United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P GREATOREX (of Counsel) Instructed By: Richard C Hall & Partners Crown Buildings 121A Saughall Road Blacon Chester CH1 5ET
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR RECORDER UNDERHILL QC:

1. The Appellant was employed as a support worker at a nursing home of which the Respondent was the proprietor. He was dismissed with effect from 10th August 1999 following complaints of rough or inappropriate behaviour towards residents at the home. The original complaint was made by a colleague called Miss Laming, who claimed to have witnessed an incident in which the Appellant had pushed a patient called Jack so that he fell backwards into a chair. Following that complaint, Mr Williams, who was in effect the manager of the home, asked another care assistant, Mrs Kingsmill-Brown, to investigate the Appellant's conduct more generally; and she did so by means of a questionnaire put to all the other staff who would have had contact with the Appellant. The Appellant's dismissal was on the basis both of Miss Laming's original complaint and of the further evidence of inappropriate behaviour appearing from the answers to the questionnaire.
2. The Appellant brought proceedings for unfair dismissal (and unpaid wages). The case came before an Employment Tribunal sitting at Caernarfon on 7th April 2000. The Tribunal held that he had been unfairly dismissed because the Respondent did not carry out any form of disciplinary hearing; but it also decided that

"...the Applicant contributed to his dismissal to the extent of 100%. There will, therefore, be no basic or compensatory award."

This is an appeal against that decision. The Appellant has been represented before us by Mr Greatorex of counsel (who did not appear below). The Respondent has not appeared, but he and Mr. Williams have sent us a short letter in which, by inference, they invite us to uphold the decision of the Tribunal.

3. The reasoning behind the Tribunal's decision can be set out as follows:

(1) Having made its finding of procedural unfairness, it continued, in para 13 of the Reasons:

"This raises the question of contributory fault and also the principle in Polkey. On the facts of this case there has been little difference in our approach to, on the one hand contributory fault, and on the other hand Polkey. We have to decide whether there was credible evidence of blameworthy conduct on the part of the applicant, and we have to decide how serious that conduct was and what the appropriate sanction should have been, whether from our own point of view or from this employer's point of view."

(2) The Tribunal then proceeded to examine the evidence of Miss Laming, who had given direct oral evidence before it, and found as a matter of fact that the Appellant had indeed behaved roughly towards Jack in the manner described: see paras 14-16.

(3) It then proceeded to consider the answers in the questionnaire. It had heard no evidence either from Mrs Kingsmill-Brown, who had been responsible for obtaining answers to the questionnaire, or from the individual members of staff, who had given those answers. Mr Williams had however given evidence as to what instructions he had given Mrs Kingsmill-Brown as to how to proceed: in particular he had told her that she should make sure that her questioning was neutral. Mr Hall, an "employment consultant" who appeared for the Appellant, had submitted that the contents of the questionnaire should be disregarded. The Tribunal rejected that submission. It said (para 17):

"The Tribunal is not bound by any formal rules of evidence although, of course, we always give evidence on paper, and hearsay evidence less weight than the evidence that is called directly before us, and which we have a chance to hear cross examined. In our view the answers to the questionnaire command respect because of the careful way in which this information was obtained in a formal and systematic way which set out to avoid bias."

(4) The Tribunal did not set out in detail the contents of the answers to the questionnaire, but it held that the evidence of those answers demonstrated that the Appellant's misconduct awards Jack which it had found proved "was not completely isolated and out of character" and that the Appellant was "prone to outbursts of over-boisterous and inappropriate behaviour towards patients which would come across as disrespectful at best" (para 17).

(5) The Tribunal attached significance to that conclusion because, although, as it held, the behaviour evidenced by the answers to the questionnaire would not by itself have justified dismissal, it affected the response to the incident involving Jack. As it expressed it in para 17:

"Had it [sc. the incident involving Jack] been a one-off momentary lapse in the usual standards given Mr Hughes' age and his length of service, we would have had some qualms about whether Mr Hughes should not have been given a second chance."

(6) On those findings, the Tribunal concluded:

"18. ...There would be very few options open to a reasonable employer in such sensitive work other than to dismiss the offending employee. The employer has a duty to his staff, of course, but he has a duty to the residents and a duty to the Inspectorate of the homes (the joint Inspectorate of the Locals Council's Social Services Department and the Regional Health Authority). An incident such as this could jeopardise the registration of the home. In the circumstances, that presented themselves to the respondent at the time of the dismissal the respondent could not be reassured that an incident such as was alleged could not re-occur. That being so we think it is just and equitable to reduce any award made to the Applicant by 100%.

