Appeal No.	EAT/0905/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 March 2003

Before
HIS HONOUR JUDGE ANSELL
MRS C BAELZ
LORD DAVIES OF COITY CBE

MR J HICKS	APPELLANT

ALLIED GLASS CONTAINERS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR I GROOM
(of Counsel)
Instructed by:
Messrs Frank Allen Pennington
Solicitors
5 - 7 Regents Terrace
South Parade
Doncaster DN1 2EE
	
For the Respondents	MR M WALKER
(of Counsel)
Instructed by:
Messrs Eversheds
Solicitors
Cloth Hall Court
Infirmary Street
Leeds LS1 2JB	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from an addition from a Decision of an Employment Tribunal sitting at Leeds in June 2002 who, by a majority, decided that the Appellant had been fairly dismissed.  The Decision was promulgated on 4 July of last year and leave was given for this hearing at a preliminary hearing, His Honour Judge Pugsley presiding, on 13 November of last year.  

2	The Appellant had worked for the Respondents for something in excess of ten years, they being a substantial enterprise, with some six hundred and fifty employees, and he had a good work and disciplinary record.  The facts as found by the Tribunal show that on 1 September 2001, there was an incident at work where a dispute arose between the Appellant and his supervisor, Mr Lawson, over low output from the Appellant’s machine.  Mr Lawson told the Appellant that he was stopping his bonus because of this.  Mr Lawson alleged that the Appellant threatened to hit him and momentarily barred his way out of the area where he was working.  The Appellant denied making any such threat.  

3	The matter was investigated initially by Mr Summers, who was the Head of Production.  He took statements from Mr Lawson and Mr Hicks and others involved, and there was a disciplinary hearing held involving the union representative.  Mr Summers decided that he believed Mr Lawson’s account of the incident, in particular he was struck by the extent to which Mr Lawson was shaken by the threat that he had reported and by the fact that Mr Lawson had immediately gone to fetch another supervisor for support.  Mr Summers decided to dismiss Mr Hicks for gross misconduct, in other words threatening violence to Mr Lawson.

4	The Tribunal’s finding at that stage was that if matters had stopped there, they would have had no hesitation in finding that this was a fair dismissal, applying the well known test in BHS -v- Burchell. The matter, unfortunately, did not stop there and Mr Hicks appealed, and at his appeal, which was heard by Mr Whitehead, Director of the company, he was represented by his full-time union official, Mr Sangha, and I read from the Tribunal’s Decision, paragraph 3(v):
“(v) …….. Mr Sangha urged Mr Whitehead to find that there was insufficient evidence for Mr Summers’ decision that Mr Hicks had threatened Mr Lawson and that the appeal should be upheld.  Mr Whitehead was unmoved by these arguments but in a private meeting with Mr Sangha, held at Mr Whitehead’s initiative, Mr Whitehead offered a way out.  If Mr Hicks would admit the threat and apologise for it, Mr Whitehead was prepared to let him off with a final written warning.  Mr Sangha advised Mr Hicks to accept this offer.  Mr Hicks, still protesting his innocence to Mr Sangha, agreed to do so, but did so only half-heartedly, using phrases to the effect that, “if words had been said which Mr Lawson interpreted as a threat, then he was sorry”.
(vi)    This was not enough for Mr Whitehead.  He found no real admission of the threat or any proper expression of contrition or apology.  Mr Whitehead therefore confirmed the dismissal.  Mr Hicks thereupon made a fuller admission and a more formal apology.  By then it was too late for Mr Whitehead, who again confirmed the dismissal.”

Just pausing there, it was agreed between Counsel that, in fact, Mr Whitehead did go away and think about matters overnight again, but apparently confirmed matters, namely the dismissal, the following morning.  

5	Certainly Mr Whitehead, and also the Tribunal, possibly also Mr Summers at the first hearing, although there is no finding to that effect, had heard evidence from a Mr Gough and a Mr Stephenson, of an incident a few months earlier, when Mr Smith, a manager, had threatened to lay hands on Mr Gough, a quality auditor.  The incident had been investigated and confirmed to management and no formal disciplinary proceedings had been taken against Mr Smith, and in a later part of the Decision, there was an indication that there had been a prompt admission and apology from Mr Smith, the perpetrator in that previous incident.  

