United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 84_93_1407

Appeal No. EAT/84/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 July 1993

Judgment delivered on 5 October 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MR A D SCOTT

MRS P TURNER

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CHRISTIAN SALVESEN FOOD SERVICES LTD          APPELLANTS

MR J B DODD          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR D S WILLIAMSON

(SOLICITOR)

Messrs Brodies

Solicitors

15 Atholl Crescent

Edinburgh EH3 8HA

For the Respondent MR J CAVANAGH

(OF COUNSEL)

Messrs Hegarty & Co

Solicitors

48 Broadway

Peterborough

PE1 1YW


 


MR JUSTICE KNOX: Christian Salvesen Food Services ("the Company") appeals the majority decision of the Industrial Tribunal sitting at Nottingham on 20 November 1992 that Mr Dodd, the applicant before the Industrial Tribunal and respondent before us, was unfairly dismissed. He was ordered to be reinstated upon terms which included a term that a final warning was to be administered to Mr Dodd in lieu of dismissal. The decision was sent to the parties on 4 December 1992.

The facts were in a very small compass and not in serious dispute. Mr Dodd was employed as a process operative in an effluent plant operated by the Company when on Saturday 25 April 1992, he was found by management asleep with his boots off and his feet up. At a disciplinary hearing that ensued on 27 April, he said he felt that it was due to medication he was taking that he had fallen asleep and that his boots were off because his feet were wet. The Company checked with their own medical adviser who said he did not believe that Mr Dodd's medication was likely to make him fall asleep, a view largely confirmed by Mr Dodd's own doctor. Mr Dodd was found by the Industrial Tribunal to have been unwell at the time. The Company took the view that there was ample supervisory cover at the time, to whom Mr Dodd did not report that he was unwell, and Mr Dodd was dismissed on 29 April 1992 for sleeping during working hours.

When the matter came before the Industrial Tribunal neither party was represented by a qualified lawyer. Mr Dodd appeared in person and the Company was represented by the Personnel and Training Manager, Mr Sharrocks. Necessarily, the Chairman played an active part in the proceedings. At an early stage Mr Dodd stated that he had two further documents in addition to those contained in a bundle which had been agreed between the parties prior to the hearing. Those additional documents were not looked at until after the close of the Company's case which included evidence from the dismissing officer, Mr Warren, and Mr Vigus, who conducted an internal appeal. No questions were put to these witnesses about the circumstances of a similar case of another employee, a Mr Clay, who was accused of sleeping on duty in August 1992 i.e. some four months after Mr Dodd's dismissal, and only received a final written warning by way of penalty.

Mr Clay's case was first mentioned to the Industrial Tribunal when Mr Dodd gave evidence and sought to put in the additional documents mentioned earlier. They consisted of two letters written on behalf of the Company to Mr Clay on 2 August 1991 and 26 August 1992. The earlier one is hardly relevant and merely states that Mr Clay was given a final written warning on 2 August 1991. The twelve months for which that warning was operative had expired before Mr Clay was the subject of a disciplinary interview on Monday 24 August 1992. The second letter dated 26 August 1992 was written after that interview and said (inter alia):

"It was explained to you that sleeping during working hours is cause for summary dismissal. You have persistently denied that you were sleeping when discovered by Mr G. Vigus in the effluent plant lab on Saturday 22 August, and after a full investigation into all the circumstances of this incident, it has been decided to issue you with a final written warning within the disciplinary procedure."

This letter was read out by the Chairman at the Industrial Tribunal hearing. At this point there is a conflict of recollection as to what happened. Mr Sharrocks has sworn an Affidavit regarding the hearing and in it he deposes to the fact that the Chairman stated that the Tribunal could not consider the other disciplinary case, that of Mr Clay. That is expressly not admitted on behalf of Mr Dodd which means that Mr Dodd does not recall it having happened but is not prepared to deny it. Similarly, the Chairman has said more than once that he has no recollection of what happened after the interval of time that has occurred since the hearing. It is therefore rather less than certain exactly what was said by the Chairman but no-one denies Mr Sharrocks' account. What is not controverted is that Mr Sharrocks, on behalf of his company, did put to Mr Dodd in cross-examination that Mr Clay had consistently denied being asleep whereas Mr Dodd had admitted the offence.

The significance of that question is that it shows that Mr Sharrocks was aware of Mr Clay's case. He had indeed said so to the Chairman and said that he did not need copies of the documents. He also put a question to Mr Dodd about Mr Clay's case. It appears that Mr Dodd did not answer the question because the Chairman intervened to say that the question was double-edged. No adjournment was asked for nor was any attempt to recall any of the Company's witnesses made.

In fact Mr Clay's case proved to be determinative of Mr Dodd's.

The Industrial Tribunal said this of Mr Clay's case:

"The applicant produced to us evidence of the treatment received by a colleague several months later. That colleague was in fact found asleep in identical circumstances as had been the applicant, although in this case the colleague had denied being asleep. Clearly the respondents made a finding that the colleague had been asleep, but they gave him a final warning rather than dismiss him. Clearly, therefore, the respondents' rules do not make dismissal mandatory for sleeping on duty."

The Industrial Tribunal was divided on the question whether Mr Dodd was unfairly dismissed. The minority view was that dismissal was on the facts within the band of reasonable responses.

