United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A OLUFEKO Solicitor Messrs Olufeko & Co Solicitors 85 Kingsland Road Shoreditch London E2 8AG
For the Respondent	MS LYDIA SEYMOUR (of Counsel) Instructed by: London Underground 55 Broadway London SW1H 0BD


 


JUDGE J ALTMAN:

1. This is an appeal from the decision of the Employment Tribunal sitting at London (North) over three days in February 1999. The Appellant appeals against the dismissal of complaints of unfair dismissal and race discrimination. This matter came before the Employment Appeal Tribunal, presided over by different Chairmen and members than today, to deal with the preliminary hearing and at paragraph 10 of the judgment of Lord Johnston, they identified the point of law available for argument at a full hearing:

"On the very limited question firstly of whether or not the invalidity of one of the warnings is relevant to the decision to dismiss and secondly, as to whether or not there is a question to try as to the consequences of that invalidity in relation to the dismissal."

2. When the Appellant was dismissed the Respondents took into account two previous warnings. The Appellant says that one of these was procedurally flawed in that the most that could have been given was an informal oral warning but that without any formal disciplinary hearing and contrary to the Respondents disciplinary code, management had issued a formal written warning. As to the second matter, in respect of which a warning was given and was reduced to writing, because the incident preceded the Appellant's absence due to sickness he had not received the written formal warning at the time of the final incident. On behalf of the Appellant, it is said in effect that the procedural flaw in the first warning should effectively have nullified that warning, so as to make it something that was not available to taken into account by a reasonable employer at the time of the final dismissal procedure.
3. It is suggested that there was evidence before the Employment Tribunal that, without those warnings, there may not have been a dismissal particularly bearing in mind the treatment to the other protagonist in the incident, Mr Fleming, who had no previous warnings and was not dismissed but was in the recipient of a final of a formal written warning. We accept that there is substance in the argument that if the employers were wrong to take into account the warnings, it cannot be said that dismissal would properly otherwise have ensured. Because of those matters, the Appellant argues that there should not have been a dismissal and that therefore, the Employment Tribunal was wrong in not finding that the dismissal was unfair. It is argued that the Respondents took into account in a crucial way something which should not have been taken account of and it is also suggested that in the decision, the Employment Tribunal erred in law in failing to address this aspect of the matter on the face of the decision.
4. The decision of the Employment Tribunal is a long and detailed one and contains a careful analysis of the facts and it is unnecessary for us to repeat them at any length. The Appellant began work for the Respondents in 1990 and became in due course the Station Supervisor Multifunctional at the Greenford Station on the Central line. On 13 April 1997 there was an incident involving an altercation between the Appellant and another employee and both were issued with what bore the title of "a final caution" on its face. I quote the wording of it:

"You have been seen today regarding your performance as a Station Supervisor at North Acton, in that on 13 April 1997, you allowed yourself to get into an altercation with SS-MF Ali. This resulted in allegations being made by both parties of both verbal and physical assaults. This behaviour will not be tolerated by any London Underground members of staff.

You are warned that if you become involved in any altercation with anyone be it a member of staff, customer or contractor within the next 12 months, you could be sent before a formal disciplinary hearing. The charge will be gross misconduct despite previous warnings.

I must stress to you the seriousness of this issue. If you have any problems that are likely to cause you not to comply with this warning you should bring this to my attention."

5. The Employment Tribunal when dealing with this went on:

"GSM Jessett has no power to issue a caution without a disciplinary hearing. He acknowledged in evidence to this Tribunal that this should been phrased as an oral warning; however, he did not want to send either of them to a disciplinary hearing he wanted to bring home to them the gravity of the incident. The (Appellant) and Mr Ali shook hands and sorted out their differences following this incident."

Whilst the title was a misnomer the essential two differences between an oral warning and a written warning are these:

The first is procedural. There is not a formal disciplinary hearing where a Line Manager intends to issue an oral warning in an informal way.

The second difference of course is that a formal hearing is a label given to either a more serious incident than one that attracts an oral warning, or else one that is subsequent to an earlier oral warning and therefore more serious because it is regarded as being part of a series of incidents.

6. Within the body of the warning itself there appears to be some support for the argument that it was not intended to be a formal written warning because it makes reference to the fact that "next time", there will be a formal disciplinary hearing, by implication, it seems to us, confirming that there was not one on this occasion. Some months later on 15 November 1997 there was another incident involving the Appellant. This lead to disciplinary procedures and the finding of fact of the Employment Tribunal was that on 5 December 1997 D S M Cox issued the Appellant with an oral warning. The Employment Tribunal also noted that the written confirmation of this warning was never actually handed to the Appellant but was left in the Supervisors room because the Appellant had by then gone on sick leave, following the incident that occurred on 6 December. They quote the written confirmation in the course of their decision. It relates to an allegation that the Appellant was abusive to a customer who had to leave the station in a distraught state, later returning with her husband, to whom it was alleged the Appellant was also abusive. The warning concluded with the words:

"You are hereby warned that any further incidences of this nature could result in more serious disciplinary action being taken."

7. On 6 December, the day after the oral warning, there occurred an incident which lead to the dismissal procedure being invoked. There is no need to describe in detail what occurred. It was an incident with Mr Fleming, who was the Deputy Station Manager. There was a dispute as to what occurred but it involved the exchange of violence in word and deed. It appears that although there is no reference to injuries specified, there were hospital visits by both participants. Both seem to have made complaints. Thereafter the Appellant was off work and did not return until 27 May 1998. There followed disciplinary procedures and on 21 May 1998 the Appellant was dismissed. He faced three "charges" as they were called, worded as follows:

Gross Misconduct – as to the incident on 6 December – being involved in a violent and abusive confrontation with another employee, contrary to the code of conduct, "despite two previous warnings for such behaviour issued to you."