19. We were satisfied that the applicant's conduct was the sole cause of the process that led to his dismissal. ... "

We ought to add, out of fairness to the Appellant, that the Tribunal went out of its way to say that, despite the serious weakness that justified his dismissal, he had many excellent qualities and had generally given a high level of care to the residents of the home.

4. Before us, Mr Greatorex attacked the Tribunal's reasoning on, essentially, five grounds, which we consider in turn.

1. Confusion of "Contributory Conduct" and Polkey

5. As noted above, the Tribunal referred in its Reasons both (a) to the reduction of any potential basic or compensatory award for what it described as "contributory fault" (we prefer the term "contributory conduct"), by reference to ss. 122 (2) and 123 (6) of the Employment Rights Act 1996, and (b) to the exercise of taking into account, when assessing compensation in a case of procedural unfairness, the chance that if the employer had adopted a fair procedure the employee would still have been dismissed - the so-called Polkey exercise (see Polkey v A.E. Dayton Services Ltd [1988] ICR 142). Those are of course conceptually entirely distinct exercises. The Polkey exercise forms part of the primary assessment of the compensatory award (it has no application to the basic award), and in principle it falls to be carried out before any consideration of a reduction for contributory conduct: see Digital Equipment Co. Ltd. v Clements (no.2) [1997] ICR 237 and [1998] ICR 258. In a conduct case, it does not require the Tribunal itself to decide whether the Applicant was guilty of the conduct alleged (assuming that to be in issue): the only question is what is the chance that, if a fair procedure had been followed, the dismissal would nevertheless have occurred. By contrast, a reduction for contributory conduct under the statutory provisions may affect both the basic and the compensatory awards; and if a Tribunal is to make such a reduction it must, plainly, itself make a positive finding of fact as to whether or not the employee was guilty of the conduct in question.
6. It seems clear to us that the Tribunal appreciated this conceptual distinction. The passage quoted above from para. 13 plainly refers to the two as separate exercises. It is also, in our view, clear that the Tribunal's primary finding was, and was deliberately intended to be, a finding of contributory conduct under the two statutory provisions. This is clearly apparent from the terms of the formal decision quoted in para 2 above and from the concluding sentence of para. 18 of the Reasons and the first sentence of para. 19. The Tribunal made the necessary factual findings to justify such a conclusion. In particular, it did not simply ask "what would have happened if there had been a proper hearing?": it assessed the evidence of misconduct itself and reached its own conclusion. Having reached such a finding and decided to make a reduction of 100%, it was unnecessary for it to go through the logically precedent step of assessing compensation, including any Polkey reduction.
7. What, however, Mr Greatorex submits is that that finding was vitiated because in reaching it the Tribunal had regard to considerations which were only relevant to the Polkey exercise. He relies on the Tribunal's own observation, quoted above, that on the facts of this case there had been little difference in their approach to the two exercises. And he can point to several passages in the reasoning which follows where the Tribunal refers to how the Respondents would or should have behaved in the light of the Appellant's misconduct: that is a typically "Polkey" formulation.
8. In our view, however, the overlapping between the two approaches, which the Tribunal itself acknowledged, involved no error of law. Although - as we believe the Tribunal well understood (N.B the qualifying phrase "on the facts of this case") - the two approaches are conceptually distinct, they necessarily involve reviewing many of the same considerations. We see nothing wrong in principle in the Tribunal taking into account, in its consideration of what reduction is required in the interest of justice and equity, the question of how seriously a reasonable employer would have viewed the "contributory conduct" which it held to have occurred: that is one way of assessing what reduction justice and equity might require. The Tribunal may not fully have appreciated that, given its decision to make a 100% reduction for contributory conduct, the Polkey exercise was not in fact necessary at all. But we do not believe that that by itself is a ground for overturning the decision on contributory conduct.
9. We were referred by Mr Greatorex to the decision of this Tribunal in Fisher v California Cake and Cookie Ltd [1997] IRLR 212. This was a case in which, as here, an employee had been dismissed for misconduct without any proper disciplinary hearing but where the Tribunal had gone on to award no compensation. However, the case is significantly different because the Tribunal had reached that decision entirely on the basis of Polkey. It does not seem to us to contain any discussion of principle relevant to the assessment of contributory conduct.

