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Cite as: [2005] CSIH 26, [2005] ScotCS CSIH_26
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Aitken v. Weatherford UK Ltd [2005] ScotCS CSIH_26 (15 March 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Hamilton Lord Clarke
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[2005CSIH26] XA20/04 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL under section 37 of the Industrial Tribunals Act 1996 by JAMES J. AITKEN Appellant; against WEATHERFORD U.K. LIMITED Respondents: _______ |
Act: Napier, Q.C.; Russell Jones & Walker (Appellant)
Alt: Truscott, Q.C.; Simpson & Marwick (Respondents)
15 March 2005
[1] This is an appeal under section 37 of the Industrial Tribunals Act 1996 from a decision of the Employment Appeal Tribunal, dated 18 December 2003, by which decision the Employment Appeal Tribunal, by a majority, reversed a decision of an Employment Tribunal, sitting at Aberdeen, whereby that Tribunal, again by a majority, found that the appellant had been unfairly dismissed by the respondents. The Employment Appeal Tribunal made a monetary award which reflected a 50% reduction for contribution.The Findings and Decision of the Employment Tribunal
[2] As the findings in fact of the Employment Tribunal indicate the respondents carry on business supplying equipment and services to the off-shore industry. The appellant commenced employment with the respondents as a technician on 8 July 2001. He signed a contract of employment. Relevant extracts from that contract of employment are set out in the Employment Tribunal decision. They are as follows. Paragraph 2 provided inter alia:"You will perform all acts, duties and obligations and comply with such orders as may be designated by the company which are reasonably consistent with your position".
In paragraph 6 it was provided:
"Due to the nature of our industry, you should understand that hours worked may have to be varied from time to time to suit the operational requirements of the company. You may require to work additional hours on weekdays or at weekends to meet the requirements of the position and business needs. The company requires your co-operation in such circumstances".
At paragraph 7 of the contract it was provided inter alia:
"The problems associated with providing services to the oil industry are very demanding. The company has a requirement to make available personnel, equipment and products whenever the client company requires. The company must, therefore, plan its activities to meet the requirements of its customers, and has a responsibility to provide a smooth dependable operation. In view of this, it is necessary that all employees observe the following:
...
(c) it is necessary that individuals report to the airport, heliport or other
embarkation point at the time notified to them by their supervisor. Failure to do this will be regarded as a serious disciplinary offence".
Within the disciplinary procedures attached to the contract of employment it was provided as follows:
"5.4 Summary dismissal.
The company reserved (sic) the right to summarily dismiss (i.e. without notice or pay in lieu) an employee for gross misconduct. The following are examples of gross misconduct. This list is not to be regarded as exhaustive.
...
Failure to report for a check-in time for travel offshore without due notice and an acceptable reason ...
...
Any act or omission amounting to the repudiation of the contract of employment".
"During 2002, and fearing a breakdown in his marriage, the applicant made a request on two occasions for compassionate leave The situation had been discussed by the applicant and made known by him to Ray Pratt and Mike Robertson, logistics co-ordinators with the respondents, and as a result of requests from the applicant, compassionate leave had been granted between 13 and 19 July, and again between 23 and 30 September. Further, and for the same reason, the applicant was allowed to bring forward a holiday week in October".
"JA called me back at 1805 to say that he had heard that we needed him to go to another job on Sunday, and said that this was 'not going to happen'. He said that he has done the work he came down here for, and when he started this job he had 'promised his wife that he would not go from rig to rig, but would come home after each job', and so would be going back to Aberdeen after this job. I asked him to confirm that he was refusing to go on a job when requested, and he said yes he was and would accept the consequences when he returned to Aberdeen".
The appellant's refusal to carry out the foregoing instruction caused significant inconvenience to the respondents, including the need to make a large number of telephone calls to secure alternative arrangements for his work to be done; a degree of embarrassment was also caused to their clients.
