Morgan v Electrolux Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 04 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1129-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/1116 |
| Date | 04 December 1990 |
[1990] EWCA Civ J1129-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD)
Royal Courts of Justice.
Lord Justice Nourse
Lord Justice Balcombe
Lord Justice Leggatt
90/1116
MR. STEPHEN SEDLEY Q.C. and MS. BEVERLEY LANG (instructed by Mr. Joe O'Hara, National Legal Officer, GMB) appeared on behalf of the Appellant.
MR. PATRICK ELIAS Q.C. (instructed by the Mr. R. Lister, Legal Adviser, Engineering Employers' Federation) appeared on behalf of the Respondent.
This is the judgment of the court.
This is an appeal, with the leave of Lord Justice Neill, from an order of the Employment Appeal Tribunal (Mr. Justice Wood and Messrs. T.S. Batho and S.M. Springer) dated 20th October 1989.
The appellant, Mrs. Morgan, commenced employment with the respondent employers in February 1983. In September and October 1987 she was absent from work because of illness. She returned to work on 2nd November 1987 and was temporarily allocated to a sedentary job assembling leads for microwave ovens. This job was on piece work, and the rates of pay for the job were based on a work study which had been completed on 28th October 1987. The only other employee working with the appellant on this particular job was a Miss Hammond. At the end of the day each employee "booked" the number of leads she had produced during the day by telling the group leader, Mr. Cudd. There was, however, a practice, which the employers accepted, that an employee might book a lesser number of leads than the number which she had actually produced, and carry over the balance to a later date.
On her first day back at work, Monday, 2nd November, the appellant booked 525 leads; on the following day 676 leads and the day after (Wednesday) 676 leads. Mr. Cudd thought that these numbers were too high for someone who had just begun the job, and suspected that the appellant was overbooking. On Thursday, 5th November, the appellant was told to work on assembling leads for microwave ovens which were to be exported to Switzerland: these leads were different from the others and the number produced by the appellant could be readily checked. Such a check by Mr. Cudd and the shop steward, Mrs. Martin, showed that on the Thursday the appellant had produced 433 leads: she booked 576. Mr. Cudd reported his suspicions to Mr. Dobson, the foreman, who in turn reported them to Mr. Duckworth, the production manager of the employers' microwave division. All subsequent steps were taken at the direction of Mr. Duckworth.
On Friday, 6th November, the appellant was suspended from work, suspected of overbooking. The employers then conducted a stock check which showed a discrepancy of 715 between the number of leads actually produced by both operators and the number booked.
On Monday, 9th November, Mr. Duckworth interviewed the appellant. She explained the discrepancy (143) between the leads she had booked on Thursday, 5th November, (576) and those she had actually produced on that day (433) in the following manner: on the Tuesday and the Wednesday, when she had booked 676 leads on each day, she had actually produced 747 on one day and 748 on the other, and had carried forward the surplus of 143 to the Thursday. The appellant has throughout maintained that this was the truth. Mr. Duckworth was doubtful about accepting this explanation because it meant that the rate at which the appellant would have been producing the leads on those two days (123.7 BS) was only slightly less than the figure (125 BS) which it was generally accepted was the maximum obtainable. Yet the appellant had only started the job on the Monday, on return from sick leave, and on that day had only booked (and according to her produced) 525 leads, a rate (0.87 BS) slightly less than the standard rate (100 BS) as assessed on 28th October. He was also suspicious of the considerable drop between the appellant's figures of 747 and 748 leads produced on the Tuesday and Wednesday and the figure of 433 actually produced on the Thursday. A further reason for his suspicion was that it had been reported to him that the appellant had spent a considerable time off the job on Wednesday, whereas on Thursday she had been on the job all the time.
Between 9th and 16th November 1987 Mr. Duckworth interviewed Miss Hammond, Mr. Cudd, Mr. Dobson and Mrs. Martin. He decided that he was not prepared to accept the appellant's explanation. On Monday, 16th November, Mr. Duckworth again interviewed the appellant, and she gave the same explanation (of underbooking on Tuesday and Wednesday and carrying the surplus forward to Thursday) which he remained unwilling to accept. The appellant asked to be given the opportunity to demonstrate her working speed, but he refused since it seemed to him that this would prove nothing relevant. On 17th November Miss Hammond came to see Mr. Duckworth, expressed the fear that she might be dismissed, and told Mr. Duckworth that she had observed that the appellant had not been producing the quantity of leads she was booking; in addition Miss Hammond said that she thought that the appellant had not been keeping a proper record. On Wednesday, 18th November, Mr. Duckworth summarily dismissed the appellant. Her appeal against her dismissal was rejected by the respondents on 2nd December 1987.
The appellant then applied to the industrial tribunal for compensation for unfair dismissal. On 28th April 1988 the decision of the industrial tribunal was registered: it held that the appellant had been unfairly dismissed, although she had contributed substantially to her own dismissal by abusing the practice of underbooking the number of leads produced and on some days working well below her capacity: the extent of her contribution was assessed at 33 per cent. Her compensation was subsequently assessed (after the 33 per cent reduction) at £1,730.82.
An appeal from an industrial tribunal to the E.A.T. is on a point of law only—see section 136(1) of the Employment Protection (Consolidation) Act 1978. The employers did so appeal. The appellant also cross-appealed against the finding that she had contributed to her dismissal. The E.A.T. held that the industrial tribunal had erred in law, allowed the employers' appeal and substituted for the decision of the industrial tribunal a declaration that the appellant was not unfairly dismissed. In the circumstances the appellant's cross-appeal became irrelevant and was not dealt with by the E.A.T. She has not pursued it before this court.
In the circumstances there are two issues before this court.
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(1) Was there any error of law on the part of the industrial tribunal?
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(2) If so, was the E.A.T. entitled to substitute its own decision for that of the industrial tribunal?
There was no dispute between the parties as to the relevant principles of law, which may be summarised as follows.
(1) Where the employer has shown a valid reason (as defined in section 57(2) of the 1978 Act) for dismissing an employee, then "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 in the circumstances…the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case"—section 57(3) of the 1978 Act.
(2) "The correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows: (1) the starting point should always be the words of section 57(3) themselves; in applying the section an industrial tribunal must consider the reasonableness of the employers' conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employers' conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair: if the dismissal falls outside the band, it is unfair."
—per Mr....
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