Appeal No. UKEAT/0236/0237/0238/06/DA	 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 August 2006
Judgment handed down on 9 October 2006

Before
HIS HONOUR JUDGE ANSELL
MR P R A JACQUES CBE
MR T STANWORTH

JOHNSON MATTHEY PLC	APPELLANT

MR I J WATTERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr Sam Neaman
(of Counsel)
instructed by:
Messrs Hewitsons Solicitors
Shakespeare House 
42 Newmarket Road
Cambridge 
CB5 8EP	
For the Respondent	Mr GEORGE FOXWELL
(of Counsel)
instructed by:
Messrs NBM Massucco Shelbourne Solicitors
7 Lincoln House 
The Paddocks 
347 Cherry Hinton Road
Cambridge
CB1 8DH	

SUMMARY

Tribunal correct in deciding dismissal was not within the range of reasonable responses.   Tribunal correct in ordering re-engagement.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal from the decision of a Bury St Edmunds Employment Tribunal who, following a hearing in October 2005, determined that the Respondent had been unfairly dismissed for gross misconduct.  They ordered re-engagement on terms set out by the Tribunal but based on a reduction in seniority to reflect the finding by the Tribunal that the Respondent had contributed to his dismissal to the extent of 20%.  The appeal lies both against the finding of unfair dismissal and also the order for re-engagement, as well as a further decision of the Tribunal dated 9 November 2005 refusing to review their earlier decision.  We will deal with the circumstances of that review below.   

2.	The Tribunal’s finding of unfair dismissal followed their conclusion that the dismissal was not within the range of responses that a reasonable employer might have taken.  The employer’s case is that the ET erred in law in substituting its own decision for that of the employer and further, alternatively came to the decision that no reasonable Tribunal properly directing itself on the law and the facts as found could come to.  

3.	As regards the order for re-engagement, the employer contends that no order should have been made in the light of the employer’s stated position that trust and confidence had broken down between the parties as a result of the events giving rise to the dismissal.

4.	The difficulty that ‘range of reasonable responses’ cases can present can be seen by the way in which different judges of this court have dealt with this case at a preliminary stage.  When the case was sifted by HHJ Altman, he refused leave to appeal, stating that “there is no available argument that they substituted their own views.  In effect the Employment Tribunal found that an over-rigid adherence to procedural provisions and a failure to take account of all the relevant factors to which they referred and the Employment Tribunal were entitled to reach the conclusion they did.”  When the matter came back before Mrs Justice Cox on a rule 3(10) appeal, leave to appeal was granted on the basis that she felt that there was an arguable case as to whether the Tribunal had in fact substituted their own decision for that of the employer.

Background Facts
5.	The background facts are that the Appellant was a company which made catalysts for cars and the Respondent had been working for them since May 1993.  Since August 2002, he had been a line leader in the Appellant’s production department at their site at Royston.  Prior to the incident that led to his dismissal there had never been any problem with his conduct.  The Respondent has consistently scored very highly in his appraisals and was very well respected by his colleagues.  The line leader was responsible, along with other line leaders, for between five to 20 employees, covering four production lines.  There were problems with line four, involving the feeding of washcoat from one of four possible tanks to one of two possible depositors.  A hose had to be connected to an outlet referable to whichever of the four tanks was in operation.  The hose had connected to it, by means of a thin metal wire, an interlock pin that fitted into an interlock situated a few inches immediately above each of the hose connections.  The positioning of the interlock pin effectively told the machine which of the four tanks the washcoat was being drawn from, and it was therefore important that the interlock pin was fitted to the interlock immediately above the connection to which the hose was fitted, since if the relocation of the hose and interlock pin did not tally, the washcoat would be drawn down from a tank to which there was not a hose connection resulting in spillage of the washcoat (which was a relatively expensive product) and also the potential to cause health and safety problems, as the Tribunal found that washcoat was a “mild irritant”.

6.	The problem with line four was that unless the hose was inserted at exactly the right angle, the wires attaching the interlock pin were not long enough to allow the pin to be inserted into the interlock.  The difficulty of making this connection was exacerbated by the fact that the hose was heavy and the connection was made above shoulder height and on many occasions, the Tribunal found, the Respondent had to help other employees to line up the hose and interlock pin on line four because he was one of the few employees who was able, with difficulty, to make the connection.  One female employee could not make the connection at all and had to rely entirely on the Respondent’s assistance.