[5] Following his refusal to carry out the foregoing instruction, the appellant was requested, in writing, by the respondents' Operations Manager, Mr. Kuchler, to attend a disciplinary hearing. In his letter to the appellant Mr. Kuchler stated, inter alia, that"You may choose to be accompanied at the meeting by a fellow company employee. You should be advised that this is a disciplinary hearing of which the outcome may potentially be disciplinary action".
"The events as recorded by Mr. Pearce in his e-mail were recounted by Mr. Kuchler who also referred to the terms and conditions of employment which required the applicant to go offshore as requested and pointed out specifically that not meeting check-in requirements was considered as gross misconduct. He asked the applicant for his response to the allegations. As the Minute of the meeting records (page 59) the applicant -
'advised that he had been having problems at home, and that he had previously received compassionate leave for this. He had been offshore for 35 of the last 40 days and had not previously refused going to a check-in. He was sorry and with hindsight, perhaps he should have explained the situation to Chris Pearce'.
Mr. Kuchler pointed out the problems which had been caused with the respondents' customer and reminded the applicant that he would only have been asked out to the rig if it was necessary. He again asked the applicant if he had anything further which he wished to say or ask. The applicant did not add anything. Following an adjournment Mr. Kuchler intimated that by virtue of the contractual terms and conditions he viewed the matter as one of gross misconduct and decided upon dismissal with immediate effect.
The applicant had not made any mention of his family/domestic problems to Mr. Pearce.
The applicant had not spelled out exactly what his 'problems at home' actually were to Mr. Kuchler at the disciplinary hearing which resulted in dismissal, and Mr. Kuchler did not inquire. Mr. Kuchler indeed had not wished to ask particular questions on personal details. He took into account the fact that the applicant had not given Mr. Pearce any particular reason for it being essential that he be home by a particular date. The applicant had simply told Mr. Pearce that he had told his wife that he was not going to do another job. In general Mr. Kuchler would recognise serious domestic problems as 'an acceptable reason' in terms of the discipline procedures for failing to check-in. Mr. Kuchler had the impression that the applicant did not wish to elaborate on the problems".
It is, perhaps, of some significance to note that the Employment Tribunal in their reasons state:
"As he told us in evidence, the applicant and his wife had resolved their problems around the time of the compassionate leave which had been granted. However, he had been concerned that his problems might start up again if he did not get home on the day when the job was finished, although he had not intimated that concern to the respondents".
"For the appeal hearing the applicant was again offered the opportunity of being accompanied by a colleague and again he declined. This meeting was also minuted ... The applicant there reiterated that he had had problems at home which, although he had previously explained to Ray Pratt and Mike Robertson when obtaining compassionate leave, he had not explained to Mr. Pearce or to anyone else at the office at Great Yarmouth. He had previously been allowed time at home and had brought forward his holidays in order to resolve the personal problems. There was some discussion and difference of view as to the number of days which the applicant had indeed spent offshore. Mr. McCartney took the view that a missed check-in was normally deemed a summary dismissal unless there were extreme mitigating circumstances. After an adjournment Mr. McCartney did not consider that the mitigating circumstances were sufficient to over-rule what he regarded as the normal consequences of the applicant's conduct. He so advised the applicant who commented (according to the Minute) that 'he had not expected it to be over-ruled but he had wanted to exercise his right of appeal'".
"that by the time the disciplinary hearing took place, the respondents had all the information which a reasonable employer would have thought it necessary at that stage to obtain. Accordingly, the requirements of British Home Stores v. Burchell [1978] IRLR 379 had been fulfilled".
The Employment Tribunal were also unanimous in finding that the instruction given by the respondents to the appellant was legitimate and reasonable, having regard to the terms of his contract of employment and the scope and nature of his normal duties.
