United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G PRICE-ROWLANDS (of Counsel) Instructed by: Messrs Goodmans Solicitors 6/8 Broadway Norris Green Liverpool L11 IJS


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for preliminary hearing Mr Stanley Farrell who was formerly employed for many years as a spot welder with the Ford Motor Company in Halewood seeks to have set aside as erroneous in law the Decision of the Liverpool Employment Tribunal sitting on 13 October and 22 November 2000, the Decision being contained in the Decision document with Extended Reasons dated 23 November 2000 at pages 4 - 10 inclusive of the appeal file before us.
2. The proceedings came before that Tribunal by way of a rehearing of Mr Farrell's case against the Ford Motor Company for allegedly dismissing him unfairly on 13 November 1998 after he had been found guilty of gross misconduct for walking off his shift early and without permission, and being absent from the plant.
3. The case was before the Tribunal for rehearing because an earlier Tribunal sitting in 1999 had rejected the claim for unfair dismissal and found against Mr Farrell for reasons incorporated in a Decision sent to the parties on 2 July 1999. That Decision had been set aside on an earlier appeal to this Appeal Tribunal, for reasons explained in the judgment of His Honour Judge Altman given on a full hearing of that appeal on 28 June 2000 which is before us. It is apparent from the judgment of EAT given on that date that the reason why the earlier Tribunal Decision had to be set aside and the case remitted for rehearing was that the earlier Tribunal had made inadequately clear findings as to whether this was truly a case of dismissal for gross misconduct and justified for that reason, or for misconduct of a lesser nature coupled with the existence of a final written warning on Mr Farrell's employment record which had been imposed for an earlier disciplinary offence in November 1996.
4. As is apparent from paragraph 19 of the judgment of His Honour Judge Altman on the earlier appeal, the formulation of the Employment Tribunal's Decision of 2 July 1999 had left it open to doubt what form of dismissal the Employment Tribunal was really finding. As the judgment comments:

"Accordingly it seems to us that there were two questions before the Employment Tribunal which were in the event not answered:

i. Question 1: If this was dismissal for gross misconduct, was it reasonable in accordance with the statutory tests?

ii. Question 2: If it was not dismissal for gross misconduct what was the overall approach of the Respondents? And were they reasonable in treating the later misconduct as the reason for dismissal?"

It was those two potential issues that came back before the Employment Tribunal in Liverpool for rehearing in the Decision with which we are concerned. In that Decision the Tribunal found by a majority that Mr Farrell had been dismissed for gross misconduct and that that dismissal was reasonable and fair.

5. The secondary question referred to in Judge Altman's judgment therefore did not and does not arise, unless there is something wrong with the Tribunal's decision on the gross misconduct issue. The Extended Reasons on the rehearing are fairly short, but it is convenient to refer to them in some detail as they explain the background to the submissions made to us today by Mr Price-Rowlands who appeared on Mr Farrell's behalf, seeking to persuade us that there were arguable grounds to warrant allowing this appeal to go forward to a full hearing of the EAT.
6. At the top of page 5 the Decision of the Tribunal is inaccurately recorded as being a unanimous decision to the effect that the Applicant was not unfairly dismissed, but as Mr Price-Rowlands very properly conceded that is a simple clerical error on the record of the Decision on that page and it is quite apparent from the statement of the Tribunal's substantive reasons that this was a majority decision and no reasonable doubt arises from that. Accordingly he quite rightly, in our view, did not proceed with paragraph 6 c) of the original grounds of appeal in the Notice of Appeal lodged by solicitors, drafted apparently without the aid of Mr Price-Rowlands himself.
7. The issue before the Tribunal was stated succinctly in paragraph 1 of their Extended Reasons as being that the Applicant's complaint was that he had been unfairly dismissed and the Respondent's contention was that he was fairly dismissed for gross misconduct. The Tribunal then referred to the earlier Tribunal hearing and the directions of the EAT on appeal against that decision remitting the case to be re-heard. They then recorded the evidence which they had themselves considered as follows:

