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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lamb v. Transco Plc [2004] UKEAT 0030_04_1511 (15 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0030_04_1511.html Cite as: [2004] UKEAT 30_4_1511, [2004] UKEAT 0030_04_1511

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APPEARANCES

 

 

For the Appellant	Mr KRW Hogg, Solicitor Of- Messrs Allcourt Solicitors 1 Carmondean Centre Carmondean LIVINGSTON EH54 8PT
For the Respondent	Mr A Korn, Counsel Instructed by- Messrs Irwin Mitchell Solicitors Imperial House 31 Temple Street BIRMINGHAM B2 5DB

SUMMARY
UNFAIR DISMISSAL

Unfair dismissal – contributory fault


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee in respect of a decision by the Employment Tribunal sitting in Edinburgh to the effect that he had been unfairly dismissed by the respondents but he had contributed to his dismissal to the extent of 80%. Such compensation as could be awarded should be reduced accordingly. The issue of compensation has not been determined as to quantum.
2. The background to the matter is the appellant was employed by the respondent as a gas engineer. He was sent to deal with a leak at a locus in Livingston. It appeared that the leak had been identified some time before and was being monitored over a period between May and October.
3. The principal allegation against the appellant which led to disciplinary proceedings was the fact that he failed to get out of his vehicle while attending the leak on a particular day. In due course he was dismissed.
4. The decision of the Tribunal is in the following terms:-

"The Tribunal then considered whether in terms of Sections 122(2) and 123(6) of the Employment Rights Act 1996 and (while they were not referred to the case) the. decision in Polkey v A.E. Davton Services Ltd (1987) IRLR 503 HL), any conduct of the applicant before his dismissal was such that it would be just and equitable to reduce the basic award and the compensatory award to any extent. The Tribunal found substantial evidence to justify such a finding and regarded the applicant to have been very much the author of his own. misfortune. The Tribunal had in mind the changing explanation in relation to the applicant's alleged failure to attend the site on the first day. While the Tribunal had reservations about the way in which the respondents dealt with the matter the Tribunal could not fail to notice the somewhat cavalier way in which the applicant tried to meet the allegations that he was not at the appropriate site on the first day. One can readily appreciate the concerns exhibited by the. respondents to the possibility of inaccurate data being fed into their Central Systems. Secondly, whether or not there were any written procedures laid down for dealing with the gas leaks, the applicant cannot really justify his failure to alight from the vehicle and take the appropriate. Readings around the site of the escape. The applicant may well be correct in his assertion that so far as he was concerned the leak. was not serious and was benign. However, the Tribunal are in no doubt that the applicant knew (or ought to have known) of the capricious nature of leaks changing their character. While the Tribunal are of the opinion that the respondents' response was somewhat over the top the Tribunal are in no doubt that the applicant's actions materially contributed to his dismissal. Mr Hogg in his able submission accepted the possibility that the Tribunal might suggest that there had been some contributory fault on the applicant and advanced the argument that this should be at a level not exceeding 20%. Mr Shaffner on the other hand advanced the argument that any reduction for. contribution should "not be less than 50% and arguably far in excess of this". The Tribunal have much sympathy for Mr Shaffner's position. The Tribunal are of the unanimous opinion that compensation paid by the respondents to the applicant should be reduced by a factor of 80% to reflect the gravity of the applicant's conduct."

5. Mr Hogg, Solicitor, appearing for the appellant, challenged the finding of 80% as being grossly excessive and unsubstantiated by the evidence. Indeed, he submitted, it was not possible on the Tribunal's findings to determine what evidence they had effectively relied upon. He referred us to the basic test laid down in Hollier v Plysu Ltd [1983] IRLR 260, Warrilow v Robert Walker [1984] IRLR 304 and as an example of where an Appeal Court has interfered with a contribution, Nairnev Highlands and Islands Fire Brigade [1989] 366. Mr Hogg accepted that for this Tribunal to interfere with a finding of contribution, the Employment Tribunal must have fallen into material error or taken into account factors they should not have taken into account.
6. 6.                  Mr Korn, of Counsel, appearing for the respondents, referred to the decision of the Tribunal and its finding of substantial evidence which he then identified in the findings of the Tribunal as being specifically:-

1. The changing explanation in relation to the applicant's alleged failure to attend the site of the first day.

2. The cavalier way in which the applicant tried to meet the allegations he was not at the appropriate site on the first day.

3. The applicant's responsibility that an accurate date had been fed into the system.

4. Whether or not any written procedures laid down for dealing with gas leaks or not, the applicant could not justify his failure to alight from the vehicle and take appropriate readings.

5. The applicant was bound to know or ought to have known of the capricious nature of leaks and their changing character.

This, said Mr Korn, substantially identified the basis upon which the Tribunal had approached the matter with which this Tribunal should not interfere in the circumstances. He also referred to Hollier and in respect of the general question of perversity Crofton v Yeboah [2002] IRLR 634.

7. It has to be recognised at once that insofar as the Tribunal have referred to the case of Polkey v A E Dayton Services Ltd [1987] IRLR 503 they have wholly misdirected themselves inasmuch that that case is not concerned with contributory fault but rather with the likelihood that a dismissal would, in any event, been effected if as a matter of procedure proper steps had been taken to effect it. In other words it is concerned with the effect of unfairness and not with contributory fault.
8. Having said that it is clear to us the Tribunal were in fact directing themselves to contributory fault on the part of the appellant. In this context we recognise at once that this Tribunal will not interfere with such a finding unless it is said to be perverse or proceeding on erroneous material.
9. In this case we consider neither applies. While the finding may be high it is certainly justifiable on the evidence that was before the Tribunal as to the gravity of the appellant's conduct and his attitude. We consider it would be wholly inappropriate for us to reduce it to the level of 20% as sought for by Mr Hogg. This is a decision of an industrial jury which can be justifiable on the evidence and we will not therefore interfere with it.
10. The appeal is dismissed.