Allma Construction Ltd v Laing UKEATS/0041/11/BI

Appeal against a finding of only a 5% contribution to the claimant’s unfair dismissal. Appeal allowed and remitted to a fresh Tribunal.

The claimant was dismissed following an incident where he had used a stihl saw without using a preventative mechanism, such as a water suppression bottle or hose fitted to the saw, to control the dust produced. This was in breach of the health and safety regulations. The ET found that he was substantively unfairly dismissed, saying that the employer did not genuinely believe that the claimant was guilty of the misconduct in question because the respondent had condoned such behaviour from another employee in the past. The other employee had been disciplined but not dismissed. They then went on to reduce the award by 5% for contributory fault and to apply the maximum uplift of 25% to represent the employer's failure to follow the ACAS code of practice. The respondent appealed.

The EAT upheld the appeal. The ET had misapplied the Burchell test as to whether the respondent genuinely believed the claimant to be guilty of the misconduct. It simply did not make sense for the Tribunal to say that the respondent did not consider that he was guilty – that was the conduct for which he was dismissed. Further, the ET had no basis for concluding that the respondent had condoned the conduct for which the claimant had been dismissed. They had not, which was evident in the fact that they had disciplined another employee for the same conduct. The 5% contributory fault was perverse because the claimant's conduct was deliberate and there was no justification for awarding the maximum uplift. _________________

Appeal No. UKEATS/0041/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 25 January 2012

Before

THE HONOURABLE LADY SMITH, MRS A E HIBBERD, MR M R SIBBALD

ALLMA CONSTRUCTION LTD (APPELLANT)

MR ROBERT LAING (RESPONDENT)

JUDGMENT

**APPEARANCES**

For the Appellant MR D HAY (Advocate)

Instructed by: Sentinel Employment Law 52 Young Street Wishaw Lanarkshire ML2 8HJ

For the Respondent MR R MacKINNON (Solicitor)

P.O Box 5059 Alexandria Dunbartonshire G83 3AL

**SUMMARY**

UNFAIR DISMISSAL

Compensation

Contributory fault

Unfair Dismissal. Contribution. Employer's appeal against finding of only 5% contribution upheld where Employment Tribunal had plainly misunderstood the facts and failed, accordingly, to appreciate that Claimant's conduct involved knowingly breaching an important health and safety rule.