[9] The next question which the Employment Tribunal was required to address was whether, in the circumstances, the decision of the respondents to dismiss the appellant fell within the band of reasonable responses that a reasonable employer might take. At this stage in the exercise there emerged disagreement among the members of the Tribunal. The majority considered the dismissal to have been unfair. Their reasons for doing so are set out in the extended reasons in the following terms:"For the majority, whilst accepting the evidence and the e-mail from Mr. Pearce as accurately narrating the events, and accepting the Minutes of the disciplinary and the appeal hearings as also being accurate, the reasonable employer would not have dealt with the situation by means of the sanction of dismissal. Whilst recognising that they were not to substitute their own view for that of the respondents, the majority found that the reasonable employer would have enquired further of the applicant at the disciplinary hearing in order to find out more of the circumstances of his marital difficulties. The reasonable employer would have encouraged the applicant to provide further information and would have realised, as Mr. Kuchler did not, that there was more to the matter than the applicant had stated. Upon the reasonable employer exploring further, he would have learned that previously the applicant's wife had threatened to leave him and that had been the reason for the earlier periods of compassionate leave, and further, that in making his decision to refuse to carry out the extra days of duty and return home, the applicant had felt that he had his family life at stake. Having then learned of these circumstances the reasonable employer would have regarded these circumstances as amounting to 'an acceptable reason' (in terms of the discipline procedures) for refusing to take the additional helicopter trip to the rig 'Britannia'.
The majority further noted that Mr. Kuchler had not enquired into the circumstances in which the compassionate leave had previously been granted, as a reasonable employer would have done. Furthermore, at the appeal hearing, despite being given the names of the logistics managers who had given the applicant compassionate leave, Mr. McCartney made little or no effort to establish what the applicant's domestic difficulties were. Had that been done the reasonable employer would not have dismissed, but would have chosen a lesser sanction. For these reasons therefore the decision to dismiss did not fall within the range of reasonable responses available to a reasonable employer thus rendering the dismissal unfair".
The Decision of the Employment Appeal Tribunal
[10] The respondents appealed the decision of the Employment Tribunal to the Employment Appeal Tribunal. As previously noted the Employment Appeal Tribunal, by a majority, reversed the decision of the Employment Tribunal and held that the dismissal was fair. At paragraphs 14 and 15 of the decision of the Employment Appeal Tribunal the majority set out their reasoning in the following terms:"14. The majority, including the Chairman, accepted the submission by Mr. Kemp against the background of the case of Dick, that where, as here, the employee was advancing in defence of a decision of his own which was admittedly serious misconduct, no substantial reason to support it at the time of the disciplinary hearing when given every opportunity to do so, did not (sic) impose a further burden upon the employer acting reasonably to ask questions further into that matter. The findings of the Tribunal make it perfectly clear that every opportunity was given to the employee to go down what could be described as, the personal circumstances line, but at that time he declined to do so. The rubric of Dick supra states inter alia:-
'In determining whether an employer had carried out reasonable investigations in the circumstances, an Industrial Tribunal should consider the nature of the material which was before the employer when the decision to dismiss was taken. A Tribunal is not entitled to conclude that a reasonable investigation had not been carried out because, during the disciplinary procedure, the employer had failed to have regard to material, when that material was never placed before him and emerged for the first time as evidence during the Tribunal hearing'.
15. The facts of that case were obviously different but the substance of them in the mind of the majority of this Tribunal cannot be distinguished. On the face of it, the refusal of the employee to go off-shore at the material time, was in breach of his contract and serious misconduct. The demand made of him was legitimate. The failure at the disciplinary hearing to properly advance reasons justifying it, to our mind, does not require the employer to go further than to hear what is actually said to him or not. Applying therefore the test of THE band of reasonable responses against the context of admitted misconduct we consider, having regard to what took place at the disciplinary hearing that the reasonable employer need go no further and certainly dismissal was within the band of reasonable responses, open to the employer".
The reference in those passages to the case of Dick is a reference to the case Dick v. Glasgow University [1993] I.R.L.R. 581. At a later paragraph, paragraph 17, of its decision, the Employment Appeal Tribunal stated
"As has been seen, the majority of this Tribunal agree with the minority Chairman as submitted by Mr. Kemp for the reasons given both there and before us, and, accordingly, we will hold that the decision to dismiss was a reasonable one within the circumstances, particularly within the context of the disciplinary procedure, and, that, furthermore, was the conclusion and only conclusion that should have been achieved by the Employment Tribunal".
