Alidair Ltd v Taylor

JurisdictionEngland & Wales
Judgment Date27 October 1977
Judgment citation (vLex)[1977] EWCA Civ J1027-5
Docket NumberNo. EAT/324/76
CourtCourt of Appeal (Civil Division)
Date27 October 1977
Johh David Taylor
Alidair Limited

[1977] EWCA Civ J1027-5


The Master of The Rolls

(Lord Denning)

Lord Justice Geoffrey Lans and

Lord Justice Eveleigh

No. EAT/324/76

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Employment Appeal Tribunal

MR. C. DBHN, Q.C. and MR. D. LATHAM (instructed by Messrs. Evans Davies & Co., Solicitors, London) appeared on behalf of the Appellant.

MR. J. DAIES. Q.C. and MR. R. GIBBS (instructed by Messrs. Church, Adams, Tatham, Solicitors, London) appeared on behalf of the Respondents.


A Vickers Viscount was coming in to land at the airport at Guernsey. It was a fine day in September 1975 with some wind, hut nothing out of the ordinary. She aircraft came down much too sharply. It hit the ground with a big bump. So hard was the landing, that it Immediately bounced back into the air. It bounced up about 10 feet. Then it hurtled forward and came down heavily again further down the runway. In this second bump the front nose wheel cane down hard: so hard that the structure above it collapsed; and the nose of the aircraft came down on the tarmac. Emergency procedures were put into action. The passengers got out very quickly. Fortunately there was no fire and no one was seriously hurt: but the damage to the aircraft, its engines and airframe, was very considerable.


The company at once suspended the pilot Captain Taylor. They held an enquiry; and that inquiry found that it was the pilot's fault. So the company dismissed him. He then brought a claim for unfair dismissal. The Industrial Tribunal held that, he was unfairly dismissed and he must either be re-engaged or awarded compensation. If he was awarded compensation, it was to be reduced by 25 per cent because of this accident. The Employment Appeal Tribunal set that decision aside. They held that he was fairly dismissed. He now appeals to this court.


The aircraft was owned by a small company Alidair Ltd., which is based in the East Midlands. It has about four aircraft, 20 pilots and about 120 staff. It operates scheduled services from the East Midlands Airport at Castle Donnington.


Captain Taylor had been a qualified pilot since the year 1968. From 1972 he had been employed by this company, Alidair Ltd. He had been a first officer, but in April 1975 he was appointed to be a captain. On this day, as I have said, he was the pilot of this aircraft.


In addition to Captain Taylor, there was on the flight deck a Captain Hartley who was in command of the aircraft. Among the passengers there were Captain Dadd the managing director of the company, and his wife.


It so happened that a month or two earlier in August 1975 there had been adverse comments made about Captain Taylor and his handling of aircraft. Two or three of his colleagues had expressed concern about it. That was well known to the management


After this incident, Captain Taylor was suspended. The company held its own board of inquiry Into the accident. The chairman of it was Captain Rodgers, D.S.C., the chief test pilot of Rolls Royce. He was an independent chairman. The other members consisted of a director of the company, a qualified Viscount pilot (an employee of the company) and a qualified Viscount engineer.


The procedure at the inquiry is shown by a note taken at the beginning of it: "Captain Hartley went on to ask what his own and Captain Taylor's function was at the Hearing. The Chairman replied that there had been an incident Involving one of the Company's aircraft and that there was a reason for this incident. It was, therefore, necessary that the participants in the incident should be at the Enquiry to state their case. The members of the Board of Enquiry were there to listen. Captain Hartley asked if Captain Taylor and himself were, at the Enquiry as the people involved in the incident itself. The Chairman answered that this was so.


So the inquiry was held. It was a very full inquiry. Its constitution was afterwards criticised because two members of the board were employed by the company. Furthermore, it is said they admitted hearsay evidence because they heard of thecomments made in August 1975 adverse to Captain Taylor which had come back through various channels to the company. I do not myself think that those criticisms in any way invalidate the Inquiry.


