United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Miss K Harvie, Solicitor Of- Messrs Russel & Aitken Solicitors 27 Rutland Square EDINBURGH EH1 2BU
For the Respondent	Mr N Maclean,Solicitor Of - Messrs Anderson Strathern Solicitors 48 Castle Street EDINBURGH EH2 3LX


 


LORD JOHNSTON:

1. This is an appeal at the instance of the appellant employee against a finding of the Employment Tribunal that she had not been unfairly dismissed from her employment with the respondents.
2. The appellant worked as a hand winder on an assembly line process producing medical sutures. The integrity of the product is vital and part of the requirements imposed upon the employees working on the line, was that the product should be in each case tactile tested.
3. According to the Tribunal's findings, the appellant was observed by two senior colleagues for a period of some ten minutes during a particular shift, not carrying out that process. She was suspended and subsequently at a disciplinary hearing, dismissed. She appealed but that appeal was unsuccessful. Against the final position of her dismissal, she presents the present application.
4. The decision of the Tribunal is in the following terms:-

"The respondents submitted that they had to demonstrate what the reason for the dismissal was and that it was fair. Thereafter the(sic) had to show that the reasoning process leading to dismissal was reasonable. In relation to the evidence of Mr Carter it was submitted that he believed the applicant was guilty of gross misconduct; that he had reasonable grounds for the belief and that he had carried out reasonable enquiry. In the circumstances it was said that dismissal was within a reasonable band of responses.

We were reminded that Mr Carter had two statements from two senior employees and that the applicant had been unable at the disciplinary hearing to give any reason why they should provide untrue statements. In relation to the enquiry we were reminded of what steps had been taken as detailed supra and asked to view these investigations as reasonable in the circumstances. Moreover, it was said that the applicant knew of the importance of tactile testing due to her training. She had also acknowledged the awareness along with an acknowledgement that she knew that the consequence of not carrying out such tests was loss of employment. She also knew that other employees had been dismissed for failing to carry out a "pull" test which witness's acknowledged was a test very similar to tactile testing. Even if the applicant was unaware of the content of the Quality Briefing document (R9) she would have been aware of the importance and need for testing and of the consequences of any failure.

The applicant maintained that the real reason for dismissal was her shoulder complaint, the seeking of time off and alternative employment. The dismissal was not due to conduct but to ill health. Moreover, failing to test was not a specified Group 1 offence such as would constitute gross misconduct. It was also said that there had been procedural irregularities in that the applicant had been denied the statements of the two witnesses and that the applicant's colleagues had not been interviewed as had been requested at the appeal hearing. Unfairness also existed because Mr Carter had spoken to Mr Steven before the disciplinary hearing despite the latter being the person who would conduct any appeal hearing.

Although the Tribunal had sympathy for the applicant we were not persuaded that she had been unfairly dismissed. It seemed to us that the provisions in the discipline policy could be held to include failure to carry out tactile testing of sutures under Group 1 Rule 8. Indeed this seemed to be acknowledged by the applicant. In the circumstances we were of the view that statements from two senior employees were sufficient combined with the investigation carried out to satisfy the tests incumbent on the respondents. We therefore dismissed the application.

In conclusion, we were of the view that there were minor faults on the part of the respondents which although not sufficient to vitiate the process could have been dealt with more adroitly. Although we were satisfied that the applicant knew the graveness of the allegations prior to the disciplinary hearing there seems to have been no good reason why the witness statements were not made available to her. It also seemed to us unfortunate that Mr Carter spoke to Mr Steven about the matter before the disciplinary hearing. We accepted that the extent of the communication was limited but, in other circumstances, it could have cast doubt on Mr Steven's fitness to carry out the appeal procedure."

5. Before dealing with the submissions of the parties in detail, it is relevant to note that this case reflects once again the test now of longstanding enunciated in British Home Stores Ltd v Burchell [1978] IRLR 379, with particular reference to the question as to whether or not the decision to dismiss fell within the band of reasonable responses open to an employer after conducting an investigation into alleged misconduct which investigation in itself under the tests enunciated in the case had to be comprehensive and therefore reasonable.
6. Against that background, this Tribunal would take this opportunity to endorse completely the observations of Mr Justice Morison in Haddon v Van den Bergh Foods Ltd [1999] IRLR 672, which, paraphrased, bring once more back into the proper focus the essential issue that is to be determined by an Employment Tribunal in questions of unfair dismissal relating to misconduct, namely, the test of fairness in section 98(4) of the Employment Rights Act 1996. In our opinion, as is stated by Mr Justice Morison, there has been an increasing tendency for Tribunals to determine the issue on the Burchell test as if they were the only basis upon which a decision as to fairness can be achieved. What in our opinion, the Tribunal in question has to do, is to stand back from the decision of the employer and assess in the knowledge of what was known to him at the time, whether or not the dismissal was in the circumstances reasonable. That, as has been said on many times, is a question of fact but should not be viewed by this Tribunal against the view that the only relevant issue on appeal is perversity. If the Employment Tribunal has not ultimately addressed section 98(4), the decision cannot stand.
7. In the present case, the thrust of the submissions by Miss Harvie, who appeared for the appellant, was essentially a lack of reasonable investigation, together with a complaint that the statements of the two employees who had observed the conduct complained of by the appellant, were not handed over to her despite her request to do so. This essentially amounted to a complaint that was a breach of natural justice.
8. We have to say that we are not satisfied that such was made out but nor, however, are we satisfied contrary to the submissions of Mr Maclean, who appeared for the employers, that the Tribunal properly addressed itself to the correct question, which is, such as we have just set out, namely, was the decision to dismiss reasonable. Paragraph D on page 4 of the decision stops short of that assessment being merely concerned with the adequacy of the investigation.
9. Mindful as we are, that we should not substitute our own view for that of the employer, we once again rehearse what Mr Justice Morison says in Haddon as to the nature of the assessment that a Tribunal must inevitably make in considering the question of reasonableness in a dismissal situation. Where a Tribunal gives adequate reasons for its conclusion as to the reasonableness or otherwise of the employers decision to dismiss, this Tribunal will not interfere. Where, however, as here in our view, the Tribunal has failed properly to address the whole question of reasonableness, as opposed to reasonable investigation, the matter is in our view not adequately dealt with in terms of the statute. This is particularly important in a context where the so called misconduct was of a very limited time span against a background of an impeccable and longstanding work record. At the very least, in our opinion, the employer should have considered whether or not the matter could have been dealt with by a formal written warning. The Tribunal below has not even addressed itself to the question of alternative remedies and in that respect, in our opinion, has failed to meet the ultimate test laid down by the statute, re-enunciated in Haddon.
10. Having reached that conclusion, however, it is quite impossible for us to substitute any formal or specific conclusion as to whether the dismissal was fair or unfair. It is the inevitable result of the view we have reached that this matter will have to be reheard.
11. In these circumstances we will allow the appeal and remit the matter to another Employment Tribunal, differently constituted, to rehear the matter if it cannot be resolved.