United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS L WARREN (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


JUDGE PETER CLARK: By a decision with Extended Reasons promulgated on 11 August 1998, an Employment Tribunal sitting at London (North) under the Chairmanship of Mr P R K Menon dismissed the Appellant, Mr Robbins' complaints of racial discrimination and victimisation and unfair dismissal against his former employers, the London Borough of Hammersmith and Fulham ("the Council"). This appeal is concerned only with that part of the decision dismissing his complaint of unfair dismissal.

The facts as found by the Tribunal material to that issue were as follows. The Appellant was employed by the Council Housing Department from 22 May 1989 until 27 June 1996. He was a Superintendent Caretaker, responsible for six caretakers working under him, at the Edward Woods Estate, which consisted of three tower blocks housing some 800 tenants. The Appellant and his six juniors all lived on the estate.

Prior to the events leading to his dismissal the Appellant had received two warnings. A first written warning, imposed following a disciplinary hearing held on 25 November 1993 was for removing a motor vehicle from the estate on 8 September 1993. That warning expired on 25 November 1995.

A second written warning, following a disciplinary hearing held on 23 February 1995, related to an offence of absenting himself from work from 31 October until 7 November 1994 without following correct procedures for taking leave of absence. That warning was to remain on his file for one year. It remained extant at the time of the relevant disciplinary offence, which occurred on the weekend of 11-12 November 1995.

It was the Council's case that a serious graffiti incident occurred at Poynder House on the estate resulting in the police being called at 7.56 am on 11 November. The location of the graffiti was very close to the Appellant's flat. He did not appear on the scheme despite considerable police activity.

The Appellant claimed to have worked on the estate over that weekend, for 11½ hours on the Saturday and 9 hours on the Sunday. Part of his duties involved supervising the work of other caretakers. However, none of the other staff saw him that weekend.

It was the Appellants case that he had been at work throughout that weekend.

Before a disciplinary hearing could be arranged, the Appellant went off sick on 3 January 1996. He was referred to the Occupational Health Department. Three appointments were made, but he failed to attend any of them.

A disciplinary hearing was arranged for 28 May 1996, but he did not attend. His trade union representative, Ron Grieg requested a postponement. That was granted and a fresh hearing date was fixed for 24 June 1996.

On that occasion the Appellant did not attend but his representative, Mr Grieg was present. No explanation for the Appellant's non-attendance was provided, nor was a medical certificate sent. The hearing proceeded in his absence. Mr Tennock, Assistant Director in the Housing Department, decided to dismiss the Appellant for gross misconduct, having taken into account the second written warning still extant.

In these circumstances the Tribunal found that the reason for dismissal related to the Appellant's conduct. It then considered the question of the reasonableness of the dismissal under s.98(4) of the Employment Rights Act 1996. It found:

(1) that the three limbs of the Burchell test were "satisfied". The Council believed, on reasonable grounds, following a reasonable investigation, that the Appellant had absented himself from work over the weekend of 11 to 12 November 1995 without authorisation and had falsely completed time-sheets to show that he had been at work;

(2) that the Appellant's absence at the disciplinary hearing held on 24 June 1996 was a matter for concern. However, for the reasons listed at paragraph 30(3) of their reasons they concluded that the Council had not acted unreasonably in proceeding in his absence; and

(3) although the decision to dismiss was a harsh one, and not one which the Employment Tribunal members would themselves have imposed - a severe penalty short of dismissal would have been their preferred option, they reminded themselves that it was not for them to substitute their decision for that of management. The question was whether the penalty of dismissal fell outside the band of reasonable responses; they concluded that it did not. Although not cited in the reasons, the Tribunal plainly had in mind the approach set out in the judgment of Browne-Wilkinson J in Iceland Frozen Food Limited v Jones [1982] IRLR 439. The dismissal was fair.

In this appeal the Appellant takes essentially three points. They have been advanced by Miss Warren who appears on his behalf under the ELAAS pro bono scheme.

The first is that the Tribunal below did not take into account his evidence that he was in fact on duty on the relevant weekend. It is said that two employees, Messrs Baldry and Tyrrell who told the Respondent that they had not seen the Appellant that weekend, were only on duty for three hours. He also refers to evidence which he gave of a phone call from the estate and of people seeing him that weekend. In short it is submitted that the Tribunal did not give enough weight to his evidence, and that the evidence upon which the Respondent proceeded to dismiss him was insubstantial and not sufficient to justify their conclusion that he had been absent that weekend.

Dealing with that point, the question for the Tribunal was not whether in fact he was absent that weekend, but whether in accordance with the guidance of Arnold J in British Home Stores Ltd v Burchell [1980] ICR 303, the Respondent genuinely believed on reasonable grounds following a reasonable investigation that that was the case. It seems to us that it would have been wrong for the Tribunal to substitute its view for that of the employer as to the factual question of whether the Appellant was absent that weekend. Equally it would be quite wrong for us to do the same. In these circumstances, we reject the first ground of appeal.

The second ground relates to the Applicant's absence from the disciplinary hearing leading to his dismissal, held on 24 June 1996. That was a matter of great concern to the Tribunal. However, they analysed the reasons for the Respondent proceeding in his absence. They were that the incidents were stale having taken place six months earlier. The Appellant had ignored two requests to visit the Occupational Health Service. The hearing had already been postponed on one earlier occasion in May. The Appellant had failed to contact the Respondent or his trade union. He gave no explanation for his failure to attend the hearing. He did not send a medical certificate. His trade union representative, Mr Grieg appeared on his behalf and the Respondent had no reason to believe he was unauthorised to do so. He was not able to give any satisfactory explanation for the Appellant's absence.

In all these circumstances, the Tribunal concluded that it was not a fatal procedural irregularity on the facts of this case for the Respondent Council to proceed to hear and determine the disciplinary question. Again, we think that is a finding which was open to the Employment Tribunal and not one with which we can properly interfere, our jurisdiction being limited to correcting errors of law.

The third submission is that in all the circumstances, the Tribunal was wrong to find that dismissal fell within the band of reasonable responses.

It seems to us that if the employer was entitled to conclude that the Appellant had been absent from work that weekend but had claimed pay for both days, that was a serious matter, particularly in the light of the existing second written warning.

The question for us on appeal is whether no reasonable Tribunal properly directing itself could reach the conclusion that dismissal fell within the band of reasonable responses open to this employer. We can see no prospect of that proposition being established at a full hearing, and in these circumstances we have concluded that this appeal must be dismissed.