United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON.
For the Respondent	MR N A CAMERON (of Counsel) Instructed by: Messrs Stamp Jackson and Proctor 5 Parliament Street Hull HU1 2AZ


 


JUDGE WILSON:

1. This has been the hearing of the full argument in the Applicant's appeal against the decision of the Employment Tribunal that he was not unfairly dismissed. The Appellant has appeared in person and Mr Cameron of counsel has represented the Respondent. Each side produced skeleton arguments, which they amplified in argument and we have been assisted by both the argument and the skeleton.
2. The facts of the matter are that initially the Appellant complained of unfair dismissal, disability discrimination and an unlawful deduction from wages. The Employment Tribunal dismissed his case in disability discrimination and there is no appeal against that decision. His claim for an unlawful deduction from wages was upheld and quantified by the Employment Tribunal and the Respondent does not appeal from that decision.
3. So far as the facts leading up to the dismissal are concerned, the Applicant was employed as an Information Technology Manager by the Respondent company and in August, he received an evening phone call, when he was on call, about a computer problem. The problem was discussed on the telephone between himself and another employee and the Applicant offered to go in but was told to wait. The caller did not call back and, after waiting about 30 minutes, the Applicant left his home to keep an evening appointment which had been pre-arranged. The following day the Applicant had a pre-arranged physiotherapy appointment, which the Respondent was aware of and had been fixed for 9.30am. He got a telephone call at 8.30am and a later call on behalf of the Managing Director, telling him to cancel his physiotherapy appointment and to come in to sort out the continuing problem. He refused to do that because he would have lost his claim for future physiotherapy, if he had done so. He explained this to the Managing Director's secretary. He says that later the General Manager told him that it was all right and there was no need to come in.
4. When he turned up for work the next day, he found himself suspended and disciplinary proceedings followed, as a result of which he was dismissed for incompetence.
5. The Respondent says that the Applicant was dismissed for failing to carry out his duties in accordance with his contract of employment and for incompetence and that the dismissal was not unfair. It is noteworthy that in paragraph 3 of the decision of the Tribunal, the capability point is abandoned, as is the failure to obey an instruction.
6. Those are the brief facts of the matter and the Appellant appeals lies because he claims that the finding of the Employment Tribunal is contrary to the provisions of the Code of Practice of A.C.A.S. and to their findings of certain facts. There were other grounds which he advanced, but in our judgment they are not sustainable. We also have regard particularly to paragraph 4 of the judgment of another division of this Tribunal at the preliminary hearing, where they said:

4. "We are concerned that there does not appear to be any careful examination of the range of options open to the reasonable employer, confronted by a finding of conduct, as distinct from gross misconduct. The point there is not addressed at all by the Tribunal, and it is plainly one that this Tribunal will need some assistance with."

7. Some time was spent in argument in amplification of the skeleton arguments about whether or not the facts which I have outlined earlier constituted a first breach of discipline. It seems to us that while there is evidence that there had been a previous breach of discipline, whether it was still under contest by the Applicant is not clear. However that may be, we do not consider that it is material to what was here to decide.
8. Having stated the facts briefly, I turn to the disciplinary procedures. They are set out in paragraph 6 (p) of the extended reasons and were founded on a letter handed to the Applicant by Mr Baldwin alleging that he failed to discharge his duties to an acceptable standard and had failed to carry out a reasonable instruction. The Tribunal found and I quote from the middle of page 6 of their decision:

6. "This phase of the Respondents disciplinary procedure was conducted in unsatisfactory fashion. It is clear to the Tribunal that the Respondent did not undertake a detailed fact finding arrangement and did not provide copies of statements or the gist of the evidence that had been obtained to the applicant. It is also clear from a candid answer given by Mr Salmon that the difference between conduct and capability was not something that he was aware of, and that lack of clarity dogged the disciplinary hearing at that time and indeed, carried on into Mr Salmon's letter of dismissal of the applicant which is dated 9 September 1998."

9. That letter stated that he was "incompetent in the performance of his duties" and was therefore being dismissed with immediate effect.

(r) "As stated, it is clear from the evidence in the Tribunal and the way in which the respondent has defended the case that the issue of competence was not pursued and there is no substance in any allegation that the applicant was in any way incompetent in the performance of his duties. It is also clear from Mr Salmon's evidence that he put forward an argument that in the wording of the paragraph referring to the applicant's failure to take reasonable and responsible actions to overcome the problem the following day, Mr Salmon expressly excluded any reference to failure to comply with a reasonable instruction, being the instruction to attend work notwithstanding the applicant's physiotherapy appointment. In fact, he claimed that he meant by that to highlight that the applicant should have attended either before or after that appointment to rectify the problems with the respondent was experiencing. That appears to the Tribunal to be significantly stretching the wording put forward in the letter of 9 September, which is perfectly clear."

