United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D GORDON (of Counsel) Instructed by: Messrs Fenwick & Co Solicitors 55 High Holborn London WC1V 6DT
For the Respondents	MISS J EADY (of Counsel) Instructed by: Messrs Goodman Derrick Solicitors 90 Fetter Lane London EC4A 1PT


 


JUDGE D PUGSLEY

1. This case arises out of an appeal from a decision of an Employment Tribunal sitting in Birmingham. The facts of the case are set out in the extended reasons, and perhaps can be shortly summarised.
2. This Applicant had been employed as a journalist by the Respondent Company. Unfortunately we are bedevilled by two bundles, but certainly in the bundle which we will be calling the "Review Bundle" set out therein is a history of his employment record. It is right to say that he had been the subject, at page 23, of a disciplinary record going back to November 1987. Much of those matters were historic; they have nothing to do with the reason that he was ultimately dismissed, but it has to be said that it was not the most glowing record of an employee.
3. The circumstances which led to his dismissal are taken up by the Tribunal in their decision. The Applicant had certain marital problems in 1995/1996, about which the Respondents knew. The Respondents knew that in September 1997, the man for whom the Applicant's wife had left him, had committed serious offences against her. The Applicant stated that these matters this had caused very great difficulties for him, but no medical evidence was put to the Tribunal and the evidence before the Tribunal was that in the last two years of employment, there were no doctor's or self certificate illness indicating the Applicant suffered from any kind of depressive illness.
4. In May 1997 the Applicant received a warning about his personal appearance. This was followed in November 1997 by a final written warning about both his personal hygiene and appearance. The letter following a disciplinary hearing contained the following important paragraph:

"You offered no reasons to me for your deterioration in hygiene or state of dress. I asked you if you had any medical or personal problems that I should know about, but you said you did not.

I can, therefore, only draw the conclusion that it is your attitude that needs improving."

5. The warning was expressed to remain in force for 12 months, even though this did not accord with the Respondents' own disciplinary procedure. At that stage it seems common ground that the disciplinary procedure was that matters would only stay on the record for 6 months, although at the beginning of 1999, there was a revised disciplinary and grievance procedure which extended the period to 12 months. However, that letter contains this sentence:

"As I told you at the end of your hearing, I have considered this issue carefully …...Therefore I am issuing you with a final written warning and give you notice that I expect an immediate improvement when you return to work on Monday and I expect you to sustain this on a permanent basis. Failure to do so will result in your dismissal without further warning. This warning will be retained on your personal file for 12 months after which it will be disregarded for disciplinary purposes.

There was some improvement following this warning but in September 1998, the applicant again was again taken to task, and indeed sent home by his editor, Mr Joyce, because of his unkempt appearance and the state of his clothes. When giving evidence, Mr Joyce said it was accepted by all journalists that they were expected to wear a jacket and tie and look reasonably smart."

Some 8 weeks after the expiry of the written warning there were further problems which are set out in the decision:-

"4.7 ….. a number of members of staff complained about the Applicant's body odour and tramp-like appearance and this led Mr Joyce to interview him on 13 January 1999 in the presence of Mrs Hill. The Applicant could give no reason for his lapse, and indeed the position had not improved a week later when Mr Joyce had another meeting with him again in Mrs Hill's presence. Again, the applicant could offer no explanation for his conduct, and was told to expect a disciplinary hearing after his return from holiday on 1 February. 1999. By this time, Mrs Hill had gathered written statements (but non-attributable) from 9 members of staff complaining about the Applicant's body odour and scruffy appearance.

4.8 That hearing was conducted by the new managing director, Mr Whitham, who had these statements in his possession. However the Applicant was not shown the statements until after the meeting had started, but we are satisfied he fully understood the nature of the case against him. It also emerged from Mr Whitham's evidence that, although in accordance with the respondent's disciplinary procedure, the 28 November 1997 final warning should have been disregarded, in fact this and the September 1998 incident was very much in his mind when considering the sanctions open to him."

6. We consider there is one fundamental error of law and misdirection, where the Tribunal say in that paragraph 4.8

"Perhaps this is hardly surprising given the applicant's overall disciplinary record. However, we do believe that there were procedural lapses by the respondents at this hearing."

