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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Butcher v. The Salvage Association [2003] UKEAT 0988_01_0207 (2 July 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0988_01_0207.html Cite as: [2003] UKEAT 988_1_207, [2003] UKEAT 0988_01_0207 |
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At the Tribunal | |
On 25 October and 20 December 2002 | |
Before
HIS HONOUR JUDGE J BURKE QC
MS K BILGAN
MRS A GALLICO
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
[This page will be completed when finalised]
For the Appellant | MR J V C BUTCHER THE APPELLANT IN PERSON |
For the Respondent | MR DAMIAN BROWN (of Counsel) Instructed By: Linklaters & Alliance One Silk Street London EC2Y 8HQ |
HIS HONOUR JUDGE J BURKE QC:
The Facts
"I am unable to comply with your orders."
on a note written to him by Mr Padgett.
The Tribunal's Decision
(1) that Mr Butcher had been dismissed on 19 May 2000 for some other substantial reason within Section 98(2) of the 1996 Act, the reason being that there were irreconcilable differences between him and Mr Padgett;
(2) that there had not been any protected disclosure;
(3) that the dismissal for the reason identified by the Tribunal was unfair;
(4) that Mr Butcher had contributed to his dismissal to the extent of 50%;
(5) that the true reason for the dismissal was set out in the dismissal letter and therefore Section 92 of the 1996 Act had been complied with.
The issues in the Appeal
The hearing of the appeal
The procedural grounds
"When I delivered a précis of the decision which I had dictated with the assistance of the Members the previous day, I did say that we felt Mr Butcher had contributed to his dismissal and that, subject to hearing representations on the matter, our initial feelings were that it was of the order of 50%. We heard representations from both parties in which Mr Butcher expressed the view that it should not exceed 20%. Having considered the matter afresh, we confirmed that it should be 50%."
Secondly, Mr Butcher informed us at the beginning of the second day of our hearing of this appeal, that the telephone message taken by his wife on 30 May also included the comment that Mr Butcher had contributed to his dismissal.
The substantive grounds
(1) No finding of contribution can be made against an unfairly dismissed employee unless the conduct on his part upon which such finding is based was blameworthy.
(2) Where a period of time passes between the employer's decision to dismiss and the dismissal, only conduct up to the date of the decision to dismiss may be taken into account.
(3) There was no conduct on Mr Butcher's part up to the date of the decision (or thereafter) which was blameworthy; and the Tribunal did not so find.
(4) In particular Mr Butcher's "demeanour and approach" which, from paragraph 21 of the decision, appeared to be the foundation of the Tribunal's conclusion against Mr Butcher could not amount to blameworthy conduct.
(5) The Tribunal gave no or no adequate reasons for their conclusions as to contribution so as to satisfy the well known test set out by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250.
(6) The Tribunal were not required, if they concluded that Mr Butcher had contributed to his dismissal to the extent of 50%, then to make a 50% deduction on his compensation.
"122(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
"123(6) 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 compensatory award by such proportion as it considers just and equitable having regard to that finding."
"I agree with the conclusion there reached that, on a proper interpretation of para.19(3), an award of compensation to a successful complainant can only be reduced on the ground that he contributed to his dismissal by his own conduct if the conduct on his part relied on for this purpose was culpable or blameworthy."
He continued, in paragraph 44, in these words:-
"It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also include action which, though not meriting any of these pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend upon the degree of unreasonableness involved."
(1) From Mr Padgett's joining the Association to Mr Butcher's "shopping him" (Mr Butcher's expression) to the Chairman on 26 October 1999, ie Mr Butcher informing the Chairman on that date that Mr Padgett was requiring him to present accounting information in a manner which he knew to be materially misleading.
(2) From then to the decision to dismiss on 25 January 2000.
(3) From that date until the dismissal – during which period Mr Butcher urged, correctly as Mr Brown's concession accepts, that it would be inappropriate to regard anything he did as contributing to his dismissal.