6	The majority of the Tribunal being the two lay members held that the dismissal was fair.  They said there was clear evidence of Mr Hicks’ misconduct in the evidence from Mr Lawson; the company conducted a proper investigation, taking proper steps and was followed by an appeal.  Mr Whitehead and Mr Summers had both clearly believed on reasonable evidence that Mr Hicks had committed an act of gross misconduct, threatening violence on a supervisor.  In those circumstances, the decision to dismiss clearly fell within the range of reasonable responses.  The earlier incident relied on to show inconsistencies was not directly comparable; there had been in that incident a prompt admission and apology from the perpetrator and the victim was content to let the matter rest.  

7	As for the offer from Mr Whitehead, the majority held that this was no more than evidence of an open mind on Mr Whitehead’s part; he was simply ensuring that all the options were covered and if evidence or contrition or admission had been forthcoming, would have been prepared to rethink the penalty.  Since no full and frank admission was forthcoming, it was reasonable to confirm the decision to dismiss Mr Hicks, and his subsequent admission came too late and in the circumstances could not be relied on or given weight by Mr Whitehead.  

8	The Chairman being the minority took the view that Mr Whitehead’s offer of a deal was not merely indicative of an open mind; it showed the company did not really believe dismissal was an appropriate sanction for misconduct of this sort in the circumstances.  The Chairman was fortified in his conclusion by the earlier incident of assault which had not let to disciplinary proceedings.  If the company itself had not believed that dismissal was appropriate for an act of misconduct of this sort, then the decision to dismiss must, in the opinion of the Tribunal Chairman, fall outside the range of responses open to management in these circumstances.  

9	The core of the majority’s decision centres around that part of the Decision that suggests that the offer of a deal from Mr Whitehead on the appeal was no more than evidence of an open mind on Mr Whitehead’s part.  Indeed, the way that Mr Walker very clearly puts it to us today, on behalf of the employers, is that Mr Whitehead had effectively determined the appeal and come to a view that Mr Summers’ decision was a correct one, even taking into account the previous incident involving Mr Smith and Mr Gough, and yet was doing no more than offering the employee one last chance which he failed to take within the time period that Mr Whitehead thought was appropriate and as a result, he was not willing to reduce the penalty.  

10	Mr Groom, however, suggests that the decision of the majority to say that this was no more than evidence of an open mind, is simply one that was not open to the majority members having heard this case and, in particular, he points to the fact that it was Mr Whitehead that offered the way out at a private meeting with Mr Sangha, at a stage when it was certainly not clear from the Tribunal’s findings that the appeal procedure had been concluded.  True there is a finding that Mr Whitehead was unmoved by these arguments, but in the context of that particular paragraph, that would appear to relate to no more than the arguments in relation to the guilt or innocence, as it were, of the employee and there was nothing to indicate within the Tribunal’s findings that the appeal process, in terms of consideration of punishment, had indeed been concluded.  

11	To that extent, therefore, we share the Chairman’s concern that at the stage when Mr Whitehead made this offer, it would leave a clear impression with Mr Sangha, and the employee, that there was uncertainty within Mr Whitehead’s mind; uncertainty possibly in relation to the guilt or innocence of the employee, although to that extent it can be said that Mr Whitehead had indicated that he was unmoved by the arguments in relation to the incident, but certainly uncertainty in relation to the appropriate sanctions, as the Chairman put it, against a background where a previous incident involving certainly a laying of hands on a manager, had gone completely unpunished.  

12	It is said that this could be justified on the basis that the employee concerned was not willing to pursue the matter and had accepted the apology, but the fact remains that within Mr Whitehead’s mind was clearly a thought that a comparable incident had been dealt with not merely by a less punishment, but by no punishment at all.  In our view, the actions taken by Mr Whitehead, coupled with the events thereafter, where there was initially a half-hearted apology, from an employee who had been disputing the matter up to date, and thereafter, within a fairly short time a full apology, led to the Chairman to take the view that the circumstances that Mr Whitehead had instigated himself had led to a degree of unfairness and uncertainty within the procedure. 

13	Whilst we are always loath to interfere with any Tribunal decision, who have had the opportunity of hearing the facts, even if at the end of the day they do so on a majority decision, we are unanimously of the view that the Tribunal majority decision which, as I have already indicated, was based on the finding that the events were no more than evidence of an open mind on Mr Whitehead’s part, cannot stand when one analyses carefully the sequence of events that took place, instigated, as I have said, by Mr Whitehead.  

14	Accordingly, we are of the view that the Chairman’s Decision was the correct one and we would therefore substitute a finding that the dismissal was unfair and remit the matter to the same Tribunal for a decision on compensation and also possible, contribution.