"We heard the oral evidence of the applicant and Mr Moloney, the dismissing officer for the respondent; in addition we considered the written statements of Mr Cooke, the investigating officer, Mr Herbert the first appeals officer and Mr Hudson the final appeals officer. We also considered the documents to which were referred in a bundle ………and then having considered all the written and oral evidence to which we referred in the submissions of the parties we have made the following findings of fact:

3.1 The applicant was employed as a spot welder. He commenced employment in 1977. He had an exemplary work record.

3.2 He received a five day suspension and a final written warning for leaving his shift fifteen minutes early in November 1996. He was not informed of the final written warning at the hearing; he alleges that he did not receive the confirmatory letter which included the warning until about three months later. He did not appeal the decision. The letter did not state how long the warning or the suspension would remain active. The respondent's handbook provides that a suspension of five days remains active for five years and that written warnings remain active for five years and that written warnings remain active for three years. The applicant denied knowing of this limit and the respondent could not prove that the applicant was aware of it.

3.3 In about April 1997 the respondent issued notices which indicated that absence from the "plant" would be treated as gross misconduct and might render a worker liable to summary dismissal. The car park is without the term plant.

3.4 On 22 October 1998 the applicant was working on a voluntary "swing" shift; he was the team leader. He got a puncture on the way to work. He finished his allocation of work early and so left the plant about one and a half hours before the end of the shift with his companion to change the wheel. He returned, showered, had a cup of tea and went to clock out at the appropriate time. He did not seek permission to leave the plant and ignored the foreman who hailed him as he was walking out. He had seen a foreman earlier in the shift and did not ask him if he could repair his car if he finished work early.

3.5 Mr Moloney took the disciplinary hearing on 2 November 1998; he found the applicant guilty of gross misconduct and dismissed him. The applicant's representatives made no submissions about the earlier warning. Mr Moloney declined to commute the penalty of dismissal because of the applicant's disciplinary record. He did not investigate the circumstances of the warning and he did not state that he had considered the applicant's length of service, work record, or work history, which according to Mr Allen"

[who was representing the Applicant on that occasion]

"are all relevant matters in considering whether to commute a dismissal. He also heard the case of the applicant's companion, Mr Geraghty. He commuted his dismissal because he had a clean disciplinary record.

3.6 The first appeal was heard by Mr Herbert on 6 November 1998; it was dismissed.

3.7 A second appeal was heard by Mr Hudson on 13 November 1998; the applicant was represented by Mr Flaherty, a full time District Officer of TGWU. The applicant's representatives , for the first time, made reference to the circumstances of the earlier warning. They asserted that the applicant had been missing from his operation for 2 - 3 minutes, only and not absent plant; further that the reason for his absence was his mistaken belief that he had been relieved whereas in fact it was his colleague who had been relieved. The applicant at no stage asserted that he did not know that to leave the plant was gross misconduct; neither did he assert that there was a custom and practice that once the work allocated had been completed a worker could leave site; nor did he contend that he did not know how long a final written warning or a five day suspension remained active, since his warning letter was silent on the matter.

3.8 Mr Hudson for the single reason that the applicant had a previous active disciplinary offence of being absent plant declined to commute the dismissal. There is no evidence that he considered the other factors such as length of service etc. However it is implied from the minutes of the hearing that Mr Hudson believed that the circumstances of the earlier matter should not be re-opened; a proper process had been followed and the applicant did not appeal the decision.

4. The reason for the applicant's dismissal was being absent from the plant without permission, which the respondent treated as gross misconduct; conduct is a potentially fair statutory reason for dismissal.

5. We next considered the test in section 98(4) of the Employment Rights Act 1996 as amended, and in the light of our findings of fact, the authorities to which we were referred, and the submissions of the parties, concluded that:

5.1 The respondent was entitled to treat the applicant's admitted conduct as gross misconduct. He left the plant without permission; he had two opportunities to seek permission but failed to do so; he must have known that to do so would be treated as gross misconduct by reason of the notices which had been repeated three or four times; there was no custom and practice whereby workers who had completed their allocated work could leave site."

