United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 23_94_0310

Appeal No. EAT/23/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd October 1995

Before

HIS HONOUR JUDGE J HICKS Q.C.

MR J D DALY

MR K M HACK JP

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MR G P BEAVEN          APPELLANT

CREATIVE PRINT & DESIGN          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR TOBY KEMPSTER

(of Counsel)

Messrs Lock & Marlborough

3 The Broadway

Gunnersbury Lane

London W3 8HR

For the Respondents MR HARRY TRUSTED

(of Counsel)

Brand Montague

Solicitors

Sherwood House

176 Northolt Road

South Harrow

HA2 0EM


 


JUDGE HICKS: Mr Beaven, the Appellant, was a machine minder and had been employed by the Respondent for over six years when he was dismissed on 6 November 1992. In response to his application for compensation for unfair dismissal the employer, by its Notice of Appearance, alleged that the dismissal was justified on the following grounds:

"1. The Applicant was guilty of poor workmanship and was given a written warning in this respect on 23rd August 1992.

2. The Applicant was a poor time-keeper. Despite a final written warning on 7th September 1992, he was late for work on 28th October 1992 and again three times in the week preceding his dismissal on 6th November 1992.

3. The Applicant was also guilty of harassing and making threats, expressed or implied, against members of the staff.

In all the circumstances, the Respondents were left with no alternative but to dismiss the Applicant."

The Industrial Tribunal dismissed the application. The grounds of the appeal to us against that decision fall into two main groups, although they are related. The first is of failure to consider matters which it is alleged the Tribunal should have considered. The second is of forming and acting upon its own view on questions which were for the employer to decide. In order to consider whether those criticisms are justified it is convenient at the outset to set out the whole of the relevant parts of the Tribunal's reasons:

"4 The Respondents produced evidence to show that the Applicant did a job very badly in regard to a print instruction as a result of which the company suffered a considerable loss. The Applicant's response is that the machine had been out of order for some two years, that the instructions with regard to it were far from clear, that he sought management approval for what he was about to do but no management representative was available and that his attempt to check with other members of staff was of little assistance. He admits that the matter was wrongly printed but denies that it justified his dismissal and that it was his first mistake in many years.

5 There is no doubt that the job was wrongly printed. However we think that if the Applicant was in doubt and the instructions vague he should not have proceeded with the job until he was sure that what was being done was correct. We uphold the employer's view that there was a basis for criticism of the Applicant. The Respondents say, and we agree, that if that were the only matter, that incident in itself would not have been sufficient justification for dismissal. However that is not the only matter because the Respondents say that the Applicant had a bad record of timekeeping, that he had been given warnings and that despite those warnings he continued to come in late. We have seen page 89 of the Respondents' bundle. In general the Applicant does not dispute most of what is said there concerning timekeeping. We are reinforced in the matter on the basis of the Applicant's own acceptance of the criticism. On page 64 of the Respondents' bundle in an appeal letter to Mr Jeffrey he writes:- "I accept my timekeeping isn't very good but it is improving." We find that the Applicant's timekeeping was poor and justified the warnings and together with the other matters the dismissal.

6 The Applicant rightly criticises the lack of definition of the disciplinary code at the time he was dismissed. He says, and his colleagues go some way to support him, that the disciplinary rules were such that warnings dropped away after three months. However the employers say that that had been the original position but it had become changed by agreement with the union through the Father of the Chapel. Mr Birt, the Father of the Chapel, in his evidence agreed that as the time of dismissal the relevant period was six months and that the employers were correct in having sufficient warnings on file against the Applicant to justify the dismissal within the disciplinary code. We think it a pity that the Respondents did not issue contracts of employment amended when necessary and have a proper disciplinary code published and available to all. We refer to the Respondents' evidence that at the relevant time the "dropping off" was after six months and at the time of the dismissal the Applicant had had the relevant number of warnings, verbal and written, to fall within the code and so justify the dismissal.

7 However, even if that were not enough we find that the matter relating to the threats against Mr McGregor sufficient on its own to justify the dismissal.

8 The Applicant has alleged from the start that he strongly resented provocative sexual suggestions made by his colleagues concerning Miss Diane Kelly. He says that he himself had never approached the lady nor given any reason for her to think that he was other than a colleague at work. He alleges that Mr McGregor was the ring leader of an organised "wind-up" and that it was in desperation that after some 10 months of taunting that he decided to put a stop to it. The Applicant said he went to see Mr Pattison and asked him whether any threats against Mr McGregor on the premises would affect his job and was told by Mr Pattison that it would. However he says that Mr Pattison told him that threats against Mr McGregor outside the firm would not prejudice his employment. Accordingly, and there is no dispute on this, the Applicant followed Mr McGregor in his motor car, that when Mr McGregor pulled into a layby the Applicant pulled up in front of him and wearing metal-studded gloves and carrying an iron bar approached Mr McGregor's car. There is no dispute, and the Applicant says he intended it, that Mr McGregor felt threatened. However, the Applicant says he quickly dropped the iron bar but kept on the gloves. However Mr McGregor, understandably perhaps, drove away with the Applicant in hot pursuit. Mr McGregor at one stage pulled up and ran across fields to escape the Applicant. Subsequently Mr McGregor went to the police.

