United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B CARR (of Counsel) Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE
For the Respondents	MR G R HOWARD (Solicitor) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE LEVY: This is an appeal by Mr William McNiven against a decision of an Industrial Tribunal promulgated on 2 May 1995. The Industrial Tribunal held, after a two day hearing in March 1995, that he had not been unfairly dismissed by his employers, TRW Cam Gears Ltd. The Notice of Appeal is dated 8 June 1996. There was a Preliminary Hearing prior to that on 19 January 1996, when ex parte directions were given that the matter should proceed to a full trial.

The background to the appeal is set out in the early paragraphs of the Extended Reasons of the Industrial Tribunal which read thus:

"1 Mr McNiven worked for the respondents as a machinist from November 1986 until his employment was terminated as a result of his dismissal with effect from 5 January 1994.

2 The incident that gave rise to Mr McNiven's dismissal took place on 22 December 1993. According to a written statement by Mr Chaudhrey, Mr McNiven's section manager, Mr McNiven refused to carry out a request which Mr Chaudhrey considered a reasonable one. There was an interview by Mr Rolphe, personnel manager, with Mr McNiven and his union representative on 23 December 1993 at which this written statement was considered. This interview was adjourned for further investigations. There was then a disciplinary hearing on 5 January 1994 at the conclusion of which Mr McNiven was told that he would be dismissed."

We have notes of that disciplinary hearing .

"There was an appeal from the decision to dismiss Mr McNiven which was held on 14 January 1994"...

We have the notes of that appeal hearing (at pages 23 and 24 of our bundle) and the final paragraph of those notes reads:

"Mr Walker also stated that Mr McNiven had had a history of uncooperation which the company had tried to highlight to him on a number of occasions. Therefore he declared he was upholding the decision on dismissal and reminded Mr McNiven of his rights remaining."

The complaint made by Mr Carr - who appears today for Mr McNiven - on the appeal is on that occasion matters were taken into consideration which ought not to have been done and this vitiates the decision which was made. The Extended Reasons continue:

"2 ... and a further appeal which was held on 8 February 1994, both of which were unsuccessful."

The notes of the further appeal appear on page 25 of our bundle and that includes a line "previous occurrences". Mr Carr therefore says that when the further appeal was held, once again matters were taken into consideration which should not have been.

Why does Mr Carr so submit? He takes us first of all to the disciplinary code of the Respondent and to the record of the Appellant. Paragraph 2.4 of the court has the heading "Disciplinary Procedure". Material extracts from this paragraph are:

"The purpose of this procedure is not to punish but to give the opportunity to improve performance and conduct.

The procedure will be followed in regard to disciplinary action by supervisory staff, at all levels, in regard to conduct which could lead to a verbal and written warning, suspension or dismissal.

......

A warning given for any type of misconduct will be regarded as qualifying for the next stage in the procedure.

STEP 1

The employees immediate supervisor gives a formal VERBAL warning to the employee, specifying the deficiencies, which may be:-

......

b) Refusing to carry out a justified job when requested to do so"

Then it provides that the employee must be informed of the decisions given certain information and a note:

"If improvement has not taken place within the specified time period, step 2 will be invoked."

STEP 2

The employees immediate supervisor in conjunction with the departmental executive, gives a written warning to the employee, specifying the deficiencies.

.......

This warning will take three months to clear from the employees record which then reverts to step 1 thus taking six months to clear the record completely.

......

STEP 3

The departmental executive in conjunction with the supervisor will give a three day unpaid SUSPENSION to the employee, specifying the reason(s) why.

.....

This suspension will take six months to clear from the employees record which then reverts to Step 2 thus taking twelve months to clear the record completely."

.....

STEP 4

The departmental executive in conjunction with the Personnel Manager will DISMISS the employee, specifying the reason(s) why.

Before action is effected, the departmental executive must consult the personnel office to ensure that the procedure has been complied with.

.....

GROSS MISCONDUCT

In cases of GROSS MISCONDUCT, the disciplinary procedures may be by-passed ..."

There has been no suggestion that in the disciplinary matters, which Mr McNiven faced, that "gross misconduct" procedures were considered appropriate or followed. Indeed all the documents of the employer suggest that Mr McNiven was dismissed for a refusal to obey a request. We need do no more at this stage than to look at the IT3 which reads, so far as the reason for dismissal:

"Failure to respond to a reasonable request from a Section Manager after being given ample opportunity to carry out the instruction.

Decision to dismiss taken after reference to previous incidents where disciplinary procedure had been applied."

This again highlights what Mr Carr submits: Mr McNiven had in fact been subject to the disciplinary code on earlier occasions. He commenced his employment with the Respondent in November 1986; a letter was written to him about his attitude on 23 August 1990; it was alleged on 7 September 1990 that he refused to obey an instruction; on 25 September 1990 there was a three-day suspension for a refusal to obey an instruction; on 8 October 1990 there was a written warning regarding a refusal to obey an instruction; on 10 January 1991 there was a letter to Mr McNiven regarding the removal of the disciplinary sheet from his record; on 19 October 1992 it was alleged he had refused to carry out a reasonable request; on 22 December 1993 there occurred the incident which led to the matters for which he was dismissed. Mr Carr points out that 22 December 1993 is some 14 months after the last allegation that he had refused to carry out a reasonable request; consequently under the Respondent's own procedures, the time had passed when these earlier breaches could be relied on by the Respondents in disciplining Mr McNiven under its code.