We interpose that those findings of fact and conclusions are unanimous conclusions of the Employment Tribunal even though in the succeeding passages it is apparent that the majority and minority of the Tribunal took different views as to their consequences.

"5.2 The minority has concluded that the respondent acted unreasonably in not commuting the dismissal. Given the assertions by the applicant's representatives as to the circumstances of the warning and suspension, a reasonable employer would have at least investigated the documentary evidence, and probably considered the merits in the light of the applicant's work record and history. In these circumstances a reasonable employer would not have dismissed this applicant.

5.3 The majority has concluded that the respondent reasonably concluded that there were no grounds for commuting the penalty of dismissal and thus the dismissal was fair: the applicant had a previous final written warning for being absent from the plant; there was no obligation on Mr Moloney to investigate the circumstances of the earlier warning; the imposition of the final written warning was not manifestly unjust, and in any event the applicant failed to appeal it; the absence of a time limit in the warning letter did not mean that the applicant was entitled to conclude that it had expired; given the extended disciplinary process and the applicant had a previous final written warning for being absent from the plant. There was no obligation on Mr Moloney to investigate the circumstances of the earlier warning. The imposition of the final written warning was not manifestly unjust and in any event the applicant failed to appeal it. The absence of a time limit in the warning letter did not mean that the applicant was entitled to conclude that it had expired; given the extended disciplinary process and the experience of those involved on both sides the applicant's work record and history must have been in Mr Hudson's mind. Furthermore the applicant had ignored the foreman who had hailed him as he left the plant. In these circumstances it was reasonable for the respondent to summarily dismiss the applicant."

Therefore on the basis of the majority's conclusions on the issue of reasonableness the Applicant's case was dismissed.