7.	The Tribunal also found that the Respondent and other employees had complained about this problem.  The system of complaint required the line leaders to approach their immediate superiors, known as shift leaders, and ask them to fill out a brown card requesting the maintenance department or management to make the necessary adjustments.  The system had recently changed to remove from line leaders the right to make brown card requests directly.  It was not disputed that the Respondent and others had, on repeated occasions, asked the shift leaders to make a brown card request for the interlock wires to be lengthened but had provoked no action nor response from the Respondent.  The Respondents had taken no action because they had taken the view that if the wires were lengthened this could allow the pin to be inserted into the wrong interlock, potentially leading to the outcome of a spillage as described above.  However, no explanation had been given by the employers for their failure to respond to the request from those working on line four.

8.	On 12 November 2004, the Claimant was a line leader together with another line leader, Mr Dobson.  At some stage the Claimant assisted Mr Dobson, who was in charge of line four, in setting it up and there were the usual problems regarding the interlock pins which resulted in the Respondent struggling to make the necessary connection because of the shortness of the wires.  At this point the Respondent went directly to the maintenance workshop to ask the fitters to make the wire longer, but they said that they were too busy, and on his return the Claimant decided to cut through the interlock wires with a pair of pliers, which enabled the pin to be fitted into the interlock without difficulty.  The Tribunal found that he did so not in any sense by way of sabotage but out of frustration and exasperation and a desire to get line four up and running.  

9.	During the shift, the technology support team were called to deal with another problem and Mr Miller of that team noticed that the interlock wires had been cut and he asked how it had happened.  The Claimant explained to him that he had cut them, since they were too short, and that had made it extremely difficult to connect the interlock hose.  Mr Miller said that he should not have cut the wires and he would need to report the incident.  In due course, the Respondent was suspended and called to a disciplinary hearing conducted by Mr Hall, who was the production manager at that location.  Mr Hall considered the act of cutting the wires fell within three of the listed actions of gross misconduct in the Appellant staff handbook, namely deliberate damage to company property, secondly, breach of health and safety rules, and thirdly, negligence, and he decided that he had no option other than to dismiss the Respondent with immediate effect.

10.	An appeal was heard by Mr Tynan, the operations manager.  He considered that the most important factor was that the Respondent had breached health and safety rules and had potentially put himself and other employees at risk.  He noted the staff handbook clearly stated that a breach of health and safety rules amounted to gross misconduct.  He also considered that the actions amounted to deliberate damage to the Appellant’s property, which was also identified in the staff handbook as amounting to gross misconduct.  In addition, although he did not consider it to be a major factor, he considered that the action might have resulted in substantial loss to the Respondent in terms of the production line being closed down or suspended.  He confirmed the decision to dismiss on the grounds of gross misconduct.

11.	The Tribunal’s conclusions on the issue of unfair dismissal are contained in paragraph 14.  At the outset they reminded themselves that the sole issue was whether the dismissal was within the range of responses that was reasonably open to the Appellants and they said this:

“14.	We have acutely in mind when approaching this issue that it is not for the Tribunal to substitute its judgment for that of the respondent.  The right question is whether the sanction of dismissal was within the range of sanctions that a reasonable employer might have taken in the circumstances of the case.  This Tribunal has the benefit of two lay members with many years experience and after careful consideration our unanimous view is that in the circumstances of this case dismissal was not within the band of reasonable responses that an employer could reasonably have made.”

They determined this for the following reasons: 
(1)	Although accepting that the actions did amount to deliberate damage of company property, and were therefore “technically” within scope of the definition of gross misconduct, the Tribunal felt that the damage to the property was of a very minor nature and it had never been suggested that the repair of the wires was significant to the Appellant in either time or cost.  They also noted that the wires were not cut for the purpose of damaging company property but for the purpose of getting line four up and running.  They felt that the range of sanctions lawfully open to an employer should depend upon the facts of the particular case. 

