United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR XYDIAS (of Counsel) Messrs Banner Jones Middleton Solicitors 24 Gluman Gate Chesterfield Derbyshire S40 1UA
For the Respondent	MS R CRASNOW (of Counsel) Chesterfield Law Centre 44 Park Road Chesterfield Derbyshire S40 1XZ


 


MR RECORDER UNDERHILL:

1. The respondent was employed by the appellants as a fitness team manager at the health and fitness club at Brampton Manor near Chesterfield. On the evening of 27th December 1998 he held a party at the club for a number of his friends, some of whom were also members of the club. A lot was drunk and things got out of hand. There was some rowdy and boisterous behaviour in the room where the party was being held, but, more seriously, some members of the party went upstairs and caused serious damage to one of the bedrooms. It is right to say that the respondent has consistently denied that he was involved in the damage done upstairs and it is common ground that there was no evidence before the tribunal that he was.
2. The respondent was not at work the next day; he was taking some holiday. Once the damage had been discovered, Mr Woolf, the appellants' Chairman, made some initial enquiries. He was told by the staff who had been on duty that night that the respondent had been involved in the disturbance. He telephoned him and asked for his account of what happened. The respondent denied any involvement in the damage but agreed to come into the club to discuss the matter. When he arrived he was seen by Mr Marples, Mr Woolf's deputy. After some discussion, Mr Marples gave the respondent a letter of suspension reading as follows:

"Dear Rob

Re your alleged behaviour 27 December 1998

You are suspended on full pay whilst an investigation into your behaviour last night takes place. We have asked you for a written explanation which will be considered with the other statements we have received from witnesses and a decision will be made in due course.

Yours sincerely

David Woolf – Chairman"

3. On 30th December 1998 the respondent went to the club and at his request saw Mr Woolf and Mr Marples. He again denied that he had caused the damage and he asked why he had been suspended. He was told that two other members of the party had been suspended from their club membership and that his position would be considered when all the facts were known. He was again asked to provide a written statement.
4. On 7th January 1999 Mr Marples asked the respondent to visit the club and he did so. He was given a letter of dismissal which had been written on 4th January and was in the following terms:

"Dear Robert

Re incident on 27 December 1998

Following our interview with you regarding the above but without the benefit of your statement we have now completed our investigation. We believe that on the night of 27 December 1998 you were drunk, out of control on the company premises and joined with members in causing offence to your colleagues, putting the duty manager in an impossible position, causing damage to the company's property and putting the safety of members and staff at risk. We expect a proper standard of behaviour from our management and you have failed to demonstrate this. We have no alternative but to dismiss you from your employment with Brampton Manor Leisure Limited for misconduct."

5. At the meeting at which that letter was handed over, Mr Marples told the respondent that if he did provide a written statement, Mr Woolf might withdraw the dismissal when he returned from his holiday the following day.
6. On 11th January 1999 the respondent met Mr Woolf for what was regarded as a review or appeal meeting at which the appellants would decide whether or not to maintain the dismissal. Although the respondent had on the evening of 7th January, following his meeting with Mr Marples, attempted to sit down and produce a written explanation, he had not found it easy to do so. As the tribunal found:

"… He was not prepared to make any written admission as to his behaviour and he did not want to apologise for something that he had not done. …"

He did not in the event provide any written explanation. At the meeting he again told Mr Woolf that he was not responsible for the damage, but the tribunal found that he gave no explanation of what had happened. Mr Woolf decided that the decision communicated by the letter of 4th January 1999 should stand.

7. The tribunal considered first what was the reason for the dismissal of the respondent. Paragraph 13 of the reasons is in the following terms:

"Having outlined the facts we have to consider Section 98 of the Employment Rights Act 1996 and ask ourselves first of all whether the respondents have shown a reason for the applicant's dismissal namely the applicant's conduct as they allege. The applicant has not suggested that there was any ulterior motive or hidden agenda and all witnesses agree that the applicant was a highly regarded and valuable member of staff. We have no doubt that the respondents were genuinely sorry that the applicant had to go. However it is clear that they believed that the applicant was involved in the damage and we find that they had reason for that belief and that they had made enquiries of all the staff who were present. It seems to us that the respondents felt that the applicant's refusal to make an explanation or apology left them with no option but to dismiss. We conclude that the respondents have shown an admissible reason for this dismissal."

