United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H PLEWS (Representative) Citizens Advice Bureau 167 Hoe Street Walthamstow London E17 3AL
For the Respondents	MR R JEFFREY (Representative) Hart Timber Preservation Ltd 200b Chingford Mount Road Chingford London E4 8JR


 


JUDGE J HULL QC: The decision which I am about to give is the decision of us all. This is an appeal to us by Mr Sean Meiszner. He appeals to us from a decision of the Industrial Tribunal sitting at Stratford under the Chairmanship of Mr Purse with two industrial members on 4 April 1997, their decision being registered and published on 16 April.

The history of the matter is as follows. Mr Meiszner's employment with the Respondent firm, his employers Hart Timber Preservation Ltd with headquarters in London E4, began in April 1990. They have at all times carried on a business dealing with the effects of damp on timber and replacement and treatment of timber.

His employment continued until 1996, when the events which we are concerned with arose, with only one blemish, so far as we know, on his record: whilst engaged in some work in a house or office he used a mechanical hammer very close to a central heating pipe and broke it. He should never have used it like that and he was given a warning.

Then there came a time, in 1996, when he was employed with a colleague on work in some premises, it involved replacing a floor - removing boards, treating timber, and replacing the floor. There is no dispute that the work was not done well. It was done slowly and old timbers were used where new timbers should have been. Timbers were cut in a way which they should not have been. The job was rightly complained of by the customer as being shoddy and unsatisfactory.

The directors, who include Mr Jeffrey who has addressed us today, considered the matter. They were reluctantly obliged to agree that the customer was right and, indeed, as a very small firm, they were obliged themselves to deal with the matter, feeling that they could not ask Mr Meiszner and his colleague to deal with it. They no longer trusted him to deal with it.

It must be said, in favour of the employee, that he had done a large number of such jobs, evidently, in his six years with the company and most of them, at any rate, he must have done perfectly satisfactorily because there had been no such complaints before.

On 5 September 1996 Mr Meiszner received two warnings. One of them related to a less important matter, it was a failure to clean what was referred to as a damp course machine, no doubt a machine for treating or replacing damp courses. His excuse for not cleaning it was that he needed paraffin to do so and had not been given the necessary money to go and buy paraffin - on the face of it, not a very strong excuse, one would have expected him to raise the matter and say "may I have a pound or two pounds", or whatever was necessary to buy some paraffin. If he was refused, of course he would say: " I need it to do the job you have asked me to do." So it does not sound a very strong excuse but it was a potential excuse which he wished to make.

The second warning was in respect of this shoddy work. But, on 6 September the employers, having considered the matter further and, I think, visited the premises, said "no, this is too bad". They found the defects which I have mentioned and they dismissed him out of hand for gross misconduct.

He complained to the Industrial Tribunal that he had been unfairly dismissed; and that there was a breach of contract. He had not been given reasons for his dismissal, he said, he wanted compensation. That matter came before the Industrial Tribunal, constituted as I have said, and they had to adjudicate on it. Now I must refer to the Extended Reasons which they gave for their decision. They start at page 7 of the bundle, setting out the facts a good deal more fully than I have.

They record that Mr McKenzie conceded that he would not have dismissed Mr Meiszner for the matter of the pump; the real reason therefore for dismissal was the work on the house. He agreed that there was no disciplinary hearing or detailed discussion of the complaints made and that the only complaint had been two and a half years before. The Tribunal record the contentions made to them, that there were procedural defects in the way in which the matter had been dealt with - those submissions were made to them. They record the submission made that this was a one-off episode after six years of service and no reasonable employer would have dismissed Mr Meiszner. That was the first contention.

The second one was on the issue of breach of contract. The representative, Mr Appleton, drew attention to the need to show a fundamental breach of contract if an employee is to be dismissed without notice. The Tribunal accepted that the reason for dismissal was shoddy and unsatisfactory work. They considered that a matter of conduct and "it was the principal reason for dismissal".

Bad work, of course, will in proper circumstances justify dismissal. It is of varying degrees of seriousness. It may merely show that a workman, an operative, needs training. It may show that he is inclined to be idle or careless if he thinks he will get away with it. It may be such disastrously bad work that it brings the employer into disrepute and it may be thought to justify dismissal. First and foremost those are matters for the employer and this Industrial Tribunal considered - and we hope that every Industrial Tribunal will always consider sympathetically and properly - the interests of the employer as well as the employee and the size of the firm in particular, a very important consideration. This was a small firm employing men in a situation where necessarily they would be trusted to work away from direct supervision. So the Tribunal went on as follows, having directed themselves quite rightly about the size of the firm:

The Tribunal accepted (I am paraphrasing here) the employers' procedures for dismissing Mr Meiszner were poor...