9 At work the employers were concerned about the relationship between two of their employees. They involved the trade union and discussions took place. At one stage it looked as though the argument had been resolved, however it is alleged that a week later a further threat was made by the Applicant against Mr McGregor. There is a conflict on this point. Mr Beaven says that he only threatened to seek legal advice on what action could be taken against Mr McGregor. Mr McGregor says there was no question of legal advice, that there was a clean threat of violence.

10 At that point the Applicant was dismissed. The Respondents claim that the dismissal was fair, that the three separate matters: the bad workmanship, the timekeeping and the threats justified that dismissal. We agree.

11 We sympathise with the Applicant with regard to his criticisms of the disciplinary code but because of all these matters we find that the employers acted within the band of reasonable responses of a reasonable employer in dismissing the applicant."

The only test which the Industrial Tribunal explicitly applied was that set out in paragraph 11 of their reasons, which is clearly a reference to a well-known passage in the judgment of this Tribunal in Iceland Frozen Foods v Jones [1982] IRLR 439:

"(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair."

That formulation has been approved or followed in many later decisions but it is to be noted that it is only the last of five points, of which the preceding four are also important:

" (1) the starting point should always be the words of s57(3) themselves;

(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what is the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

Points (2) and (3) are particularly germane to the second criticism of the Tribunal's reasons, to which we shall come in due course, but in relation to the first it is to be noted that (4) refers to the "employee's conduct" as the starting point for consideration of the reasonableness of the employer's response. We therefore understand (5) as being primarily concerned with the reasonableness of the dismissal as a penalty, given that conduct. Where the employer's justification for relying on the conduct at all is in question the appropriate test is in our view that expressed in British Home Stores v Burchell [1980] ICR 303 as follows (omitting words which import a requirement as to the burden of proof which is no longer part of the statute):

"... What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily , dishonest conduct) entertained a reasonable suspicion amounting to the belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, ... the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."(Page 304 C)

Clearly the Industrial Tribunal did not explicitly direct themselves along those lines. It is, we think, implicit in their reasons that they found the first element to exist, that the employer did believe Mr Beaven to have been guilty of the conduct relied upon in dismissing him. The question is whether they addressed their minds sufficiently, or at all, to the second and third elements, and the Notice of Appeal and Mr Kempster's submissions on behalf of the Appellant concentrate in particular on the third, the need for a reasonable investigation, which as the authorities establish includes a requirement of procedural fairness as well as the quantitative aspect implied by the words "as much".

In his submissions on behalf of the Respondent employer Mr Trusted reminded us of passages from the judgments in two cases in the Court of Appeal: Retarded Children's Aid Society Ltd v Day [1978] ICR 437 and Piggott Brothers & Co Ltd v Jackson [1992] ICR 85. The passage cited from Piggott concerns, in our understanding, the correct approach to appeals from Industrial Tribunals on the ground of perversity, which is not relied upon here, so we need say no more about that. The passages from Day are as follows:

LORD DENNING - MASTER OF THE ROLLS "It is true that the tribunal did not mention those matter specifically in their reasoning: but it does not mean that they did not have them in mind or that they went wrong in law. I go further. If you read their reasons in a broad sense, it seems to me exceedingly likely that they did have those points very much in mind. As Lord Russell of Killowen indicated in the course of the argument, the tribunal themselves took the point. In the course of the evidence they asked the person in charge about the final warning, and she said: "I never gave a final warning to Peter. I did try to show how I felt." So they themselves raised the question of the final warning. As to its being a first offence, in their reasons they said: "Bearing in mind that this was a first offence." so they had that very much in mind. They probably had the Code of Practice in mind because they treated this as an abnormal case. This tribunal in their reasons said: "... this is a very special case," and not a normal one. So reading between the lines, it seems to me that, although not stated explicitly in the reasons, this tribunal very probably did have all the considerations in mind which it is suggested they may not have had.

I would add this. The decision is entrusted in the ordinary way by Parliament to the tribunal. I do not think it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning. Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the Employment Appeal Tribunal should not interfere with their decision even though they would themselves have come to a different decision."(Page 443D)

"LORD RUSSELL OF KILLOWEN. I agree. The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine tooth comb for some point of law.

