United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAVID JONES (of Counsel) Instructed by: Messrs McManus Seddon Solicitors Second Floor Midland House 14 Cheapside Bradford BD1 4JA
For the Respondent	MR BENJAMIN UDUJE (of Counsel) Instructed by: Messrs Hammond Suddard Solicitors 2 Park Lane Leeds LS3 1ES


 


THE HONOURABLE MR JUSTICE ELIAS

1. The Appellant in this appeal initially claimed before the Employment Tribunal that he had been discriminated against by his employers on the grounds of race and disability, and had been unfairly dismissed. He subsequently withdrew the race discrimination claim and the Employment Tribunal rejected the disability discrimination claim. However, they found that he had been unfairly dismissed, but went on to conclude that it was not just or equitable in the circumstances, to award him any remedy, neither re-engagement nor reinstatement nor, indeed, any compensation. He now appeals against that ruling. There is no cross-appeal against the finding of unfair dismissal itself.
2. The background was as follows: the Appellant was employed by the Respondent on 27 January 1990. He was an internal postman and red stamp machine operator. In 1992 he was diagnosed by his GP as being diabetic. The Tribunal accepted the Appellant's evidence that he took insulin for that illness, but only for a few months after he was first diagnosed. Since then, he has taken other medication, as necessary. Subsequently, tests in 1994-1995 indicated that he was not diabetic as such, but did have one of the symptoms of diabetes, namely frequency of micturition. This was described as the condition known as "renalglycosuria" which is a condition where the blood glucose level is unusually high, with the result that urine is passed more frequently that would otherwise be the case, for the period of two hours or so, following eating.
3. The Employment Tribunal also noted that the Appellant suffered from involuntary dribbling of urine, for which he wears incontinence pads. Despite the tests that had been carried out in 1994 - 1995, the Appellant apparently continued to believe that he was suffering from diabetes. The Respondents had made allowance for this, and had agreed that he should finish his shifts early. The normal shifts were from 1 - 9.18 pm, but he was allowed to start at 12 noon and finish at 8 pm, on the grounds that this would coincide more closely with his insulin injection at mealtimes, and so that he could administer the injections in a more private hygienic arrangement at home.
4. The Appellant had a substantial period off sick from 18 January 2000 until 24 March 2000. He was visited by certain managers from the Respondent Company; there was discussion about the Appellant's shifts and his need to take insulin. It was agreed that he could again change his shift pattern, and start at 11 and finish at 20.18 pm. This involved further re-organisation by the Respondents. That new arrangement was subject to a three monthly review, and the Occupational Health Adviser's letter of 20 July made reference to the Appellant "adjusting his insulin administration". Plainly this was information that could only have come from the Appellant himself, as the Tribunal found. There was then a general consideration given by the Respondent to changes in the shifts for the body of the workers. There were various discussions between the Appellant and Mr Bedford, the manager of the Respondent, discussing the problem of his irregular hours on several occasions. The Appellant referred, in these discussions, to his diabetes control and said that ideally he should have his evening medication followed by his evening meal between six and seven.
5. The circumstances giving rise to the dismissal can be dealt with relatively briefly. In 2000 there had been a number of instances of pools of liquid, which was believed to be urine, on the locker room floor; these were found on various dates in that year. Subsequently, authorisation was given for two cameras to be used to seek to identify the culprit. The Respondent formed the view that the Appellant was responsible; he conceded that, indeed, some urine may have been spilt from the pads that he wore, but denied passing water. The Respondent carried out disciplinary proceedings and subsequently dismissed the Appellant for gross misconduct. There was an appeal by way of a re-hearing, but that was unsuccessful.
6. The Employment Tribunal concluded that the dismissal had been unfair. It is not necessary to explore the reasoning of the Tribunal in any detail; suffice it to say that the Tribunal had doubts about the reasonableness of the employer's grounds for concluding that the Appellant had committed misconduct. They did not think the investigation was reasonable, nor did they consider that the decision summarily to dismiss was a reasonable sanction in the light of the facts as found in the course of the disciplinary process. However, although, initially, it had been the intention to have a remedies hearing if the unfair dismissal application were to prove successful, the Tribunal held that in the circumstances, that would not be necessary, since the Appellant could not be granted any remedy at all. The basis on which they reached this conclusion is set out in paragraph 12 of their Decision:

"At this point we would normally go on to fix a date for a remedy hearing, so that the degree of contributory fault and the appropriate awards could be considered. However, in this case we do not consider that that is the right course of action. This is because we do not consider that it would be just under Section 116 or just and equitable under Section 122 or 123 to make any award for reinstatement as is requested by the Applicant, re-engagement or compensation. Our findings of fact lead us to the inevitable conclusion that the Applicant had been involved for a number of years in deliberately misleading his employers about his medication. We are not able to establish whether or not the Applicant was told back in 1994 that he was not Diabetic. We are, however, satisfied that he well knew that the medication that he was taking after the first few months in 1992 was not insulin. He misled his employers as to the nature of his medication and the need for him to leave work early. We have given considerable thought to the fact that the Applicant's mother tongue is not English, as he pointed out to us and therefore whether or not this was just a misunderstanding. However, the way in which he dealt with the Tribunal proceedings satisfied us beyond doubt that the Applicant is an intelligent man and his command of English over the last two days has been not just good but has been eloquent. We are satisfied therefore that the Applicant was not confused as to the terminology to be used but deliberately misled his employers as to the nature of his medication. We are therefore satisfied that had the Respondents been aware of this conduct at any time before the Applicant's dismissal on the charge he was accused of, the Respondents would have had adequate grounds for dismissing him fairly as a result of his misleading them. It is not therefore appropriate to make any award."