(2)	Although the actions of the Respondent were unauthorised, they were provoked by the very particular circumstances that the Tribunal found, which we have set out above, in relation to the problems with the interlock on line four.  The failure of the employers to respond to the brown card requests and the failure of the maintenance team on the day of these events.  The Tribunal went on as follows:

“14.2	The cutting of the wire was therefore done is frustration and exasperation in response to a difficult situation that had been left without rectification or explanation by the respondent for a lengthy period of time.”

They also noted that the Respondent had never made any attempt to disguise or conceal his actions, but had frankly admitted it as soon as questions were asked.  

(3)	The Tribunal noted that the employers had promulgated no warning notices or safety handouts or given any instructions from managers in respect of the safety implications of the interlock wires, even when it was known that employees working on line four were seeking to have the wires lengthened.  There had been one previous incident of washcoat spillage which had resulted in an employee suffering from dry eye syndrome.  The employers contended that the Respondent should have been aware of the implications of cutting the wires without need for any specific notice or warning, but the Tribunal found that there was no evidence that the previous spillage of washcoat had occurred due to the incorrect positioning of the interlock pin.

(4)	The Tribunal found that the possibility of a spillage of washcoat was remote because prior to being put into operation the machine would be checked by the relevant line leader before it was switched on, and therefore, in order for a spillage of washcoat to have occurred as a result of the interlock wires being cut somebody would have had to make an error of switching the pin into the wrong connection.  Secondly, the checks of the machine prior to it being switched on would have had to fail.  The Tribunal also noted that there was an emergency stop button on the machine, so that if a spillage did start to occur the machine could have been shut down within a matter of moments.  Also, employees working on line four were required to have protective eye wear.  The Tribunal concluded this aspect as follows:
“14.4	We therefore find it unsurprising that the rather remote and unarticulated health and safety implications of his actions were not in the Claimant’s mind when he cut the interlock wires.”

(5)	Finally, the Tribunal noted, as has been stated above, that the Respondent had been employed for 12 years, had an unblemished work record, was good at his job, and was well respected by his peers.

12.	On behalf of the Appellant, Mr Neaman argued that according to the employees’ handbook the employee was guilty of gross misconduct under three separate headings - namely ‘deliberate damage to company property’, ‘serious negligence which might cause unacceptable loss’ and ‘breach of health and safety rules’ – and that applying the various tests set out in the Burchell case, there was clearly genuine belief in the misconduct.  That belief was held on reasonable grounds.  The belief was arrived at after reasonable investigation and there was a fair procedure.

13.	Accordingly he argued that all that was left to be determined was whether dismissal was or was not a fair sanction.  He submitted that it was only in exceptional cases that dismissal could not be said to be within the range of permissible sanctions for an act of gross misconduct and therefore, for a Tribunal to hold that this particular dismissal was outside the band of reasonable responses would, he argues, have to be for the most exceptional reasons.  He argued that the decision to dismiss could only be held by a Tribunal to be unfair if no reasonable employer would have dismissed for that offence in those circumstances.  He reminded us of a passage from the current edition of Harvey on Industrial Relations and Employment Law.  Paragraph 9.6.1 which states: 

“The one clear and consistent principle which has always been applied in construing s.98(4) is that it is not for the tribunal to substitute its own opinion for that of the employer as to whether certain conduct is reasonable or not.  Rather its job is to determine whether the employer has acted in a manner which a reasonable employer might have acted, even although the tribunal, left to itself, would have acted differently.”

He argues that although the Tribunal reminded themselves of their duty at the outset of their conclusions, they then did not follow their own directions.  He submitted that the Tribunal did not suggest that the employers had not weighed up the gravity of the allegations as against the various mitigating factors and did not suggest that the employers had failed to give appropriate weight to each factor concerned.  He argued that the Tribunal had entered into the arena and sought to downplay the seriousness of the misconduct by impermissibly substituting its own evaluations as to risk, cost, damage and severity and/or putting its own gloss on the employer’s own policies and procedure as well as ignoring other relevant aspects of the employer’s policies and procedure and inventing evidence that was not given.  In relation to the various factors that the Tribunal considered, he had the following specific comments:

	(1)	Damage was minor
Mr Neaman pointed out that in paragraph 14.1 the Tribunal described the act as “technically” falling within the scope of gross misconduct.  It then described the damage as of a very minor nature.  He argued that it was not for the ET to evaluate the extent of the damage.  He argued that the Tribunal introduced into the equation the issue of the time or cost of the repair appearing to place the burden on the employer to establish that it was significant.  In any event he argued that the ET failed to take into account the potential cost of a product recall, which would have been necessary in the event that the wrong or no washcoat had been applied as a result of the hose being applied to the wrong outlet.  The Tribunal also reminded themselves that the purpose of the damage was not purely wanton sabotage, but made no suggestion that this obvious and known fact was not taken into account by the employer. 