"We took account here in particular that there was no discussion of the complaint and no meaningful warning. On the other hand, Mr McKenzie had seen the work which had been done and we accepted that he formed the view that it was shoddy and unsatisfactory. There were two letters of complaint from the customer, before the dismissal, one of which was based on a report from an independent surveyor. This was not something which could simply be explained away nor was it a momentary accident. It was poor workmanship over a period of time. The Tribunal accepted that the Respondent is a small company which has to rely on its operatives to work unsupervised to a considerable extent. It seemed to us, notwithstanding the procedural failings, that a reasonable employer could, in these circumstances, have properly concluded that it was unsafe to continue the employment of those responsible for such work..."

That is a finding of fact.

"Therefore the Tribunal unanimously found that the Respondent acted reasonably in dismissing Mr Meiszner as one of those responsible."

The Tribunal have, of course, first and foremost (under Section 98 of the Employment Rights Act 1996) to find what is the reason for the dismissal. It is for the employer to show that. When the employer has done that, then the Tribunal have to consider the question whether the dismissal is fair or unfair and that

"(a) depends on whether in the circumstances (including the size... of the 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."

Now here, according to Mr Meiszner, he did have an excuse, of a sort. He said, apparently, that there were cost constraints and that he was specifically told to use old timber where he could. It is not, of course, up to us to say whether that was an excuse which could avail him.

What is well-established by authority is that when it comes to dismissing an employee, an employer must first of all give the employee an opportunity to answer the allegations made against him. That is virtually an absolute right, except in cases where it is simply not practicable. There may be very extreme cases where it is impracticable and therefore unnecessary to give the employee a hearing or where the facts speak for themselves so loudly that there can be no possible point in having a hearing but, in general, every Tribunal will expect to find that an employer has given his employee a hearing before sacking him.

It must be a fair hearing The employer must tell the employee what the complaint is and give him proper particulars of it so that he can understand what is happening, why he is being blamed. Then he must be asked whether he has any explanation: "what have you got to say about it?" Then the employer must fairly consider what the employee does say and then the employer must consider, in the light of what he has been told, "do I feel, here, that I must dismiss this man (or woman), or do I feel, being fair about it, that I can give him one more chance, that a final warning will be sufficient, that some sort of penalty will be sufficient?" For example, in the present case the employers might possibly have said, "we think in the circumstances it will be a sufficient penalty if you make this work good in your own time, at your own expense," or something of that sort.

That did not happen. Now, it is conceivable, as we say, that there may be cases in which a Tribunal will conclude that, nonetheless, a dismissal in such circumstances, without any of these safeguards, was a fair and proper one. But if so we should expect that Tribunal to say why they thought that the matter was fairly and reasonably done. Here, this Tribunal expressly say that the procedures were poor. Indeed, there seems to have been no procedure, no written disciplinary procedure in a contract of employment or anything of that sort. No doubt the Tribunal were entitled to say, as they did say, that a reasonable employer could in these circumstances have properly concluded it was unsafe to continue the employment of those responsible for such work. That is within the prerogative of the Tribunal to say. But could the employer say that without asking the employee for an explanation?

"How is that you, an employee who has given satisfaction with this type of work for six years have now departed from that standard?" As two men were employed, one would expect the employer to enquire, fairly diligently, whether they were both responsible or whether one of them was more responsible than the other for what had happened, and if one blamed the other to ask him: "well, why did you let him get away with it? You were there together." All that sort of thing.

We would expect therefore the Tribunal, as a matter of law, to say if the usual safeguards were not undertaken - the safeguard of giving the employee a chance to know what was said and to give his answer to it and to have that answer taken into consideration in a fair-minded way - if that was all perfectly fair nonetheless, then to say why they felt able to reach such a conclusion, which inevitably would be an exceptional conclusion. There is nothing of that.

As we say, it may very well have been quite right for the Tribunal to say that an employer could conclude it was unsafe to continue the employment of those responsible. But it begs the question: "did they reach such a conclusion? If so, had they made reasonable enquiry before they reached that conclusion?" The mere fact that they could reach such a conclusion, as Miss Plews has pointed out, is simply one stage on the logical journey on which the Tribunal was embarked and they do not go on, it seems to us, to the further stages which they had to consider.

They say:

"Therefore, the Tribunal unanimously found that the Respondent acted reasonably in dismissing Mr Meiszner..."

