United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MARTIN SEAWARD (of Counsel) Instructed by: Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondent	MICHAEL LANE (of Counsel) Instructed by: Essex County Council


 


JUDGE PETER CLARK

1. This is an appeal brought by Mr O'Connell, the Applicant before an Employment Tribunal sitting at Stratford under the chairmanship of Ms I Manley, against that Tribunal's reserved decision, promulgated with Extended Reasons on 9 September 1999, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent Essex County Fire and Rescue Service.
2. During the course of oral argument it became common ground between Counsel that this decision is flawed in law such that it cannot stand. The decision must be set aside and the case remitted to a fresh Employment Tribunal for re-hearing. We entirely agree and have allowed the appeal, remitting the case for rehearing by another Tribunal. We now give our reasons for reaching that conclusion.

Background

3. The Appellant was a serving firefighter, employed by the Respondent from October 1977 until his summary dismissal on 28 October 1998.
4. The Fire Service is a disciplined force, like the Police. Matters of discipline within the Fire Service were regulated at the material time by the provisions of the Fire Services (Discipline) Regulations 1985 (the Regulations). However, whilst the Police service is exempt from scrutiny over matters of discipline under the ordinary employment laws, the Fire Service is not. One of the difficulties in this case is marrying up the ordinary principles of unfair dismissal law, to be found in Section 98 Employment Rights Act 1996, with the rigid disciplinary code set out in the Regulations. However, that is the task which faced the Stratford Employment Tribunal.
5. The Tribunal heard evidence that 80-90% of firefighters had secondary employment and that although prior permission to engage in secondary employment was required, only a very small number sought and obtained it.
6. The Appellant was engaged in secondary employment, at the material time with a roofing firm. He did not obtain permission for such work. The complication was that he engaged in that secondary work over a period of time when he was on sick leave from the Respondent's employment. That sick leave commenced in June 1997 and was caused by an ankle injury sustained in the course of his employment with the Respondent.
7. In November 1997 the Respondent received information that the Appellant was working in the roofing business whilst he was on sick leave. The Assistant Chief Fire Officer, Mr Lilliott decided to investigate. He saw a number of videotapes allegedly showing the Appellant working in secondary employment and then arranged for further videotape evidence to be obtained. Having done so he concluded that the Appellant's conduct fell within Regulation 6 of the Regulations and wrote to the Appellant on 1 June 1998, advising him about the investigation. On 7 October 1998 an interview was held at which Mr Lilliott informed the Appellant, who was accompanied by his trade union representative, Mr Deal, of the allegations made against him. That was followed by an interview with the Chief Fire Officer, Mr Turner, held on 28 October 1998, at which the Appellant was summarily dismissed. The reason then given for dismissal was that working whilst on sick leave

"struck at the root of the contract and destroys the trust and confidence between employer and [one] employee."

8. Pausing there, we should refer to the relevant provisions of the Regulations.

Regulation 6 Procedure

Regulation 4 provides that a member of a fire brigade commits an offence against discipline ("an offence") if he commits an offence set out in the discipline code ("the code") contained in the Schedule to the Regulations.

Regulation 6 provides:

"(1) Where from a preliminary investigation of the report or allegation, which shall include giving the member an opportunity to explain his conduct and hearing his explanation, if any, the investigating officer is of the opinion that -

(a) commission of the offence by that member is established; and
(b) the offence is of so serious a nature as to be capable of being punished only by dismissal;
(c) that no further investigation of the matter is called for,

he shall report accordingly to the chief officer or, in the case of a principal officer, the fire authority, who may dismiss the member forthwith:

Provided that no member may be dismissed under this Regulation unless he has been given the opportunity, either personally or through another member of a brigade, to explain his conduct to the chief officer, or, as the case may be, the fire authority.

(2) Where a member is given an opportunity under paragraph (1) to explain his conduct to the investigating officer, the chief officer or the fire authority, he shall be -

(a) informed that he is not obliged to say anything concerning the matter, and
(b) warned that any explanation he does make may be used in any subsequent disciplinary proceedings.

(3) If the chief officer, ………….

(a) on receiving such a report from the investigating officer, or
(b) after hearing the member's explanation,

consider that commission of the offence by him is not sufficiently established or would not merit dismissal they shall remit the case to the investigating officer for further investigation and, if necessary, action under Regulation 8.

(4) A member who has been dismissed under this Regulation shall be entitled to appeal against the dismissal under these Regulations as if he had been dismissed after a hearing under Regulation 9."