7. In reaching this conclusion, the Tribunal was following the principle enunciated in the House of Lords case of Devis -v- Atkins [1977] ICR 662. In that case, their Lordships held that if an employee was found, subsequent to his dismissal, to have committed misconduct while he was still employed, such that even though he had been unfairly dismissed, he would have been fairly dismissed for gross misconduct had the matter been known to his employer, then this would justify an award of nil compensation. In this case, the Tribunal clearly concluded that he would have been so dismissed, and fairly dismissed, for deceiving his employers in the way in which he had.
8. The principal ground of appeal is that it is said that the Tribunal failed to comply with the principles of natural justice. They did not give the employee any opportunity to deal specifically with the Devis -v- Atkins point. He was not allowed to adduce any additional evidence which he may have wished to call in relation to the matter, and nor was he entitled or given the chance to make any representations. The Chairman of the Tribunal has commented on the way in which the Tribunal approached the matter, and made the following observations in a letter to this Tribunal:

"During submissions the Respondent argued inter alia that the Applicant must have been aware that the original diagnosis of diabetes was inaccurate and yet he continued for a number of years to hold himself out as diabetic in order to work fewer hours. The Applicant had the opportunity to respond to this in his submissions but did not do so."

And then later:

"We did not seek the Applicant's further submissions in respect of remedy. Firstly the Applicant had had an opportunity to rebut the argument that he had misled his employers and failed to do so. Secondly, having reached a conclusion of deliberate dishonesty over a long period it seemed to us to be inconceivable that it could be just and equitable to order re-instatement, re-engagement or compensation apply the rule in Devis v Atkins"

9. Mr Jones, for the Appellant, submits that, with respect to the Tribunal, this was not good enough. He referred us to a number of authorities which make it plain that, in general, there will be a breach of natural justice if a matter is determined against a party, in circumstances where they have not had the opportunity either to call evidence or make representations. The authorities for this uncontentious principle, lying in the field of unfair dismissal, include Slaughter -v Brewer & Sons Ltd [1990] IRLR 426; Albion Hotel (Freshwater) Ltd -v- Maia E Silva [2002] IRLR 201 and Market Force (UK) Ltd -v- Hunt [2002] IRLR 863. In the last mentioned of these cases, the Employment Tribunal made a Polkey reduction, that is a reduction in accordance with the well known case of Polkey -v- A E Dayton Services Ltd [1987] IRLR 503, without affording the employers an opportunity to make submissions upon the particular matter.
10. At paragraph 12 of the Decision, Mr Recorder Langstaff QC, giving the judgment of this Tribunal said this:

"……It is as, we see it, an elementary principle of law and procedure, sometimes referred to as a principle of natural justice, that each party has a right to be heard. Part of that principle necessarily involves a party having the opportunity within reason to address the Tribunal upon the issues before it. Where there may be some uncertainty as to what issues are before a Tribunal, it is obviously wise, and it may be essential, for those issues to be clarified. Where a Tribunal reaches a decision upon a discrete issue without giving the opportunity procedurally, to either party to address that issue, there would be a failure of natural justice or a failure to hear the parties as it is appropriate they should be heard."

We do not think that those principles are seriously in dispute here. As we have said, we think those principles are quite uncontentious.