That formulation of matters would appear to indicate that the majority of the Employment Appeal Tribunal considered that the Employment Tribunal decision was perverse.
[11] The respondents lodged a cross appeal in this court in relation to the question of contribution but, in the event, abandoned it.The appellant's submissions
[12] For the appellant, Mr. Napier, Q.C., accepted that the Employment Tribunal was well entitled to be satisfied that the appellant had been guilty of serious misconduct. He contended that the question, in the instant case, was whether the employer had adopted a reasonable procedure thereafter and whether dismissal fell within the band of reasonable responses. The majority of the Employment Tribunal had held that the dismissal was not within the band of reasonable responses, without enquiry having been made by the respondents into the circumstances in which they had previously given the appellant compassionate leave and had agreed to a re-arrangement of his holiday time. The majority of the Employment Appeal Tribunal, it was said, had erred in law in reversing the decision of the majority of the Employment Tribunal by holding either that the majority had misdirected themselves in law or, alternatively, that their decision had been perverse. [13] In the first place, it was clear that the majority of the Employment Appeal Tribunal had placed considerable reliance on the decision in the case of Dick. That case was, however, dealing with a different kind of situation from the present and afforded no basis for attacking the approach of the majority of the Employment Tribunal. In Dick there was a dispute as to whether there had been misconduct on the part of the two employees in question. The employer had carried out a full enquiry into the matter and had given the two employees a full and fair hearing. The Industrial Tribunal, however, had reached the view that the employer had not carried out a reasonable investigation by failing to have regard to matters which had never been placed before it and which emerged, for the first time, as evidence, during the Tribunal hearing. The Inner House, following the Employment Appeal Tribunal, held that the Industrial Tribunal had fallen into error in that respect and that the dismissal was fair. Senior counsel for the appellant maintained that the position, in the present case, was very different. In the present case the misconduct in question was admitted by the appellant but there was material before the respondents at the disciplinary and appeal hearings which they chose not to investigate. The material in question was the granting of the compassionate leave to the appellant and allowing him to change his holiday arrangements. These were matters which the Disciplinary Tribunal and the Appeal Tribunal could, and should, have carefully investigated further before dismissing the appellant. Senior counsel for the appellant went on to criticise the formulation of the appropriate test as it was set out by the majority in the Employment Appeal Tribunal decision at paragraph 15. The proper formulation of the test to be applied, in a case like the present, was to be found in certain previous authorities. In the first place, senior counsel referred to what Donaldson L.J., as he then was, said in UCATT v. Brain [1981] I.R.L.R. 224 at para. 26. His Lordship, in that passage, said as follows:"But where the conduct complained of is, as it is in this case, a refusal to obey an instruction given to the employee by the employer, it seems to me that the primary factor which falls to be considered by the reasonable employer deciding whether or not to dismiss his recalcitrant employee is the question, 'Is the employee acting reasonably or could he be acting reasonably in refusing to obey my instruction?'".
His Lordship, however, went on to say this:
"As I see it, what the Tribunal did in this case was to put itself notionally in the position of the reasonable employer. Sitting in that position, albeit notionally, it was musing aloud as to whether the employee had acted reasonably or, as I say, could have been considered to have been acting reasonably, and it reached a wholly clear conclusion about it. I cannot see any error in that approach. Indeed this approach of Tribunals, putting themselves in the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, 'Would a reasonable employer in those circumstances dismiss?', seems to me a very sensible approach - subject to one qualification alone, that they must not fall into the error of asking themselves the question 'Would we dismiss', because you sometimes have a situation in which one reasonable employer would and one would not. In those circumstances, the employer is entitled to say to the Tribunal, 'Well, you should be satisfied that a reasonable employer would regard these circumstances as a sufficient reason for dismissing', because the statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances".
Reference was also made by senior counsel for the appellant, to a passage in the judgment of Mummery L.J. in the case of Sainsbury's Supermarkets Limited v. Hitt [2003] IRLR 23, at para. 30 where his Lordship was to the following effect:
"The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason".