On the basis of the notes of evidence and reasons for the decision by the industrial tribunal. I detect no error of law and I also would allow the appeal."(Page 444C)

There are three elements in each of those extracts. The first is the need for caution in assuming that omission to refer to a point indicates failure to attend to it. We accept that need, although there must plainly be limits to the extent to which we should carry the contrary assumption that a Tribunal has taken into account matters of which it says nothing. It is to be noted that Lord Denning supports his inference that the relevant matters were in the mind of the Tribunal by reference to a question put by them to a witness and to passages in their reasons. The second is a warning against searching for fine points of law to justify interference where the appeal Tribunal has a different view of the evidence or merits. We do not consider that that has any application here; the point of law is obvious and fundamental and none of us has the slightest inclination to allow this appeal in order to give effect to a personal view of the merits. The third element is that the notes of evidence were looked at in that case. They were also called for by order made on a preliminary hearing of this appeal and we were referred to passages by counsel on both sides. We therefore take account of those passages, but we remind ourselves that the purpose of doing so is not to form an opinion of our own as to the employer's conduct (still less the employee's) but to see whether they cast light on the question whether the Industrial Tribunal addressed the issues which it needed to address, but did not explicitly mention.

The decision to dismiss was precipitated by the incident referred to in paragraph 9 of the Tribunal's reasons. As to the actions of the employer following that incident and culminating in the dismissal, we were referred by Mr Trusted to evidence by Mr Beaven that after the final exchange with Mr McGregor on 5 November he agreed on the following morning to speak to Mr Birt (the Father of the Chapel) and Mr King (another machine minder and union member), that they accused him of threatening Mr McGregor and that he denied doing so and said that he had no intention of using any violence against Mr McGregor. Mr Birt, he said, then left and he continued talking to Mr King for another hour, giving him his side of the story as to Ms Kelly. Mr Trusted also referred us to Mr Birt's evidence, of which the only passage relating to the relevant period seems to be: "... there was a resurgence later. I was there when the Applicant was dismissed. I witnessed what the Applicant said". Finally, on this point, Mr Trusted referred to the evidence of the Works Manager, Mr Pattison, the note of which is as follows:

"Thursday 5 November '92. Applicant and McGregor conversation. Applicant antagonistic. McGregor came to see me. I felt that McGregor had some serious risk from the Applicant. I felt Diane Kelly was also at risk.

...

6.11.92 I dismissed the Applicant. McGregor/Diane Kelly played a part in the reasons for his dismissal.

Mr Kempster referred us, on this point, to Mr Beaven's evidence, immediately after that about his meeting with Messrs Birt and King, that at 10 am on the same morning he was called in by Mr Pattison and Mr Birt and dismissed for timekeeping, and that nothing was said about the threats, the McGregor incident, the Kelly history or bad workmanship. Mr Kempster also referred to Mr King's evidence as to his involvement on 6 November. He said that he had a word with both Mr McGregor and Mr Beaven to "try and resolve it", that it took one hour in the end and that he was satisfied that they had resolved their differences.

We were not referred to, and have not found, a note of any questions from the Tribunal to any of the relevant witnesses as to the conduct of the final interview of Mr Beaven by Mr Pattison in the presence of Mr Birt, except that in answer to an unrecorded question from one member Mr Beaven repeated that he was told he was being dismissed for timekeeping. There is no record of any questioning by the Tribunal as to the conduct of the meeting between Mr Birt, Mr King and Mr Beaven or its continuation after Mr Birt had left.

The majority of us (the Chairman and Mr Daly) find nothing in this to suggest that the Industrial Tribunal, despite the absence of any reference to the subject in its reasons, considered and resolved the question whether the employer carried out a reasonable investigation - rather the contrary. Mr Trusted submitted that they would have been entitled to take into account the meeting with Messrs Birt and King as being an investigation on behalf of the employers, but there was no evidence that that was its nature, let alone that Mr Beaven was put on notice that that was so, it was clearly not how Mr King saw his role, there is no suggestion that timekeeping or workmanship was mentioned, and if Mr Birt was then acting on behalf of the employer he cannot also have been Mr Beaven's union representative at the disciplinary meeting with Mr Pattison, in which case Mr Beaven was given no opportunity of being accompanied or assisted at that meeting. There was no evidence who, if anyone, considered on behalf of the employer the conflict as to the nature of Mr Beaven's threat to Mr McGregor or what conclusion, if any, was reached. In any event there is no indication that this way of looking at the matter ever crossed the Tribunal's mind.