2. The Questionnaire

10. It is plain from the Tribunal's Reasons, as summarised above, that the answers obtained by the Respondents to the questionnaire administered by Mrs Kingsmill-Brown played an important part in its decision to make a reduction of 100% for contributory conduct. The reliance placed on these answers by the Tribunal is attacked by Mr Greatorex in two ways.
11. First, he submits that the quality of the evidence comprised by the answers to the questionnaire was such that the Tribunal should have put no weight on it at all. It was pure hearsay, and the Tribunal had heard direct evidence neither from any of those who gave the answers nor even from Mrs Kingsmill-Brown. And, although the answers were all in varying degrees critical of the Appellant, the criticisms were in many instances trivial and in all cases couched in extremely general terms.
12. This is a serious point, and it has caused us real concern. No one likes to see damaging findings made against an employee based on evidence which he has had no opportunity directly to challenge. In the end, however, we do not believe that we should allow the appeal on this basis, for the following reasons:

(1) The Tribunal itself was well aware of the risks of using this material. It is clear from the tone of the Reasons overall that the Tribunal was anxious to be as fair as possible to the Appellant, and it considered squarely whether this material should be used. It came to a considered decision that it should do so, for reasons which are perfectly rational. The question of what weight to give to particular pieces of evidence is quintessentially a question for the Employment Tribunal with which this Tribunal should be very slow to interfere.

(2) The answers to the questionnaire were only being relied on for a specific and limited purpose, as the Tribunal itself emphasised. They were not being used as the primary evidence of "contributory conduct": that was constituted by the Tribunal's acceptance of the evidence of Miss Laming. The only use made of them was to provide a context against which the real seriousness of that conduct could be gauged.

(3) Although the answers in the questionnaire are indeed thin, it seems to us that the Tribunal was perfectly entitled to treat them as useful for that limited purpose. We have been over them with care. It is possible to make at least some assessment of their genuineness and reliability, although of course this falls short of what would be possible had the witnesses given live evidence. The fact that no fewer than nine colleagues describe instances of rough or inappropriate behaviour, albeit in most cases not very serious, must carry some weight. There is nothing to suggest collusion or prejudice. Indeed the restrained nature of most of the criticism carries its own conviction. The overall impression given by the answers is well summarised in the comment by one of those questioned, Ms Hood: "I feel he does not have mental attitudes for working with EMI [elderly mentally infirm] patients. Uses physical strength rather than communication".

(4) The Appellant had the opportunity to comment on the contents of the questionnaires in the Employment Tribunal. We do not have the Chairman's notes, but we have seen the Appellant's witness statement in which he comments on each of contributors to the questionnaire in turn.

13. Secondly, Mr Greatorex submits that, since the Appellant was dismissed as a result of the incident involving Jack, any conduct revealed by the answers to the questionnaires cannot be said to have "caused or contributed to" the dismissal; accordingly it falls outside the scope of s.123 (6) and cannot be taken into account in any reduction of the compensatory award. (The same submission cannot be made in relation to the basic award, since s. 122 (2) is differently worded.) We do not believe this submission is well founded. Although there is no express finding on the point, it seems reasonably clear from the Reasons as a whole that Mr Williams and Mr Hughes were aware of the results of Mrs Kingsmill-Brown's investigation before the Appellant was dismissed. It would be very surprising if those results did not at least contribute to his dismissal. It was precisely in order to get a broader picture than that given only by Miss Laming's complaint that Mr Williams had asked for the investigation to be carried out, and it is clear from the Tribunal's own findings that a lot of thought had gone into it: Mr Williams had, among other things, sought advice from ACAS (see Reasons para 10).

3. Failure to Consider the Appellant's Evidence

14. Mr Greatorex submitted before us that the Tribunal should not have accepted the evidence of Miss Laming without fully considering the Appellant's contrary evidence, which is nowhere alluded to in paras. 14 or 15 of the Reasons. This was not raised as a Ground of Appeal in the Notice of Appeal, and we do not have the Chairman's notes. We accordingly do not know exactly what the Appellant said in oral evidence, although it is plain that he denied treating Jack in any way roughly. On the material before us, we do not see any error of law in the Tribunal's failure to deal explicitly with the Appellant's evidence. For reasons which it gave, it found Miss Laming a convincing witness, and it can reasonably be inferred that it preferred her account, as a witness with no axe to grind, over that of the Appellant who was inevitably not independent.

4. Excessiveness of 100% Reduction

15. Mr Greatorex submitted that to us that the Tribunal should have concluded that a reduction of less than 100% was appropriate. This, again, is a point not raised in the Notice of Appeal. The question of what reduction is required in the interest of justice and equity is a matter for the Employment Tribunal to assess.

5. Distinction between Compensatory and Basic Awards

16. Mr Greatorex submitted that the Tribunal erred in law by not making separate findings in relation to the basic and compensatory awards. We can see no error here. Although the statutory provisions are somewhat different, and in rare cases this may lead to different reductions being made in respect of the two awards, on the facts of the present case we can see no reason why the Tribunal should not have dealt with them on the same basis.

Conclusion

17. We can see no error of law in the conclusion which the Tribunal reached in this case. We accordingly dismiss the appeal.