United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D READE (of Counsel) Simpson Millar 101 Borough High Street London Bridge London SE1 1NL
For the Respondents	MR R WHITE (of Counsel) Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ


 


MR JUSTICE HOLLAND: This matter arises in the following circumstances. Mr Foley was at the material time a Post Office worker of some standing. He had entered the employ of Royal Mail in 1989. As at 16 May 1997 he had a good disciplinary record. That was a Friday and he was working on a shift in the course of the evening of that day. The shift was due to end at 11.00 pm. In the event, there came a stage during the evening at which his wife telephoned him. The Tribunal found that that was at 7.30 pm. We cite from paragraph 5 of the Extended Reasons:

"5. ... She was in a bad state of nerves and required his attention. Mr Foley sought permission to leave his work early. His shift normally finished at 11 pm and his immediate line manager, Mr Martin Joyce, authorised his departure from work. He left work between 7.30 pm and 7.45 pm."

It is to be noted that given the circumstances in which permission had been given for him to leave the shift, he was to be paid to the end of it as if still at work. It is common ground that he did not go straight home. His case is, that rather than wait for a bus in the prevailing weather, he went to a nearby public house and arranged to be picked up from there by a mini-cab and so as to be taken home. His further case is that he was so picked up at about 8.20 pm.

Thus it was, that the time spent in the public house was of the order of some 20 minutes. Not so, say his employers. A manager, Mr Kowalski, claims that having himself left work at 8.30 pm, he happened to pass this public house and recognised Mr Foley in it. That recognition was at about 8.47 pm. Having regard to what he had seen, he telephoned Mr Foley's immediate line manager who in turn sent two fellow-managers to check the public house. It would seem that those two arrived at the public house at about 9 o'clock or sometime shortly thereafter and certain it is that by the time they did get to the public house, Mr Foley was no longer there.

The matter having been reported to the late shift manager, Ms Johnson, she initiated a disciplinary procedure. By way of the first step Mr Kowalski, the manager who had made the alleged sighting at 8.47 pm was instructed to conduct an immediate enquiry, at which enquiry was to take place on the following Tuesday. He in his turn reported the results of his enquiry to Ms Johnson, who by a letter of 3 June 1997 wrote to Mr Foley in these terms:

"Following initial investigations you are now charged with unauthorised absence from your duty claimed you needed to be at home due to a domestic crisis but you were seen to be in a local Public House at 20.55 hrs on 16th May 1997."

She arranged for a disciplinary hearing which took place on 11 and 12 June 1997. That hearing concluded with her decision to dismiss Mr Foley with notice. He appealed against that decision, utilising the Royal Mail's internal appeal procedure. His appeal was, in the event, heard by Miss Little, their appeals manager on 19 August 1997. In the overall result she decided to dismiss the appeal.

It is apparent that the appeal aimed to be a re-hearing. It is apparent that it focussed upon the issues of fact that had arisen between Mr Foley and Mr Kowalski and it concluded, by reference to her witness statement, as follows:

"On the basis of all the available information, I formed the belief that the Applicant was in the pub long after he stated that he needed to go home due to a domestic problem. I was of the opinion that the Applicant was in the pub after 8.20 pm when he stated that a cab had picked him up and taken him home and since he was only authorised to leave the site for a specific reason, his absence for any other reason constituted an unauthorised absence and I therefore believe that dismissal was the appropriate penalty in the circumstances. I duly wrote to the Applicant on 3 October 1997 informing him of my decision to uphold his dismissal."

We have indeed been shown that letter. It says precisely what she there claims. It says no more.

By an IT1 of 17 October 1997 Mr Foley complained of unfair dismissal. His complaint came before a Tribunal held at London (North) on 15 and 16 April 1998. That Tribunal was critical of the introduction of Mr Kowalski into the disciplinary process and thought that, in any event, his investigation was superficial. It further was dissatisfied with the way in which Ms Johnson had conducted the disciplinary hearing. By way of paragraph 18 it summarised the matter:

"18. We do not find in all the circumstances that the disciplinary hearing was conducted as fairly as it might have been."

They then went on to consider as to whether the appeal hearing conducted before Miss Little served to rectify what thus far had been potentially unfair. They directed themselves as to the law. They reviewed what Miss Little had found and they reached their conclusions from paragraph 23 onwards in the following terms:

"23. We find that the decision to dismiss Mr Foley for the conduct as alleged to be harsh. However, we are mindful that we must not impose our decision upon that of a reasoned on the spot, management decision.

24. We find that Miss Little's careful conduct of the appeal hearing rectified an otherwise unfair dismissal and, in coming to this decision, we have considered Clark.