Gross Misconduct – in failing to hand over station keys on that occasion when requested to do so.

Gross Misconduct – Due to a failure to make regular contact with the Respondents and submit a correct residential or temporary address, during a period of absence on sick leave.

8. The finding of the Respondent employer was expressed as follows:

"We have considered fully the brief and the evidence produced by both you and your advocate. It is clear from the responses you have given this afternoon that on many points you have failed to provide a truthful answer, which has been proven. We have great difficulty in believing any of the evidence you gave.

On the first charge we find the case proven however it is not clear who instigated the confrontation. You have received warnings prior to this and for similar incidences and on the balance of probability have no doubt that you have had a confrontation with D S M Fleming that you played a significant part."

They then find that the other two charges were found proved. The Appellant was then told that he would be summarily dismissed. There was an appeal, which was also dismissed. It appears that Mr Fleming was disciplined as a result of which he received a final caution.

9. We have considered the submission that there was a procedural flaw and it appears that the flaw, contended for and with which we agree, was that the first warning was categorised as a final caution and so described in its title. It also appears, however, that that error was recognised at the dismissal procedure and it was recognised by the Employment Tribunal. It was also conceded by the Respondents that findings of gross misconduct on the 2^nd and 3^rd charges would not by themselves have resulted in a penalty of dismissal but would have been dealt with by a penalty short of dismissal.
10. The Respondents conceded that there was an error in the form of the earlier warning but there was no doubt that there had been two oral warnings. The Employment Tribunal came to the conclusion that there had been a full investigation and they went on to say at paragraph 16 (5) in their further findings of fact:

16 (5) "GSM Drake was entitled to take into account the two previous warnings. He was entitled to take into account his finding that DSM Fleming was less blameworthy than the Applicant…DSM Fleming did not have a disciplinary record. He faced only one charge…there was no procedural or substantial unfairness in the decision to dismiss the (Appellant)."

Two questions arise:

Were the Respondents entitled to approach the disciplinary interview, which lead to dismissal, on the basis that there had been two previous warnings?

Was the Employment Tribunal in error in concluding as a matter of law that there can be a fair dismissal, which takes into account earlier warnings that are procedurally flawed?

11. We take into account the following:

The body of the April 1997 warning is clearly consistent with an oral warning and the essential criticism is that it bore the wrong label. But it was a warning that the Respondents were entitled to give and there was never any issue before the Employment Tribunal, as we understand it, that on their findings at the time the Respondents were not entitled to give an oral warning at least.

It does appear that the mere existence of earlier warnings was sufficient for the Respondents at the time of dismissal, and they did not expressly take into account any erroneous view that there had been a formal written warning. Indeed it appears that it was recognised at that time that the form of the warning was in error. Accordingly it must follow that the decision to dismiss did not make the mistake of taking into account, a formal written warning.

It appears that the arguments were clearly set out in the decision of the Employment Tribunal and in their finding they obviously had the matters well in mind, because they spoke about the procedure that was adopted in the passages to which we have referred. Not only was it dealt with in evidence, but the submissions of the parties in closing, clearly set out their respective positions on these very issues.

12. It seems to us that the Employment Tribunal were clearly alive to the issues that had been raised and it is true that the earlier warning may have had the wrong title, but it cannot be said that when the Respondents came to dismiss, they did not treat it in the correct way. We find that there is no rule of law that if a form of a warning is incorrect, the whole warning should be nullified and ignored in subsequent disciplinary proceedings, where a lesser form of warning would have been justified. It must be a matter of fact for the employer and later the Employment Tribunal to assess. As to the 2^nd incident which gave rise to an oral warning, it does not seem to us to be an arguable error of law to fail to take account of the fact that the written record was not delivered until after the incident which lead to dismissal, when the oral warning itself was delivered on the very day before the incident which led to dismissal and when the dismissal process itself took into account the fact of the warning and not the fact of the delivery of the written record.
13. It does not seem to us arguable that a technical breach should make a substantial difference as a proposition of law. We therefore come to the conclusion that on the form of that procedure it cannot be said at that the time of dismissal the Respondents failed to follow that procedure in any way whatsoever. The Respondents had got the procedure wrong but not at that stage. They got it wrong at the warning stage, in the way in which they categorised the form of warning. When however they came to the dismissal decision, which was the matter considered by the Employment Tribunal, it is clear that they took into account two previous warnings, about which there was no dispute. They did not purport to take into account two formal written warnings or the seriousness of previous warnings in any way. When the Employment Tribunal came to address that, they did what an Employment Tribunal is entitled to do, which is to look at the way in which the Respondents had considered the matter, to address the facts and the law, and to come to a judgment as to whether the Respondents were reasonable in treating the misconduct of the Appellant as the reason for dismissal, in accordance with the provisions of the statue. Accordingly, we find that there was no error of law in the decision of the Employment Tribunal, such as to give rise to the allowing of this appeal on the grounds put forward. Whilst we are most grateful to the very full written submissions submitted on the Appellant's behalf, by Mr Olufeko, and were most indebted for his comprehensive and succinct submissions to us, we are driven to the conclusion that this appeal must be dismissed.