The report of the Inquiry was adverse to Captain Taylor. They said: "The background history of Captain Taylor reveals an area of doubt as to his ability to command. The reported statements of the two First Officers have some significance, in that they saw fit to bring attention of management, Captain Taylor's departure from laid down procedures and ability to adhere to Company rules. Taylor's ability was put to the test on September 14th at Guernsey, when a heavy landing and subsequent damage was caused by lack of flying knowledge. There would appear to be no justification for this heavy landing, other than an error of judgment on the part of the handling pilot".


On receiving that report from the Board of Inquiry, the company on the 31st December, 1975 dismissed Captain Taylor. The letter of dismissal said: "I have personally explained to you that the Chairman of the Board of Inquiry has reported to me that the Board was of the opinion that the heavy landing and subsequent damage resulting in the complete loss of the aircraft was caused by your lack of flying knowledge — You attended before the Board of Inquiry and were given full opportunity to stats your case. — The Company has suffered serious financial losses as a result of the accident but, more important, the lives of a large number of passengers and crew were unnecessarily put at risk owing to your negligence. In these circumstances, I do not feel that I could reinstate you to flying duties with the Company which might put the lives of passengers and other crew members at further risk. I therefore regret to inform youthat your Contract of Employment is summarily terminated with effect from 31st December, 1975. — However, an ex gratia payment of three months salary in lieu of notice will be paid to you" So he was dismissed.


Soon afterwards he complained to the Industrial Tribunal, alleging that he was unfairly dismissed. He or his advisers criticised the process of the Board of Inquiry. The Tribunal accepted these criticisms, I will read one paragraph of the Tribunal's decision: "Considering the matters to which I have referred, that is, the lack of proper structure for the Board's proceedings, the giving of evidence by Board members, and the failure to give the Applicant a proper and full opportunity to state all that he wanted about the whole matter, and the introduction of hearsay evidence which we feel was bound to be prejudicial, the Tribunal find it impossible to say that the Respondents have satisfied us that they were acting reasonably in accepting the Board's conclusions and proceeding to dismissal". On that ground the Tribunal found against the company. They said: "Our conclusion is therefore not only that the Respondents have not satisfied the Tribunal that they were acting reasonably in basing their decision to dismiss on the Board's report but also that it was not a reasonable action for the decision to dismiss to be taken without prior disciplinary proceedings which should have given the Applicant a chance to answer the criticisms made of him by the Board". So they concluded that his dismissal was unfair.


The employers appealed to the Employment Appeal Tribunal, who held the dismissal was justified. Now there is an appeal to this court.


" These questions of unfair dismissal depend on Schedule 1 of the 1974 Act. Paragraph 6(1) says: "In determining…whether the dismissal of an employee was fair or unfair It shall be for the employer to show what was the reason (or, if there A was more than one, the principal reason) for the dismissal".


The reason shown by the employer was stated by the Industrial Tribunal to be this: "… (the company) considered that the Applicant had displayed a lack of capability in the way he handled a Vickers Viscount aircraft on Its landing at Guernsey Airport on the 14th September 1975 and further believed that he had lost some confidence In his own ability to land aircraft in adverse weather conditions. It was therefore a dismissal for reasons relating to the Applicant's capability, which is an 'admissible1 reason for dismissal mentioned in the First Schedule to the 1974 Act".


That seems to me to be clearly correct. Captain Taylor was dismissed because he had shown a lack of capability in his handling of the aircraft.


The next important provision of this schedule is sub-paragraph (8) of paragraph 6: ".— the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether the employer can satisfy the tribunal that in the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee".


So the Tribunal had to consider the 'reason shown by the employer' and ask whether, having regard to that reason, the employer acted 'reasonably'. It is here, I think, that the Industrial Tribunal fell into error. They treated the reason as being the Board of Inquiry's Report and inquired whether "that was reasonable. The Report was not the reason for the dismissal. The reason for the dismissal was because of the wayCaptain Taylor handled the aircraft on this day - his lack of skill, his error of Judgment in coming down heavily and putting passengers and crew in peril. The Board of Inquiry's report was Just one of the pieces of evidence which confirmed the company in support of their reason. It was wrong for the Industrial Tribunal to investigate, as they did,...

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