United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M. DAVIS (Employment Consultant) Legal Personnel & Management Services Ltd Merchants House 1-7 Leeds Road Windmill Bridge Shipley, W.Yorks BD18 1BP


 


HIS HONOUR JUDGE J. ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at Leeds on 17 June 1998. The appeal is brought by the Respondents from the finding of the Tribunal that there was an unfair dismissal with a 25% contribution, so far as the calculation of compensation is concerned. The appeal comes before us by way of preliminary hearing to determine whether there is an arguable point of law such as to justify the matter being considered by the full Employment Appeal Tribunal.

The employee was dismissed for gross misconduct. On 18 December 1997, he, with two colleagues, moved a trolley in a way which was clearly subject to criticism, jumping on it, treating it as a skateboard, singing and to some extent, losing control over a short distance. It is not necessary to go into the details of what took place but it appears that when the Applicant came to be disciplined for an allegation of gross misconduct, he relied upon a number of matters: The Respondents found that the piece of equipment had been going at high speed, "skateboard" style, in a dangerous environment and in breach of the Health and Safety rules. The Tribunal in reaching its decision said this:

"The Tribunal find that the Respondents were entitled to be concerned about the manner in which the trolley was being manoeuvred on the day in question, but there was no evidence to support the Respondents' contentions as to the matters they relied on to justify the finding of gross misconduct"

I have just set those out and there is no appeal as such from those findings of fact or the conclusions based upon it.

In paragraph 6 of their decision, the Tribunal alludes to the fact that in October 1997 the Applicant had received a final written warning for poor performance with the normal comment that further breach of any procedures could lead to disciplinary action and may lead to dismissal. It appears from the decision, and this has been helpfully confirmed to us today by Mr Davis, that in fact the employee was dismissed solely because of the incident in December 1997 which was treated as an incident of gross misconduct justifying dismissal. Mr Davis submits that, because the Tribunal found that the employee by his conduct in relation to that incident fell to have his compensation reduced by 25%, or at least the compensatory element reduced by 25%, the inevitable inference is that the Tribunal were satisfied that the Respondents were reasonable in considering that there had been some misconduct. Mr Davis argues that therefore if the employer was in error in finding that such misconduct was gross misconduct, that, once set aside, did not leave the employee exonerated but likely to be dismissed anyway because the employer would have treated the misconduct, not as gross misconduct, but as the last act in a series of disciplinary failings subsequent to a final written warning and subject to consideration for dismissal.

Mr Davis argues that therefore there must be, if not a certainty, at least a measurable risk that the employee would have been dismissed anyway if the employer had not made the mistake the employer did. It is argued that in coming to the conclusion that there was gross misconduct, if the employer had only known at the time that he was making a procedural error in the category into which he placed that conduct, there would have been what is often called a Polkey situation, an argument that such error constituted no difference. We were helpfully referred to the recent decision of King v Eaton and other (1998) (IRLR) 686 which considered whether the "no difference" rule applies simply to pure procedural matters or possibly to matters of substance and whether there is a difference between the two, and referencing is made to earlier decisions on this point. They show that, in effect, there may be a blurring in reality between the categories of substance and procedure.

The essence of the appeal therefore is the failure of the Tribunal to consider what would have happened if the employer had not made the mistake of categorising the misconduct as gross misconduct and in failing then to analyse the likelihood that there would have been a dismissal, bearing in mind the very recent final written warning only a couple of months before, and the nature of the incident itself. It is alleged that they failed to come to a conclusion one way or the other upon that submission.

In their decision, the Tribunal alluded to this argument. In paragraph 7 they said:

"This was an unusual submission which the Tribunal carefully considered. The Tribunal do not accept this contention and find that that warning would not have justified dismissal in this instance in any event."

It is said in relation to that, that there is the technical argument that on the words used by the Tribunal, they are substituting their own judgment for that of a reasonable employer. But a Tribunal is not bound to use some magic formula derived from case law about the reasonable options open to a reasonable employer providing they can be seen to act within the wording of the statute and adopt an objective test. The Tribunal do appear to have made a finding on the facts, as they were invited to do, that the dismissal would not have followed anyway with a reasonable employer even if it had been viewed simply as conduct. However in considering the merits of Mr Davis's arguments, it seems to us that it is helpful, as it so often is, to go back to the words of the statute, however familiar we may have become with them over the years. Section 98 of the Employment Rights Act 1996 provides, so far as is relevant to these proceedings in subsection (1)

"In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show (a) the reason for the dismissal; and (b) that it is a reason falling within subsection (2)".

Subsection (2) provides:

"A reason falls within this subsection if it...(b) relates to the conduct of the employee"

The reason for the dismissal in fact in this case, was the "skateboarding" on 18 December. There was no other reason for the dismissal and that is what the employer showed and fulfilled that part of the statute. He then went on to show that it was a reason falling within the subsection in that it related to the conduct of the employee. Having satisfied the tests on that single incident, the question that arose was this; in subsection (4) 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 reasons shown by the employer): (a) depends on whether in the circumstances...the employer acted reasonably or unreasonably"

and here are the important words so far as this case is concerned

"in treating it as a sufficient reason for dismissing the employee."

Clearly therefore the sole matter before the Tribunal was the "skateboarding incident". That was the reason for the dismissal and the question arose whether the employers were reasonable in treating it as the reason for dismissal and clearly, the Tribunal found they were not and it must therefore follow from their judgment that the dismissal was unfair.

There is no rule, it seems to us, for the application of Polkey to that process of reasoning. Polkey relates not to the reason for dismissal but the process by which the employer comes to decide to dismiss upon the basis of that reason. The position would have been different if the wording of the statute, for instance, had provided that all the employer had to do was to show that the reason for dismissal related to some conduct, then of course it may be arguable afterwards that in treating that reason as the reason for dismissal, the employer made a procedural mistake by treating it as gross misconduct instead of ordinary misconduct. But the statute provides a two stage process. First of all, one starts with (a) the reason for the dismissal and then one goes on to consider (b) whether it comes within the category of conduct. So the whole framework of the consideration of a claim for unfair dismissal is bounded by the reason for the dismissal as shown by the employer. In this case, it was the "skateboarding" incident. It therefore seems to us, it was not open to the employer to argue that the Polkey approach could do anything at all to erode or broaden that test. In effect what is being said by Mr Davis is that the Tribunal should have considered this proposition; "well they had one reason for dismissal, but if they were wrong in treating that as the reason for dismissal, they could have linked that with some other reasons that they could have brought along and they could have looked at that." That approach is completely outside the provisions of that section which dictates the jurisdiction of the Tribunal.

The place where the argument that Mr Davis has addressed to us finds its proper consideration is where a situation arises where there is misconduct, but it is not gross misconduct. The Tribunal then has to face the task of the extent to which that misconduct in itself contributed to the dismissal. That is exactly what the Tribunal did in this case and they exercised their discretion on the evidence and made an assessment in relation to which no principle of law can interfere. Accordingly, we are driven to the conclusion that there is no arguable proposition of law in this case and the appeal is dismissed at this preliminary stage.