was frightened. 

	It is not clear whether this decision was reached on the basis that the Tribunal simply did not accept as reliable those witnesses for management who gave evidence about what they found and what their conclusions were; simply rejected that as unreliable, perhaps dishonest, or at any rate not evidence which they could accept; or whether they came to the conclusion that there were procedural irregularities here and, if so, what they were and whether that was the basis of their decision that no reasonable employer would have dismissed Mr Grier in these circumstances.  Although as I say we variously take rather different views about the facts, we are all agreed on what we think the just result should be here.  We are all agreed that the right way to deal with this is to remit the case to a different Tribunal, that is to say an Industrial Tribunal differently constituted.  We express no view about the facts ourselves and in the circumstances we express no view about procedural irregularities, if those took place.  The entire case is to be re-heard, so that the true nature of the case can be made plain to the Tribunal and it can reach conclusions in accordance with the authorities about whether the employers acted fairly.  That is the conclusion of us all.