West Midlands Co-operative Society Ltd v Tipton
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Roskill,Lord Brandon of Oakbrook,Lord Brightman,Lord Mackay of Clashfern |
| Judgment Date | 13 February 1986 |
| Judgment citation (vLex) | [1986] UKHL J0213-2 |
| Date | 13 February 1986 |
| Court | House of Lords |
[1986] UKHL J0213-2
House of Lords
Lord Bridge of Harwich
Lord Roskill
Lord Brandon of Oakbrook
Lord Brightman
Lord Mackay of Clashfern
My Lords,
The appellant was employed by the respondents as a milk worker for 37 years. He had a bad record of absenteeism. In 1980 he was absent from work on 108 out of a total of 250 working days. In February 1981 the dairy manager wrote to him in the following terms:
"It is hoped that an improvement in your attendance can be made, otherwise we have no option but to give further consideration to your ability to carry out the required duties within the dairy department."
He was further warned on 3 August 1981. In the next 10 weeks he was absent from work on 20 out of 50 working days. On 12 October 1981 the dairy manager wrote to him again saying:
"Unless there is an immediate, dramatic and lasting improvement in your attendance it will be assumed that you are unable to perform your job and your employment will be terminated. No further warnings will be issued."
On 25 February 1982 the dairy manager wrote once more referring to his letters of 3 August and 12 October 1981, specifying the appellant's subsequent absences on 11 out of 75 working days and concluding:
"I therefore have no alternative but to terminate your employment with immediate effect."
The terms of the appellant's contract of employment incorporated a memorandum of agreement between the National Wages Board of the Co-operative Employers Association (acting on behalf of its constitutent societies) and a number of trade unions including the Union of Shop, Distributive and Allied Workers to which the appellant belonged. Under the terms of this memorandum of agreement the appellant was entitled to appeal against any decision to dismiss him to the chief executive officer of the respondent society. The branch secretary of the appellant's union wrote to the respondents on 26 February 1982 saying that he wished to exercise his right of appeal. The chief executive officer replied by letter dated 1 March 1982 in which he wrote:
"Mr. Tipton's dismissal has been carried out in conformity with the Employment Protection Act and as the decision was made by the board of directors there is no appeal channel remaining within the society for Mr. Tipton's case to be considered, and the decision has to stand, as made."
It is not disputed that by refusing to entertain the appellant's appeal the respondents were in breach of their contract.
The appellant applied to the industrial tribunal claiming that he had been unfairly dismissed. The industrial tribunal upheld his claim and ordered that he be reinstated in his employment. An appeal from this decision was dismissed by the Employment Appeal Tribunal, but a further appeal was allowed by the Court of Appeal (Ackner, Slade and Purchas LJJ.) who remitted the appellant's application for rehearing by a differently constituted industrial tribunal.
Section 57 of the Employment Protection (Consolidation) Act 1978 , as amended by section 6 of the Employment Act 1980, provides:
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"(1) In determining for the purpose of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -
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( a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
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( b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.
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(2) In subsection (1)( b) the reference to a reason falling within this subsection is a reference to a reason which -
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( a) related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, or
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( b) related to the conduct of the employee, or
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( c) was that the employee was redundant, or
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( d) was that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
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(3) Where the employer has fulfilled the requirements of subsection (1), then, subject to sections 58 to 62, 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 (including the size and administrative resources of the employer's undertaking) 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."
