United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J CAVANAGH (of Counsel) Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF2 1XZ
For the Respondent	MR J McGLYNE (of Counsel) Messrs Gaskell & Walker Solicitors 12 Park Street Bridgend Mid Glamorgan CF31 4AX


 


MR JUSTICE LINDSAY: We have before us by way of a full hearing the appeal of Robert Bosch Ltd in the matter that before the Industrial Tribunal had been Miss E Morgan, as applicant, against Robert Bosch Ltd, as respondent.

There was a hearing at the Industrial Tribunal in Cardiff under the chairmanship of Mr M J Bird on two days, 5 and 6 December 1996, that led to extended reasons being promulgated on 30 December 1996 and the decision of the majority of the Tribunal, which did not include the chairman, was that the Applicant, Miss Morgan, was unfairly dismissed and, accordingly, the case was to be listed later for remedy.

It is necessary for us to say something of the background to the case and that can conveniently be found from the decision of the Industrial Tribunal itself and their extended reasons, which are largely not the subject of any dispute before us.

Miss Morgan was born on 21 February 1971. She was employed by the Respondent Company at their plant at Miskin near Cardiff. She began employment with them on 20 May 1991; she was a line operator within a department known as MOE1 and her team leader was a Mr Francis. Amongst the terms and conditions of her employment was a provision setting out matters which might justify gross misconduct and which included:

"drinking or being under the influence of alcohol or non-prescribed drugs during working hours"

Miss Morgan, on the particular time in question, was due to work on a night shift which, in the ordinary way, commenced at 9 pm. This was on 14 April 1996. That afternoon she went and met some friends in a public house. She did not arrive for work until 10.30 pm. She had earlier telephoned Mr Francis, the team leader, telling him that she had had a flat tyre on her car and would be late for work. At about 10.30 pm she arrived for work and she spoke to Mr Francis. He was in a room called the "team room" and was sitting or standing close to or at any rate was close by three section operating technicians, "SOTs", Tony Gwilym, Ron Bolter and Neil Johns. As she came in at 10.30 pm or so Miss Morgan explained to Mr Francis why she was late. She said to the Tribunal that she was sober and she says that she had had a brief conversation with Mr Francis, who then told her that he was sending her home. She says that she did not know why she was being sent home but knew him well enough not to argue with him and so went. Mr Francis, on the other hand, had told the disciplinary hearing, which we will come onto, that Miss Morgan had said that she had been socializing and having a few beers with some friends in Cardiff and that she had had some beer spilt over her accidentally. This was, presumably, to account for a smell of beer and it was Mr Francis's version of the events that, when asked whether she had had too much to drink, she readily admitted to it and said, "Yes". This latter was very much in contention. Mr Francis indicated, on his view of events, that she should go home as she constituted a liability to herself in terms of her safety and that she should wait to be contacted by the Company. She turned up for work the next day but was sent home.

There was a disciplinary hearing arranged for 18 April 1996. The disciplinary hearing was in front of a Mr Goddard and a Mr Hughes, although it was Mr Hughes who alone made the decision that we will come on to. Mr Francis, at the disciplinary hearing, said that he had sent her home in the manner that we have just spoken of and that he was concerned that she might not be fit to drive a car. He obviously had in mind that that was what she was about to do, namely, to go home by car.

There was a report at that stage available to the disciplinary hearing of 14 April in longhand from a Mr Button. Mr Button was a security guard and amongst other features of his report was his view that on meeting Miss Morgan, as she was presumably about to get into her car and drive off the premises, he had a conversation with her (for some 10 minutes, in his view, much less in her view), that he could smell alcohol on her breath but her speech was not impaired, her eyes were not dilated and her gait was steady and his conclusion was that although alcohol could be smelt on her breath she was fit to drive to home. He knew that that was a different view from the view that Mr Francis had taken.

At the disciplinary hearing Mr Goddard kept minutes of what had happened. The overall hearing was of some 2¾ hours. The notes indicate, using initials to indicate which individuals were concerned:

"Following an adjournment , DH [Mr Hughes] and NG [Mr Goddard] confirmed to EM [Miss Morgan] that they felt the information presented by the other parties was correct, and having admitted in the presence of her Team Leader and three SOT's [technicians] that she had drunk too much, she was guilty of gross misconduct and should be dismissed.."