The majority view was stated as follows:

"6. The majority say that a reasonable employer in the position the respondents were would have taken into account the fact that the applicant was clearly unwell. They would have reconciled him having his feet on the table with his boots off as a desire to keep wet feet off the stone floor rather than a deliberate attempt to settle himself down for sleep. The majority believe that a reasonable employer would have taken into account the applicant's good record, and the fact that he had not denied being asleep. This is clearly an important factor because admission of guilt must go some way towards mitigating the offence. If there was any doubt about the matter, and there clearly was, then the evidence with regard to the applicant's colleague was conclusive, so far as the majority were concerned. Normally the treatment of other employees is not always relevant because cases are not very often "on all fours", but the facts in the colleague's case were identical with those of the applicant's, save that the colleague denied being asleep. The majority therefore believe that a reasonable employer in the position the respondents were would have taken all the circumstances into account and would have issued the applicant with a warning."

We have reached the conclusion that the majority decision cannot safely stand. We say so for two reasons. First, we regard the procedure adopted in relation to the case of Mr Clay ran a serious risk of having been unjust to the Company. The Industrial Tribunal expressed the view in its decision (at this point it would appear to be a unanimous one) that "clearly

respondents made a finding that the colleague had been asleep". Mr Cavanagh for Mr Dodd supported that in argument before us by saying that no penalty at all could have been imposed if the Company had not been satisfied that Mr Clay was asleep.

The Industrial members of this Tribunal are not satisfied that there may not well have been considerable differences in fact and in certainty of guilt between the cases of Mr Dodd and Mr Clay. The only evidence about Mr Clay's case before the Industrial Tribunal was the letter of the 26th August 1992, which itself refers to a full investigation of all the circumstances of the incident, and that in itself suggests that there was matter for investigation. The Clay case was not put to the Company's witnesses and when one adds that it was four months later than Mr Dodd's dismissal and that Mr Sharrocks' evidence, uncorroborated but nevertheless not denied, is that the Chairman said the Tribunal could not deal with the Clay case, this Tribunal feels that it would be unsafe to permit the Clay case to be determinative, as it clearly was in the majority opinion.

Mr Cavanagh very properly accepted that the paragraph dealing with the case of Mr Clay was not happily phrased and that in saying that the Company's rules did not make dismissal mandatory for sleeping on duty, the wrong test had been applied. The question was whether dismissal was within the band of reasonable responses not whether it was mandatory.

We should add that Mr Williamson, who appeared before us on behalf of the Company, did not go so far as to submit that inconsistency of treatment arising after the relevant dismissal could never be taken into account in deciding whether there was an unfair dismissal so far as penalty was concerned. Eagle Star v Hayward [1981] ICR 860 indicated the contrary. He did, however, submit that the Clay case was not dealt with as fully and properly as it should, in the circumstances, have been.

That leads to the second reason for allowing this appeal against the majority decision. We are satisfied that the thrice repeated references to what a reasonable employer would have done in the particular circumstances of this case reveal a fundamentally mistaken approach of looking to see what a reasonable employer would have done and then seeing whether the employer has measured up to this standard. We do not attach much significance to the use of the word "They" in the second sentence of paragraph 6 quoted above in the phrase "They

would have reconciled him having his feet on the table with his boots off as a desire to keep wet feet off the

floor ....", although grammatically it must at least possibly refer to the Tribunal majority rather than the postulated reasonable employer. We take it to refer to the latter. Even making that favourable assumption we find the concentration on what the reasonable employer would have done irreconcilable with the application of what Mr Cavanagh accepted was the proper test. There was no dispute before us about this test and we therefore find it unnecessary to cite at length such authorities as Linfood Cash & Carry v Thomson [1989 IRLR 235, British Leyland UK Ltd v Swift [1981] IRLR 91 and Gair v Bevan Harris Ltd [1983] IRLR 368, all of which were cited to us and which make it clear that there is a band of reasonableness within which one employer might reasonably dismiss whilst another would impose a lesser penalty and that to ask whether a reasonable employer would have imposed the lesser penalty is to apply the wrong test.

Mr Cavanagh did not challenge these propositions. He submitted that although the Industrial Tribunal's decision was not felicitously worded it must have been in the majority's mind what the appropriate test was because the minority expressly applied it and, he submitted, the majority must have done likewise. He also pointed out that in neither British Leyland v Swift nor in Gair v Bevan Harris was there any internal evidence that the test of a band of reasonable responses was within the cognisance of the Industrial Tribunal. There are, it seems to us, two points that go the others way. First, the close juxtaposition of the minority view applying the correct test can also lead to the conclusion that, since the majority clearly did not adopt that test in terms, they may well not have followed it, whether consciously or not. Nothing would have been easier than to recognise and accept and apply it.

The second point is that even on the majority view this was a doubtful case and what tipped the scales was the case of Mr Clay. It is not easy to see how the later occurrence of Mr Clay's case can have taken Mr Dodd's dismissal outside the band of reasonable responses of an employer.

We have therefore formed the view that the majority decision cannot stand and we must remit the case for reconsideration by another tribunal in the light of this judgement. This makes it unnecessary to consider other matters argued before us such as whether the order made was one for reinstatement or for re-engagement and what was the effect, if any, of the term that a final warning should be given. It is equally unnecessary to deal with submissions made to us that the majority decision was perverse and that there was a failure to deal with the question of contributory fault. We were told that Mr Dodd has since been made redundant which will in practical terms reduce the scope of available remedies. This, however, will be for the Industrial Tribunal which rehears this case to decide.