United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS C J GREIG (Solicitor) MacRoberts 152 Bath Street Glasgow G2 4TB


 


JUDGE WILKIE

1. This is an appeal by Glaxo Wellcome Operations Ltd against an order made by an Employment Tribunal, by its decision of the 2 December 1999 to order the re-engagement by Glaxo Wellcome of Mrs High. The Employment Tribunal by a decision promulgated on 23 June 1999 had concluded that Mrs High was unfairly dismissed by Glaxo Wellcome and had listed the matter for a remedies hearing.
2. Her dismissal arose out of an altercation which resulted in physical violence between herself, a directly employed cleaner, and Karen Donnan, a member of contract staff also employed to clean at the Respondents premises. The employer had conducted an investigation into that incident and had dismissed Mrs High essentially on the basis that they claimed to have a genuine belief that Mrs High had instigated the violence by virtue of her having at some point made physical contact with Mrs Donnan. It was common ground that Mrs Donnan had in turn inflicted violence on her. There had been differences of views as to whether Mrs Donnan had struck the first blow, or whether Mrs High had laid hands on Mrs Donnan first.
3. The conclusion of the Employment Tribunal was that, notwithstanding that a great deal of time had been spent by the Respondent and investigating the matter, the investigation was aimed at the single issue of whether the Applicant had first made physical contact with her assailant Mrs Donnan. The Employment Tribunal go on in paragraph 13 of their reasons to say that the Respondent did not appear to have taken into account that it was Mrs Donnan who had left her own place of work and deliberately descending upon the Applicant using fowl and abusive language marching up to her in an aggressive manner. They had severe criticisms to make of the quality of the investigation and on the credibility of certain persons whose accounts had been taken into consideration by the employer. But, more fundamentally, the Employment Tribunal concluded that the employer had gone off the rails by concentrating solely on the question of who laid hands on whom first.

In paragraph 14 of their decision they say: -

"We consider that a reasonable employer would have recognised that the instigator of the incident that occurred was not the applicant but was her assailant, Karen Donnan. In a sense, whether or not the applicant grabbed hold of her assailant's writs before her assailant struck her or afterwards is irrelevant to that basic and fundamental fact. In seeking to discount the position taken by the applicant the respondent has missed that basic point and has failed to take into account, in reaching its decision, what at the very least, must have been the most severe of provocation offered to a long standing employee with an unblemished record. Even had the version of the events accepted by the respondent been the truth of the matter, the Tribunal is firmly of the view that a reasonable employer, acting reasonably would have given credit for that and not dismissed. As it is, the Tribunal considers that the investigation, detailed though it may have been, was not addressing the fundamental point and failed to establish the doubts about Mr David Hughes' evidence or to take account of the investigation carried out by the police. The Tribunal concludes that a reasonable employer acting reasonably would not have dismissed."

