Retarded Children's Aid Society Ltd v Day
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD RUSSELL,LORD JUSTICE EVELEIGH |
| Judgment Date | 14 October 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1014-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | EAT/471/76 |
| Date | 14 October 1977 |
[1977] EWCA Civ J1014-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
The Master of the Rolls
(Lord Denning)
Lord Russell of Killowen and
Lord Justice Eveleigh
MR. D. ELLIS (instructed by Messrs. Barlow, Lyde & Gilbert, Solicitors, London) appeared on behalf of the Appellants.
MISS L. SULLIVAN (instructed by Messrs. Rooks, Rider & Co., Solicitors, London) appeared on behalf of the Respondent.
There is a small charity in Hertfordshire which runs a couple of homes for what are called "retarded children" They are not really children of five or six years of age: they are grown up people whose mental state is so retarded that they only have the mental age of youngsters of six or seven.
We are interested in this case with one of these residents, a man called Michael, who is 34 years of age. He is in one of these homes in Hertfordshire with a number of other retarded people. The home is run by people called "house-mothers" and "house-fathers" who look after the residents.
Although the residents are sub-normal, they are expected to do some domestic work. Michael and the others are expected to do work like cleaning, scrubbing floors, and so on, between nine o'clock in the morning and two o'clock in the afternoon. They have a break for lunch in the middle of it. It is the established practice in the homes that they do not work after two o'clock in the afternoon. They can go out in the afternoon, and in the evening they can come back and watch television, and so forth. They are treated just like children of that age. That is the established practice in the homes, which is approved by those in authority.
Now we come to the position on the 5th January, 1976. It so happened that on this particular day the "house-father" of the house in which Michael resides was a young man called Peter Day. He had joined these establishments about 11 months before, in February 1975, when he was nearly 19 years of age. On this Saturday he was left, so to speak, to look after the home. He was quite a good youngster in many ways, but it does seem on the evidence that he thought he could run the show better than those in charge.
At all events, when he came on duty on Saturday, 5th January, he heard that Michael, one of the retarded residents, had gone off early and had not worked all morning as he should have done. So Mr. Peter Day that evening thought he knew better. He took it upon himself to think, "I'll give that Michael a lesson". He pulled him out of the television room in the evening and set him to work scrubbing floors between half past nine and ten o'clock at night. Michael, in his state of mind, did not object. He did what he was told - he did his scrubbing of floors, and went back to his television.
That became known to the rest of the staff. They reported it to the matron and others in authority. They were all very upset about this. It is bad for one of these sub-normal people to be punished in this way and to be treated as Michael was, because he could not understand the difference between right and wrong. So they held a staff meeting on the Monday at which Mr. Day was asked about the incident. They made a note as to what happened: "Came to our notice that one of our Subnormal Domestic Staff was made to work after 9 pm on Saturday the 3rd January. Was explained to all Staff that Domestics do net work after 2pm under any circumstances, this was not accepted by Peter". So there it was. Peter did not accept the rulings of the governing body at all. So, after a day or two, on pay day, he was given a week's pay in lieu of notice. So he was dismissed.
There is a good deal of earlier history which I must describe because the employers thought in all the circumstances on his past history and his attitude to the rules they ought to dismiss him. At any rate Peter Day claimed unfair dismissal before the Industrial Tribunal.
The Industrial Tribunal has been set up under the new Actsespecially to deal with employer and servant relations like this. It is all laid down in a schedule to the Trade Union and Labour Relations Act 1974. If a man claims that he was dismissed unfairly, the employer has to show what the reason was for the dismiss. The employers showed that in this case. They said he was dismissed because he did not fulfil the rules and practice of the homes and he showed it by his attitude at the staff meeting. So they showed the reason, and they showed it was one which was "related to his conduct". Then the employers had to take a further burden on themselves. It is Schedule 1, paragraph 6, sub-paragraph 8 of the 1974 Act: "… 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 employers had to show that in all the circumstances it was reasonable for them to dismiss Mr. Day as they did, straight away on the instant.
The matter came before the Industrial Tribunal. That Tribunal consists of a chairman to preside, the employers' representative on the one side and the man's representative on the other. Mr. Peter Day was represented by counsel, Miss Sullivan. The charity, I suppose, had not got the money to instruct lawyers. They went along by their friends and helpers. Mr. Glasspool, a friend, and the principal, the matron and other members of the staff went along. The evidence was all taken. I have no doubt that Mr. Day's case was put very well, being represented as he was by counsel, but after hearing everything the Tribunal found that he was not unfairly dismissed. They thought that in the circumstances therewere good reasons for dismissing him.
They took into account that this was a matter which was, so to speak, his first real offence: furthermore, they took into account the fact that he had not been warned not to do it again and he had not been asked whether he had changed his attitude. They took all that into account, hut eventually they held that the dismissal was reasonably given.
He put forward all sorts of excuses for what he did. He said he could not get hold of the matron or any superiors at all. He said he could not get instructions so he had to act on his own. The Tribunal said that all these excuses were specious. They obviously did not entirely believe him. They said the truth was that Mr. Day did not approve of the charity's methods and saw here an opportunity to apply his own method. He thought he knew best.
After saying that, the Tribunal said: "What in this troublesome case has given us most concern is the question whether dismissal was appropriate, bearing in mind that this was a first offence by a young man who (we take for granted) has a genuine interest in the welfare of his charges and whose preferred methods (which have not been revealed at this hearing) might well be considered reasonable by...
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