United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1350_95_1903

Appeal No. EAT/1350/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 March 1996

THE HONOURABLE MR JUSTICE HOLLAND

MR J H GALBRAITH CB

MRS M T PROSSER

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MR J S BROOKS          APPELLANT

DELTA CROMPTON CABLES LTD          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS HELEN PARKINSON

(Solicitor)

Messrs Whittles

(Solicitors)

Pearl Assurance House

23 Princess Street

Albert Square

Manchester M2 4ER


 


MR JUSTICE HOLLAND: We have before us an appeal from an Industrial Tribunal sitting at Manchester on 1 September and 18 October 1995. The decision was:

"The unanimous decision of the Tribunal is that the applicant was not unfairly dismissed and accordingly his complaint is dismissed."

Extended reasons followed and sent to the parties on 30 October 1995.

Turning to the essential facts of the matter, they are as follows: the Applicant, Mr Brooks, was a cable operative in the employment of the Respondent. On Monday, 27 March 1995, he clocked on at 6 am. Shortly thereafter he left his machine without any authorization. The management, finding him absent from his place at work, instituted a search which failed to find him. At 9 am he returned to his machine and at 11.40 am, as the Industrial Tribunal found:

"... the applicant requested a pass out so as to go home. The respondent's evidence was that the applicant said he was `still hung over from the previous night'. The applicant denied saying that he was hung over and claimed that he had merely stated he was feeling unwell. The reason for the pass out was categorised as `MEDICAL'."

Disciplinary proceedings were instituted and they commenced with a disciplinary hearing on 28 March. The Tribunal's findings as to that meeting are as follow:

"The applicant attended the meeting and the respondent asked Mr Medcalf the applicant's shop steward also to attend... The meeting was to discuss the events of the previous day and Mr Caulfield set out the facts as he saw them and asked the applicant for his version of the events. The applicant gave his version of the events. Mr Caulfield considered that the applicant's version was misleading as the applicant appeared to indicate to Mr Caulfield that the applicant had not been away from his machine [for] any appreciable length of time. The applicant was told of the search and asked if he wanted to change his version of events. The applicant then said he had fallen asleep in the toilets from approximately 7.00 am to 9.00 am after which he had returned to his machine. Both the applicant and the shop steward were informed the matter was to be reported to the works manager, Mr Drinnan."

That then led to a further disciplinary hearing on 11 April 1995, this time conducted by Mr Drinnan. The findings of the Tribunal as to that meeting are as follows:

"At that meeting the applicant and his representative were told on a number of occasions that it was a serious disciplinary matter namely a prolonged absence from his workplace without authorization but it was not stated that it was being viewed as gross misconduct until effectively the end of the meeting.

(xi) After hearing the applicant's explanation Mr Drinnan decided that the applicant had been guilty of gross misconduct and he dismissed the applicant. In considering whether dismissal was the appropriate sanction Mr Drinnan took account of the applicant's past disciplinary record and of two incidents which might be described as insubordination but which were not the subject of disciplinary proceedings at the time. However, although the applicant's disciplinary record was not good it was a fact that by the time of his dismissal in April 1995 the last written warning (which had been a final written warning) was approximately 15 months earlier. According to the respondent's disciplinary rules such a warning had a `life' of 6 months and therefore in April 1995 was effectively `dead'."

The Respondent's procedures provide for a right of appeal against dismissal and the Applicant exercised that right so that there was a final hearing, this time before Mr Musgrave. That hearing was on 19 April 1995. Mr Musgrave was the Works Manager. At the hearing the Applicant was represented by his shop steward, Mr Williams, who had been the representative at the hearing of 11 April. As to that final hearing:

"Mr Musgrave gave the applicant the opportunity to restate his case. After having heard all that was said and after two breaks to check information Mr Musgrave upheld the decision to dismiss. Mr Musgrave was unaware of the two incidents of insubordination which had been considered by Mr Drinnan and therefore Mr Musgrave did not take them into account in coming to his decision to uphold the dismissal but he was aware of the applicant's disciplinary record although he gave evidence that that record did not influence his decision."

Turning from the history of the matter to the approach of the Industrial Tribunal, that appears from paragraphs 12, 13 and 16 of the extended reasons. We quote:

"12. The Tribunal were satisfied on the evidence an in view of the acknowledgement by the applicant's representative that the reason for dismissal was related to the applicant's conduct.