Regulation 9 Procedure

9. Regulation 8 provides that on completion of an investigation other than the preliminary investigation under Regulation 6(1), the investigating officer shall decide whether the member of staff should be charged with an offence (Regulation 8(1)) and if so, he is to write to the Fire Brigade member setting out the charge against him with particulars (Regulation 8(3)) and upon charging the member the latter is to receive any reports or statements made to the investigating officer in relation to the charge.
10. Regulation 9 sets out the procedure to be followed in dealing with a Regulation 8 charge. The case is to be heard by the Chief Officer or the disciplinary tribunal of the Fire Authority.
11. If the charge is found proved (Regulation 10(1)) Regulation 11 provides for a range of penalties, the most draconian being dismissal (presumably, on notice, although this is not spelt out).
12. Regulation 12 provides a right of appeal to a disciplinary tribunal for more serious offences, whether dealt with under Rule 6 or Rule 9, from the decision of the Chief Officer.
13. Thereafter, by Regulation 15, there is a right of further appeal to the Secretary of State which we understand had been exercised by the Appellant in this case. Two years later that appeal still has not been determined.
14. Returning to the narrative, the Appellant appealed to the disciplinary panel against the Chief Fire Officer's decision to summarily dismiss him. That involved a four day hearing before a panel of councillors ending on 11 February 1999. It seems that on the second day of hearing a charge was formulated against the Appellant under the Code, namely "falsehood". No charge under the Code had been formulated at the Chief Officer disciplinary stage.
15. The disciplinary panel upheld the decision to dismiss for the offence of falsehood, defined under paragraph 6 of the Schedule to the Regulations as follows:

"6 Falsehood which offence is committed where a member of a fire brigade -

(a) knowingly or through wilful neglect makes any false, misleading or inaccurate oral or written statement or entry in any record or document made, kept or required for fire services purposes: or

(b) has knowingly or through wilful neglect made any false, misleading or inaccurate statement in connection with his appointment to a fire brigade."

16. The basis of that finding, as interpreted by the Tribunal at paragraph 17 of their reasons, was that the disciplinary panel was of the view, having seen the video evidence, that the Appellant might be fit for operational duties and that his continuing to be on sick leave could therefore be categorised as falsehood.
17. The medical evidence before the Tribunal came from Dr Karen Astbury of the Essex County Council Occupational Health Service. It was her opinion, having seen the video evidence and medical notes, that the Appellant was fit for light duties with the fire service, but, as we read the notes of her evidence, she drew back from declaring him fit for full operational duties.

The Law

18. Before considering the Tribunal's reasoning it is necessary to set out the steps which a tribunal should take when considering the statutory questions raised by Section 98 E.R.A. We shall not set out that provision.

(1) What was the employer's reason for dismissal?

We cannot improve on the judicial interpretation of "reason for dismissal" formulated by Cairns LJ in Abernethy v Mott Hay & Anderson [1974] IRLR 213, 215 adopted by Lord Bridge of Harwich in West Midlands Co-operative Society v Tipton [1986] IRLR 112, para 17.

"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness …."

Secondly, we are satisfied that the reason for dismissal is the reason, or set of facts or beliefs held by the employer at the time of dismissal, that is on the effective date of termination of the contract of employment. Here, dismissal was without notice. That proposition is clear from the Court of Appeal judgments in Monie v Coral Racing Ltd [1981] ICR 109, where the reason was held to be that which was in the employer's mind at dismissal, not a different reason relied upon on a subsequent internal appeal. It is further endorsed by the House of Lords in Tipton, where, at paragraph 20, Lord Bridge approved the approach of Waterhouse J in National Heart and Chest Hospitals Board of Governors v Nambiar [1981] IRLR 196, 202, where he said this:

"In this context it is necessary to distinguish the case where an employee is dismissed for reason A and evidence at an internal appeal invalidates reason A but demonstrates that a different reason B would justify dismissal. It is clear that in such circumstances the original dismissal ought not to stand and the employer must look at the matter afresh in order to decide whether a later dismissal on the new information is appropriate. In the more usual case, however, where the employer confirms the decision to dismiss for reason A, following the appeal, we consider that it is right for an [Employment Tribunal] to look at the information that came to light in the course of the appeal."

(2) Has the employer shown a potentially fair reason for dismissal?

In the present case the Respondent contended that the reason for dismissal was a reason related to the Appellant's conduct. E.R.A section 98(2)(b).

(3) If so, has the employer acted reasonably or unreasonably in treating that as a sufficient reason for dismissal. Section 98(4)(a) and that question shall be determined in accordance with equity and the substantial merits of the case. Section 98(4)(b).

The "reasonableness question" under section 98(4) in turn raises a number of issues, viz:

(i) in a conduct case, has the Respondent carried out a reasonable investigation and did he have reasonable grounds for holding an honest belief that the Appellant was guilty of the conduct alleged. British Homes Stores v Burchell [1978] IRLR 379, affirmed by the Court of Appeal in Post Office v Foley [2000] IRLR 827.

(ii) Has the employer carried out a reasonable procedure in arriving at the dismissal decision? If not, has the procedural defect at that stage been cured by a subsequent appeal which operates as a rehearing rather than a review of the original dismissal decision? Whitbread v Mills [1988] ICR 776; Clark v Civil Aviation Authority [1991] IRLR 412; Byrne v BOC Ltd [1992] IRLR 505.