**THE HONOURABLE LADY SMITH****Introduction**
  1. This is an employer's appeal against a finding by the Employment Tribunal sitting at Glasgow, presided over by Mr R A MacKenzie, that the Claimant contributed to his own dismissal by only 5%. The judgment was registered on 15 June 2011.
  1. It was conceded that the Claimant's dismissal was procedurally unfair. The only issue for the Tribunal was remedy. Two issues then arose: (i) the Respondent's position was that, if there had been a fair procedure, there was a chance that the Claimant would still have been dismissed, and (ii) that he had, in any event, contributed to his own dismissal.
  1. We will, for clarity, continue to refer to parties as Claimant and Respondent.
  1. The Claimant was represented by Mr R MacKinnon, solicitor, before the Tribunal and before us. The Respondent was represented by Mr J Reilly, representative, before the Tribunal and by Mr Hay, advocate, before us.
**Background**
  1. The findings of fact which were made by the Tribunal disclose the following background and account of relevant matters and events.
  1. The Respondent is a construction company and the Claimant was employed by them as a ground worker. At the time of his dismissal, he was working on a building site in Dumbarton. One of his tasks was to cut monoblocks for a driveway, with a stihl saw. The Claimant was experienced in operating the stihl saw. When monoblocks are cut, silica dust is given off which, if inhaled, can be injurious to health. It is an activity to which the Control of Substances Hazardous to Health Regulations 2002 apply1. If an employer fails to protect his employees from exposure to such substances, the Health and Safety Executive ('HSE') may issue a prohibition notice, the effect of which is to direct the employer to stop carrying out any activity which breaches health and safety regulations2.
  1. The preventive mechanism which was used to control dust from the stihl saw was an attachment called a water suppression bottle which provided a flow of water over the cutting site to dampen the atmosphere, when the saw was being operated. It was also possible to provide such water flow by fitting a hose to the saw.
  1. On 31 August 2010, another employee was operating the stihl saw. Its water jets became blocked. He, accordingly, fitted a hose to the saw instead. On 1 September, the Claimant was cutting monoblocks using the stihl saw. He knew how important it was to suppress dust with a water flow when cutting with the stihl saw – indeed, before us, Mr MacKinnon stated that the Claimant did appreciate the safety implications involved. His position was that the only safe mechanism of dust suppression was to use the stihl saw along with a water suppression bottle. The Claimant also knew of the risk of the HSE taking action against the Respondent if water flow suppression of dust was not taking place.
  1. The hose that the Claimant's colleague had used the previous day was not immediately available on 1 September. He proceeded to cut monoblocks with the stihl saw, without a water suppression bottle and without a hose being attached to it. He poured water onto the blocks from a lemonade bottle but he was not applying water from the bottle at the same time as he was cutting the blocks. The Tribunal's findings are to the effect that there was, accordingly, no dust suppression occurring during the cutting operation.
  1. The Respondent's health and safety manager, Mr Macfarlane saw what the Claimant was doing and told him to stop, commenting something to the effect: "you'll get us the jail." The Claimant told him that the water suppression bottle was broken and Mr MacFarlane told him to go and get another one, from the yard if necessary. The Respondent's site supervisor, Mr Caloran, spoke to the Claimant and told him to use a water suppression bottle or to attach a hose to the saw.
  1. On or about 19 August, another employee, Mr McGaw, was observed by an HSE inspector using a stihl saw without using any water suppression and without wearing protective clothing. As soon as he was spoken to by the inspector he attached a water suppression bottle to the saw and donned the appropriate protective clothing; the inspector did not then issue a prohibition notice. Mr McGaw was disciplined. The outcome of the disciplinary proceedings against him was that he was issued with a written warning. He was advised, in the letter intimating the Respondent's decision - dated 2 September 2010 (no.19/1 in the documents before the Tribunal) - that had it not been for his prompt action in putting on the correct clothing and attaching water suppression to the saw, he would have been dismissed. The letter stated:

"If it were not for your mitigating actions you would have been dismissed, however, you are being issued with a written warning. You should note that any further breaches of any kind in relation to health and safety by you will result in the termination of your employment and instant dismissal."

**The Claimant's dismissal**
  1. The Claimant was dismissed on 2 September 2010 by letter stating:

"Further to your conduct yesterday in breach of the Health and Safety Rules in that you were carrying out cutting works without the use of water suppression which generated dust endangering both yourself and others."

  1. The letter also pointed out:

"Your conduct has potentially caused the company to face prosecution from the HSE and endangered the companies (sic) relationship with one of its main clients."

  1. The Claimant was advised of his right of appeal and an appeal hearing took place on 21 September 2010. There were detailed notes of the appeal hearing before the Tribunal (document no.7/1) and it is evident from them that the Claimant was given an unrestricted opportunity to put his case to the Respondent. His dismissal was upheld.
**Relevant law**
  1. The Claimant was prima facie, entitled to a basic award3 and compensation4. When awarding compensation, a tribunal has to assess what is just and equitable5. In this case, that involved considering not only the nature and extent of the Claimant's financial losses arising from the dismissal but whether the award ought to be reduced in either or both of two respects.
  1. There was potential for reduction of the award in accordance with the principles laid down in Polkey v AE Dayton Services Ltd [1987] IRLR 503 *and also in accordance with sections 122(2) and 123(5), on the basis that the Claimant had contributed to his own dismissal.*
  1. Regarding the possibility of a Polkey deduction, if a dismissal is procedurally unfair, the Employment Tribunal requires to consider whether, on the evidence led and facts found, there was a chance that the employee would have been dismissed if a fair procedure had been followed. We would refer, in that regard, to our discussion of the relevant principles in the case of [Ventrac Sheet Metals Ltd v Fairley]()** UKEATS/0064/10/BI, referred to by Mr Hay in the course of his submissions before us:

"1. When awarding compensation for unfair dismissal, a tribunal requires to assess what is "just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer" (Employment Rights Act 1996 s.123(1)). If the unfairness is that the employer failed to take the appropriate procedural steps then an obvious series of "what if?" questions arise – what if the employer had taken the steps desiderated? What then? Was there a chance that the employee would have been dismissed in any event? If so, how substantial was that chance? Unless these questions are addressed, an unsatisfactory and unacceptable situation arises namely that the implication of the award of compensation will be that the employee would have retained his job indefinitely when the circumstances may in fact be that it cannot be said that that would have been the case at all.