Having regard to how the majority of the Employment Appeal Tribunal, in the present case, had put matters at para. 17 of their decision, it appeared that the basis of that decision was that the majority decision of the Employment Tribunal fell to be regarded as perverse.
[14] Senior counsel for the appellant then turned to consider the basis upon which the Employment Appeal Tribunal or this court is entitled to interfere with the decision of an Employment Tribunal. Reference was made to the unreported decision of the Extra Division in the case of McGuire v. Brawley Bros. Ltd., 18 March 1994 and, in particular, the judgment of Lord McCluskey in that case. In the second paragraph of his Opinion, Lord McCluskey cited a passage from the judgment of Lord President Emslie in Melon v. Hector Powe Ltd. 1981 S.L.T. 74 at page 76 (1980 S.C. 188 at page 198) where his Lordship said:"The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on law could have arrived at, then its decision is not open to successful attack. It is of no consequence that the appellate tribunal or court would itself have reached a different decision on the evidence".
In the McGuire case, the court held that the tribunal had misdirected itself on one aspect of the case and ordered that the whole case be reconsidered by a differently constituted tribunal. In the present case, it was submitted, having regard to those authorities, that to justify disturbing the decision of the majority of the Employment Tribunal, it would be necessary to show that their conclusion was so unjustifiable on the evidence as to be perverse. Reference was also made to the unreported decision of this court in the case of Porter v. Oakbank School, 19 March 2004.
[15] In the course of his submissions, senior counsel for the appellant accepted that the majority of the Employment Tribunal had gone too far in saying that, had the enquiries which they said the respondents should have carried out been carried out, then "the reasonable employer would not have dismissed but would have chosen a lesser sanction". That was, senior counsel accepted, a misunderstanding of their role but it did not, of itself, undermine their approach otherwise, the nub of which was that they had considered the dismissal to be unfair because in the circumstances they considered that the respondents had carried out insufficient investigation. Senior counsel invited this court to allow the appeal and to restore the decision of the Employment Tribunal.The respondents' submissions
[16] In reply Mr. Truscott, Q.C., for the respondents, submitted that the majority of the Employment Tribunal had been guilty of an error in law in that they did not, in substance, apply the band of reasonable responses test to the question of the investigation of possible mitigating factors in the present case. There was no question, in this case, about the sufficiency of investigation into the misconduct itself. The majority of the Employment Tribunal had substituted their own view for that of the respondents as to how they would have acted in the light of the established misconduct. They had not truly tested the dismissal itself to see whether or not it fell within the band of reasonable responses and so had erred in law. While the majority of the Employment Appeal Tribunal may not have reached their conclusion by precisely the correct route, they were correct in the decision that they did arrive at. The case of Sainsbury's Supermarkets Limited demonstrated that the question of whether or not a reasonable investigation had been carried out was, if not exclusively, primarily concerned with the investigation of the primary facts as to whether a possible reason for dismissal had been established. It was important not to lose sight of the fact that, in the present case, there had been no real dispute that the appellant had been guilty of the misconduct in question and the nature and effect of that misconduct. In such a case it was not even strictly necessary, it was submitted, to apply the three step test set out in the case of Burchell. In that connection senior counsel referred to the case of Scottish Daily Record & Sunday Mail (1986) Ltd. v. Laird 1996 S.C. 401. At page 406G-H Lord President Hope said that"If the issue between the employer and the employee is a simple one, there being no real dispute on the facts, it is unlikely to be necessary for an industrial tribunal to apply the threefold test described in British Home Stores Ltd. v. Burchell. The test is, after all, no more than a means to an end, which is to discover in cases of misconduct whether the employer had reasonable ground for a belief, at the time of the dismissal, in the guilt of the employee of misconduct. The matter may be so obvious, and the misconduct may be of a kind which so clearly goes to the root of the relationship between the employer and the employee, that the application of the threefold test would be unduly elaborate".
His Lordship, at page 407A-B went on to say:
"On the other hand there may be cases where there is a factual issue to be determined. In Polkey v. Dayton Ltd. ([1988] 1 AC 344) at page 364D Lord Bridge of Harwich said, that in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or in mitigation".
