United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	RICHARD POWELL (of Counsel) Instructed By: Messrs Dibb Lupton Alsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL
For the Respondent	MISS BELLA MORRIS (of Counsel) Instructed By: Messrs Quantrills Solicitors The Peninsula Business Centre Wherstead Ipswich IP9 2BB


 


MR JUSTICE MAURICE KAY:

1. Since about 1980 the Respondent has worked as a poultry farm manager. He began work in that capacity with the Appellant on 19 March 1982. The Appellant is a national company which supplies supermarket chains with poultry products. The farm at which the Respondent was employed consisted of six sheds capable of housing a total poultry population of almost 120,000. Pursuant to his contract of employment, the Respondent was entitled to live in accommodation attached to the farm. The only other employee at the farm was the Respondent's assistant, Mr Smith. Prior to the events with which this case is concerned, the work record of the Respondent, over a period of 17 years, was to all intents and purposes exemplary. The weather in the days leading up to 24 July 1999 was hot. Poultry are vulnerable to heat exhaustion: 29.2 degrees Celsius is considered a potentially dangerous temperature. That level was being reached and exceeded during the days in question. On 23 July the Respondent removed 6,000 cockerels from shed 3 so as to alleviate the situation. Within shed 3 there was internal fencing which could be moved or rearranged so as to facilitate a more favourable density. Cockerels are heavier than pullets and are more vulnerable to heat exhaustion. Out of concern for the cockerels, the Respondent decided not to move the internal fence to provide more room for the pullets. On 24 July, the sun shone and the temperature rose further. The Respondent took steps in an attempt to alleviate the situation in shed 3. At mid-day he turned off the feeders and decided to use sprinklers every hour or so. However, the sprinkler in shed 3 did not function properly. He moved some fans from the cockerel to the pullet area and also brought additional fans into shed 3. However, all the birds in the shed displayed symptoms of heat exhaustion. Because of the way in which things were developing, the Respondent cancelled his prior social engagement for that night in order to remain on site and monitor the situation. At 9:30 pm the Respondent became violently ill and at about midnight a doctor diagnosed severe gastro-enteritis. When the poultry were checked on the morning of 25 July there were fatalities in all six sheds. In shed 3 only 7 out of 6,329 cockerels died but unfortunately 983 out of 12,386 pullets (7.94%) died.
2. The matter was subsequently investigated by Mr Gibson, the Appellant's Divisional Group Manager (Southern Region). The Respondent was subjected to the disciplinary procedure. The Employment Tribunal which eventually heard the Respondent's application for unfair dismissal made the following findings of fact in relation to the disciplinary procedure:

"On 4 August 1999 a disciplinary hearing was held. Mr Gibson viewed as irrelevant a comparative analysis between cockerel and pullet mortality in the other sheds. All statements were provided and Mr Sharp represented Mr Cannings. Mr Gibson decided his case. Mr Cannings handed in a statement. No major factual dispute arose.

Mr Cannings was nervous and tongue tied. Mr Gibson was terse and failed to allow Mr Sharp to develop his argument re cockerel mortality in the other sheds. He also failed to take into account how the violent illness of Mr Cannings may have affected his judgement in the hours leading up to 9:30 pm on Saturday night.

On 4 August 1999 Mr Gibson, after a 35 minute adjournment, dismissed Mr Cannings summarily for 'gross wilful negligence'. Mr Cannings was told of his right to appeal.

On 6 August 1999 Mr Cannings was sent a letter confirming his dismissal.

On 25 August 1999 an appeal was held before Mr Halls, General Manager (Southern Region). This purported to constitute a re-hearing. However, once again Mr Sharp was not allowed to develop his argument with regard to the relative cockerel mortality in the other sheds. Mr Halls, although the recipient of appeal documents which dealt with mitigating circumstances, did not consider them to any sufficient extent before confirming Mr Gibson's decision."

3. The Employment Tribunal concluded that the Respondent had been unfairly dismissed but that he had contributed to his dismissal to the extent of 50%. The matter was adjourned for a remedies hearing. In the present appeal the Appellant appeals against the finding of unfair dismissal.
4. In the Extended Reasons explaining the decision, the Employment Tribunal set out the relevant parts of section 98 of the Employment Rights Act 1996. It also identified the authorities to which it had been referred and which included British Home Stores v Burchell [1980] ICR 303; Midland Bank Plc v Madden (17/1/00, EAT); and Haddon v Van den Bergh Foods Limited [1999] IRLR 672. The structural approach of the decision took the form of reducing the issues to six questions and, at a later stage, providing answers to those six questions. It will perhaps be more intelligible if we rearrange the questions and answers so that they read consecutively. They are as follows:

"(i) Was the decision to find the [Respondent] culpable perverse so as to be that no reasonable employer could have made it?