(2)	Damage done in frustration and exasperation
Again, Mr Neaman suggested that there was no indication in the Tribunal’s decision that the employers had failed to take this into account, and submitted that deliberate (and potentially dangerous) damage to company property was not justified because the employee had asked for something to be done and it had not been done in the timescale believed by the employee to be acceptable.  

He submitted that the continuation of the position as it was had caused no danger, whereas the position created by the employee’s act had the potential to cause danger.  He also submitted that although the Tribunal noted that the employee had admitted what he had done when questioned, his admission had only come in response to a question rather than him immediately volunteering to management that he had caused the damage.

(3)	No specific rule prohibiting the cutting of interlock wires
In paragraph 14.3 the Tribunal had said this:
“14.3	Although Mr Tynan and Mr hall both said that they considered the claimant’s conduct to be in breach of the health and safety rules, they were in fact unable to point to any rule, notice or verbal instruction whatsoever in relation to the interlock wires and interlock pins.”

Mr Neaman argued that this extract, together with the rest of paragraph 14.3 appeared to be an attempt by the Tribunal to impose its own views in relation to the company’s rules and procedures. 

(4)	Remoteness of the likelihood of a health and safety incident resulting from the employee’s acts

Again Mr Neaman argued that the Tribunal descended into the decision-making arena, making its own decision based on its own evaluation of the evidence.  He submitted that there was no evidence as to the remoteness or otherwise of the potential health and safety issue.  The fact remained that the Tribunal’s own finding of facts did indicate that the employee’s acts could have caused a spillage of the washcoat and could have created a health and safety problem, and it was impermissible for the ET to then come to its own conclusions on the likelihood or the severity of any damage that might have occurred.  Further, Mr Neaman submits that the Tribunal simply “made up” the evidence that this washcoat was a “mild” irritant.

(5)		Various other factors to be weighed in the employee’s favour
As we have outlined above, the Tribunal took into account the length of service, the unblemished work record, his ability at work and his respect amongst fellow employees.  Mr Neaman again submitted that there was no suggestion in the Tribunal’s decision that the employers had not given consideration to all these aspects.  

14.	In conclusion, he submitted that the Tribunal had done precisely what it said it would not and could not do, namely to enter into the arena and make its own decision based on its own evaluation of the evidence, and in particular its error was to concern itself with what the employee did rather than with the employer’s response to what he did.  An example of that was the final sentence of paragraph 14.4, where the Tribunal said this:

“14.4	We therefore find it unsurprising that the rather remote and unarticulated health and safety implications of his actions were not in the Claimant’s mind when he cut the interlock wires.”

15.	In response, Mr Foxwell submitted that the Tribunal’s task was to evaluate the various factors that were, or should have been, before the employers and ask themselves whether dismissal was within the range of responses open to a reasonable employer.  This task would involve the Tribunal asking itself whether an employer, acting reasonably and fairly in the circumstances, could properly have accepted the facts and opinions that it did.  This process would involve the Tribunal in making findings of those relevant matters that again were, or should have been, before the employers.  He argued that this Tribunal effectively found that the employers had placed an over-rigid adherence to procedural provisions and had failed to take account or given sufficient weight to all the relevant factors to which they referred.  He submitted that the discretion of an employer to dismiss where conduct is admitted is not as untrammelled as the Appellant suggests.  The factors which, for example, might place a decision to dismiss outside the range of reasonable responses can include length of service and past conduct, see Trust House Forte (Catering) v Adonis [1984] IRLR 382, where it is a first offence, Retarded Children’s Aid Society v Day [1978] IRLR 128, and where a rule has been implemented automatically without any consideration of the particular facts, see Ladbroke Racing Ltd v Arnott [1983] IRLR 154.  In that case, the employer’s disciplinary rules and conditions of service specifically stated that employees in betting shops were not permitted to place bets or to allow other staff to do so at any time, and that a breach of this rule would result in immediate dismissal.  The employer’s appeal against the industrial tribunal’s finding of unfair dismissal was dismissed both by the EAT and by the Court of Session.  That court held that there was nothing to indicate that the manager who took the decision to dismiss gave any thought to the provisions of fairness by considering whether the nature of the admitted breaches was such that in all the circumstances the breaches warranted dismissal.  Matters that should have been taken into account were that the conduct in question involved relatively minor infringements of the rules.  There was no personal advantage to the Respondents.  The Respondents were under the impression that what they were doing was sanctioned by the security officer, and that the breaches of the rule only came to light because of the Respondent’s own admissions.  