13. In this case the respondent used a procedure of a first disciplinary investigation followed by a disciplinary hearing and then an appeal process. That as a procedure cannot be faulted. It is alleged that the applicant was disadvantaged in not knowing at the investigation stage what it was all about and that he did not know at the disciplinary hearing that his job was probably in jeopardy. The Tribunal is satisfied that the applicant was well aware that it was a serious disciplinary matter no later than the start of the disciplinary hearing from which it must follow that dismissal might have been a possibility.

...

16. As to the question of whether dismissal is the appropriate sanction it is suggested that this is not a serious or gross misconduct because it is not of the same type as the examples of gross misconduct but it is more appropriately categorised as misconduct. The applicant had no current warnings and he could expect that if it was to be treated as misconduct rather than gross misconduct he would receive a final written warning. The Tribunal, however, has to consider whether the respondent acted as a reasonable employer and it is up to the employer to form the view as to which category the offence falls within and provided that is the decision of a reasonable employer it is not for the Tribunal to criticise. In this case the respondent had formed the view that the applicant was lying. The applicant had been at work, clocked on and earning but not doing his job. In essence the respondent came to the view that the applicant was effectively keeping out of the way. An employer who forms that conclusion cannot be said to be acting unreasonably in viewing the matter as gross misconduct in which case the sanction of dismissal must fall within the band of responses of a reasonable employer."

Turning them to the way in which this appeal is put, it necessarily reflects section 57 of the Employment Protection (Consolidation) Act 1978 which, so far as is material, provides:

"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(2) In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which -

...

(b) related to the conduct of the employee, ...

(3) Where the employer has fulfilled the requirements of subsection (1), then, ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."

Turning to the way in which the matter has been put this morning by Ms Parkinson in the course of a markedly determined submission, it is as follows: she draws attention to the extended reasons and, in particular, to paragraph 16 and submits that the Industrial Tribunal found that the Respondent employers had formed a view that her client had been lying when he said that he had been sleeping in the toilets at the material time. She submits further that the Industrial Tribunal took the view that that matter - the lying - constituted part of "the reason" for the purposes of s.57(3) and thus bore upon the range of responses open to the Respondents as reasonable employers. She submits that there is an underlying fallacy here. Whether or no the Respondents did think that her client was lying, it was not, she submits, part of "the reason" and, therefore, did not fall to be considered when assessing the range of responses. That submission is, in point of fact, supported by the content of a letter sent by the Industrial Tribunal at Manchester to this Tribunal setting out the views of the Chairman in which he concedes that the dismissing officer did say in cross examination that in coming to the decision to dismiss, the fact that he did not believe the Applicant, had not influenced him. Thus it is, Ms Parkinson submits, that the Industrial Tribunal misdirected itself as to "the reason" and thus misdirected itself as to the range of responses open to the Respondent as a reasonable employer. In that way, she submits, the decision is prima facie flawed, so flawed that we ought to remit this matter for a full hearing with the Respondent appearing.

We have considered that submissions very carefully but in the event we have to reject it. We cannot regard the criticism advanced, albeit well-founded in fact, as fatal to the Industrial Tribunal's ultimate conclusion, namely, that this dismissal was fair.

Two points arise. First, it is plain to this Tribunal that any lying on the part of Ms Parkinson's client plainly did not go to the gravamen of the matter but constituted at best a gloss on the essential complaint. The essential complaint was that he had been absent without any authority and without any prior notification from his place of work for some three hours. Let is be supposed that he was ill and that that explained the absence. The fact that he did not notify anybody in advance meant that in the event it afforded him no excuse at all. There then was the essential misconduct for evaluation and it is not surprising to this Tribunal that in the event the Respondent did evaluate it without taking heed of the honesty or falsity of any account given by Mr Brooks.

Turning to the second aspect for this Tribunal it is this: let us take the reason now as free from that gloss and focus purely on the reason as it was perceived by the Respondent. We can discern no ground to exclude dismissal from the range of responses open to the Respondents as reasonable employers following the elaborate procedures already described in this judgment and rightly endorsed by the Industrial Tribunal. In our judgment, this appeal, making every allowance for the validity in point of fact of the point taken by Ms Parkinson, is doomed to fail. Were it otherwise, we would send it forward for a full hearing but, in the circumstances, our duty is plain and that is, to dismiss this appeal now.

Tribute has already been paid to Ms Parkinson for her assistance. It has been helpful and Mr Brooks can feel confident that every aspect of his case has been put forward fairly and forcefully.