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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nelson v Clapham & Anor (t/a Claphams Solicitors) (Unfair Dismissal : Contributory fault) [2012] UKEAT 0037_11_2401 (24 January 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0037_11_2401.html Cite as: [2012] UKEAT 0037_11_2401, [2012] UKEAT 37_11_2401 |
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EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
Before
MR J M KEENAN MCIPD
MR M SMITH OBE JP
MR DAVID CLAPHAM & MRS DEBRA CLAPHAM
T/A CLAPHAMS SOLICITORS RESPONDENTS
JUDGMENT
APPEARANCES
(Solicitor) Biggart Baillie LLP No 2 Lochrin Square 96 Fountainbridge Edinburgh EH3 9QA |
|
(Solicitor) Harper MacLeod LLP Solicitors The Ca’d’Oro 45 Garden Street Glasgow G1 3PE |
SUMMARY
UNFAIR DISMISSAL – Contributory fault
Employment Tribunal’s finding that Claimant contributed to her own dismissal to the extent of 80% upheld on appeal.
THE HONOURABLE LADY SMITH
Introduction
2. We will continue referring to parties as Claimant and Respondents.
Background
5. Much of the Respondents’ work comes from clients based in the Clarkston area.
“Ta much. Nothing happening today – the two Clappies going around here as if nothing has happened!!!! Hilarious – not even a word from any of them – I wouldn’t stay here if they even asked me now anyway – nutters the two of them. She still looks white as a ghost though and complaining of feeling ill – shame!
Met Irene for lunch – looking positive about getting back to HBM – might only be as a floater at first but it doesn’t matter as long as it’s a job and it won’t be full time either which is great. Can’t wait to tell them if I go back there that will really kill them as they hate HBM and vice versa!!
Still, they might have had the decency to even speak to me about it – unbelievable. Like Calum by the way. Last night he and Rhuairidh had 9 toilet rolls down my staircase when I got home from work!! Buggers the two of them. Went to my class last night back at Shawlands Academy so great loads of space again. Told everyone about what happened they were all appalled. Telling everyone in Clarkston that I meet and they are all disgusted……she’ll be sorry……
LOL Susan xx”
8. On 30 August 2010, the Respondents allowed the Claimant to withdraw her resignation.
9. On 23 September 2009, the Claimant printed out the above email.
The Tribunal’s Reasons
“We consider the claimant contributed significantly to her dismissal. The claimants’ conduct was both unreasonable and unacceptable. The claimant from 29 September knew she was to meet Mr Clapham to explain her comments in the email sent on 23 August. She implied the respondents had come into possession of the email in a way that suggested almost criminal conduct by them. There was absolutely no basis for that implication. How could the respondents access her personal possessions or her computer to look for an email that they did not know existed? The email only came into possession of the respondents through the claimant’s own carelessness. The claimant never made it clear the views she held on 23 August were not the views she held on 4 October nor did she attempt to explain what she meant by telling “everyone” how she had been treated. The terms of the email indicated an intention by the claimant that the respondents’ business would suffer by what she said. The basic award and the compensatory award shall both be reduced by 80% to reflect the contribution the claimant made to her dismissal.”
Relevant law
“122(2) Where the tribunal considers that any conduct of the complainant before the dismissal….was such that it would be just and equitable to reduce …..the amount of the basic award to any extent, the tribunal shall 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 the compensatory award by such proportion as it considers just and equitable having regard to that finding.”
19. The issue, for the application of both provisions, is thus very much one of fact.
20. The wording of section 123(6) reflects that in the earlier provisions of section 76(6) of the Employment Protection Act 1975. In commenting on the application of those provisions, in the case of Robert Whiting Designs Ltd v Lamb[1] this Tribunal (presided over by Kilner Brown J) observed that they covered:
“….matters which in fact existed and which played a part in the act of dismissal. 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.”
