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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Haddon v Van Den Bergh Foods Ltd [1999] UKEAT 1160_98_2909 (29 September 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/1160_98_2909.html Cite as: [1999] UKEAT 1160_98_2909, [1999] ICR 1150, [1999] IRLR 672 |
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At the Tribunal | |
On 27 July 1999 | |
Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR D J JENKINS MBE
MR J A SCOULLER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR A FREER Solicitor GMB National Legal Department 22-24 Worple Road London SW19 4DD |
For the Respondents | MR PITT-PAYNE (of Counsel) Instructed By: Mr R Mason Messrs Mason & Co Solicitors Devonshire Chambers The Square Bakewell Derbyshire DE45 1BT |
MR JUSTICE MORISON: This is an appeal from the unanimous decision of an Employment Tribunal held at Ashford, which dismissed Mr Haddon's complaint that he had been unfairly dismissed by his employers, Van den Bergh Foods Limited, which is part of the Unilever Group. The Tribunal were, clearly, not only sympathetic to the applicant ["this is a very sad case"; "we have great sympathy for the Applicant"], but also regarded their decision as unfortunate. They considered themselves bound ["we cannot escape the conclusion"] to find the dismissal fair.
"No alcohol will be provided at functions where employees are returning to work."
"Most people would regard that [his dismissal] as harsh in the extreme."
"made no difference to the operation of the shift or the company's production that night".
"16 We next had to consider whether the instruction to return was reasonable. We have no doubt that many people would find such an instruction to be unreasonable. However, we are mindful that we must not substitute our own views for the views of the Respondent, and in this particular case, it was Mr Goodliff who was in charge of that particular shift and who knew, better than most, what was required to be done. He was aware that the shift was short-staffed, and it was entirely his decision as to who should and who should not work on that shift. There would have been only about 1½ hours left for the Applicant to work, but, nevertheless, we cannot say that it was unreasonable of Mr Goodliff to require the Applicant to return to complete that shift.
17 It falls then for us to consider whether dismissal falls within the range of reasonable responses. Once again it is not for us to say what we would have done or would not have done, but if dismissal is to fall outside the range, we have to ask whether no reasonable employer would have dismissed in these circumstances.
18 On the facts as found, and on our analysis above, there was an instruction given to the Applicant and it was a reasonable instruction. The Respondent's disciplinary procedure does state clearly that an employee may be dismissed without prior warnings for an act of gross misconduct, and it does go on to say that "failure to carry out proper and reasonable instructions" is an example of an offence which is normally regarded as gross misconduct. In these circumstances, it is not possible for us to say that dismissal was outside the range of reasonable responses.
19 This case brings no credit at all to Van den Bergh Foods. They invited the Applicant to a Good Service Awards presentation to reflect his 15 years' service. They entertained him to a buffet supper and free drink and gave him a gift. They were aware that the Applicant was due to work the late shift and that there would be less than 2 hours remaining for work at the end of the presentation. Furthermore, Mr Goodliff admitted to us that he could have handled the matter better and made his instructions clearer. It is also significant that the Applicant's absence at the end of his shift apparently made no difference to the operation of the shift or the company's production that night. Nevertheless, the Applicant was dismissed. It was a decision that many reasonable employers would not have taken.
20 Unfortunately, however, in applying the law to the facts of this case, we cannot escape the conclusion that the dismissal was fair, and this application is dismissed."
The Parties' submissions
The Decision of the EAT.
"It may be hard on employers in the embarrassing situation in which Mr Benfield [the employer] found himself in this case to have the matter so largely removed out of their control and left to the discretion of the so-called industrial jury. But once the case falls within [Section 98(4)] then the tribunal is entitled to take everything into account."
"So the duty of a tribunal is to take into account the reason ... and all the other facts and circumstances known to the employer, and ask whether for that reason, and in those circumstances, having regard to equity and the substantial merits of the case, the employer acted reasonably in treating it as a sufficient reason for dismissing the employee. And it has, of course, to judge that in the capacity of what has been described as an "industrial jury".
This statement was endorsed by the EAT in George Whiley Ltd v Anderson [1977] ICR 167 (July 1976). But in November, 1976, in Vickers Ltd v Smith, the EAT, a division presided over by Cumming-Bruce J, said:
"...that it was necessary to go a stage further, if they [the tribunal] thought that management's decision was wrong, and to ask themselves the question whether it was so wrong that no sensible or reasonable management could have arrived at the decision ... who should be selected …for redundancy."