The reference, in that passage, to what Lord Bridge of Harwich had said in Polkey showed that, at the stage where there had been reasonable investigation into the alleged misconduct or the fact of the misconduct was accepted, it was then for the employee to put before the employer whatever he wanted to say in his own defence and in mitigation. If the employee did not take up that opportunity then the question for the Tribunal was whether dismissal fell within the band of reasonable responses. The majority of the Employment Tribunal had not applied that approach. They had done what the Industrial Tribunal had done in the case of Conlin v. United Distillers [1994] I.R.L.R. 169 and which was described by Lord Justice Clerk Ross at para. 6 in the following terms:
"It appears to us that what the Industrial Tribunal have done is simply to express their own opinion upon the question of whether the dismissal was unfair".
When the majority, in the present case, said, as recorded, that
"The reasonable employer would have encouraged the applicant to provide further information and would have realised, as Mr. Kuchler did not, that there was more to the matter than the applicant had stated",
they were, in effect, saying that that was what an employer acting reasonably would have done, which was not the correct test. Only if the majority had considered that all reasonable employers acting reasonably would have taken that step before dismissing, could they arrive at the conclusion that the dismissal was unjust. The passage just quoted, from the majority's reasoning, and what followed, demonstrated that the majority had failed substantially to apply the band of reasonable responses test or had misunderstood it. The proper test, in a case like the present, had been restated and reformulated, authoritatively, and most recently Anglian Home Improvements Limited v. Kelly [2005] ICR 242 where at page 248, paras. 14-15 Mummery L.J. said as follows:
"The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgment of Lord Denning M.R. in British Leyland UK Ltd. v. Swift [1981] I.R.L.R. 91, 93 para. 11 cited by Mr. Laddie. The test laid down there was:
'The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him'.
Years later, the same test was confirmed by this court in Foley v. Post Office [2000] ICR 1283.
It is not a correct determination of an unfair dismissal claim for the members of the tribunal, whether they be the lay members or the chairman, to substitute their own personal decision for that of the employer. The members of the tribunal are not the employers. Their personal views as to how they regard the conduct for which the employer has dismissed the employee are not the point. They must, in the process of deciding an unfair dismissal claim, take an objective position and ask themselves whether a reasonable employer would have dismissed the employee for the conduct in question. They must apply the test of the range or band of reasonable responses stated by Lord Denning M.R.".
That last-mentioned case was another one in which the lay majority of the Employment Tribunal had disagreed with the Chairman in finding that a dismissal for misconduct to be unfair. At paras. 30-32 Mummery L.J. went on to say:
"The conclusion which I have reached in this case is, first, as already mentioned, there was a very serious legal error in the approach of the two lay members to the question of unfair dismissal. The error was that of substitution. Instead of applying the objective test laid down by a long line of authorities, and applying a band of reasonable responses to the question of whether there was a fair dismissal or an unfair dismissal, it is clear that the two lay members had substituted their own personal views.
This was a case of gross misconduct. ... I have taken into account a number of points made by Mr. Kelly about how the consequences of dismissal were not spelt out to him, about the pressures that there were in relation to meeting targets, and about the occurrence of the practices to which he has admitted in other parts of the company. In my judgment they do not begin to meet the point that he has brought an unfair dismissal case in which he has admitted misconduct described in the disciplinary procedures, which were part of his contract, as 'gross misconduct' which could lead to summary dismissal. It seems to me that, on the facts found by the tribunal, the only conclusion that a reasonable tribunal could have come to in this case, applying the band of reasonable responses test, was that it was open to a reasonable employer summarily to dismiss an employee in the responsible position held by Mr. Kelly for misconduct of the kind he had committed.
Although it is extremely unusual for this court to have to say so, I have reached the conclusion that the decision of the majority was a perverse one in the sense referred to in Yeboah v. Crofton [2002] IRLR 634. An overwhelming case has been made out that the findings of fact made by this tribunal lead to one conclusion and one conclusion only; that is that a reasonable employer could reasonably dismiss Mr. Kelly for the misconduct admitted by him".