21. As we observed in Kitsons Environmental Europe Ltd v Hendry[2], where an employee’s conduct has contributed to his dismissal, the tribunal requires to:
“24…identify the conduct in question, consider its nature and decide whether the claimant was culpable in respect of it, to any extent. That will usually involve reaching a view as to the characterisation of the conduct.”
22. As to what conduct can properly be characterised as culpable, we would refer to the discussion by the Court of Appeal in Nelson v BBC(No 2)[3], in particular by Brandon LJ, at paragraph 44, where he observed:
“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.”
23. Dishonest conduct or conduct which amounts to misleading an employer, is plainly culpable and where it is, to any extent, causative of the dismissal, amounts to relevant contributory conduct. See, for instance, the conduct of the employee in Lambert v Vicomte Bernard de Romanet Ltd[4], where failure to disclose relevant information about prior illnesses in answer to a specific question on a job application form, thus misleading the employer, was held to be contributory conduct to the extent of 100% (even although not known about until after his dismissal)[5].
24. Can conduct of the employee during the disciplinary process, including conduct at a disciplinary hearing, be relevant to section 122(2) and 123(6) considerations? We are satisfied that it can. It was suggested to us, at one point in the course of the appeal hearing, by Ms Oddy, that a tribunal is not entitled to take account of such conduct and she cited the case of Sidhu v Superdrug Stores[6], as supporting that proposition. We do not read it as doing so. In that case, the employment tribunal had reduced compensation on the basis that the claimant could have done more to help himself in the disciplinary process by, for instance, calling witnesses to the disciplinary hearing. He was not criticised as having engaged in culpable or blameworthy conduct that was causative of his dismissal and, moreover, the matter not having in fact been in issue before the tribunal, it was conceded on behalf of the employers that it ought not to have been relied on by them. We see no reason why, if an employee engages in culpable conduct at the disciplinary hearing – such as by being dishonest or casting ill-founded aspersions of dishonesty on her employer – that conduct cannot be taken into account when considering reduction of the basic and compensatory awards. There is nothing in the wording of the relevant statutory provisions – where the terms “any conduct” and “any action” are wide and general - to suggest that such conduct should be excluded from consideration.
25. Finally, where the judgment of an employment tribunal is attacked on perversity grounds, it can 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 [2002] IRLR 634, paragraph 93).
The appeal
The Notice of Appeal
Submissions for the Claimant
Submissions for the Respondent
“When Susan came back into the office after her meeting with David and Debra she said that she had no idea how the email had been left where it was as she had had it in her handbag. I said that the e-mail had not been folded and surely if it had been in her handbag it would have been folded. She then said that was not right and that it had been in a plastic folder in her shopper. I said that it had not been in a plastic folder but was lying under a plain sheet of paper. She then said that I was “no help at all”.”
32. Mr McKenzie referred, in the course of his submissions to the cases of Nelson, Kitsons, Lambert, Sidhu, English v Emery Reimbold & Strick Ltd[7], and, to distinguish it, Frew v Springboig St John’s School[8].
Discussion and decision
34. The mainstay of Ms Oddy’s submissions was really to seek to reargue the case and have a different view taken on the evidence, a task which is not for this Tribunal, where appeals are restricted to questions of law[9]. The only respect in which her submission did amount to one that the Tribunal had erred in law was that the Tribunal were not, as a matter of law, entitled to take account of the Claimant’s conduct at the disciplinary hearing but, for the reasons we set out above, we reject that submission. The Tribunal were not wrong to do so. In any event, Ms Oddy did, at one point, appear to accept that they were not barred from taking account of conduct at a disciplinary hearing.
Disposal
[1] [1978] ICR 89
[2] UKEATS/0002/08/MT
[3] [1979]IRLR346
[4] UKEAT/0501/10/SM
[5] The misleading conduct was held to be causative because the claimant would, had he answered the question honestly, never have been employed by the respondent in the first place.
[6] UKEAT/0244/06/DA
[8] UKEATS/0052/10/BI
[9] See Employment Tribunals Act 1996 section 21.