United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D CLARK (Personnel Consultant) Mr R Smith IRPC Group Ltd Stockwell House New Buildings Hinkley Leicestershire LE10 1HW
For the Respondent	MS I OMAMBALA (of Counsel) Mr J Clinch Legal Office UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE PETER CLARK: This is an employer's appeal against a reserved decision of the Truro Employment Tribunal chaired by Mr Brian Walton sitting on 30 and 31 July 1998, promulgated with extended reasons on 28 August 1998, upholding the Applicant, Mr Oliver's complaint of unfair dismissal.

The Facts

1. The Applicant commenced employment with Kerrier District Council (the Council) on 22 October 1993. Initially he was a supervisor of the Health Suite at the Carn Brae Leisure Centre until November 1994. He was then promoted to Duty Manager and became responsible for maintaining the "Pulse Beat Health Suite". Further, he assumed overall responsibility for the whole complex in the absence of the Centre Manager.
2. During his employment he attended a Pool Plant Operators course, obtaining a certificate. As a result he learnt about basic water treatment and was made aware of the dangers of handling chemicals. That was more than four years prior to the Tribunal hearing and although he asked for it, he was not permitted to attend updating courses.
3. The water in the swimming pools must be chemically balanced. The Council employed pool plant staff to carry out that function. The Applicant had never carried out that function and his knowledge of balancing was limited.
4. The Council's in-house team lost the contract for managing the swimming pool to the Respondent, which took over on 1 October 1997. The Applicant's employment was then transferred to the Respondent. There was a delay in handing over the pool to the Respondent due to refurbishment work carried out by the Council. The handover was fixed for 9 November, a Sunday.
5. Mr Adamson, an employee of the Respondent, was responsible for this takeover. He was based in Newbury on the weekend of the 8/9 November. Mr Adamson was on duty in Newbury. He left in charge the local Centre Manager, Mr Lees, who had been the contract manager under the Council and who had transferred to the Respondent. The pool had been balanced by Mr Tredinnich, the Plant Engineer, on Friday 7 November. He left no specific instructions about treating or not treating the water. Neither Mr Tredinnich nor Mr Lees were on duty that weekend, although Mr Lees was available on the telephone. That left the Applicant in charge over the weekend.
6. At about 9.00am on Saturday 8 November, the Applicant noticed that the learner pool looked murky and unclear. He thought there was a problem. Mr Butler, a Council Monitoring Officer and electrician by trade, noticed that the ballcock was not operating correctly, so that fresh water from the mains was entering the system. He knew nothing about balancing pools, but put right the leaking ballcock.
7. The Applicant carried out a test and established that the learner pool had a low pH reading. He concluded that the chlorine level should be increased so as to bring up the pH level, that is, an indication of the acidity or alkalinity of the water. The Tribunal expressed its own view that it was a reasonable conclusion for the Applicant to reach, that the chlorine level should be increased. The machinery controlling the chemical levels was not functioning. He therefore asked Mr Lee, a plumber by trade, and sub-contractor to the Council, to put four scoops of calcium hypochlorate (HtH) and a quantity of alum flocculent into the pool. The former would increase the chlorine level and hence the pH level. The latter would clean up some of the cloudiness in the pool.
8. That was done, but without apparent effect. The Applicant attempted to contact Mr Tredinnich for advice, but without success. Accordingly, he asked Mr Lee to put another five or six scoops into the strainer basket, rather than directly into the pool. Still there was no success.
9. On the Sunday the problem persisted. The Applicant contacted Mr Lees. Various steps were taken again without success. Ultimately, under threat of a £1,200 per day penalty from the Council if the pool was not open following the takeover, the pool was eventually drained, refilled and reheated at considerable expense the following week.
10. The Respondent took the view that the Applicant's efforts, however well intentioned, had made the situation worse. He should not have introduced the ten scoops of HtH. The result was an unusable pool; further, there was trouble with South West Water due to the release of chemicals into the public drainage system.
11. On 11 November, the Applicant was suspended after an investigatory meeting and was later charged with gross misconduct. A disciplinary hearing took place before Sue Rogers, an outside manager of the Respondent, who found that the Applicant was guilty of gross misconduct on two counts:

"In the first place he had put Mr Lee a member of the public into danger by failing to instruct him that proper health and safety measures should be taken. Mr Lee had put on some protective clothing when he removed the small measures of HtH from the bulk, but had then simply carried the chemical to the pool in an old can and emptied it into the pool. It was a hazardous substance. Mr Oliver as the manager of [the Respondent] in charge of the site should have appreciated that and not put Mr Lee into danger."