The matter as we say proceeded to the Industrial Tribunal after the internal steps had been taken to dismiss. The Tribunal ended its Extended Reasons as follows:

"5 While refusal to carry out a reasonable instruction constitutes misconduct, it does not necessarily constitute gross misconduct. However, in our view the respondents acted reasonably in coming to the conclusion that in this particular case it did constitute gross misconduct in view of the repeated refusals and the urgency for compliance with the instructions of which Mr McNiven was well aware. Mr Lawrence [the representative of the union who represented Mr McNiven at the Industrial Tribunal] rightly relies on step 1 of the respondents' disciplinary rules. However, the rules provide that, in a case of gross misconduct, the disciplinary procedure may be by-passed. In our view there is nothing in these rules preventing an offence coming under step 1 being so serious in a particular case as to constitute gross misconduct. For example, the offences in question also include bad workmanship. [One asks at that stage what is the references to "offences" because all the Respondent was entitled to complain of, was a refusal to obey an order.] In our view, in a particular case, bad workmanship might be so bad as justify summary dismissal (in the same way that in Alidair v Taylor [1978] ICR 445 it was held in that particular case that the applicant's negligence was so serious as to justify immediate dismissal without warning). In the present case we do not think that the respondents acted unreasonably in regarding Mr McNiven's refusal to obey the reasonable instructions of his supervisor as sufficiently serious as to constitute gross misconduct, having regard to the repeated nature of the refusals, the urgency of the matter and Mr McNiven's past record of refusals."

Mr Carr points out that the Industrial Tribunal as had the further appeals procedure of the Respondents taken into account past refusals which, Mr Carr submits, they were not entitled so to do.

There are two grounds in his appeal. The first is on the construction of the disciplinary procedure of the Respondent. Mr Carr submits that under the terms of the disciplinary procedure, the Respondent had categorised the refusal to obey an instruction as something that would only attract a Stage 1 warning. The only way this could be avoided would be if there were earlier warnings which could be taken into account, or if the behaviour was categorised as gross misconduct. However the procedure also stated that an employee's record would be cleared after the requisite period. Mr McNiven had served such a period and therefore on a proper construction of the procedure, his record was to be regarded as clear and his prior conduct should not be taken into account. In that connection he referred us to an unreported decision of this Tribunal Eccles v Ribble Motor Services Ltd EAT/609/90 (of which he had the privilege of representing the successful party) and where a similar point was taken. Mr Carr further submitted it was therefore only as a result of the misconstruction of the procedure that the Respondents in the Industrial Tribunal were able to describe the Appellant as having been guilty of gross misconduct.

Mr Harwood who appears for the Respondent points us to the record of what happened on the day in question and says that amounts to gross misconduct. That is as may be, but what Mr McNiven was dismissed for, refusal to obey an order in the context of the previous offences, albeit categorised by gross misconduct by the Industrial Tribunal. We accept that Mr Carr's construction is right and that the point he takes in his submissions are also right. Mr Carr also submits that any conclusion that the Appellant was guilty of gross misconduct was based in part, firstly, on the Appellant's previous record, and secondly, on the decision in Alidair v Taylor. As to the previous record he submits, in our view rightly, that this should have been disregarded. As to Alidair v Taylor he submits, and again in our judgment, correctly, that the Industrial Tribunal erroneously proceeded on the basis that that was a gross misconduct case, where immediate dismissal was justified. He has taken us to the facts of Alidair v Taylor. The pilot made a very bad landing of his aeroplane and he was judged to be incompetent. Lord Denning states at page 451H2 of his judgment that:

"... They [the employers] gave him [the employee] everything required by the common law, that is, three months' salary in lieu of notice."

In the circumstances what that case was about was capability, not misconduct. We think Mr Carr is right in that. He says further in his Skeleton Argument:

"2(d) ... the Industrial Tribunal erred in failing to have regard to the fact that:

(i) the Respondent had chosen to categorise the behaviour as minor misconduct only. Whilst it is accepted that a refusal to obey a lawful order may amount to gross misconduct, different considerations apply where the employer has categorised such behaviour as amounting only to minor misconduct (....) the Industrial Tribunal ought to have found that the dismissal was in breach of contract and therefore unfair."...

We accept those submissions and we allow the appeal. It may well be that the matters on which Mr Howard has addressed us, would be very much to the fore of an Industrial Tribunal, when they consider the remedies which follow from the finding that an employee was unfairly dismissed, but that is for the future. In the circumstances we will substitute for the finding of the Industrial Tribunal one that there was an unfair dismissal and remit the matter back to an Industrial Tribunal to consider the remedies. It may be that the parties will be able to agree matters so that there need be no further proceedings in an Industrial Tribunal.