1. The law has long been settled that in these circumstances, the tribunal can award compensation which represents less than 100% of the claimant's loss. In Polkey v Dayton Ltd, Lord Bridge of Harwich explained, at p.364-5:**

'If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation or, in the case of redundancy, no compensation in excess of his redundancy payment.

… if the likely effect of taking the appropriate procedural steps is only considered, as it is should be, at the stage of assessing compensation … as Browne-Wilkinson J. put it in Sillifant's case, at p.96:

'There is no need for an "all or nothing" decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.'

The second consideration is perhaps of particular importance in redundancy cases. An industrial tribunal may conclude, as in the instant case, that the appropriate procedural steps would not have avoided the employee's dismissal as redundant."

2. The analysis of authorities set out in the Software 2000 Ltd case is directly in point and we would refer to the helpful summary of principles set out at paragraph 54. The tribunal requires to have regard to all the evidence and, of particular significance for the purposes of the present case, requires to appreciate that:**

"(4) … it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

(6) … even if a Tribunal considers that (sic) some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely."

3. Regarding the possibility of a tribunal making no Polkey deduction and thus finding that the claimant's employment would have continued indefinitely, the President observed:**

"… this … finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored."

4. The theme of the guidance in Software 2000 Limited was taken up recently in the case of Eversheds Legal Services Ltd v De Belin [2011] IRLR 448 where, at paragraph 45, Underhill P observed:

"45. We rather suspect that the Tribunal was seduced into abandoning its proper course, as tribunals still too often are, by the siren word "speculative", which at para 4.16 it quotes from Mr Bacon's own evidence. "Speculative" is not a dyslogistic term in this field. The trouble starts with the decision of the Inner House in King v Eaton no.2 Ltd [1998] IRLR 6868, which appears, at least on one reading, to say that tribunals when invited to make discounts for future contingencies should decline to engage in speculation: another much quoted phrase from the judgment of Lord Prosser is his reference to being unable "sensible [to] reconstruct the work as it might have been". But the Court of Appeal in Thornett v Scope [2007] ICR 236 counselled against too wide a reading of King v Eaton."

5. He then referred to Software 2000 Ltd and added:**

"… Elias P reviewed the previous authorities (which include also Lambe v 186K Ltd [2005] ICR 307 and Gover v Propertycare Ltd [2006] ICR 1073, adding, at para 38 (p.832E–H) his own note of caution against reading King v Eaton too expansively."

6. We recognise that the chimes of caution regarding the interpretation of King v Eaton have been rung not in Scotland but by this Tribunal sitting south of the border and by the Court of Appeal, but we are satisfied that, when King v Eaton is properly interpreted, such caution is justified. We agree with Underhill P's observations at paragraph 45 and with his apparent anxiety that tribunals appear to shy away from speculating in the sense of asking the "what if?" questions that we pose above. We do not read King v Eaton as ruling out all exercises in speculation; the references in paragraph 19 to the tribunal's task involving "hypothesis", 'impression", to it being a matter of "judgment", to it being a matter of what was "possible" and to it reaching a conclusion that can be not only with "more" confidence but with "less" confidence, all, to our minds, show that uncertainty and speculation were accepted as being inherent in the Polkey exercise. Whilst Lord Prosser rejected the submission that the exercise could be carried out in King v Eaton, referring to it involving embarking on a "sea of speculation" at paragraph 22, that was in the context of there being "no reliable factual starting point" for it. He was not, as we read him, saying that it was not legitimate for a tribunal to speculate – to do so would, we consider, have been contradictory of his discussion at paragraph 19.