16.	Mr Foxwell argued that the Tribunal properly identified the types of factors that a reasonable employer should have taken into account in reaching their conclusion, namely the particular circumstances of the incident rather than the mere letter of the rule, the employer’s own responsibility in failing to address the employee’s legitimate complaints, the failure by the employers to identify the risks of which it now complained at any time prior to dismissal, and  a failure by the employers to pay any regard to the real risk or likelihood of substantial loss or damage compared with a hypothetical risk.

17.	He argued that it was entirely permissible for the Tribunal to form a view on matters such as the level of damage and the likelihood of risk based on material that was or should have been in front of the employers.  For example, there was no dispute that the only evidence of actual damage was the cut wire, and clearly the Tribunal were entitled to form a view that the employers should have taken that into account as well as the factors which any reasonable employer would consider in determining whether to dismiss or not.  Equally, any reasonable employer would have assessed that damage within the wide range contained in the employer’s written procedure.  Equally he argued that the Tribunal, based on the evidence in front of them (being the same as must have been before the employers) were entitled to reach the conclusion that the actual risk of injury or damage was small and they formed a view that any reasonable employer should have taken this into account in assessing its weight as part of the case that dismissal was within the range of reasonable responses.

18.	In relation to the suggestion that the Tribunal substituted its own possibly more relaxed view of the health and safety consequences and the dangers of washcoat, Mr Foxwell submitted that it was the Appellant who had argued that the Respondent ought to have known of the potential serious consequences of his cutting the wire, because of the previous spillage of washcoat which caused an employee to suffer dry eye syndrome.  The Tribunal, he argued, were entitled to reject that argument for the reasons that they had given.  Equally, the Appellants led evidence as to the effect of washcoat in the statement of Mr Hall, the dismissing officer.  In so far as the Tribunal attached the adjective ‘mild’ to the word ‘irritant’ he submitted that the Tribunal had the benefit of hearing the oral evidence of Mr Hall and the Respondent.  If the Tribunal made an error of fact in this respect, he argued that it was clearly not determinative.

19.	We can find no fault in the Tribunal’s approach.  They had reminded themselves at the outset of the fact that they were not to impose their own views but rather assess whether this employer’s response fell outside the band of reasonableness based on the factors that were or should have been in front of the employer.  That would involve an analysis of what facts and opinions should properly have been in front of the employer with regard to such matters as level of damage, whether that damage was deliberate, the reasons for the damage, previous warnings or incidents in relation to the equipment, the risks resulting from the damage both physically and financially, and comparing those matters against mitigating factors advanced by the employee.  Having analysed those factors which the Tribunal considered the employer should have taken into account the Tribunal formed a view that no reasonable employer, having considered these factors, would have dismissed.  This Tribunal clearly felt that there had been an over-rigid adherence to the letter of the company handbook, and indeed, the analysis of the initial disciplinary hearing before Mr Hall, contained in paragraph 11, clearly supported that analysis.