25. This dismissal is fair pursuant to section 98 (4) of the Act. We find that it was within the range of reasonable responses for this employer to have dismissed this employee for the offence as alleged. An employer must have confidence in the employees and if an employee requests permission to leave for home early because of a relative's indisposition the employer must have confidence that this is the reason why the employee is leaving. Because of Mrs Foley's condition it may well be that, in the future, Mr Foley would equally be obliged to leave early. He had done so on a previous occasion. The Respondent must have faith that this is the real reason for the request. This application fails."

In presenting the appeal, on behalf of Mr Foley, Mr Reade has challenged the proposition that the careful conduct of the appeal by Miss Little served to rectify an otherwise unfair dismissal. He points to various aspects of this matter that she did not follow up and, it has to be said, that one of the problems arising out of the early errors in the disciplinary procedure, was that she was having to look into these matters after some delay and when memories, or possibly records, were no longer readily available.

For our part, rather than concentrate however on that particular issue, we have focussed upon another matter. The Tribunal and this Tribunal are obliged to approach this matter by reference to section 98 Employment Rights Act 1996. The opening of that Act is familiar, but repose recital:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal,

and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."

Turning then to subsection (2) one notes that a reason relating to the conduct of the employee falls within that subsection. Pause there then.

The employers here plainly are able to show that the reason for the dismissal was within subsection (2), that is, it was a reason relating to conduct.

What however already we draw attention to, is the difficulty one has on perusal of these papers in discerning precisely what the conduct was. At first reading of these papers, one was inclined to assume that the conduct that was suggested was to the effect that the initial phone call had been bogus, that the whole exercise had been in effect an exercise to escape from the place of work and to go drinking while still being paid. This, it might appear was a surmise of the Tribunal below: see the words already cited. Not so, said Mr White on behalf of the Post Office, in the event they accept that there was such a telephone call. What then was the precise conduct that was relied upon?. Was it that he should never have been in the public house? Was it that he was in the public house for too long, or was it (as some of the papers suggest) that he had not been candid about the period of time that he spent in the public house; that there had ever been an issue of fact between him and Mr Kowalski.

Pausing there, we do not at the moment have to resolve these problems, but we point out forcefully that the conduct was never, on the face of it, clearly defined and even now before us, is not a matter that is clear and of common ground. The problem becomes acute when one then turns further on in section 98 to the crux of the matter and that is section 98 (4) which reads:

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's 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."

It is trite law that this Tribunal, nor indeed any Employment Tribunal, will seek to substitute its own judgment as to the weight of the reason that is put forward in terms of sanctions, providing it can be satisfied that dismissal was within the appropriate range. As this Tribunal itself point out, it is not its function to impose its own decision over that taken by the employers. In the particular circumstances of this case, it thought that it was unable to do so because there was "a reasoned on the spot management decision".

Turning from the comments we made about the lack of definition as to conduct, there is again absolutely no evidence at all that there was any consideration given to the appropriate range of responses. The first problem that confronted those who are concerned to make a decision as to sanction was the difficulty in identifying precisely what it was that was being complained about. But once that had been defined, then plainly this was a case in which there must, or must by definition, have been a range of responses. This was by reference to the Royal Mail's own disciplinary code, not a case of gross misconduct calling for summary dismissal. It did not fit within the categories that are listed in their disciplinary procedure as being typical of gross misconduct and further, in any event, it was never regarded as such by the Royal Mail, hence the fact that in the event dismissal was on notice and not summary.

If then it was not gross misconduct, what were the range of responses appropriate to this conduct? and as soon as one poses that question, in relation to the range of conduct that might have been relied upon by reference to the dismissal, one can readily see that there was open to the Royal Mail a whole spectrum of sanctions, perhaps starting with some impact upon Mr Foley's pocket, leading on to a warning with the far end of the scale, dismissal on notice. If one can be certain that that was the range of responses; if one can be certain that there had been a reasoned on the spot judgment about them, then we should have been in the position of loyally upholding that because it was not our function, as the Tribunal pointed out, to impose our judgment. In the event, we cannot find any such decision at all in this case.

We suspect that the problem was that there was such intent focus upon the factual issue as to when Mr Foley left the public house, was it at 8.20? or was it near 9 o'clock? that the significance of that issue failed to be subjected to any analysis or any judgment. So soon as one views the issue in context and stands back from it, it cried out for a judgment as to range, a judgment as to importance, a judgment as to sanctions and none such appears in the passage cited from Miss Little's statement and none such appears from the Extended Reasons of the Tribunal.

It is in those circumstances that we are entirely satisfied that there was no sound basis in law for the finding by the Tribunal that the dismissal was fair, pursuant to section 98 (4). It is further in those circumstances, that we are satisfied that on the material before the Tribunal the complaint should have been upheld. We are satisfied that there is no need to remit this matter further. We allow this appeal. We uphold the complaint of unfair dismissal and we direct that the matter go to a Remedies Hearing.