United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR B JONES (Management Consultant) Springfield Management Advisory Services 23 Barnes Lane Warsash Southampton SO31 7DA
For the Respondent	MR C CIUMEI (Of Counsel) Bruce Piper Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE LEVY QC: This is an employer's appeal from the decision of an Industrial Tribunal held at Southampton on 19 April 1996. By an application dated 5 October 1995, Mr R S Butler complained that he had been unfairly dismissed from his post as General Foreman with Magna Housing Association Ltd ("the company"). The Notice of Appearance by the company said he was dismissed for poor performance.

In a decision given on 9 July 1996 the Industrial Tribunal held that Mr Butler was unfairly dismissed. The company applied for a review of the decision on 18 October 1996. That review was unsuccessful as was apparent from a decision dated 23 August 1996. Before the review decision had been announced, a Notice of Appeal had been lodged by the company against the Industrial Tribunal's decision. The nub of the appeal is found in the first sentence of paragraph 6 of the Notice of Appeal which reads:

"The grounds on which this appeal is brought are that the industrial tribunal erred in law in that it misapplied Rolls Royce v Walpole and substituted its own view of what should be done in this particular case."

There was an ex-parte hearing before this Tribunal on 7 February 1997. At that hearing a panel headed by the President ordered that the appeal be allowed to proceed to a full hearing before the Employment Appeal Tribunal.

The background to the dismissal of Mr Butler can be fairly shortly summarised. At the time of his dismissal on 16 August 1995, Mr Butler had twenty-two years service with the company and its predecessors. He worked as a site foreman whose responsibility was to see the contracts and maintenance of the company's housing stock were carried out to specification. In 1994 they were concerned about the standard of his supervision. It is plain there was an issue about his capability and that disciplinary action ensued after verbal warnings. On 6 October 1994 Mr Butler was issued with a first and final warning in the following terms:

"... I must make it clear that any proven allegations made against you in the future will result in dismissal."

The company's evidence at the Industrial Tribunal was that Mr Butler improved a hundred percent as a result of the warning. Subsequently, however, there were again problems with Mr Butler's supervision of a contract. He was summoned to a disciplinary hearing on 16 August 1995. Mr Branch, the Manager, who conducted the disciplinary hearing, found the complaint of misconduct was proven and dismissed Mr Butler. Mr Branch gave evidence to the Industrial Tribunal that he had no choice but to dismiss Mr Butler, given the terms of the written warning of 6 October 1994. Indeed that has been the approach, as far as we can see it, of the company throughout. It is shown for instance in the letter which it wrote to the Tribunal seeking a review of the decision which reads:

"We request that the tribunal review its decision on the above case on the grounds that the interests of natural justice require it.

In applying the case law established by Rolls Royce v Walpole the tribunal were mistaken in stating that Mr Branch's decision to dismiss was unreasonable.

The decision to dismiss was taken already. [Own underlining]

Mr Butler's final warning on 6th October 1994 made it very clear that he would be dismissed "if any proven allegation was made against him in the future". Mr Butler did not appeal against this warning.

Mr Branch's task in July and August 1995 was to establish whether or not the allegations made against him were proven. Having done so, after a thorough investigation, it was for him to carry out the dismissal in line with the previous warning.

Mr Butler's length of service was taken into consideration when he was told at his final warning that future complaints would lead to his dismissal, as was his previous warning in August 1994 when he was told that his standard of control and supervision was not acceptable.

Clearly, having stated that dismissal would take place should the problem reoccur, it was not unreasonable to carry out that dismissal. [Own underlining]

The tribunal substituted its own view of what they would have done in such circumstances."

This approach was manifested by Mr Jones in his submissions on behalf of the company at this appeal. He put it in this way:

"... Mr Butler had been shown the yellow card. If he misbehaved again the answer was to give him a red one."

We suggested to Mr Jones in argument that a player sent off the field in a football match does not have his employment with the football club automatically ended.

What this appeal is about is whether the Industrial Tribunal directed themselves appropriately on a dismissal in the circumstances which we have briefly set out and the approach as now set out in Section 98 of the Employment Rights Act 1996. Section 98(4) reads:

"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends 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

(b) shall be determined in accordance with equity and the substantial merits of the case."

We also remind ourselves of the very well-known decision of this Tribunal in Iceland Frozen Foods Ltd v Jones [1982] IRLR 1982 page 439. At paragraph 24 of the judgment Mr Justice Browne-Wilkinson (as he then was) heading a Tribunal of this Court said:

"Since the present state of the law can only be founded by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by s.57(3) of the 1978 Act [now sub-section 98(4) of the 1996 Act] is as follows:

(1) the starting point should always be the words of s.57(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 was 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;

(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."

In paragraphs 15 and 16 of the Industrial Tribunal's Extended Reasons the Tribunal set out the law and set out that the decision that the dismissal was unfair. They set out quite clearly in paragraph 16 the reasons why. We will pick up a short passage which show why the Industrial Tribunal reached the decision it did:

"... Mr Branch, in deciding to dismiss the applicant stated that he had no alternative, taking into account the terms of the previous first and final written warning, that any proven allegation would result in dismissal. The disciplinary code states that the principle of natural justice are seen to be observed and this must include looking at all possible options of disciplinary action, but options other than dismissal were never considered by Mr Branch, who fixed his mind on dismissal option to the exclusion of all other options and this itself goes outside the band of reasonable responses of a fair employer."

In his submissions to us, Mr Ciumei has submitted that the Tribunal's decision is correct for the following reasons:

In deciding whether or not to dismiss an employee for misconduct a reasonable employer will take account of the following:

(a) Any mitigating circumstances surrounding the act of misconduct itself;

(b) Any general mitigating circumstances (e.g. length of service)

(c) Whether there is an alternative dismissal (e.g. a lesser sanction)

(d) Whether, in an appropriate case, the employee can be given alternative employment:

None of that seems to have happened in this case. On Mr Butler's behalf, Mr Ciumei also submitted that this was an appropriate case for alternative employment being considered or the other sanctions, because Mr Butler was not accused of gross misconduct.

In our judgement the decision of the Industrial Tribunal was one which they were entitled to reach, having properly directed themselves and having particularly taken full account of the decision in Iceland Foods.

Mr Jones in his helpful submissions to us has submitted that whatever was wrong with Mr Branch's decision, that there was an internal appeal from that decision of which no criticism was made. This point was not taken in his Notice of Appeal but we observe that the Industrial Tribunal said this of the appeal in paragraph 14:

"... Mr Butler appealed against the decision which was heard by Mr B Cash Director of Building and Development, who having listened to points raised, subsequently investigated them fully and dismissed the appeal. However, no further details of the appeal were adduced in evidence."

We do not think in these circumstances that the Industrial Tribunal can be criticised for failing to give more weight than they did to the internal appeal process. In the circumstances we thank both advocates for their submissions and we dismiss this appeal.