Remedy – Re-engagement

20.	The Appellant had argued before the Tribunal that re-engagement was not practicable because of the breakdown in trust and confidence between the Appellant’s managers (Mr Hall and Mr Tynan) and the Respondent.  The Tribunal noted that neither Mr Hall or Mr Tynan had given evidence on this point, although it had been submitted to the Tribunal through the Appellant’s representative that it would be difficult if not impossible for those managers to work with the Claimant in the light of what had happened since, notwithstanding the Tribunal’s decision, they continued to view the Respondent’s actions very seriously.  In fact we were told by Mr Neaman that another of the Appellant’s witnesses had confirmed this to the Tribunal.  We are satisfied that the Tribunal clearly had in mind that this represented the Appellant’s position.  The Tribunal’s decision on re-engagement and the reasons why they ordered was set out in paragraphs 24 and 25 of the Tribunal’s decision:

“24	However, in relation to the position at the ECT site, where there is no redundancy situation, we do not accept the respondent’s submissions that it would not be practicable for re-engagement to take place. In any situation in which a claimant has succeeded before an Employment Tribunal there is likely to be an element of difficulty on the part of the respondent in swallowing its pride and taking the employee back into the workplace. However, if that consideration were, of itself, able to thwart an application for re-engagement then the remedies of reinstatement and reengagement would be of no practical effect In fact in the circumstances of this case there seems to us to be no reason why the claimant cannot be integrated successfully back into the workforce. First, the facts that lead to the claimant’s dismissal concerned an isolated incident in relation to piece of machinery. There was no breakdown in relationships, poisoning of the workplace atmosphere, or personality clash of the kind which characterises a great many employment disputes. Secondly, we were impressed by the claimant’s evidence and have confidence in his assertion that he is willing to draw a line under what happened.  We anticipate think that his attitude on returning to work will be constructive and will not cause or precipitate any difficulties in the workplace. Thirdly, the respondent’s immediate work colleagues, have from the letters that we have seen in the bundle, been thoroughly supportive of the claimant’s position. He appears to have been well liked and respected amongst his peers and we anticipate no difficulty in his returning to work amongst them.  Fourthly, whilst there will inevitably be an element of awkwardness, at least for a period of time, between the claimant and the managers that were responsible for his dismissal, we note that the claimant will not be required to report directly to either of them (see further below). Therefore the claimant’s day to day contact with Messrs Hall and Tynan is unlikely to be extensive. In our view there is no reason why both parties should not be able to draw a line under what has happened. Fifthly, we regard it as unlikely in the extreme that the claimant would ever again take it upon himself to purport to rectify difficulties with any of the respondent’s machinery.

25 	We turn finally to the issue of contribution and whether, in the light of this, it would be just to order the Claimant’s reengagement and, if so, on what terms. In our judgment we consider that the claimant did contribute to some extent to his dismissal and we assess the extent of his contribution as being 20%. This reflects our view that, notwithstanding the mitigating circumstances (as described above), the claimant’s decision to cut the wire was rash and unwise and led directly to his dismissal (albeit that that dismissal was unfair). However, the Claimant has stated that he ‘would be prepared to accept re-engagement to the position of Production Line Operative at the ECT site. This is a position which reports to the position of Line Leader (which he held prior to his dismissal) and would thus effectively amount to a demotion. We consider that it would be just to order re-engagement to this position. The drop in seniority justly reflects, in our view, the fact that the claimant contributed to his dismissal. It also has the advantage of creating two reporting levels (Line Leader and Shift Leader) between the Claimant and the managers responsible for his dismissal. Nevertheless, it enables the Claimant to get back into work and to return to a workplace where he was previously successfully employed for 12 years.”

21.	The provisions as to re-engagement are contained in sections 115 and 116 of the Employment Rights Act 1996:  

“115	Order for re-engagement
(1) 	An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.

    (2)	On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including—
(a)	the identity of the employer,
(b)	the nature of the employment,
(c)	the remuneration for the employment,
(d)	any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, 
(e)	any rights and privileges (including seniority and pension rights) which must be restored to the employee, and
(f)	the date by which the order must be complied with.

116 Choice of order and its terms

(3)	In so doing the tribunal shall take into account— 
(a)	any wish expressed by the complainant as to the nature of the order to be made, 
(b)	whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and 
(c)	where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.

Mr Neaman submits that re-engagement should not have been ordered by the Tribunal because of the following four important factors:
(1)	The Respondent committed an act of gross misconduct;
(2)	That act, in the genuine and reasonable view of the employer, put him and his fellow employees at risk in terms of health and safety as well as the company in financial terms;
(3)	That act had caused trust and confidence to break down irretrievably;
(4)	The Tribunal was sufficiently critical of the employee’s conduct to make a reduction of 20%. 

