United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M REEVE (of Counsel) Messrs Hill Taylor Dickinson Irongate House Dukes Place EC3A 7LP
For the Respondents	MR A CHOUDHURY (of Counsel) Messrs Hewitson Becke & Shaw Solicitors Shakespear House 42 Newmarket Road Cambridge CB5 8EP


 


JUDGE J HULL QC: This is an appeal to us by Mr Ian Reid, a Security Guard formerly employed by the Respondents at their premises at Royston, Hertfordshire. Mr Reid was first employed in February 1975 and was dismissed by notice expiring on 31 March 1996. His complaint of unfair dismissal was rejected by the Industrial Tribunal, chaired by Mr Crome, which sat at Bury St Edmunds and published its decision on 19 March 1997. He now appeals to us.

Mr Reid was dismissed after another Security Guard, Mrs Nicholson, had complained of his offensive behaviour towards her. It was of course for the employers to show the reason for his dismissal or, if more than one, the principal reason. It appears (see paragraphs 6 and 11 of the Industrial Tribunal's Extended Reasons) that the Industrial Tribunal concluded that the reason for dismissal was the behaviour of which Mrs Nicholson complained, but it is far from clear that this was the case put forward by the employers. There was a long list of previous complaints against Mr Reid, dating from April 1988, which is to be found at page 134 of our bundle. In their Notice of Appearance (page 11) the employers stated that the reason for the dismissal was "misconduct - some other substantial reason" and in the particulars (page 13 onwards) it was averred (paragraph 6) that during his employment Mr Reid had persistently and repeatedly conducted himself in a manner such as to cause offence to his colleagues, and to contractors and customers of the employers, resulting in a number of complaints. The complaint by Mrs Nicholson is then referred to. After referring to disciplinary proceedings conducted by Mr Sargeant, the Security Manager, the particulars continue (page 17):

"24. On the basis of the evidence available to him, Mr Sargeant reasonably believed that the Applicant was guilty of the conduct complained of, and that conduct, and the previous complaints about the Applicant's conduct by colleagues, contractors and customers meant that it would be impossible for the Applicant to work effectively or at all with the Respondent's other Security Officers in the future. Mr Sargeant concluded that there was a breakdown in the working relationship between the Applicant and his colleagues, and that this breakdown was irremediable.

25. In these circumstances, the Applicant's employment was terminated on notice."

We were also referred to Mr Sargeant's long Proof of Evidence (page 154 onwards). At paragraph 11 (page 156) Mr Sargeant says that Mr Reid was dismissed "as a result of" Mrs Nicholson's complaint but he then at once refers to the history of previous complaints against Mr Reid which, he says, he "took into account in assessing the credibility and reliability of Mrs Nicholson and Mr Reid when weighing up whose evidence I should rely upon. I also took these matters into account when deciding what the appropriate response should be to his conduct. ....". Mr Sargeant then deals with the list of previous complaints in considerable detail.

At paragraph 152 (page 178) Mr Sargeant says:

"152. The conduct complained of is a culmination of a long series of events which I felt had brought about a breakdown in trust and confidence between Mr Reid and his fellow officers. It was therefore impossible for him to return to work with them."

And at paragraphs 155 - 157 (page 179) he says:

"155. I also considered that his conduct over the years was indicative of the fact that he was not capable of fulfilling his duties and obligations to the Company as a Security Officer, and that therefore he should not continue in his role as a security officer.

156. I also concluded that I did not have trust and confidence in him to carry out his duties properly, and that my trust and confidence in him had in fact broken down.

157. In these circumstances, I considered that dismissal was the appropriate sanction."

On this case it appears to us that Mr Reid's long record of previous misconduct must indeed have been a reason, or part of the reason, for the dismissal, unless the Industrial Tribunal found evidence which enabled it to reject these parts of the employer's case. It was of course essential for the Industrial Tribunal to reach a conclusion on this matter, for the reasons set out in Smith v The City of Glasgow District Council [1987] ICR 796; [1987] IRLR 326. In paragraph 11 of their Decision the Industrial Tribunal say, referring to Mr Reid's disciplinary record,

"11. ...That record is not one which was fully tested in the Tribunal but it is perfectly clear that over a period of some seven years prior to his dismissal, the Applicant had a series of confrontations within the company, in which his manner and approach was criticised and indeed, on at least two occasions, made the subject of disciplinary process. Mr Sargeant has made it clear that he did not allow that record to influence his conclusions in the matter of Nicholson, and that he behaved in an exemplary way. He, quite rightly, considered the record in regard to mitigation and arrived at the perfectly fair conclusion that this dismissal should be on notice rather than summary, weighing the totality of the Applicant's employment history."

We do not understand, in the light of the averments and evidence to which we have referred, how the Industrial Tribunal were able to conclude that Mr Sargeant did not allow Mr Reid's record to influence his conclusions in the matter of Mrs Nicholson. If there were reasons for the Industrial Tribunal's conclusion, they were certainly not set out in the Decision.