Mr Hughes, who made the decision, said in evidence:

"After hearing the witnesses' evidence I adjourned it to consider the testimonies which had been put forward. Nigel Goddard confirmed the issues I had to focus on, namely had Miss Morgan been under the influence of alcohol on 14 April 1996; had she admitted as much to Mr Francis? I considered carefully the discrepancy between Miss Morgan's evidence and the SOTs and Bob Francis and also the inconsistencies with the security guard's evidence, Mr Button. I could ascertain no reason why all the witnesses would lie and concluded that Mr Francis and the SOTs had provided a credible version of events. I was satisfied I had tested the reliability of their evidence with detailed questions and they had never once flinched from their version of events. I had also concerns over the inconsistencies between the security guard's and Miss Morgan's evidence, particularly given the female security guard had been able to confirm Mr Button's observations in part."

That last reference to the female security guard is not a reference we can explain.

The outcome of that was that Miss Morgan was told she was dismissed. That was on 19 April. She was advised of her right to appeal and the appeal was then heard by Mr  PJ Miers and, again, minutes were kept. Mr Miers gave evidence to the Industrial Tribunal of the process that had been followed at the appeal stage. He said in his evidence:

"We considered in particular her argument that there was collusion and that Bob Francis was out to get her but felt that having questioned her on the issue her reasoning was really related to the overtime sheet and was not substantiated. We were all conscious of her argument in relation to her denial that she was under the influence but the fact that she was under the influence was supported not just by Bob Francis but by 3 other individuals whose recollections were clear. ... Having considered the issue Nigel and I were satisfied that Elaine had, indeed, been under the influence, and in those circumstances although I was sympathetic I considered her behaviour to be very serious. Attending work being under the influence is a dangerous scenario and I was satisfied that it was quite clearly a matter of gross misconduct. In those circumstances I formed the view that the decision to dismiss was appropriate and that it should stand."

That, I think, is enough to give a flavour of the factual background to the case.

Mr Cavanagh appears for the Appellant, Robert Bosch Ltd and the first two grounds that he amplifies in his skeleton can, I think, be usefully taken together because they are, in effect, both related. They are these:

"(1) The industrial tribunal substituted its view of the evidence which the Company possessed at the time of dismissal for the view of the Company;

(2) The industrial tribunal failed to consider the fairness of the dismissal in light of the employer's state of knowledge at the time of dismissal, and took account of evidence which was given at the industrial tribunal hearing."

It is the case that it is possible to find in the reasoning of the majority of the Industrial Tribunal facts which were not before the disciplinary hearing in April 1996, evidence which came out for the first time at the Industrial Tribunal. Without being careful to include every possible example these seem to be examples of matters of that kind. First of all, that the amount which Miss Morgan admitted to having drunk on the 14th was an amount she was used to taking and was capable of handling. That does not seem to have been, at any rate clearly, said previously. She was also at the Industrial Tribunal hearing able to show that Mr Button had been wrong as to the time at which he had said Miss Morgan had telephoned him to indicate that she had got home. That, perhaps, is a rather peripheral point but it was, nonetheless, a point on which evidence was received at the Industrial Tribunal for the first time. It seems also that at the Industrial Tribunal for the first time emerged the fact that the particular mixture of shandy, which she accepted she had been drinking, was not just weak but that it was so weak that it contained only 1/8th of beer to 7/8ths of lemonade. Perhaps more significant is this point that emerges in paragraph 28 of the Industrial Tribunal's conclusions, which reads as follows:

"During the Tribunal it was noticeable that Miss Morgan had considerable difficulty in expressing herself clearly. All the respondent's witnesses and solicitor had, on numerous occasions, to ask Miss Morgan to rephrase her questions and answers as she has difficulty in constructing coherent sentences."

