McGREGOR v INTERCITY EAST COAST Ltd
| Jurisdiction | Scotland |
| Judgment Date | 28 January 1998 |
| Date | 28 January 1998 |
| Docket Number | No 45 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
EmploymentDismissalUnfair dismissalContributory elementIndustrial tribunal assessing employee as being 20 per cent to blame for dismissal but ordering reinstatementEmployment Appeal Tribunal assessing contribution at 50 per centWhether reinstatement and contributory finding perverseWhether Employment Appeal Tribunal entitled to interfere with contributory findingEmployment Protection (Consolidation) Act 1978 (cap 44), sec 69(6)1
The appellant was dismissed from his employment as a senior railway conductor following an incident when he had refused to work on a train because it would require him to work beyond his scheduled hours. The industrial tribunal found that the appellant had been 20 per cent to blame for his dismissal but ordered reinstatement. The Employment Appeal Tribunal considered that the appellant had been 50per cent to blame when he had been adamant in refusing to work the train and reversed the industrial tribunal's finding as being perverse. The appellant appealed to the Court of Session on the ground that the Employment Appeal Tribunal had not been entitled to interfere with the tribunal's finding on contribution. The employers did not support the Employment Appeal Tribunal's decision but argued that the tribunal's order for reinstatement was perverse having regard to the level of contribution assessed by it.
Held (1) that the proper approach for the Employment Appeal Tribunal was that it should only interfere with the industrial tribunal's decision if the appellant could show that the industrial tribunal had either misdirected itself in law or had reached a decision which no reasonable tribunal, properly directing itself, could have reached; (2) that the Employment Appeal Tribunal had fallen into error in substituting its own view of the degree of contribution for that of the industrial tribunal and had wrongly taken the degree of difference as sufficient cause for characterising the industrial tribunal's decision as perverse; and (3) that, accordingly, the suggestion that the order for reinstatement was perverse, assuming the level of contribution found by the industrial tribunal, was unacceptable as it was nothing more than an invitation to the Court of Session to substitute its views for the industrial tribunal's views of the circumstances; and appealallowed.
Charles McGregor, a former senior conductor with Intercity East Coast Limited, applied to an industrial tribunal in respect of his allegedly unfair dismissal by his former employers. The facts, so far as material, are set out in the opinion of the court
The industrial tribunal found that the applicant had been unfairly dismissed by his employers but that he had contributed to that dismissal to the extent of 20 per cent. They also ordered that the applicant should be reinstated. The applicant's employers thereafter appealed to the Employment Appeal Tribunal who, on 18 October 1988, allowed the appeal to the extent of increasing the contributory element in the industrial tribunal's findings to 50 per cent.
The applicant thereafter appealed to the Court of Session against the decision of the Employment Appeal Tribunal.
The appeal came before the First Division, comprising the Lord President (Rodger), Lord Penrose and Lord Abernethy, for a hearing in the summar roll.
Cases referred to:
Maris (GR) v Rotherham County Borough CouncilUNK [1974] IRLR 147
Melon v Hector Powe LtdSC 1981 SC (HL) 1
Nairne v Highland and Islands Fire BrigadeSC 1989 SC 258
Piggott Brothers & Co Ltd v Jackson and OthersUNK[1991] IRLR 309
Textbook referred to:
Harvey, Industrial Relations and Employment Law, para D [2400]
At advising, on 28 January 1998, the opinion of the court was delivered by Lord Penrose.
Opinion of the CourtThe appellant, Mr McGregor, was a senior conductor in the employment of Intercity East Coast Limited. He was dismissed on 30 June 1995. He applied to the industrial tribunal, claiming that he had been unfairly dismissed, and seeking reinstatement. The tribunal found that Mr McGregor was unfairly dismissed, that he had by his own conduct contributed to his dismissal to the extent of 20per cent, and ordered his reinstatement...
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