Decision
[18] It is true that, in this case, unlike the position, for example, in the Anglian Home Improvements Ltd. case, the reasoning of the majority of the Employment Tribunal, as recorded in the extended reasons, uses, at times, the appropriate language of the test to be applied in such a case, namely did the dismissal fall within the range of reasonable responses available to a reasonable employer. Accordingly, one must hesitate before determining that, nevertheless, their decision is one which the Employment Appeal Tribunal, and in turn, this court, is entitled to interfere with. Nevertheless it is, in our judgment, important to check, by considering what else is said by the majority, and by having regard to all the relevant circumstances, that they did not misunderstand what is entailed in that test and that they applied it on the basis of a proper understanding as opposed to a misunderstanding of it. We have come to the conclusion that, having regard to the particular circumstances of this case, it cannot be said that the majority of the Employment Tribunal applied the test, in a way that shows they properly understood what it involves. [19] This is a case where there was no dispute that the appellant had been guilty of misconduct which, in terms of his written terms of contract, was described as gross misconduct justifying summary dismissal. The respondents chose not to dismiss the appellant without a hearing. They instead invited him (with a representative if he so wished) to present his case at the disciplinary hearing before Mr. Kuchler and then at the appeal hearing before Mr. McCartney. There was no suggestion that the procedure followed at those hearings did not allow the appellant to say whatever he considered appropriate in mitigation and, in particular, to put forward any material which he regarded as providing an acceptable reason for his failure to obey the respondents' instruction. The appellant merely reminded Mr. Kuchler that he had been having problems at home and that he had previously received compassionate leave for this. Mr. Kuchler gave the appellant the opportunity to expand upon this by asking him if he had anything further which he wished to say or add. The appellant declined to add anything. Mr. Kuchler, in our opinion, in those circumstances, reasonably took the view, as recorded in the Employment Tribunal's decision, that in that situation it was not appropriate for him to press the appellant to provide further details in relation to personal matters which the appellant gave him the impression he did not wish to elaborate upon. As recorded in the Employment Tribunal decision, at the appeal hearing the appellant advised Mr. McCartney that he had had problems at home as a result of which he had been allowed time at home and had brought his holiday forward in order to resolve those personal problems. He did not, importantly, advise Mr. McCartney that those problems were continuing at the time of his refusal to work on the other rig and were of such a character as to require him, as he saw things, at least, to refuse to do so. As the minority chairman of the Employment Tribunal notes at page 9 of the decision the appellant "did not indicate that there was any additional or renewed problem in his marital relationship". Having established those facts and circumstances, it appears to this court that the Tribunal should simply have asked the question as to whether dismissal by respondents at the end of the hearings, was within the band of reasonable responses that a reasonable employer might take in those circumstances. Had they done so, we are of the opinion, to use the language of Mummery L.J. in the Anglian Home Improvements Ltd. case at para. 32, that the findings in fact led "to one conclusion and one conclusion only; that is that a reasonable employer could reasonably dismiss (the appellant) for the misconduct committed by him". Instead of doing that, it is clear to us that what the majority of the Employment Tribunal did, in effect, was to substitute their own personal view as to what the employer should have done in relation to investigating historical matters, relating to the appellant's personal circumstances, circumstances which were peculiarly within the appellant's own knowledge and upon which he had declined to expand at both the disciplinary and appeal hearing. The use of the expression "the reasonable employer" at several points in their reasons, as recorded, may itself reflect the misdirection of the majority which can be, in our judgment, be determined, in any event, from the whole case. In the circumstances of this case, in our opinion, any failure by the respondents to take any further step in relation to the historic material, which they had been provided with in relation to other matters, cannot be said to have rendered the dismissal unfair as not having been within the band of reasonable responses available to a reasonable employer. We consider that the majority of the Employment Tribunal were guilty of a serious misdirection with the effect that their decision is perverse. While accepting certain of the criticisms made of the approach of the majority of the Employment Appeal Tribunal in reaching their decision, we consider that the decision was correct in the result and that the present appeal should be refused.