Presumably that is a finding that is intended to have some logical relationship to the accusation that on 14 April her speech had been slurred and it seems to have been a view of the Tribunal majority, in including that paragraph, that they were indicating that, speaking for themselves, they found that she was, in any event, not easy to understand. It might be noted that there is no suggestion that her colleagues at work had any similar difficulty in understanding her or generally regarded her speech as slurred. The remark, "it was noticeable" is, presumably, a reference to it being noticed only by the Members of the Tribunal or, at any rate, by them. One might ask why are these new matters set out in the findings of the Industrial Tribunal if the Industrial Tribunal did not intend to have them in mind in coming to a determination of the question before them? If they had gone on to say that the weight or the relevance of this new evidence was to be disavowed, well then, that would be one thing but they do not here say anything of the kind and it is difficult to resist a conclusion that the Industrial Tribunal here was taking into its consideration new evidence as part of a process in which they were in danger of substituting their own view for that of the employer, which, of course, had been taken on other evidence and earlier. It is a dangerous course for an Industrial Tribunal, where examining the reasonableness, rightness or wrongness of a disciplinary conclusion, to take into account evidence which has come to light only since the disciplinary process and before the Industrial Tribunal itself. So there is there an indication of the Industrial Tribunal substituting, or being on course to substitute, its own view for that of an employer. It should have been asking the question "Could a reasonable employer on the information reasonably gatherable at the time have concluded as this one did?" But this addition of new evidence jeopardises its approach. Moreover, it is important to look at other aspects that might be considered to be a substitution by the Industrial Tribunal of its own view. In paragraphs 29, 30 and 31 are important findings which we need to set out at length:

"29. The majority of the Tribunal are of the opinion that during the internal disciplinary procedure certain of the relevant facts and information available to the employer were consciously withheld from the employee. If the employee had been in possession of Mr Button's statement she and/or her representative would have been able to challenge rigorously the statements of Mr Francis and his supervisory technicians. Mr Hughes, the officiating manager at the hearing, would then have been obliged to take greater account of this conflicting evidence. There is no indication in his written and verbal statements to the tribunal that Mr Hughes questioned Mr Button or Mr Francis about the differences in their evidence.

30. The majority of the Tribunal also consider that the company's representatives during the disciplinary process did not take sufficient account of the significant differences in the evidence of the two individuals, Mr Francis and Mr Button who spoke to her. Mr Button's statement gives three specific reasons for believing, although her breath smelt of alcohol, she was in a fit condition to drive her car home.

31. Consequently, the opinion of the majority of the Tribunal is that in the circumstances, having regard to equity, the substantial merits of the case and the evidence presented at the tribunal, the employer acted unreasonably in dismissing Miss Morgan."

One notices in that last paragraph that there is particular reference to the evidence presented to the Tribunal but in paragraph 29 there is that reference to taking "greater account of this conflicting evidence" and in paragraph 30 the reference to the disciplinary process not having taken sufficient account of differences. That is very much consistent with the Industrial Tribunal not asking itself whether a reasonable employer, on the information then before him or which should properly by then have been gathered, could have concluded as the Respondent did but rather that the Industrial Tribunal itself felt that greater account should have been taken of particular factors than had, in fact, been taken.

Mr Cavanagh's skeleton argument concludes that so far as concerns the disciplinary process, the matter came down to a choice between believing Miss Morgan and believing Mr Francis and the three SOTs and his skeleton continues:

"This is quintessentially a matter within the discretion of the employer."

That is, as it seems to us, a correct way of looking at things and it is relevant that we should take up a little time going through some authorities in the area.

Looking at the decision in Polkey v A E Dayton Services Ltd [1988] ICR 142 in the House of Lords at page 153 at E one sees the reference as follows:

"On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning."

Those last words do not appear of relevance in our case but the emphasis is made on what a reasonable employer would have had in mind at the time he decided to dismiss. Going on to page 156 one sees a reference at G:

"An employee dismissed for suspected dishonesty who is in fact innocent has no redress: if the employer acted fairly in dismissing him on the facts and in the circumstances known to him at the time of dismissal the employee's innocence is irrelevant."

Of course, we are not dealing with that sort of offence but the principle applicable here is the same.

Reference also was made to British Gas v McCarrick [1991] IRLR 305 where, in the Court of Appeal at paragraph 21, one finds this:

"Despite the warning as to the appropriate approach in law which the Tribunal had given to itself in paragraph 8 that it is not its function to substitute its own views for that of a reasonable employer, in my judgement the Industrial Tribunal fell into that very error in reaching its conclusion."

Here, too, Mr Cavanagh points out that whilst there is, as it would seem, an accurate direction given by the majority to itself in the sense that it warns itself that it is not its function to substitute its own view for that of a reasonable employer, nonetheless one can establish by careful analysis in cases that sometimes such warnings are really only lip service. One is not precluded from saying that, notwithstanding the correctness of a direction, that it has not, in fact, been honoured. Going on in British Gas:

"The decision for the Industrial Tribunal was whether, on the facts which were known or should have been known to the employers, they genuinely believed, on reasonable grounds, that the employee was guilty of the conduct of which he was charged."