That, as I indicated in argument, still seems to us to be a non sequitur. There is a gaping hole there between those two sentences. If they were going to reach that conclusion they should have said first of all that the safeguards did not take place, why they did not take place, and why the Tribunal nonetheless thought that it was safe for the employers to reach that conclusion and that the employers did reach that conclusion in a rational, sensible and fair way. All that would have to be found before that last sentence could properly be written. We think therefore that the decision of the Tribunal, whatever the merits of the case, is to be criticised in that way.

Then they go on to consider the question of breach of contract, because that is a different question. No employer must dismiss an employee summarily unless there has been a breach by the employee which goes to the root of the contract, which shows that the employee either is unable to comply with the contract for the future, or is not prepared to comply with the contract in the future, or has, by his behaviour, destroyed any faith which the employer can have in him.

Now the Tribunal dealt with that like this, in paragraph 10:

"On the issue of failure to give notice" that is the contractual notice to end employment "the Tribunal accepted that the Respondent could only dismiss without notice if there was a fundamental breach of contract by Mr Meiszner. It seemed to us that the nature of the shoddy work here was such that it made it impossible for the Respondent to put trust in Mr Meiszner's work in the future. This meant that the Respondent could not send Mr Meiszner out to do further work. He had, in the unanimous view of the Tribunal, broken the fundamental trust which the Respondent had put in him and this was a breach of contract which justified the Respondent's dismissing him without notice.

Again, the Tribunal are dealing with it in a way which seems to us to be somewhat hypothetical. "How could the employer reach such a conclusion without calling on the employee? How did you come to do this bad work?" Or, as it might be, "how did you come to let your fellow employee do this bad work? If you found it impossible to work within the cost restraints on you, then you should have told us. Why did you not tell us? We have trusted you. You have not betrayed your trust in the six years you have been here: how is it that you have done so now?" I am not saying that exactly that language would be used but something of that sort would be looked for. Again, the Tribunal do not indicate that anything of that sort happened and it evidently did not.

If the Tribunal were going to find that this was a breach which went to the root of the contract it should, we think, have expressly dealt with that and said: "the employers were entitled to reach this conclusion and did reach it, notwithstanding their failure to carry out these steps for which we would normally look." Because it must, with all respect, be an exceptional thing to reach such a conclusion in these circumstances, bearing in mind that this was an exceptional piece of bad work when the work before had always been satisfactory. One would have thought that the Tribunal would have looked to an employer to explain how it was that an isolated piece of bad work could only be dealt with by dismissal - that having destroyed all the confidence that had been built up over six years - if there was no enquiry, of the sort we have indicated.

But that again was a matter for the Tribunal. All that we are entitled to say, as a matter of law, is that we are entitled to look to Tribunals to set out these matters. If there has been, as they say, an abandonment of a fair procedure, we look for them to say that, nonetheless, what was done was fair and it is a matter for them - a heavy responsibility no doubt - they must carry out that responsibility and they must tell us and must tell the parties, and this is the really vital part, they must tell the parties why they feel able to dispense with it. Again, if it is a breach which they say went to the root of the contract and entitled the employers to say, "we can no longer trust this man" then, in the circumstances, we should expect them to look for, again, an opportunity to the employee to explain matters and a justification for what on the face of it is a somewhat exceptional conclusion after the employee has served, apparently faithfully, for six years.

As we explained, or tried to explain, to Mr Jeffrey, we are not criticising him and are not concerned to criticise him or his firm. We well understand the matters which he put to us. The criticism which is made is criticism of the Industrial Tribunal. We are certainly not able to say what the rights and wrongs of it are. All we are able to do is to say that unhappily this Industrial Tribunal has not completed its task satisfactorily so far as giving its Reasons are concerned.

In the circumstances we think the proper course is to remit the matter to an Industrial Tribunal differently constituted so that it can hear the matter anew. We think it would be intolerably embarrassing to this Tribunal, whom we have had to criticise, who may for all we know have carried out their duties perfectly satisfactorily apart from setting them out on paper, to undertake the task again with our criticisms, so to speak, ringing in their ears. That is not something which we think we should subject them to. We think that a fresh Tribunal should approach the matter afresh and, of course, that Tribunal will hear everything from the start and will decide for itself about these matters and will give its Reasons. They will be its own Reasons and not something we are telling them to say. If they are adequate Reasons then the parties will have nothing to complain about. That is what we propose, to remit the matter to another Industrial Tribunal, differently constituted.