The claimant had been an apprentice who had been selected for redundancy and a meeting with the respondent was planned to discuss the claimant's dissatisfaction with that decision. However two days before the meeting he refused an instruction to sweep the yard and then had an exchange with two directors: they treated this as a resignation. The ET found that he had not resigned but had been unfairly dismissed but, when handing down the oral judgment, reduced the basic and compensatory awards by 30%. Written reasons were then requested in which the ET declared that the decision on the reduction should be reviewed and gave the chance for further submissions. That course of action was the subject of a [previous appeal]() but when remitted the ET found that the instruction to clean the yard had not been established as lawful as the respondent had already breached the contract by terminating the apprenticeship contract early.

In this judgment Underhill J allows the appeal because there is nothing in s.122(2) or s.123(6) that allows the ET to look beyond the claimant's conduct when considering whether or not it is just and equitable to reduce an awards. By looking solely at the claimant's conduct as they were required to do, and not their own analysis of the contractual position, the ET was bound to find the claimant was culpable. He therefore reinstated the original 30% reduction.

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Appeal No. UKEATS/0029/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 13 December 2011

Before

THE HONOURABLE LADY SMITH, MR P PAGLIARI, MRS A HIBBERD

CK HEATING LTD (APPELLANT)

MR MICHAEL DORO (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR ASIM A KHAN (Solicitor)

Ramsay Employment Law
Suite B 3rd Floor
21 West Nile Street
Glasgow
G1 2PS

For the Respondent
No appearance or representation by or on behalf of Respondent

UNFAIR DISMISSAL

Compensation

Contributory fault

1. This is an appeal against a decision of an Employment Tribunal not to make deductions from the basic and compensatory awards that were made to the Claimant, who was found by them to have been unfairly dismissed.

1. The Respondent is a plumbing business, and the Claimant was employed by them under a contract of apprenticeship. In November 2008 there was a severe downturn in the Respondent's business, and they decided to make one of their plumbing apprentices redundant. The apprentices were scored, and at a meeting on 24 November the Claimant was advised that he had been provisionally selected for redundancy. He was demoralised and he felt his score was unfair. In particular, he felt that inadequate account had been taken of him having received the "Apprentice of the Year" award from Cardonald College earlier that year and that undue weight had been attached to him having received warnings for his conduct at work, such as in respect of lateness, in the past. He was invited to attend another meeting with the Respondent on 28 November.

1. On the morning of 26 November the Claimant was instructed to sweep the Respondent's yard and he refused to do so. The Claimant and other apprentices had been asked to clean the yard on previous occasions and had willingly done so. The Claimant was asked to attend a meeting with two of the Respondent's directors. He persisted in his refusal to sweep the yard. An exchange followed which the Respondent thereafter treated as a resignation by the Claimant. The Tribunal found, however, that he had not resigned at the meeting and that he had accordingly been unfairly dismissed. The Respondent had misunderstood what the Claimant was saying, so said the Tribunal, and had been wrong to insist thereafter that his employment was at an end by reason of resignation. Also, the dismissal was automatically unfair as the statutory dismissal procedures, which were then still in force, had not been complied with.

1. Turning to the Tribunal's decision in this case, at the end of an evidential hearing on 1 July 2009 the Employment Tribunal, Employment Judge Hugh Murphy in the chair, announced its decision, which included that the Claimant had contributed to his dismissal to the extent of 30 per cent, and that the award to him would be reduced accordingly. Written Reasons having been sought, they were prepared, and a Judgment and Reasons were issued and registered on 29 July 2009. In their written Judgment the Tribunal referred to their earlier decision to reduce the Claimant's award by 30 per cent, and at paragraph 149 said:

"[…] it is at least arguable that the decision from the award made to the claimant announced at the close of the hearing was misconceived. Throughout the hearing, attention was focused on whether an instruction to clean the yard was an instruction that the respondents could lawfully give. Reference was made to the fact that on earlier occasions the claimant and others had without protest cleaned the yard, and, of course, the contract expressly provided that the respondents could not generally employ the claimant on labouring duties, the clear implication being that they could do so from time to time, and, in these circumstances, the tribunal had little difficulty in concluding that generally speaking it was within the power of the respondents to give the claimant an instruction to clean the yard, so that at first blush it appeared that the claimant was at fault in refusing to clean the yard. Insufficient attention, perhaps, was paid to the possibility that the instruction to clean the yard was an element of a course of conduct that constituted a fundamental breach of contract on the part of the respondents in which case it is at least doubtful whether any deduction should be made in connection with the claimant's refusal to clean the yard."