22.	However, in response, Mr Foxwell took us first of all to Clancy v Cannock Chase Technical College [2001] IRLR 331, where the EAT dealt with the issue of practicability of compliance with an order for re-engagement.  At paragraph 15, Lindsay J, giving the judgment of the court said this:
“15
Of all the subjects properly to be left as the exclusive province of an employment tribunal as the ‘Industrial jury’, few can be more obviously their territory than the issue of ‘practicability’ within s.116(1)(b) and, as relevant here, s.116(3)(b). The task of an appellant raising the plea of perversity, never easy, is, if anything, even more difficult in this area. Where, as here, the tribunal directs itself correctly on the law and hears and accepts evidence as to impracticability and then sets out its reasoning clearly and fully, as It does here, the plea becomes virtually impossible.”

He submitted that the Tribunal clearly had in mind and had recorded the Appellant’s assertion as to the breakdown of trust and confidence, although noting that neither of the Appellant’s principal witnesses had given evidence on this point.  He further submitted that the Tribunal clearly had in mind the issue of contributory conduct, which they dealt with in paragraph 25 by ordering a demotion.  As to the practicability of ordering re-engagement in the light of what the parties were saying, the Tribunal, in paragraph 24, carried out a clear analysis of the factors.  We agree with those submissions.  Trust and confidence would inevitably have been dented as result of any Tribunal proceedings, but he argued that simple assertion should not prevent an order for re-engagement being made, provided that the Tribunal had carried out, as they did in this case, a proper analysis of the factors for and against such an order, particularly bearing in mind the practical difficulties of any former employee returning to the workplace and fitting in with fellow employees and management.  In our view, this Tribunal carried out a very thorough analysis of the factors involved and came down clearly in favour of an order.

23.	The Tribunal, on ordering re-engagement, also made an order for payment of sums representing effectively back pay up to the date of the Tribunal hearing, such pay being based upon the rate that he was receiving for his original job, rather than the demoted position.  Mr Neaman firstly argued that the Tribunal had failed to order a Polkey reduction of 20% of that amount, pursuant to s. 123(6) of the Employment Rights Act 1996, which provides for compensatory awards to be reduced if the dismissal was caused, or contributed to, by any action on the part of the complainant.  However, before us he accepted that that provision did not apply to an amount ordered to be paid under s. 115(2)(d).  He also submitted that since it was likely that if dismissal had not taken place, the Respondent would have been almost certainly demoted, the amount of the benefit that he had lost should have been based on a reduced salary.  However, that point was not argued before the Tribunal and indeed did not appear in the Notice of Appeal and we indicated that we were not prepared to now hear argument on that aspect of the matter.

Review

24.	After the Tribunal hearing, an article appeared in the Cambridge Evening News concerning this case, together with a photograph of the Respondent.  The article suggested that the Respondent had commented to the journalist that he had “mixed feelings” about returning to work.  The Appellant sought a review of the decision to re-engage, arguing that the Respondent’s contention before the Tribunal that he was willing to return to work and wished to draw a line under what had happened was not reflected by his willingness to be photographed and speak about the dispute in the local paper, and his indication that he had “mixed feelings” about returning to work.  The Tribunal refused a review, indicating that such a comment was insufficient to undermine the Tribunal’s conclusion based on the assessment of the Respondent’s evidence that he would be able to draw a line under what had happened, and taking a constructive attitude on his return to work.  The Tribunal noted that the same article went on to report the Respondent as stating that he still wanted to go back to work for the Appellant, and acknowledged a mistake in cutting the interlock wire.  

25.	Decisions whether or not to review are entirely within the discretion of the Tribunal and are rarely interfered with by this court unless there was clear evidence that that discretion was improperly exercised.  We can see no fault in the Tribunal’s approach as regards a review.  They clearly considered carefully the wording of the article and came to a considered view that it had had not affected the conclusions that they had previously drawn in relation to the re-engagement issue and we can find no fault with the Tribunal’s approach.

26.	Accordingly, for the reasons we have stated, this appeal is dismissed.