At that stage the Tribunal did not set out what those procedural lapses were, but in a review hearing, at paragraphs 13 and 14, and paragraph 13.4, page 10 of the review bundle they say this:

"13.4 The applicant was not given sufficient warning about the disciplinary meeting, nor was he given statements from the employees in question. At the original hearing, the tribunal was quite satisfied that the applicant was well aware of the complaints been made about him by his fellows-employees. Whilst technically there may have [been] procedural lapses in not showing the applicant the written statements, it was not thought that the applicant could have been in any doubt as to their content."

In its original decision, the Tribunal rehearsed the fact that there was an appeal heard by Mr Pagett, and they go on to say, in paragraph 4.11:

"4.11 Earlier we alluded to procedural lapses on the part of the respondents but in our view, if and to the extent they were significant they were effectively cured on appeal."

7. What is of concern to us is simply this: the obligation on maintaining a disciplinary procedure rests on management. In this case, the management changed that disciplinary procedure so that the period from 1 January 1999 - the period of the effect of a disciplinary finding - was extended from 6 months to 12 months. In November 1997 the Respondents' decision was to give the Applicant a 12 months period, after which he was told it would be disregarded for disciplinary purposes. In argument, we cited the case of an employer who had a disciplinary procedure which said that after 12 months a disciplinary finding against him would be disregarded. He thought it would be somewhat absurd if an employee was late every 13 months, for year on end or committed some other misdemeanour, and that solemnly had to be disregarded. We do not think that is the position. But what we do say is this: we consider that any evaluation of the fairness of the decision to dismiss, having regard to the provisions of Section 98(4) must take into account the extent to which that dismissal was in pursuance of the disciplinary procedure.
8. In this particular case, the employer was acting in breach of their own disciplinary procedure. We can accept that there may be circumstances where that may be appropriate, and certainly it is insulting and demeaning to employees to set out, as it were, matters which are self-evidently wrong, such as pursuing a practice of sexual harassment, or of solemnly reminding drivers of heavy goods vehicles that they should not drive when they are intoxicated. There are some things that are self-evident, and in the context of this case, we consider that the employers on whom the burden of showing what the reason for the dismissal was, had themselves the power to make their own procedure they could if they wished, on the facts of a particular case, state that they were going to deviate from the procedure in advance. In this case the Applicant was told that the final warning given in November would be disregarded after 12 months.
9. Quite clearly, from the findings of the Tribunal, that was a matter that was in Mr Whitham's mind when considering the sanctions open to him. We simply do not know, from the Tribunal's description of the appeal, the extent to which it was in the mind of Mr Pagett and Mr Smith, because there is no finding by the Tribunal as to what their view of the significance was of the fact that he had had a final warning.
10. These are difficult and sensitive cases, if we may say so, the difficulty of personal hygiene is a not insignificant one, in the context of working life. But at the end of the day what concerns us is that this Tribunal, in its decision has not grasped the nettle in setting out why it was that the employers could act in breach of their own disciplinary procedures, as they did, and why that could be a fair dismissal. There is no finding as to whether those conducting the appeal took into account the previous warning.
11. We consider that this is not a case, as is the case of Lock [1998] IRLR 358 where we could possibly substitute our own view and say that this is an unfair dismissal. We accept, from the way the case has been put, that the major complaint made about the Tribunal's decision is that the Tribunal did not set out with sufficient particularity the facts which lead them to consider that, notwithstanding the breach of their own procedure, this was nevertheless a fair decision to dismiss.
12. We therefore consider the appropriate course in the context of this case is to remit the case to be heard by a different Tribunal, bearing in mind that the discretion under Section 98(4) is a wide one and that, of course, even if a dismissal is found to be unfair, its practical effects can be militated by the deductions that can properly and rightly be made in the context of certain cases to meet the justice and equity of the particular case.
13. In the context of this case, therefore, we allow this appeal to the extent of it being remitted to a different Tribunal to consider and we hope that in so doing, they will address the issue which we believe it lacking in the first Tribunal decision which in, our view, amounts to a misdirection, which is to minimise the significance and importance of an employer for the reasons set out in the judgment of Mr Justice Morison in Lock on the significance of the ACAS code of conduct, that people know where they stand, that those matters should be fully addressed in the decision, when this matter is remitted.