"Where the legal right or obligation with which you are concerned is not a common law right or obligation but is created by statute, what the statute says, and nothing else, is the law. The judges cannot add to or subtract from the law as you find it expressed in the statute, the instrument by which the will of the people through the ordinary constitutional method of Parliamentary process becomes the law. If what the statute says is intelligible and unambiguous it is for the judges to apply it, not to refine it or add to it frills of their own."
"In this case the industrial tribunal did not apply the stricter test formulated in Vickers' case ... They would not have been wrong in law to do so. They are not wrong in law because they did not. They applied, and in our judgment rightly applied the plain words of the statute. Grundy's case really says no more than "apply the plain words of the statute". Vickers' case says more. It is not a binding precedent to be followed by the industrial tribunals because, although intended as a helpful test, it says more than Parliament says in [section 98(4)]."
"The moral is that none of the phrases used in the authorities, such as "did the employer act in a way in which no reasonable employer would have acted" is to be substituted as the test to be applied. The test is, and always is, that provided by [section 98(4)]. The authorities do no more than try, according to the circumstances, to indicate the standard to be used by the industrial tribunal in applying [the subsection]. But every time the starting point for the industrial tribunal is the language of the [subsection]."
"In our judgment it is unwise for this court or the Employment Appeal tribunal to set out guidelines and wrong to make rules and establish presumptions for industrial tribunals to follow or take into account ..."
"As this Appeal Tribunal pointed out in the judgment in Watling's case, in a given set of circumstances it is possible for two perfectly reasonable employers to take different courses of action in relation to an employee. Frequently there is a range of responses to the conduct or capacity of an employer, from and including summary dismissal downwards to a mere informal warning, which can be said to have been reasonable. It is precisely because this range of possible reasonable responses does exist in many cases that it has been laid down that it is neither for us on an appeal nor for an Industrial Tribunal on the original hearing, to substitute our or its respective views for those of the particular employer concerned. It is in those cases where the employer does not satisfy the Industrial Tribunal that his response has been within that range of reasonable responses that the Industrial Tribunal is enjoined by the statute to find that the dismissal of the relevant employee has been unfair."
"The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said "...a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate." I do not think that that is the right test. The correct test is: was it reasonable for the employers to dismiss him. If no reasonable employer would have dismissed him then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view; another might reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him."
"...the Jowett case ....is no longer good law. It follows that in the present case the industrial tribunal has misdirected itself in law by failing to follow the Watling ...principle. .... We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [section 98(4)] is as follows: (1) the starting point should always be the words of [the subsection] themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.
Although the statement of principle in Vickers is entirely accurate in law for the reasons given in Watling ...we think industrial tribunals would do well not to direct themselves by reference to it. The statement in Vickers is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section. That is how the industrial tribunal in the present case seems to have read Vickers ... That is not the law. The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the range of reasonable responses and industrial tribunals would be well advised to follow the formulation of the principle in Watling or Rolls Royce ..."
"The wording of [section 98(4)] is straight forward and easy to understand, and I do not myself think that it helps to try and analyse it further, save only this, that a tribunal in applying the section must not ask themselves what they would have done, but must ask themselves how a reasonable employer would have acted.
"The reported decisions contain, as it seems to me, a good deal of what I would venture to call over sophistication as to the approach to be adopted by industrial tribunals to the question of reasonableness. In my judgment it is sufficient for the tribunal to answer directly the question posed by [section 98(4)]: "In all the circumstances, did the employer act reasonably or unreasonably in treating the reason in the particular case as a sufficient reason for dismissing the employee?". That is a question of fact and not a sophistication of law. A tribunal may in a particular case react to the facts by saying "What the employer did is not what we ourselves would have done, but we cannot say that it was unreasonable." That again, however, is an answer on the facts to a question of fact, and not a guideline of law to be applied by all other tribunals in all other cases. Because the question is one of fact, and there are many different industrial tribunals, it is quite likely that different tribunals will reach different conclusions on the question of reasonableness on very similar facts. That is inherent in the system which Parliament has set up, and is no indication that any tribunal has misdirected itself or erred in law."
"We agree that the Industrial Tribunal appear not to have applied the correct test. There is nothing in their decision to indicate that they ever applied their minds to the question of whether the dismissal of the appellant fell within the ranger of responses open to a reasonable employer. Having regard to what they do say, it appears to us that what the industrial tribunal have done is simply to express their own opinion upon the question whether the dismissal was unfair. That being so, we are satisfied that the Employment Appeal Tribunal were well-founded in concluding that the appeal against the decision of the Industrial Tribunal must succeed."