10. Subsequently in the course of the decision the Tribunal expressed concern about the shortcomings of that procedure. In paragraph 14 the Tribunal says:

14. "The Tribunal had a number of significant concerns about the way in which the dismissal was undertaken in this case in the context of the applicant's misconduct, for that was what it was and an allegation was made that he failed to attend diligently when he became aware of the defect in the system on the evening of Wednesday 26^th. The Tribunal considered that the investigation into this undertaken by Mr Baldwin did not satisfy the normal requirements that it should be such investigation as a reasonable employer would undertake. In particular, Mr Baldwin appears to have interviewed a limited number of people and have made relatively poor quality notes of those discussions. He did not supply those notes to Mr Salmon in advance of the Disciplinary Hearing. While there are no hard and fast rules in respect of these investigations, in general terms the Tribunal was concerned that the whole method of investigation fell far short of what the Tribunal would normally expect."

11. Thereafter the question of the domestic appeal was considered by the Tribunal and their findings about that are set out at page 7 of their decision in paragraph 6 (s). They state the Applicant has not made complaint to them in connection with the statements which were subsequently provided to him in advance of the appeal, which was conducted by Mr Magistro on the basis that the Applicant was allowed to attend with legal representation. The Tribunal went on to say:

7(s). There is an inherent confusion regarding this aspect, as it appears that the Applicant was under the impression that his legal representative could not take any active part in the proceedings, whereas Mr Magistro stated that he did not expressly restrict the adviser's function, but that no request was made for him to play an active part when the hearing took place."

In any event it is clear that the Applicant had the benefit of legal representation in the appeal, which he could consult when the occasion demanded during the appeal. It has not been suggested to us that the Appellant's representative on that occasion was vocal in any way at all. The Tribunal went on to consider that matter in its decision at page 10 in paragraphs 14, 15 and 16. They say:

14. "The Applicant's challenge to the appeal procedure is in substance limited to two specific aspects. One relates to the failure to provide Mr Cope as a witness and one relates to the contact, which Mr Magistro has with other employees after the appeal took place, but before he issued his decision. That leads into the general criticism that the applicant's attitude was a major factor taken into account at the appeal. There was also criticism of Mr Magistro's position in dealing with the appeal as he had been directly involved in a discussion with Mr Salmon at the time Mr Salmon was considering dismissal and had in effect approved Mr Salmon's dismissal of the applicant before it took place. Therefore, in the applicant's representative's submission, it would be inappropriate for Mr Tony Magistro to deal with the Appeal Hearing."

The Tribunal went on in paragraph 16:

16. "The Tribunal decided that although there were clear deficiencies in the way in which the initial dismissal decision was taken, the respondent's appeal procedure operated as a complete re-hearing of the case."

In passing it is difficult to see how that could be so, when the Appellant's representative did not say anything. The Tribunal also went on in paragraph 15 to say that: -

15. "The Tribunal decided in this case that the defects in connection with the appeal procedure were not fatal to the fairness of the overall action taken by the respondent."

12. I turn now to the law, which the Tribunal correctly referred to in paragraph 13 of their decision. They stated in paragraph 13:

13. "The law in simple terms requires a dismissing employer to demonstrate that a dismissal is for a potentially fair reason, the relevant reason in this case being conduct, and it is for the Tribunal to decide whether the dismissal satisfies the overall test of fairness prescribed in the Act."

That is all right so far as it goes and is an accurate representation of what is set out in s.98 (1) (a) and (2) (b) of the Employment Rights Act 1996. It makes no reference however, to the final component of the law to be applied which is contained in s.98 (4) (b), namely that the matter should be determined in accordance with equity and the substantial merits of the case. As the Tribunal stated elsewhere in its decision in the context of unfair dismissal the Tribunal looked carefully: -

13. "At the procedure adopted by the respondent, as this is a significant component of the overall fairness test."

13. We have concluded that there is a clear and unavoidable incompatibility between the findings of fact and the criticisms of procedure on the one hand and the decision reached by the Tribunal on the other. In our view no reasonable Tribunal properly and fully directing itself on the law to be applied to the facts found, in the context of the strictures made about procedural shortcomings could have reached the conclusion which this Tribunal reached. Accordingly, the decision to dismiss the Appellant's application in respect of unfair dismissal is set aside. That issue will be remitted for rehearing by a differently constituted Tribunal, which will of course be able to consider the question of contribution if it sees fit.