(iii) Is dismissal within the range of reasonable responses open to the employer?

Within this issue may arise the question, first, whether the employee has been treated more severely than have other employees in the past in truly comparable circumstances. Paul v East Surrey District Health Authority [1995] IRLR 305, paragraph 34, per Beldam LJ, approving the approach of Waterhouse J in Hadjiannou v Coral Casinos Ltd [1981] IRLR 352, paragraph 25, and secondly, whether the employee was or ought to have been aware that his conduct was liable to lead to his dismissal. Brooks v Skinner [1984] IRLR 379.

More generally, did the sanction of dismissal fall within the range of responses of reasonable employers?

The Tribunal Decision

19. Against that analysis of the law we turn now to this Tribunal's approach, adopting the stages of enquiry outlined above.

(1) The reason for dismissal

It seems to us that three possible reasons for dismissal appear from the Tribunal's reasons:

(i) The Chief Officer's reason: undertaking work whilst on sick leave, a matter striking at the root of the contract and destroying the necessary mutual trust and confidence (reasons. paragraph 2, 5).

(ii) The disciplinary panel's reason: "falsehood", that is saying that he was unfit for operational duties when it appeared to the panel that he might be fit for such duties (reasons. paragraph 17).

(iii) The Tribunal's expressed view: that the Appellant had prejudiced his recovery by continuing to work (in secondary employment) whilst on sick leave from the Respondent, something which amounted to a breach of the implied term of trust and confidence. (reasons paragraph 15).

The difficulty we have is that although the Tribunal expressed their satisfaction that the reason for dismissal related to the Appellant's conduct under section 98(2) E.R.A (reasons paragraph 15), it is unclear to us precisely on which reason the Tribunal was judging the reasonableness of the dismissal under section 98(4). That is an essential finding, because it is that reason which must be judged for its reasonableness and no other.

(2) A potentially fair reason

The relevant reason is that in the Respondent's mind at the time of dismissal. That is, in the Chief Officer's mind on 28 October 1998. Mr Seaward accepts that that was a genuinely held belief on the part of the Chief Officer and is a reason related to the Appellant's conduct.

(3) The reasonableness question

(i) A reasonable investigation?

This is inextricably linked with the procedural question. Although the Tribunal correctly asked themselves the investigation question at paragraph 16 of their reasons they have not given a clear answer, did the Respondent carry out a reasonable investigation at the dismissal stage? They find that the Regulation 6 procedure ought not to have been used. But what further investigation was necessary, bearing in mind the Chief Officer's reason for dismissal? We are not told.

Further, there is no finding as to whether the Chief Officer had reasonable grounds for his belief that the Appellant had misconducted himself. That is a material omission from the Tribunal's reasoning.

(ii) The procedure adopted by the Respondent.

Having found that the Respondent used the wrong (Regulation 6) procedure instead of the Regulation 9 procedure, the question then arises as to whether that defect was cured by the disciplinary panel's rehearing on appeal.

The Tribunal, at paragraph 17 of their reasons, said that they were "slightly unhappy" about the fact that the appeal panel came to their decision to dismiss for somewhat different reasons from the Chief Officer's decision. The question raised and not answered by the Tribunal is whether, by upholding the original decision to dismiss for a different reason, the disciplinary panel hearing could truly be said to have cured the original procedural deficiency.

Further, there appears to be no analysis by the Tribunal as to whether the disciplinary panel's reason for dismissal did indeed fall within the definition of "falsehood" in the Code and if not how that impacts, if at all, on the general question of the fairness of the dismissal.

(iii) The range of reasonable responses.

Quite simply, in our judgment, the Tribunal have not addressed this question at all. They ought to have done so. Conlin v United Distillers [1994] IRLR 169 (CS).

More particularly, there is no finding by the Tribunal, as critically we think there ought to have been:

(a) as to whether the cases of other employees, disciplined for working in secondary employment whilst on sick leave from the Respondent by penalties short of dismissal, were truly comparable cases, and

(b) whether the Appellant was aware, in the absence of any express prohibition by the Respondent, that his working elsewhere whilst on sick leave, if that be the real reason for dismissal, was liable to result in his dismissal.

Conclusion

20. For all these reasons we are satisfied that the Tribunal fell into error and their decision cannot stand

Before parting with this case we should mention a submission made by Mr Seaward, but in the event not pursued, that since the reason for dismissal advanced by the Chief Officer did not fall within the Code, there was here a procedural irregularity which necessarily rendered the dismissal unfair. Even if there was such a breach, it would not follow that we, as an appeal tribunal, ought to reverse the Tribunal decision. See, by analogy, the approach of the Court of Appeal in Westminster City Council v Cabaj [1996] IRLR 399.

It is in these circumstances that we shall allow the appeal and remit the matter to a fresh Employment Tribunal for rehearing on the question of unfair dismissal. The finding of wrongful dismissal is not challenged by the Respondent in this appeal and that part of the Tribunal's Order must stand.