Secondly, that the Appellant's efforts

"at balancing the water by introducing substantial quantities of HtH amounted to gross misconduct. It was gross negligence to do so and if the reason was that [the Appellant] was unsure of what to do, he should have done nothing until he found somebody who was able to advise him properly or carry out the balancing of the water. On either view, this was gross incompetence such as to amount to gross misconduct."

12. We take those findings from paragraphs 26 and 27 of the Tribunal's reasons. As a result of reaching that conclusion, the Applicant was summarily dismissed by the Respondent.

The Complaint

13. The Applicant claimed that he was dismissed for asserting a statutory right. That contention of dismissal for an inadmissible reason was rejected by the Tribunal (reasons paragraph 11) and there in no cross-appeal against that finding.
14. Alternatively, he contended that the dismissal was unfair under section 98(4) of the Employment Rights Act 1996. The Respondent relied on gross negligence on the part of the Applicant, justifying summary dismissal. They contended that the dismissal followed a proper disciplinary process and was fair.

The Tribunal Decision

15. We are prepared to assume, as Ms Omambala invites us to do, that the Tribunal found that the Respondent's reason for dismissal was that set of facts set out at paragraphs 26-27 of their reasons. It would be helpful if Employment Tribunal's made an express finding as to the employer's reason for dismissal. The reason here related to conduct, a potentially fair reason for dismissal.
16. The question then, under section 98(4) of the Act is whether the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissal.
17. It is now well established that in answering that question it is not for the Tribunal to substitute its own view for that of the employer. Further, the question is whether dismissal fell within the range of reasonable responses open to the employer (Iceland Frozen Foods v Jones (1982) IRLR 439).
18. That brings us to the real complaint in this appeal. Mr Clark submits that in their reasons at paragraphs 28 to 31, the Tribunal have clearly demonstrated an impermissible approach. Instead of considering whether dismissal fell within the range of reasonable responses, the Tribunal had made their own judgment as to whether they would have dismissed the Appellant in these circumstances, compounding it by asking themselves the wrong question, namely whether or not the circumstances amounted to gross misconduct on the part of the Appellant.
19. Whether or not an employee is in fact guilty of gross misconduct will be highly material in determining a claim of wrongful dismissal at common law, but in our judgment it does not answer the statutory question posed by section 98(4). In response, Ms Omambala has directed us to the words of caution in the Court of Appeal decision in Retarded Childrens Aid Society v Day (1978) ICR 437, that we should not assume that because the statutory words have not been used in the Tribunal's reasons, that they have overlooked them. We certainly make no such assumption in this case where the Tribunal had the benefit of a highly experienced Chairman. However, it is desirable that Tribunals demonstrate by their written reasons that they have applied their minds to the range of reasonable responses test – see Conlin v United Distillers (1994) IRLR 169 Court of Session.
20. We must judge the reasons on their face. It is not simply that the reasons do not refer to the statutory test, in our judgment they are consistent only with the statutory test not being applied. We have been driven to conclude that the Tribunal has fallen into error by substituting its own view for that of the employer, and in so doing, has manifestly failed to apply the range of reasonable responses test. On this basis, the appeal succeeds.
21. We go no further than that. In particular, we reject Mr Clark's further submission that the decision was perverse. On the contrary, we are satisfied that it would be open to an Employment Tribunal to uphold the complaint after applying the correct tests. Further, we need say nothing about his further submission as to the level of contribution found by this Tribunal.
22. In these circumstances we think that the proper course is for the matter to be remitted to a fresh Employment Tribunal for rehearing. At that hearing it will be for the Tribunal to find what was the Respondent's reason for dismissal and to determine whether or not the dismissal was fair, under section 98(4), manifestly applying the correct approach. It will not be open to the Applicant to reopen the inadmissible reason argument, dismissed by this Employment Tribunal, and against which finding there has been no cross-appeal. However, the question of contributory fault, should it arise, will be a matter for fresh consideration by the new Employment Tribunal.