7. As to the source of the evidence relied on, having regard to certain submissions that were made on behalf of the claimant, we do not consider that the evidence relied on by a tribunal when making a Polkey reduction requires to have emanated either from the employer's witness or productions or from cross examination of the claimant's witness(es). Whilst Elias P's comment at paragraph 54(2) in Software 2000, that it is for the employer to adduce any relevant evidence on which he wishes to rely, might, if taken out of context, be thought so to indicate, when his comments are read in their entirety, including that he then proceeds to state:**

"However, the tribunal must have regard to all the evidence when making that assessment including any evidence from the employee himself."

It seems clear to us that he did not intend to suggest that there was any such rule."

  1. It was the Respondent's case that whilst unfairness was conceded, the dismissal was only procedurally unfair and not substantively unfair.
  1. Regarding deductions for contribution, section 122(2) of the 1996 Act provides:

"Where the tribunal considers that any conduct of the complainant before the dismissal … 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."

  1. Section 123 of the 1996 Act also provides for reduction of the compensatory award for contribution:

"123(6) Where the tribunal find that the dismissal was to any extent caused or contributed by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

  1. These provisions are designed to require a tribunal to consider reducing compensation if an employee's actions have in fact been causative of his dismissal, even if those actions were not the reason for his dismissal (W Devis and Sons Ltd v Atkins. The tribunal must ask: what did he do? Did it cause or contribute to his dismissal? Is it just and equitable that, in the light of that causative conduct, his basic award and compensation be reduced?
  1. In the case of Parker v Slack [1993] ICR 302, the Court of Appeal considered the principles applicable when considering the reduction of compensation on grounds of contribution. There, two employees involved in a fight had been treated differently – only one had been dismissed – and the compensation of the dismissed employee had been reduced by 50% by reason of his own contribution. It was argued that the tribunal should have taken account of what had happened to the other employee when considering reduction for contribution. Lords Justice Woolf, Balcombe and Glidewell agreed that when considering reduction of compensation, an Employment Tribunal is confined to taking account of the conduct of the complainant, not what happened to some other employee. The words 'all the circumstances' which appeared in section 74(1) of the legislation then in force (see now s.123(1) of the 1996 Act) did not appear in subsection (6) which provided for reduction for contribution (see now s.123(6) of the 1996 Act, as above). The focus requires to be, according to their Lordships, on the complainant's own conduct and the extent to which it caused or contributed to his dismissal.
  1. In the case of Jamieson v Aberdeen County Council [1975] IRLR, the Inner House observed, under reference to Maris v Rotherham Corporation [1974] IRLR 147 **that the words of the statutory provisions:

"… bring into consideration all the circumstances surrounding the dismissal, requiring the Tribunal to take a broad commonsense view of the situation, and to decide what, if any, part the employee's own conduct played in contributing to his dismissal …"

  1. Whilst that might, at first blush, seem to conflict with the approach of the Court of Appeal in Parker, there was no suggestion that issues of 'comparative justice' such as those in Parker arose in the case of Jamieson and we note that the two courts appear to be at one in stressing the importance of focussing on the claimant's conduct and whether it can be said to have been causative of his dismissal.
  1. Havering Primary Care Trust v Bidwell UKEAT/0479/07; UKEAT/0480/07 was another case where the issue of contribution was argued on appeal. A nurse had been dismissed when it was found that she was working, in addition to the shifts she worked for Havering PCT, shifts for another health care provider so that her weekly working hours were excessive. It was submitted for the employer that Parker ought to have been applied so as to exclude from the tribunal's considerations the fact that many NHS nurses have second jobs and there was no system for monitoring them. That submission was rejected by this tribunal, Underhill P presiding, on the basis not that Parker **was not authority for the proposition which we set out above but that on the facts of that case, the circumstances relating to the conduct of other nurses and they way it was regarded by the NHS was relevant to assessing the nature and extent of the claimant's culpability. That is, that it was relevant to assessing what was the causative conduct in question.
  1. The appeal before us is on perversity grounds and could, accordingly, only succeed if the Tribunal reached a conclusion which no reasonable tribunal "on a proper appreciation of the evidence and the law" would have reached (Yeboah v Crofton.
  1. It also being submitted that, in one respect, the Tribunal's reasoning was inadequate, we would refer to Meek v City of Birmingham District Council [1987] IRLR 250 **where, at paragraph 8, Lord Justice Bingham said:

"… the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises."