A little later in paragraph 21, Sir Nicholas Browne-Wilkinson, Vice-Chancellor, on the facts of that particular case, indicated that it had been wrong for the Industrial Tribunal to reopen factual issues.

The law is clear enough that it is not for the Industrial Tribunal to substitute its views for the views of a reasonable employer, the question that it should ask is, on the particular facts of the particular case before the Industrial Tribunal, whether the view that was taken by the employer the view of a reasonable employer after an enquiry which could be described as reasonably sufficient in the circumstances. That was not a question here that the majority ever truly seemed to address and we think, on balance, that here there is a error in law in the conclusion of the majority. They did take into account evidence that was not in front of the disciplinary hearing and did so as part of a process in which the evaluation, as to both relevance and weight, which had been given to particular issues by the disciplinary hearing was challenged as being insufficient by the Industrial Tribunal, an Industrial Tribunal that had not had the advantage of seeing Mr Francis and the three SOTs and which, of course, in any event, was dealing long after the events with which the disciplinary hearing was more immediately concerned. There is, in other words, in our view on this part of the case, which knocks together the first two grounds of Mr Cavanagh's skeleton argument, an error of law on the part of the Industrial Tribunal.

That was not the only alleged error which Mr Cavanagh argues to exist. On page 6 of his skeleton argument he has a separate ground that the Industrial Tribunal erred in their conclusion that the company, Robert Bosch, should have told Miss Morgan that Mr Button, the security guard, had indicated that she was fit to drive home. It is quite plain from the passages that we have quoted that the Industrial Tribunal did attach considerable weight to the idea that if only Miss Morgan had known that Mr Button had indicated in her favour that he thought she was fit to drive and that her gait was steady and her eyes were not dilated and so on, that that would have been highly material in the conflict of evidence at the disciplinary stage between her view, on the one hand, and that of Mr Francis and the three technicians, on the other.

We have already quoted paragraph 29 where the Industrial Tribunal said:

"If the employee had been in possession of Mr Button's statement she and/or her representative would have been able to challenge rigorously the statements of Mr Francis and his supervisory technicians."

But how would that rigorous challenge have proceeded, one is entitled to ask. Mr McGlyne for Miss Morgan says that Mr Button could have been cross-examined. It is far from clear how much that would have assisted Miss Morgan. There were a number of issues between Miss Morgan's version and Mr Button's version which were against her. She could not have emphasized Mr Button's accuracy (in her view) on the alcohol point without weakening her own position on other points, so that it would have been something of a two-edged sword to have pursued differences or similarities between her evidence and Button's evidence. She was already, of course, denying that she was under the influence of alcohol and it was well-known to the employers that she was denying it. She would have been able to say, had she known what Button had said, "Look, even Mr Button says that I was fit to drive. My gait was steady and my eyes not dilated" and so on, but that was a factor which the disciplinary hearing already knew about. They had Mr Button's statement in front of them and there is no suggestion that they paid no attention whatsoever to Button's statement. It is hard to see, in other words, what the rigorous challenge would have been. It is suggested by the Industrial Tribunal majority that if she had known of what Button had said then Mr Hughes, the officiating manager, would have been obliged, (which is an interesting word), to take greater account of this conflicting evidence.

It cannot be under-emphasized that Hughes already knew of the conflict. He had Button's statement and he had Francis' evidence and that some SOTs and he knew, of course, what Miss Morgan was saying in evidence.

Mr McGlyne emphasizes, on Miss Morgan's behalf, that as the Industrial Tribunal find in paragraph 20:

"No evidence was presented to suggest that he [Mr Hughes] was concerned about the inconsistencies in the evidence of Mr Francis and Mr Button."

but, equally, there was no evidence that Mr Hughes did not have the inconsistency in front of his eyes or that it was not a matter of concern to him. True it is that there was no evidence that he was concerned about it but one cannot take it from that that he was not concerned about it. It is very common in this area of the law for Courts to say that one cannot assume simply from the fact that a particular matter is not expressly mentioned that the matter was not in mind. Moreover, there is - although the grammar is not as clear as perhaps it could have been - some indication that, in any event, he did have the inconsistencies in mind because the statement that he gave as to the process of the disciplinary hearing, as we have already quoted from, said:

"I considered carefully the discrepancy between Miss Morgan's evidence and the SOTs and Bob Francis and also the inconsistencies with the security guard's evidence, Mr Button.