Those reasons are not very satisfactorily expressed because they appear to bring in questions of reasonableness which strictly do not arise at the point of considering what the employer's reason for dismissal was. It is also not as clear as one might wish what was the damage in which the appellants believed that the respondent was involved. However, it is reasonably clear from the reasons read as a whole that it refers to the upstairs damage which was the only significant damage that was done on the evening of 27th December 1998.

8. It has been suggested to us that the tribunal's reasons in paragraph 13 mean that the reason for the dismissal was the respondent's failure to give an explanation or apology; and that that was the tribunal's view is given credence by their finding in paragraph 18 that:

"… he was dismissed because of his failure to provide a written explanation rather than as a result of a proper disciplinary consideration of the facts of the case. …"

On a fair reading of the reasons, however, we think that the better view is probably that the tribunal intended to find that the reason for the dismissal was the appellants' belief that the respondent was involved in the damage, but that his failure to offer any proper explanation was a or the main reason for that belief. The point is not of fundamental importance, because in either case the dismissal would relate to the conduct of the employee within the meaning of section 98(2)(b) and therefore be an admissible reason. But the point illustrates the tribunal's view that the appellants attached fundamental importance to the respondent's failure to provide them with a written statement.

9. The tribunal then went on to consider whether it was reasonable to treat that reason as a sufficient reason for the respondent's dismissal. They held that it was not reasonable and accordingly that the dismissal was unfair. Paragraphs 14 to 18 of the reasons cover a number of matters, including Mr Woolf's management style and the decision to suspend, which do not immediately appear central to that question. However, it seems to us that in the end it is clear that the central point in the tribunal's thinking is that it was unreasonable for the appellants to insist on the respondent making a written statement. As noted above by reference to paragraph 18 of the reasons, it is indeed arguable that the tribunal found that this was the real reason for the dismissal; but whether or not that is the case, the importance that the appellants attached to receipt of a written statement is reflected by the fact that Mr Marples, as the tribunal found in paragraph 10, told the respondent that Mr Woolf might withdraw the dismissal if a written statement was provided. The tribunal plainly believed that that was a requirement with which the respondent found it difficult to comply and which was not, in truth, necessary - or at least should not have played the central part in the appellants' decision which it did. As they found, the respondent appears to have understood from the request that what was required from him was not just a factual statement but an apology for the main damage, which he did not want to give, because he says he was not guilty of it. Despite his technical management status, he was an employee of a comparatively low standing in the management structure and he was not, as the tribunal found, a forceful character. He found the requirement to commit his explanation to writing confusing and intimidating, particularly in view of Mr Woolf's personality and management style and the devastating impact on him of his summary suspension. The tribunal held in paragraph 18 of the reasons that the reasonable course for the appellants would have been to hold a straightforward disciplinary meeting and ask the respondent for an oral explanation of his conduct. They clearly did not believe that the insistence on a written statement was justifiable or that a decision to dismiss the respondent based wholly or in substantial part on his failure to provide that statement could be reasonable.
10. The question for us is whether that conclusion was one to which the tribunal could properly come. After some anxious consideration, we have decided that it was. Some of the particular points made by Mr Xydias in his clear and economical submissions have some force. It may, for example, have been wrong of the tribunal to criticise the appellants' suspension of the respondent as "over hasty": many employers would regard suspension after a serious incident of this sort as a standard and reasonable step to take. But the ultimate judgment must be whether the tribunal's overall reasoning, and the conclusions based on that reasoning, were perverse. We do not believe that they were.
11. The tribunal proceeded to make a finding that the respondent contributed to his own dismissal and ordered that a deduction be made from any compensatory award to the extent of 30%. The appellants claim that that discount was perversely low in view of the respondent's admitted misconduct. As to that, it must be remembered that there has never been any admission, and was no finding by the tribunal that the respondent was involved in the most serious damage done on the evening of 27th December 1998. Even so, he was plainly seriously blameworthy both in his involvement in the original incident and in his failure to assist his employers by giving the clear explanation, including an explanation in writing, for which they had asked. Many tribunals might have been inclined to make a discount of more than 30% in relation to that conduct. But we cannot say that the figure of 30% is so low as to amount to an error of law.
12. In those circumstances, this appeal is dismissed