  1. The possibility of an uplift to the Claimant's award arose in this case, because it as a claim listed in Schedule A2 to the Trade Union and Labour Relations (Consolidation) Act 1992, a relevant Code of Practice applied to it and there had been procedural failure by the Respondent. Section 207A of the 1992 Act applied. Section 207A(2) provides:

"(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that -

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%."

  1. The ACAS Code to Discipline and Grievances at Work (2009) is a relevant Code of Practice and applied at the time of the above events. In such circumstances, an employment tribunal requires to ask itself: does a relevant Code of Practice apply? Has the employer failed to comply with that Code in any respect? If so, in what respect? Do we consider that that failure was unreasonable? If so, why? Do we consider it just and equitable, in all the circumstances, to increase the claimant's award? Why is it just and equitable to do so? If we consider that the award ought to be increased, by how much ought it to be increased? Why do we consider that that increase is appropriate?
**The Tribunal's Judgment and Reasons**
  1. The Tribunal reduced the basic and compensatory award by 5%. They increased the compensatory award to the Claimant by the maximum amount of 25%. Once the 5% reductions and 25% uplift were taken into account, they brought out a total due to the Claimant of £20,887.63.
  1. The Tribunal found that the dismissal was substantively unfair. They refer to British Home Stores v Burchell [1978] IRLR 379 and focus on the question identified by Arnold J, in his well known (but all too often misunderstood6) analysis as the first question which a tribunal requires to address: whether or not the employer genuinely believed that the Claimant was guilty of the misconduct in question. They continue:

"Mr Macfarlane, the respondents' health and safety manager in his statement (production R 16/1) he says (sic) "under no circumstances was he to use the saw without the proper water tank fitted to the saw whilst cutting stone products" and reminded the site supervisor (Mr Caloran) "that the water suppression tank must be fitted at all times when cutting stone products." The saw is to be used only when water suppression bottles are fitted to the saw. However, the respondents permitted employees to use the saw when water suppression bottles were not fitted to the saw. We conclude therefore that the respondents did not consider the claimant was guilty of the misconduct in question as they permitted the misconduct." 7

  1. That is the reasoning on which the Tribunal found that there had been substantive unfairness.
  1. The Tribunal went on to consider contribution. They approached matters on the basis that the Respondent had condoned the use of the saw without water suppression bottles being fitted to it, citing Mr McGaw's case as evidence of that. At paragraph 18, they state: " The claimant's position was no different from Mr McGaw" and at paragraph 19, having indicated that they would reduce both the basic award and the compensatory award, they state:

"The claimant was an experienced operator of the saw and therefore knew the saw should only be used if water suppression bottles were fitted to the saw. If not then there was a possibility that the HSE inspectors would issue a prohibition notice preventing the respondents' operation on the site where the claimant was working. However, the respondents condoned their employees using the saw without water suppression bottles being fitted to the saw. Mr McGaw was an employee, fully trained, used the saw in the same manner and without wearing ppe but was not dismissed. In all the circumstances we consider it would be just and equitable to reduce the basic and compensatory award by 5%."