Whatever conclusion the Industrial Tribunal reached about the effect of Mr Reid's record on the decision to dismiss him, they do not deal with the fairness of the way in which that record was introduced. Mrs Nicholson's complaint was reduced to writing on 10 November 1995 (pages 105 and 106) and Mr Sargeant held a disciplinary enquiry on 13 November (pages 110 and 111) which was attended by Mr Reid, who was then suspended. It was not possible to proceed further until February 1996 because Mr Reid was unwell, suffering from chronic depression and other medical complaints. By 1 February Mr Sargeant was able to hold a disciplinary meeting (page 132). Mr Reid had made a long and circumstantial statement defending himself against Mrs Nicholson's complaint, which he produced. Mrs Nicholson did not attend. Mr Sargeant launched into a general diatribe, as it appears to have been, regarding Mr Reid's previous record; Mr Reid denied being disruptive. The hearing was adjourned to 7 February. Mr Sargeant then evidently considered it desirable to particularise his statements about Mr Reid's previous record. He "worked through" Mr Reid's file and composed the lengthy abstract of his record which is to be found from page 134 onwards (see paragraphs 147 and 148 of Mr Sargeant's Proof, at page 177). The adjourned disciplinary meeting (page 133) appears to have been a short affair. Mr Sargeant observed that:

"... he had reviewed the case and complaints made in depth, including the verbal and written responses from I Reid. He had to take account of previous history in deciding who to believe and had worked through I Reid's file. There was a long and continuing history of being unable to get on with colleagues, customers and visitors, and appraisals and he had listed these back to 1987. Based on this he had to uphold the complaint. Consequently he was dismissing him with immediate effect; it was not being treated as gross misconduct and he had noted his valuable contribution over 20 years so it would be with 13 weeks notice. ..."

Thus the record appears to have played an important part, and probably a decisive one, in Mr Reid's dismissal, but the details were produced without warning at this final meeting. Mr Reid complains that the record was actually handed to him after he had been told he was to be dismissed; that some of the incidents referred to had never been gone into with him in the past; that they included two matters in respect of which warnings had been given, and those warnings had expired; and that he wished to deal with some of the other matters (in respect of none of which warnings had apparently been given) but had no opportunity to do so.

On his subsequent appeal against dismissal, to a Director, Mr Sykes (page 146), Mr Sykes announced that he had looked at the "list of incidents". Mr Reid said that he would like to give his response to each incident, as many of them were "not detrimental". After Mr Sargeant had said that most of the incidents had been discussed with Mr Reid, Mr Sykes said that his understanding was that Mr Reid had been dismissed on the basis of a complaint; "this was not the time to discuss the history of problems, which should have been discussed on 7 February". Accordingly, it appears from what we were told, and read, that Mr Reid did not have a proper opportunity to deal with this list of previous incidents, which very probably had a decisive effect on the decision to dismiss, either before Mr Sargeant or before Mr Sykes.

We should have expected the Industrial Tribunal to deal carefully and in detail with these complaints by Mr Reid, on such an important matter, but they appear to have dealt with them very shortly, perhaps because the Tribunal felt able to reach the conclusion (to us, mysterious) that "Mr Sargeant has made it clear that he did not allow that record to influence his conclusions in the matter of [Mrs] Nicholson".

Another matter which gave us serious anxiety was the way in which the employers dealt, or rather failed to deal, with Mr Reid's highly circumstantial attempt to rebut Mrs Nicholson's complaint (pages 120 - 126) which was produced at the meeting on 1 February 1996. The Industrial Tribunal was of course entitled to conclude that the employers were not obliged to cause Mrs Nicholson to attend at the disciplinary meetings, or to be subjected to cross-examination; but on the face of it Mr Sargeant would certainly be expected to return to her and put Mr Reid's circumstantial statements to her after the meeting of 1 February and before deciding to dismiss. He appears to have done nothing of the sort, notwithstanding the guidance in such cases as Linfoot v Thomson [1989] IRLR 235. We should have expected the Industrial Tribunal to deal carefully with this apparently unreasonable omission, but they have not done so.

Finally, it appears that the employers departed from their own disciplinary procedure (page 95 onwards). This document provides for the usual system of warnings, and for these warnings to become "spent" (page 96). At page 97 there is provision for dismissal without warning in the case of gross misconduct. At page 104 there is special provision for Security Officers, providing for dismissal after a final written warning which is still extant and suspension; or for gross misconduct.

The employers appear to have suffered some confusion over whether Mr Reid was guilty of gross misconduct (see for example paragraph 91 of Mr Sargeant's Proof, at page 170) but the dismissal letter (page 142) made it clear that Mrs Nicholson's complaint "did not constitute gross misconduct, meriting summary dismissing, but as the culmination of a long series of events which made it impossible for you to return to work with your fellow officers". Accordingly, it would appear that the employer's disciplinary procedure did not provide for dismissal without warning.

A failure to comply with contractual disciplinary procedures may or may not amount to unfairness (Stoker v Lancashire County Council [1992] IRLR 76; Westminster City Council v Cabaj [1996] IRLR 399), but we should have expected the Industrial Tribunal to look into the matter and give their reasons for deciding (if they did) that there was no failure, alternatively no unfairness resulting from the failure.

For these reasons we have all come to the conclusion that we must allow this appeal. The case must be remitted to an Industrial Tribunal, differently constituted, to hold a re-hearing.