11. Mr Uduje, however, for the Respondent, whilst accepting that, in general, the principle we have set out enunciated accurately the status of the law, nevertheless, says that there are two factors here which ought to lead us to accept the conclusion of the Tribunal and uphold their determination. First, the Appellant had, indeed, had the opportunity of making representations about this particular point. As the Chairman's letter makes clear, it was a matter which the Respondent made during the course of submissions, and it was open to the Appellant to do so likewise. We note in parenthesis that it may well be that the observations made by the Respondent in the course of making submissions on the disability discrimination claim, rather than in the context of the unfair dismissal claim, but in any event, Mr Uduje says that the point was plainly drawn to the attention of the Tribunal; it was, as it were, in play before them, and the Appellant could and should have made any relevant observations at that time.
12. Second, and in any event, he submits that this is one of those exceptional cases where it is plain, as indeed the Tribunal appears to have thought, that there really was nothing that the employee could say. It would be totally fruitless, he submits, for this matter to be sent back to an Employment Tribunal, when the case against the Appellant on this point was overwhelming. They had found deliberate dishonesty, stretching over a period of time, and it simply cannot be gainsaid that in those circumstances, the employer could and would fairly have dismissed him in any event.
13. We see the force of those observations, and, no doubt, there are exceptional cases where they may have weight. We were referred by Mr Uduje to the case of Green -v- Robinson Day Ltd , a decision of this Tribunal with Ms Recorder Slade QC presiding, in which the Employment Tribunal had failed to alert the parties to the fact that they were going to make a finding in relation to contributory fault, but in that case, this Tribunal heard what submissions the appellant would have wished to put to the Employment Tribunal had the matter been remitted, and it concluded that in the circumstances, one of them was irrelevant to the issue of contributory fault and the other had been fully considered by the Tribunal. Accordingly, they concluded that there had been no injustice in the particular circumstances of that case.
14. This is not such a case. Mr Jones says that there would be, or there may be at least, additional evidence which the Appellant would wish to advance in relation to this matter. Moreover, he says that it is far from clear that even if there has been deliberate deceit by the Appellant, that it would have justified the employers fairly dismissing. He points out that the Appellant had believed that he had diabetes; he was under some medication and, apparently, his conduct did not result in any financial benefit of any kind. It is not right for us to comment, of course, one way or the other, on the strength of these particular points, but we are satisfied that it would be wrong, in the circumstances of this case, to deprive the Appellant of an opportunity to call such evidence as he thinks may be relevant to this Devis -v- Atkins issue, and to make submissions in relation to that particular point.
15. As we have said, the Employment Tribunal in this case recognised that the employee must have an opportunity to deal with the matter, but they considered that he had had that opportunity, but had not taken advantage of it. We do not think that the opportunity was sufficiently unambiguously made available to him to justify our being satisfied that he has been fairly treated. Moreover, as far as the observation of Mr Uduje is concerned, that there really is nothing that could have been said, we simply refer to the well-known passage of Mr Justice Megarry in the case of John -v- Rees [1970] Chancery 345 when he observed:

"As everybody who has anything to with the law well knows, the path of the law is strewn with examples of open and shut cases which somehow were not, of unanswerable charges which in the event were completely answered of inexplicable conduct which was fully explained of fixed and unalterable determination that by discussion suffered a change."

In these circumstances we consider that there was an infringement of the principles of natural justice and that this matter should be remitted to a fresh Tribunal for the question of remedies to be considered. It may, of course, be that the Tribunal hearing the matter will reach precisely the same conclusion as this Tribunal did, but the employee will have had the opportunity to make such observations and produce such evidence as he wishes in those proceedings.

16. In the circumstances we can deal very briefly with the other arguments advanced by Mr Jones. He submitted that in any event, even if the Tribunal could properly conclude that it was just and equitable not to grant compensation, they could not, strictly and in accordance with the provisions of section 116 of the Employment Rights Act, which sets out the principles which regulate the exercise of discretion in ordering reinstatement or re-engagement, have refused to grant those remedies for the reasons they gave. The argument, to put it very simply is broadly as follows: in relation to the provisions on compensation, section 122(2) and section 123(1), in relation to basic compensatory awards respectively, make it plain that compensation can be reduced, and indeed to nil, if it is just and equitable so to do. There is, however, says Mr Jones, no such general discretion to refuse reinstatement or re-engagement merely because it is thought just and equitable not to grant that remedy. True it is that where the complainant has caused or contributed to his dismissal, a Tribunal may conclude that it is just and equitable not to order reinstatement or re-engagement, but he submits that there is no general discretion in circumstances where, as in this case, the Tribunal is relying upon conduct which plainly has not caused or contributed to the dismissal itself.
17. It is not necessary for us, finally, to decide this matter, but it does seem to us that the Tribunal probably does have a broad discretion to do what is just, and it is not limited by section 116 only to take into account the matters that are referred to in that section. That section identifies the matters which it is mandatory for a Tribunal to take into account, but it would be very strange if a Tribunal were entitled to award no compensation under the Devis -v- Atkins principle, but could not, on the same basis, refuse to make an Order of reinstatement or re-engagement.
18. In fairness to Mr Jones, he realises that and says that one of the matters which a Tribunal must consider, when exercising its discretion, is whether it is practicable for the employer to comply with an Order. He recognises that it could properly said that it would not be practicable for them to do so where they have lost trust and confidence in the employee, and indeed, there is authority to that effect: see, for example, Wood Group Heavy Industrial Turbines Ltd -v- Crossham [1998] IRLR 680, but he submits that even if the Tribunal could have refused to order reinstatement or re-engagement on that specific ground, that is not the way in which they framed their Decision.
19. We have to say that even if he is strictly correct in his analysis, which we doubt, nonetheless, we would not have remitted this matter to the Tribunal simply on the basis that they expressed their reason for refusing reinstatement or re-engagement on the broad ground that it was not just or equitable to do so, without saying in terms that it was not practicable to do so. Be that as it may, we are satisfied that Mr Jones is right in relation to the natural justice point, notwithstanding the arguments of Mr Uduje, which were made forcefully and cogently before us.
20. We conclude that this appeal must be upheld and the matter remitted to a fresh Tribunal to consider the whole question of remedies.