"21 We find that the Applicant contributed to his dismissal and did so by his general demeanour and approach, which was interpreted by the Respondent in terms that he was not making an effort to make things work. We assess the contribution in percentage terms as 50 per cent."
"... are words of wide import and bring into consideration all the circumstances surrounding the dismissal, requiring the tribunal to take a broad common sense view of the situation and to decide what, if any, part the applicant's own conduct played in contributing to his dismissal, and then in the light of that finding decide what, if any, reduction should be made in the assessment of his loss."
In Gibson v British Transport Docks Board [1982] IRLR 228, Browne-Wilkinson J, presiding in the Employment Appeal Tribunal, said:-
"What has to be shown is that the conduct of the applicant contributed to the dismissal. If the applicant has been guilty of improper conduct which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the Tribunal to find that the conduct contributed to the dismissal. That is how the section has been uniformly applied."
"In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee's conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee's conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible. The employee's conduct certainly contributed to his dismissal in the sense that it was a factor in the minds of the employers. Put another way, the real reason for dismissal was not exclusive of all other matters and a bogus reason does not necessarily shut out the employer completely if there was material to support the reason relied upon. We conclude, therefore, that the employee's conduct ought to be considered not only with reference to incompetence but also with reference to misconduct. In our view the weight to be given to the employee's conduct ought to be decided in a broad common sense manner."
"Thirdly, in paragraph 15 it is totally unsatisfactory to say, 'We also find that the applicant by his behaviour should make a contribution to his loss which we estimate at 10%'. As has been said more than once, Industrial Tribunals must specify the behaviour, action or conduct which they are taking into account under that head."
The principle there set out is an anticipatory expression of the application of the principles in Meek to the particular issue of contributory fault. Whether the Tribunal in this case have provided sufficient specification of the conduct which they took into account, adopting the broad approach to which we have referred, must be judged by looking at the decision as a whole.
"We do not have to decide whether we would have considered Mrs Hollier culpable in that sense, or bloody-minded. For my part I, who did not see Mrs Hollier or hear such explanations as she gave of her conduct, cannot say that the Industrial Tribunal, who did, could not reasonably conclude that she, a trusted employee of sense and experience in a supervisory position, was so culpable. Nor can I say that an Industrial Tribunal, which found in her favour that she was unfairly dismissed, cannot have had proper regard to what was just and equitable in reducing the awards of compensation for her dismissal by 75%. In a question which is so obviously a matter of impression, opinion, and discretion as is this kind of apportionment of responsibility, there must be either a plain error of law, or something like perversity, to entitle an appellate Tribunal to interfere with the decision of the Tribunal which is entrusted by Parliament with the difficult task of making the decision."
"The real reason for the breakdown in the relationship was the refusal of the appellant to accept that, in the event of a difference of opinion between him and Mr Padgett as to how financial information should be presented to the Committee, Mr Padgett's view was to prevail."
In the circumstances the Tribunal had to consider, as a matter of fact and impression, whether, in effect, the irreconcilable differences were all Mr Padgett's fault or whether blameworthy conduct on the part of Mr Butcher contributed to those irreconcilable differences and, therefore, to the dismissal.
"It was not, however, the case that the one was always right and that the other was always wrong."
And:-
"The main item of dissention was the difference of opinion between the two men concerning the pace of change."
They went on, in paragraph 19, to find that Mr Butcher was under pressure from Mr Padgett from the very start and was not assisted by Mr Padgett's lack of interest in the problems which Mr Butcher faced but that there was no legal obligation upon Mr Butcher to report as he did to the Chairman on 26 October. In paragraph 20 the Tribunal said:-
"While we accepted much of what was said by the Applicant and his witnesses about the relationship between the Applicant and Mr Padgett, we accepted that the Applicant could be trying on occasions. We appreciated that Mr Padgett was brought in with a special remit. He never lost sight of that remit and did not tolerate anyone whom he thought was standing in his way. We were therefore satisfied that the Applicant was not the sole author of his misfortunes, which we were asked to believe."
Conclusion