  1. As for their reasons for the uplift of 25%, none are given. At paragraph 21, they simply state that the ACAS Code of Practice applied, the Respondent clearly failed to comply with it and it would be reasonable to award an increase of 25%.
**The appeal**
  1. The Notice of Appeal was not drafted by a solicitor or counsel and was not a model of clarity. We accept, however, that it provided notice of the following grounds of appeal. First, that the Tribunal's decision that the dismissal was substantively unfair was perverse and led to a failure to consider a Polkey deduction. Secondly, that the Tribunal had erred in law in their approach to reduction for contribution in respect that they had misunderstood the relevant facts (and failed to have regard to relevant facts). Thirdly, that the conclusion that reduction for contribution should be fixed at 5% was so low as to be perverse. Fourthly, that the decision on uplift was so lacking in reasons as not to be Meek compliant and demonstrative of error on the part of the Tribunal.
  1. In a clear and careful submission, Mr Hay referred to the underlying background of serious health and safety issues that arose in this case. It was, accordingly, important that there be a mechanism for the dampening of air used when cutting with a stihl saw. The stihl saw had an inherent part – the water suppression bottle – for achieving that but when it was not working, another effective method was employed, namely a hose attached to the saw. There was, however, no question of the means being employed by the Claimant on 1 September – pouring water from a lemonade bottle but with no water stream when the saw was in operation – being acceptable. The Claimant knew that. He had plainly contributed to his own dismissal in a manner of some substance. He had posed a danger to himself and others and had put his employers in breach of the relevant statutory obligations.
  1. Mr Hay referred to the above authorities on contribution.
  1. Turning to the Tribunal's judgment, they had fallen into error. At paragraphs 17 and 19, they appeared to proceed on the basis that the Respondent had condoned the use of the stihl saw without any water suppression at all. There was no basis for that conclusion in the evidence. Further, they appeared to regard Mr McGaw's case as demonstrative of the Respondent having condoned such a practice but that wholly failed to recognise that he was disciplined and given a written warning; that was far from indicating that the Respondent condoned it. Nor was it correct to say that the Claimant's position was that he was, when stopped by Mr Macfarlane, carrying out an activity that was condoned. The Claimant himself reported Mr Macfarlane as having told him to stop lest he got them "the jail". Whilst it was correct to say that the Respondent had tolerated water suppression by use of a hose as opposed to a water suppression bottle, there was no evidence or finding in fact that they had tolerated the method being employed by the Claimant at the relevant time. To describe the circumstances as being that the Respondent had 'condoned' the conduct in question was to offend commonsense. The Tribunal had no proper basis for doing so.
  1. If we accepted that submission the effect was, Mr Hay said, that the finding of substantive unfairness fell away and the level of reduction for contribution was shown to be so low as to be perverse. The Tribunal had also been wrong to rely on the treatment of Mr McGaw as a reason for limiting the reduction for contribution – if that was what they had done. It was not clear.
  1. Regarding the uplift, Mr Hay pointed to the fact that it was not that there had been no compliance with the ACAS Code; there had been a full and detailed appeal procedure. The Tribunal's award of the maximum uplift was not explained and was inexplicable.
  1. Mr Hay moved us to allow the appeal and remit the case to a freshly constituted tribunal for a rehearing. The nature of the perversity in the Tribunal's conclusions was, he said, such as to make it reasonable that, as was the case, the Respondent had lost confidence in them.
  1. For the Claimant, Mr MacKinnon accepted that there was an element of confusion in the Tribunal's judgment, particularly regarding dust suppression by water suppression bottle or by hose. The Claimant was present and he advised Mr MacKinnon that the water suppression bottle system did not provide a continuous flow of water as it could be controlled by the operator. He did not, however, suggest that its purpose and function was other than referred to by the Tribunal or by Mr Hay, namely to provide water spray to dampen the atmosphere during any cutting operation. He relied on the Tribunal's conclusion that the Respondent did permit the use of the stihl saw without a water suppression bottle attached and submitted that the Claimant's conduct could not, accordingly, be labelled as misconduct. There was, however, no cross appeal. He did not suggest that the Tribunal had erred in making the reduction that they made.
  1. Mr MacKinnon said that the Claimant accepted the importance and seriousness of the underlying health safety concerns in this case. It was his position that the only safe method was to use the stihl saw with a water suppression bottle attached. Mr MacKinnon did not begin to explain how that approach on the part of the Claimant squared with his submission that the Claimant had not been guilty of misconduct in his use of the saw on 1 September. There was no question of him having a water suppression bottle attached at that time nor was there any question of him having been instructed to use it without one.