1. That being so, the Tribunal said that they were satisfied that the decision announced orally to reduce the award by 30 per cent should be reviewed, although not necessarily varied, and they would give parties a further opportunity to make submissions. That decision was appealed against, it being argued that the Tribunal could not competently review its decision in that manner. The Employment Appeal Tribunal, Underhill P presiding, on 30 July 2010 held that although the power of review was not available to the Tribunal, rule 36 of the 2004 Rules not having been complied with, it did have power to recall its own decision, and that was what the Tribunal should be regarded as having done. The matter was accordingly remitted to the Tribunal once more.

1. By Judgment dated 30 March 2011 the Tribunal issued its decision regarding the issue of contribution. We would refer in particular to paragraph 13 of the decision, which provides, and we quote:

"It is certainly the case that the claimant refused to clean the yard, but we do not agree with the suggestion that the claimant was clearly culpable. As explained in our reasons and given on 29 July 2009, we are satisfied that, by then, the respondents were in fundamental breach of contract with the respondents and were not in a position to demand performance of the contract from the claimant. The respondents, moreover, did not have an unfettered right to require the claimant to clean the yard, even when they themselves were not in breach. As pointed out in paragraph 121 of the said reasons, it is at least a permissible inference from the evidence that, by the time that the respondents purported to require the claimant to clean the yard, they had abandoned any intention of training him so that any instruction to him to clean the yard could only be given pursuant to a right to require him to the yard 'generally', and the respondents had no such general right. There is an assumption in the respondents' submission that the instruction to clean the yard was a lawful one and it has not been established that the instruction was one that the respondents were entitled to give in terms of the contract."

1. Put shortly, the Tribunal's analysis was that by 26 November the employers were in fundamental breach of contract because they were taking steps to bring the Claimant's apprenticeship contract prematurely to an end; they could not, therefore, require the Claimant to sweep the yard. There is, however, no question of the Claimant, at the point he refused to do as he was told, having in mind that the Respondent was in breach of contract or were not entitled to ask him to carry out the task. The Tribunal, however, says that because on their contractual analysis the Respondent was in breach, that is an end of matters, and there should be no deduction from the award made to him.

1. Turning to today's appeal, Mr Khan, who appeared for the employers, submitted that the Tribunal had erred in taking account of the employers' conduct when deciding whether or not to reduce the Claimant's award. This was a case where the Claimant had failed to obey what, on the face of matters, was a reasonable management instruction; that is, he was culpable or blameworthy. Further, his conduct was within his control and had caused or contributed to his dismissal. His dismissal was directly linked to him having refused to sweep the yard. The Tribunal should have focussed on that matter and nothing else. He referred to two authorities: Parker Foundry Ltd v Slack [1992] ICR 302 and Langston v Department for Business, Enterprise and Regulatory Reform UKEAT/0534/09/ZT.

1. Turning to our decision, we consider that this appeal is well founded. We would refer to the provisions of section 122(2) and section 123(6) of the Employment Rights Act 1996. Those are the two subsections that provide for reduction of awards of compensation and of the basic award on account of a claimant's conduct. There is nothing in either of them which entitles an Employment Tribunal to look beyond the claimant's conduct when considering whether or not it is just and equitable to reduce those awards (see: Parker Foundry Ltd). That, however, is precisely what the Tribunal have done. The focus of their considerations was the position of the employer and the Tribunal's own analysis of how and why the employer was at fault in asking the Claimant to sweep the yard at all. Instead of having regard to the relevant statutory provisions, they have taken account only of their own analysis of where, as a matter of contract, parties' rights and duties lay by 26 November 2008. As a consequence they have had no regard to the nature and quality of the Claimant's own conduct, which was, we accept, that he refused to do what he was being told to do by his employer at a time when he knew nothing other than that they had the right to instruct him at work. He was not asserting that they no longer had any right to issue him with instructions. He was, on the picture presented by the findings in fact, simply being stubborn and difficult. Further, the stance adopted by him in persisting in that refusal, despite, on the Tribunal's findings in fact, being told that he would be given other work in the afternoon, plainly led to his dismissal.

1. In these circumstances, the Tribunal was, we accept, bound to conclude that the Claimant's conduct was culpable and caused the dismissal that occurred. That of course was the Tribunal's own initial reaction, and it was only by taking account of a matter to which they should not have had regard, namely the employer's conduct, that they retreated from their original conclusion. It follows, in our view, that in upholding the appeal we ought to reinstate the Tribunal's original decision, which was that a reduction of 30 per cent should apply.

1. We will accordingly pronounce an order upholding the appeal and substituting for the figure £4,442.50, where it appears in paragraph 2 of the Judgment of the Tribunal dated 30 March 2011, the figure £3,109.75.