Indeed, the Industrial Tribunal's conclusion that he did not take sufficient account of the differences in the evidence between Mr Francis and Mr Button is of itself some indication that their view was that he had taken some account of the differences. But the relevance and the weight of the differences were especially best left to the disciplinary hearing itself, which had the advantage of seeing, at any rate, Mr Francis, two at least of the three SOTs and Miss Morgan.

Mr McGlyne very rightly emphasizes the passage which we have already read that information was being consciously withheld from the employee. It is an unattractive feature of the case but is it enough to save the decision? We have had quoted to us Ulsterbus v Henderson [1989] IRLR 251 where there are some indications by the Court of Appeal in Ulster that are of relevance. At paragraph 21, and critical of the Industrial Tribunal in the case, the Court of Appeal in Northern Ireland says:

"What the Tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witnesses. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did, that an employer who failed to do it in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside: '... a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view,' is in my view insupportable."

A little later the Court of Appeal in Northern Ireland echoes the sentiments, as they say, of Lord Lowry in Scott v Ulsterbus where Lord Lowry had said at page 15:

"... the Tribunal's approach was not the broad and non-technical one which is recommended by authority but was rather, as Mr Lavery submitted, the approach of an appellate court to the decision of a trial judge - and a most critical approach, at that. The impression is inescapable that the Tribunal was intent on substituting its own view of the facts and that it almost forgot the guiding principle that the employers need only satisfy the Tribunal that they had reasonable grounds for their beliefs."

Had the employer at the disciplinary stage been proved not to have had any regard for the difference between Mr Francis and Mr Button, that, perhaps, would have been a procedural shortcoming of sufficient defectiveness as to justify a conclusion that the result of the disciplinary hearing could, without more be regarded as unfair, but that was not the case. It was not said that the differences between Morgan and Button were wholly out of mind in the disciplinary hearing and, as we have pointed out, grammatically that cannot have been the view of the Industrial Tribunal. Mr McGlyne very rightly says that Miss Morgan should have been given a reasonable opportunity to put facts in her defence but she was, of course, able to put her case in defence. Her case was that she was not under the influence of alcohol. We do not feel able to say that, regardless of the facts of a particular case, every enquiry that an employer makes at a disciplinary stage must properly involve the putting to the employee of every fact in the employee's favour which is known to the employer at the time. Although that must, generally, be desirable, we do not feel able to say that it is, of itself, such a defect that where that does not occur that the disciplinary enquiry is, without more, unfair. Here it is difficult to see that any real prejudice was suffered by the "conscious withholding", unattractive as that might have been. It is difficult to come to the view, which the Industrial Tribunal came to, that in some way there would have been a rigorous challenge which would or even might have materially altered the whole colour of the disciplinary proceedings.

One has to be conscious here, as indeed the Ulsterbus case makes plain, that it is all too easy, after the event and in a court or tribunal, to be hypercritical of procedural shortcomings. The disciplinary hearing was not a court of law; it was not conducted by lawyers; it was conducted at speed and one has to bear in mind that there are likely to be procedural shortcomings in such a process but, nonetheless, one can have a conclusion in which, notwithstanding the procedural shortcomings, one cannot describe the overall result as such that no reasonable body could have come to the conclusion concerned.

On balance we do conclude in this area, too, that the Industrial Tribunal erred in law. It was, in effect, hypercritical of the procedural shortcoming and attached more weight to it than it need or should have done. It was quite possible, notwithstanding that shortcoming, that nonetheless the decision of the disciplinary hearing was one that could be characterized as one that a reasonable employer could, on the information at the time, have come to. For that reason, too, we find an error of law.

What, then, do we do about the errors of law? Mr Cavanagh says that in the circumstances we should not remit the matter but rather declare, in effect, that the disciplinary process was inescapably proper to be regarded as fair and that, in turn, the dismissal was unchallengable. That, as it seems to us, would be a too bold and speculative step. We do not feel able, without speculation on our behalf, which would be improper in our view, to conclude that no reasonable Industrial Tribunal could have concluded other than as the Chairman here did. In the circumstances, whilst we set aside the conclusion of the majority, we remit the matter in total to a fresh Tribunal.