4. Against the background of that finding and that reasoning the Employment Tribunal considered remedies. They considered the claim by Mrs High that she should be reinstated or alternatively re-engaged. The Employment Tribunal rejected her claim to be reinstated on the grounds of impracticability. It acceded to her application to be re-engaged and it is against that decision that this appeal was lodged.
5. The Tribunal gave its decision on remedies on the 2 December in summary form. It gave its decision on remedies subsequently on the 19 January 2000 in extended form. At paragraph 11 and 12 of that decision they respectively set out the argument for the Respondent and their conclusions. The employer's representative drew the Tribunal's attention to the case Wood Group Heavy Industrial Turbines Ltd –v- Crossan (1998) IRLR 680 in support of their contention that there should not be either reinstatement or re-engagement. That case was cited in support of the essential point that there had been at the point of dismissal a genuine belief in the Applicants guilt. That was four square with the Wood Group Heavy Industrial Turbines case which was a case where there had been a genuine belief in the employee's guilt but where the unfairness of the dismissal had stemmed from procedural defects of a substantial nature in the investigative process, in particular the failure to inform the employee of the nature of the allegations on the nature of the evidence or the identity of the witnesses, the allegations being one of drug dealing whilst at work.
6. The Respondent also submitted that there was no suggestion that the employer had acted in bad faith or were malicious and therefore, relying on the Wood case, neither reinstatement nor re-engagement were appropriate. In addition the point was made that the evening cleaning job was no longer available, so reinstatement was not possible and that re-engagement would involve the Applicant coming into contact with contract staff. The Tribunal, in considering this question accepted the submission as far as reinstatement was concerned. However, as far as re-engagement was concerned they dealt with the two submissions in this way. They distinguished the case of the Wood Group Heavy Industrial Turbines on the basis that in this case the Tribunal had found substantive unfairness that is to say their criticism was not merely procedural but they had criticised root and branch the conclusion that Mrs High was the instigator in any sense of the word and the reasonableness of the decision to dismiss based upon that misconceived approach.
7. They went on to say that in their view it was perverse, in the light of the evidence which had been heard and accepted at the Tribunal and which a reasonable investigation would have disclosed for the Respondents still to say that there was a genuine belief in the Applicants misconduct.
8. Mrs Greig, who has addressed us extremely ably on behalf of the Respondent, has put forward as her principal line of attack on this decision that the Tribunal erred in law in distinguishing the case of Wood. She makes two points. The first is that when considering the practicability of re-engagement it is an error of law for the Tribunal to look at the genuineness of any belief in guilt at the point at which re-engagement is being considered. She says that the correct approach is to consider the genuineness of the belief in guilt at the point of dismissal, so that, even if subsequently the employer is persuaded or must have been persuaded that their initial belief was erroneous, nonetheless the genuineness of their initial erroneous belief must be the factor to be taken into account. In our judgment that must be wrong. The exercise for the Employment Tribunal at this stage of the proceedings is prospective. It is to look at the practicability of re-engagement, the decision being made at the point which has then reached, namely that the dismissal was unfair. If there remains on reasonable grounds, a genuine belief in the employee's misconduct then of course that is an important matter which would weigh heavily in the Tribunals mind on the issue of practicability. It is plain that in the Wood case there was no basis for saying that the employer could not still hold a genuine belief in the employee's guilt on the charge of drug dealing because the criticisms that had been made were procedural only and did not attack the basis of the belief itself. Where, however, as here, the Tribunal have reached the conclusion that no reasonable employer, having conducted a reasonable investigation, could have concluded that Mrs High was guilty of being the instigator of the violence then in our judgment it is perfectly correct in law for them to approach the question on practicability of re-engagement on the assumption that the employer will now act reasonably and will therefore be bound to accept that their original genuine belief was erroneous. It seems to us that this is a conclusion which was not only correct in law but was manifestly open to this Tribunal taking this particular decision.
9. The matters upon which Mrs Greig relies in support of her subsidiary submissions on this point, namely that the Tribunal's conclusion that it would be perverse for the employer to still cling to their belief in her being the instigator are essentially the points which founded the genuineness of the original belief but in our judgment cannot possibly stand up in the light of the Employment Tribunal's analysis and its findings of fact it having heard many of the relevant witnesses. Therefore our conclusion on this aspect of the matter is that the Employment Tribunal's approach was plainly right and there is no sensible basis to say that they were perverse and therefore this ground of appeal is bound to fail.
10. The alternative basis for attacking this decision was put in the skeleton argument on the basis that the Employment Tribunal failed to consider the question of practicability and, in addition, failed to give full reasons on the question of practicability. In the course of argument Mrs Greig has accepted that in their full reasons the Employment Tribunal did address the question of practicability. They addressed it on two bases. Firstly by acceding to the employer's submission that it was impracticable for her to be reinstated. Secondly by addressing the question of re-engagement by dealing with the offer made by the employee, namely her willingness to work the hours now being worked by all directly employed cleaners, specifying the particular shifts and the particular location and in addition noting that the other employee who had been involved in the altercation was no longer employed on site. It seems to us that on no basis can this said to be other than a full explanation of their reasoning. Plainly the fact that the other employee was no longer engaged on the site meant that that particular flash point was no longer present. Further the fact that she was offering to work a shift with other directly employed cleaners and that she was not going to be in any particularly isolated or vulnerable or conspicuous position vis a vis the other contract workers. If there is or was a general problem between contract worker and directly employed workers then the offer and the order of re-engagement made would not in any way exacerbate that because she would be working with other directly employed cleaners. Therefore, it seems to us that the Tribunal not only took on board the practicability arguments put forward by the Respondent but addressed them in a way which was open to a reasonable Tribunal, having heard the case, having heard all the evidence and having formed its views of the substantive merits of the case.
11. In our judgment, therefore, their reasoning falls far short of either being inadequate to tell the Respondent why the order was being made or of constituting a perverse decision which, as we apprehend, is the nature of the allegation made by Mrs Greig in attacking this aspect of the matter. Therefore again despite the extremely able and clear arguments addressed to us by Mrs Greig the conclusion to which we have come is that this is an appeal with no reasonable prospect of success and therefore we dismiss it at this stage without the need to trouble the party's with an inter partes hearing.