The essential reasoning of the Court of Appeal rested on the proposition that the question "whether … the employer acted reasonably or unreasonably" under section 57(3) fell to be determined as at 25 February 1982, the date of the summary dismissal, and that nothing occurring after that date could be taken into account as relevant to that question. It followed that, if, as the Court of Appeal held, the industrial tribunal had based their finding of unfair dismissal solely on the respondents' admitted breach of the terms of the appellant's contract of employment by wrongfully refusing to entertain his appeal, they had erred in law. The refusal to entertain the appeal could only be relevant in so far as it bore upon the respondents' state of mind before the summary dismissal. The point is put thus in the judgment of Ackner L.J. at [1985] I.C.R. 444, 448:
"Had it been the employee's case that the employers' attitude was firm, fixed and inflexible, and that they had closed their mind to any explanation or justification there might be for the last period of absence, the refusal to grant the right of appeal would therefore be relevant as demonstrating the attitude of the employers before the dismissal; but it would be essential to establish that that attitude prior to dismissal was such that the dismissal itself was unfair. What the industrial tribunal has done is to use the failure to allow the right of appeal, a failure which was manifestly only after the employment was determined, as the determining factor to establish that the dismissal was unfair, instead of an item of evidence which could potentially reinforce the proposition that the attitude of the employers prior to the dismissal was unreasonable, manifesting a wholly closed mind to the situation."
The appeal raises a question of considerable importance in industrial relations law. A substantial body of case law, based on decisions of the Employment Appeal Tribunal, a specialist court of great expertise in this field, supports the view that where an employer's reason for dismissing an employee has been examined in the course of an appeal under an agreed internal disciplinary procedure and that appeal has been dismissed, the industrial tribunal may take into account the evidence which was available for consideration by the employer on the appeal in determining whether the employer acted reasonably or unreasonably in treating his reason for dismissing the employee as sufficient. If this view is right, it would follow that the employer's denial to the employee of an opportunity to prosecute a domestic appeal to which he was contractually entitled could, by itself, justify a finding of unfair dismissal. Conversely, if the Court of Appeal were right in this case, it would follow that in every case where there has been a domestic appeal the industrial tribunal must put on blinkers and consider only whether the employer acted reasonably in his original decision to dismiss, notwithstanding that when he rejected the employee's domestic appeal and thereby affirmed the decision to dismiss him he may have been acting quite unreasonably in the light of the further information presented to him in the course of the appeal. Mr. Lee, for the respondents, did not shrink from these implications. He conceded, rightly in my view, that no relevant distinction can be drawn between a case where the employer, as here, refuses to entertain a domestic appeal and a case where, having heard an appeal, the employer dismisses it. Whatever happens in relation to or in the course of a domestic appeal procedure subsequent to the dismissal is, Mr. Lee submits, irrelevant to the question of unfair dismissal, save for the limited purpose indicated by the Court of Appeal. He accepts that in order to succeed he must persuade your Lordships to overrule the series of decisions to the contrary by the Employment Appeal Tribunal.
A preliminary point must be considered, which arose from questions put to counsel in the course of the argument. A possible view might be that when an employee whose contract entitles him to a domestic appeal is summarily dismissed, the dismissal does not take effect until the refusal to entertain an appeal or its ultimate rejection effectively confirms the dismissal. If this view were right, Mr. Lee readily concedes that his case would be unarguable. Section 55(4)( b) of the Act of 1978 provides that "the effective date of termination" in relation to an employee whose contract of employment is terminated without notice, means "the date on which the termination takes effect." The application of this provision was considered by the Court of Appeal in J. Sainsbury Ltd. v. Savage [1981] I.C.R. 1 where an employee had been summarily dismissed on 21 February 1978. His domestic appeal was heard on 30 May and dismissed by letter dated 1 June 1978. He could only establish that his total period of employment was sufficient to qualify him to make a claim of unfair dismissal if it included the period from 21 February to 1 June 1978. The Court of Appeal held that it did not. My noble and learned friend...
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Hazel and Another v The Manchester College
...on many occasions, most authoritatively in Devis v Atkins [1977] ICR 662, per Viscount Dilhorne at p. 678 B-C, and in West Midlands Co-Operative Society v Tipton [1986] ICR 192, per Lord Bridge at p. 301 E-F. 2 Adopting that approach, it is plain that the Appellant's need for redundancies......
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