8. Against that Decision on the rehearing of his case, in which for the second time an Employment Tribunal has found on the facts against Mr Farrell that his dismissal was not unfair, he seeks again to appeal by the Notice of Appeal drafted originally on his behalf by solicitors and helpfully amplified and refined in oral argument before by Mr Price-Rowlands. It is as we have said, conceded by Mr Price-Rowlands that paragraph c) of the original Notice of Appeal does not give an arguable ground for sending this case further forward. Paragraph d) of the original grounds of appeal on page 2 appears to relate to the original Tribunal Decision which was set aside on the earlier appeal, and simply repeats points in relation to that Decision which are either irrelevant to this appeal or were covered in the major submissions Mr Price-Rowlands made to us on the two main grounds he put forward for this appeal, which were first that the Tribunal's decision that the Applicant was fairly dismissed in the circumstances for gross misconduct was a perverse decision on the facts of this case. His submission was that it was perverse for a Tribunal to hold that a summary dismissal for gross misconduct in the circumstances of Mr Farrell's disciplinary offence of October 1998 was within the band of reasonable responses for an employer at all.
9. There is now no dispute that the test of the band of reasonable responses is the correct test for a Tribunal to have applied to such issues for the reasons explained in Bedell v Westferry Printers and Post Office v Foley to which we do not need to refer further. We have concluded that applying those tests it is not arguable that the conclusion of the majority, that Mr Farrell was not unreasonably dismissed in the circumstances of the case, was a perverse conclusion. Insofar as Mr Price-Rowland's argument depended on saying that it must be outside the band of reasonable responses for an employer altogether to hold that an employee who walks off shift despite express warnings is guilty of gross misconduct, that appears to us obviously unarguable; and indeed the Tribunal appear to us quite rightly to have been unanimous in holding as they did in paragraph 5.1 that the Respondent was entitled to treat the admitted conduct in this case as a case of gross misconduct. The fact that the minority took a different view as to the consequences and the issue of whether the Applicant's work record should have been taken into account to a greater extent in his favour than it was, does not make the majority view perverse, in our judgment, and accordingly we reject the first major ground put forward as unarguable.
10. The second major ground Mr Price-Rowlands sought to put forward was that it was perverse of the majority not to have embarked on a further enquiry than they did into the circumstances in which the original final written warning for conduct in November 1996 had come to be entered on Mr Farrell's work record by the employer. In particular he said that they had erred in failing to investigate and consider further the facts leading up to the imposition of that final written warning, which Mr Price-Rowlands said if an investigation had been carried out would have been found to have been an unduly harsh penalty, for the same reasons as were advanced in the second disciplinary appeal by the District Officer of the TGWU as recorded in paragraph 3.7 of the Tribunal's Extended Reasons. He referred us to the authority of Stein v Associated Dairies [1982] IRLR 447 for the proposition that although in general it is not for an Employment Tribunal to enquire into or sit in judgment on the circumstances of a final written warning on an employee's record, when considering the fairness or otherwise of a subsequent dismissal there are circumstances in which it may be proper for an Employment Tribunal to take the circumstances of the original warning into account. But it was apparent from the passage which Mr Price-Rowlands cited to us from that case that those circumstances are very limited indeed and we have not been satisfied that they apply here so as to make the Tribunal's treatment of that issue erroneous in law, even arguably. As recorded in the judgment in Stein's case, if there is anything to suggest that a warning had been issued for an oblique motive or if it was manifestly inappropriate, that is a matter which the Tribunal could (we emphasise could) take into account.
11. Of those two very limited grounds where it might be proper for a further investigation to be mounted into the circumstances of an earlier warning, Mr Price Rowlands conceded that there was no evidence to suggest an oblique motive in this case and it appears to us that the majority did expressly address the question of whether it was manifestly inappropriate since they expressly recorded in paragraph 5.3 of the Tribunal's Extended Reasons that the imposition of the final written warning was not manifestly unjust and in any event the Applicant failed to appeal it.
12. Taking that conclusion in conjunction with the findings of fact recorded as to the circumstances in which that written warning had been entered on Mr Farrell's record (as noted in paragraph 3.2 it had been a five day suspension and a final written warning for leaving his shift fifteen minutes early in November 1996: in other words a very similar disciplinary offence to the one under consideration at the time of his eventual dismissal) it does not appear to us arguable that the approach of the majority, taking account of the final written warning as being validly on Mr Farrell's work record at the time of his eventual dismissal could be said to be perverse.
13. A fresh ground not in the original Notice of Appeal but which we allowed Mr Price-Rowlands to argue was that, still on the same issue, the conclusions of the majority and the reasons which led them to that conclusion were inadequately stated in paragraph 5.3 of the Tribunal's Extended Reasons. We have already referred to the passage in which they dealt with this issue. They do appear to us, as is apparent, to have expressly addressed the question of whether this was a case of manifest injustice in the presence of a final written warning on the record at all, and to have reached their conclusion on that issue for reasons which we find clearly and adequately apparent from a reading of paragraph 5.3 in conjunction with the recital of facts in paragraph 3.2 as to how the final written warning came to be on record at all. Accordingly we have not been persuaded that that additional ground gives any further arguable ground for allowing this appeal to go forward.
14. Finally Mr Price-Rowlands took a related but separate point which was that since there was on the Tribunal's findings no express time limit attached to the presence of the final written warning on Mr Farrell's work record, and he had not been expressly informed about the duration for which it was intended to remain on his disciplinary record, it was perverse for the majority of the Tribunal to have taken account of the existence of that warning at all, given that it had remained on his work record for longer than twelve months which is the period mentioned in ACAS guidelines for written warnings in certain circumstances.
15. However, that submission appears to us to ignore the terms of the company's own handbook and disciplinary code which were the subject of express findings by the Tribunal, and the fact that there is no doubt that a final written warning was still on Mr Farrell's record and that he was aware of it. We have not been persuaded that there is any arguable ground for saying that it is outside the band of reasonable conduct for an employer to retain a final written warning for a longer period than twelve months in accordance with its own disciplinary codes and practices, or for saying that the majority acted perversely in accepting that and in taking account of the final written warning as being actually present on Mr Farrell's disciplinary record at the time he committed the further offence.
16. For those reasons we have not been persuaded that any of the suggested grounds of appeal put before us today gives rise to any sufficiently arguable point that warrants us directing that this appeal should go any further, and we accordingly now unanimously dismiss it.