  1. Regarding paragraph 19 of the Tribunal's judgment, Mr MacKinnon said that he believed that the Tribunal were referring to the Claimant's conduct having been condoned, not Mr McGaw's. Overall, there was nothing to allow us to conclude that the finding of unfairness was perverse and contribution and uplift were, he submitted, a matter for the Tribunal.
**Discussion and decision**
  1. We accept that this appeal is well founded in all respects.
  1. Dealing first with the finding of substantive unfairness, the Tribunal has misapplied the Burchell test. This was not a case where the facts of what happened on 1 September were at issue. The Respondents were plainly entitled to believe that the Claimant had conducted himself in the manner referred to above that is, he had been using a stihl saw without the use of water suppression. That was the conduct for which he was dismissed. It simply does not make sense to say, as the Tribunal do, that the Respondent did not consider that he was guilty of the misconduct alleged. Further, we accept that the Tribunal had no basis in the facts found for concluding that the Respondent had condoned the conduct for which the Claimant was dismissed. They had not. There was no evidence or finding that the Claimant had been instructed to operate the saw in the manner in which he was operating it on 1 September. Nor was there any basis on which they could refer to Mr McGaw's case as an example of such conduct having been condoned; his conduct had not been condoned. He had been disciplined, received a written warning and advised that any further health and safety breaches would lead to instant dismissal. That is not to condone conduct at all.
  1. Those being the only considerations on which the Tribunal based its finding of substantive unfairness, their conclusion is shown to be one which they were not entitled to reach and was perverse. A finding of procedural unfairness would, of course, have remained but consideration would then have to have been given to the issue of whether or not a Polkey deduction ought to be made. The Tribunal did not, because of their erroneous conclusion of substantively unfair dismissal, do so.
  1. The Tribunal's conclusion on substantive unfairness may also have arisen from their failing to have regard to the fact that on their findings, fitting a water suppression bottle to the saw was not the only way to achieve effective water suppression . It could also be achieved, on their findings, by using a hose. When it comes to their conclusions, however, they read as though the only possible way to achieve effective water suppression of dust was by means of a water suppression bottle. They appear to have forgotten their earlier finding, thus failing to have regard to a relevant factor. Moreover, they seem to have become bogged down in the matter of the mechanism of water suppression rather than recognising, as was apparent, for instance, from the reason given for the Claimant's dismissal, that the Respondent's concern was the lack of effective water suppression of dust in the way that the Claimant was working on 1 September not that he was not using a water suppression bottle.
  1. Turning to contribution, again the Tribunal's approach is flawed as having been based on the Respondent having condoned the conduct in question. Further, they may have adopted a "comparative justice" approach, considering that since Mr McGaw was not dismissed, the reduction in the Claimant's award should be limited. It is not clear. If, however, that is what they have done, they were wrong to do so. We would refer in that regard to the "Relevant law" section above where we discuss the authorities relevant to this issue.
  1. Separately, we would add that the Claimant's conduct having been deliberate, having involved a serious health and safety risk, having put his employers at risk of being found to be in breach of their statutory obligations, all without any apparent excuse, the extent of his contribution was on any view of some substance. The Tribunal's finding of 5% is so low as to provoke the reaction – "that must be wrong" – and is, accordingly, perverse.
  1. Turning to the uplift, we have no difficulty in accepting Mr Hay's submission. We would refer to the list of questions that arise when an uplift is sought, as referred in our "Relevant law" section. Other than finding that the ACAS Code applied, was breached and that they have decided to award the maximum uplift, the Tribunal do not answer them. In particular, they wholly fail to explain how and why the maximum uplift was justified when, whilst there was breach of the Code, there was also compliance in respect that there was an appeal procedure about which there was no apparent complaint.
**Disposal**
  1. In these circumstances, we will pronounce an order upholding the appeal and remitting the case to a freshly constituted Employment Tribunal for a rehearing. We accept that it is reasonable for the respondents to feel a loss of confidence such as to make it inappropriate to remit to the same Tribunal.

1 See, in particular, regulation 7(1): "Every employer shall ensure that the exposure of his employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled."

2 See Health and Safety at Work Act 1967 s.22

3 Employment Rights Act 1996 s.118 -122.

4 Employment Rights Act 1996 s/118,123.

5 Employment Rights Act 1996 s.123(1)

6 See the discussion in the 'Relevant Law' section of the judgment of this tribunal in Vetco [Gray UK Ltd v Garden]() UKEATS/0025/11

7 Employment Tribunal's judgment, paragraph 17.

Published: 17/02/2012 11:39

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