As to the disciplinary meeting itself, there is nothing in Mr Pattison's or Mr Birt's evidence, as recorded, which directly controverts Mr Beaven's account, and if some conflict is to be inferred the Tribunal do not resolve it. There was no evidence that the purpose of the meeting was explained to Mr Beaven. Even without the complication of the status of the previous meeting it is far from apparent that Mr Birt was there as Mr Beaven's representative, and the Tribunal make no finding on the point, indeed they do not mention any meeting or hearing at all. Mr Beaven said that only timekeeping was mentioned, and again there is no direct controversion of that and no finding. There was no evidence that he was given any opportunity to meet the allegations on which the employer relied to justify dismissal or the evidence in support of those allegations, or to put forward any matters in mitigation. That being so we do not see how it can credibly be supposed that the Industrial Tribunal considered any of those matters specifically or the fairness of the investigation and hearing generally.

We have therefore come by the majority identified above, to the conclusion that the Tribunal erred in law in failing to consider whether the employer carried out an investigation which was reasonable in all the circumstances of the case before dismissing the employee, having regard to the grounds relied upon by the employer for the dismissal. We therefore allow the appeal. In all the circumstances we consider that the best course is to remit the application for rehearing before a differently constituted Tribunal.

Mr Hack, the minority member, points out that there is a long established and well recognised practice for the trade unions in the printing industry to take a leading role in the conduct of disciplinary investigations involving their members. The Father of the Chapel plays a pivotal role. In this instance Mr Birt had been the Father of Chapel for eight years and had known Mr Beaven, one of 20-40 employees of the business, throughout his period of employment. The note of Mr Birt's evidence states:

"I was Father of the Chapel at the time of the Applicant's dismissal. Warnings determined by individual Chapel. No national agreement."

Mr Birt had been involved in all the disciplinary actions relating to Mr Beaven and had spoken up for him to management on a number of occasions with some success as his evidence shows:

"August 1992 bad workmanship. Originally a final written warning but changed after the Applicant approached me

...

Pattison changed the final written warning to the second verbal but added final written warning for timekeeping. Therefore management entitled to subsequently dismiss.

I appealed against the warning for bad work. I put case as strongly as I could to Pattison. No joy. As Father of the Chapel I felt I would take it no further."

Following the second alleged threat by Mr Beaven on Mr McGregor on 5th November 1992, only a week after the first threat which Mr Birt had investigated, Mr Birt again interviewed Mr Beaven early on the morning of 6th November, this time accompanied by his Night Deputy Father of the Chapel, Mr King. He also sought the advice of the Senior Branch Secretary, Mr Trevor Fowler, a full-time union official. Mr Trusted referred us to Mr Birt's evidence, the note of which is as follows:

"I spoke to the Applicant and asked him what it was all about. Applicant was non-committal.

I spoke to Trevor Fowler, Senior Branch Secretary (full-time Branch Secretary). He spoke to the Applicant but the Applicant was not forthcoming to him either. Fowler tried to talk some sense to him.

The Applicant and McGregor shook hands but there was a resurgence later. I was there when the Applicant was dismissed. I witnessed what the Applicant said. He said that McGregor and Clapton would need police protection. That was after he was sacked. I think Respondents within their rights in dismissing the Applicant."

Later that same morning there was a meeting with the Works Manager, Mr Pattison, at which Mr Beaven was dismissed in the presence of Mr Birt. There can be little doubt that the principal ground for Mr Beaven's dismissal was the further incident with Mr McGregor and Mr Beaven well knew this to be the case. The union had followed its established practice and conducted a proper investigation of the incident. It must have become clear that nothing more could be said on Mr Beaven's behalf and that the end of the road had been reached so far as his further employment was concerned. The employer acted fairly and reasonably in delegating the conduct of the investigation in that way and, in the particular circumstances of the case Mr Pattison's decision to dismiss Mr Beaven fell within the band of reasonable responses of a reasonable employer. Mr Hack would therefor dismiss this appeal.

Having reached the majority conclusion stated above we can dispose very briefly of the other matters debated before us. In addition to the general submissions of failure to address the issue of reasonable investigation covered by the discussion above Mr Kempster had some specific points concerned with the allegation of a history of bad timekeeping, and in particular the duration and effect of warnings and appeals forming part of that history. We need say only that we do not regard those points as adding anything of substance to the Appellant's case.

As we have already indicated, there was also a distinct ground of appeal alleging that the Industrial Tribunal formed and acted upon its own view on questions which were for the employer to decide. There are certainly passages in the Tribunal's reasons, for example the first half of paragraph 5, paragraph 7 and the last sentence of paragraph 10, which give some colour to that complaint, but having decided that the appeal must be allowed on other grounds we need express no concluded view on the point.