(1) Answer: not perverse.

(ii) Was there a reasonable enquiry, thorough/balance investigation?

(2) Answer: there was.

(iii) Did the [Appellant] form an honest and genuine belief?

(3) Answer: Yes.

(iv) Was the enquiry and disciplinary procedure even handed and fair?

(4) Answer: No - both disciplinary and appeal hearings did not allow the [Respondent's] representative to develop a fundamental explanation for the [Respondent's] behaviour in failing to move the fence. Furthermore, insufficient weight was attached to the mitigation advanced.

(v) Was the disciplinary procedure not followed in breach of the [Respondent's] contract?

(5) Answer: Not to any significant extent.

(vi) Did the sanction of immediate dismissal prove reasonable in all the circumstances of the case?

(6) Answer: No – insufficient weight was given to the following factors:

(i) the [Respondent's] decision, focussed as it was on the elevation of cockerel mortality, was based upon a misjudgement honestly but erroneously held;

(ii) that decision had led to the loss of livestock worth £1,000 upon a night when the inadequacies of the [Appellant's] own factory organisation led to much higher levels of loss – almost twice that occasioned by the [Respondent's] error of judgement;

(iii) the work record of the [Respondent], after 17 years of employment, was to all intents and purposes exemplary;

(iv) the consequences of dismissal would include the loss of accommodation, what the [Respondent] and his family regarded as a way of life – and his pension;

(v) furthermore, given the proximity of the illness suffered on the night in question to the error of judgement it was, doubtless, a factor a reasonable employer would have explored given the employee's record and the singular nature of his error."

5. So far as the sixth of those questions was concerned the Employment Tribunal described its approach as follows:

"The Tribunal has asked itself, bearing in mind the language of section 98(4) of the 1996 Act, whether the [Appellant] acted reasonably in treating the deaths of the chickens as a sufficient reason for dismissing Mr Cannings. The question we have to ask ourselves is – how would a reasonable employer have acted?"

6. It is now necessary for us to consider whether the Employment Tribunal committed any legal error in reaching its decision. On behalf of the Appellant, Mr Powell advanced three grounds of appeal.

Ground (1) section 98 of the Employment Rights Act 1996 and the Burchell test.

7. The statutory provisions relevant to the issue in this case are to be found in section 98(1) and (4) of the 1996 Act. They are in the following terms:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

…

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The conduct of an employee is of course one of the reasons for dismissal listed in subsection (2). The factual matrix of the present case fell to be considered by reference to the test propounded by Arnold J in British Home Stores v Burchell [1980] ICR 303 at 304:

"What the tribunal have to decided … is … whether the employer who discharged the employee on the ground of the misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time … . First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly … that the employer … had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

8. On behalf of the Appellant, Mr Powell submits that the Employment Tribunal failed to follow the Burchell test in two ways. First, it is suggested that by finding that the Respondent's mistake had been "a misjudgement honestly but erroneously held" the Tribunal substituted its own view of the situation for that of the Appellant which was that the Respondent's explanation was untrue. It seems to us that the evidence that Mr Gibson and Mr Halls considered the Respondent's account to be untruthful and unbelievable is at best equivocal. Mr Gibson's letter of 6 August 1999 referred to "wilful omission and neglect" and to "dismissal for gross misconduct" but also mentioned "my belief that you had not taken all necessary precautions". In his Witness Statement he referred to "gross negligence" and "wilful negligence". Under cross-examination in the Tribunal he conceded that the Respondent had "considered what to do". More importantly, Mr Halls, who conducted the appellate rehearing, stated in his letter to the Respondent of 27 August 1999 that he found it "difficult to believe" that the pullets had not displayed signs of distress but his conclusion was expressed in the form: "you did not take all reasonable care" and "you did not have overall control of the situation". In his Witness Statement he spoke of "inaction … a failure so serious that it deserved the title gross negligence" but also his not accepting that "such basic misjudgement was the true reason". However, in cross-examination, he referred to "flawed judgement".
9. In our judgment, the Employment Tribunal concluded that the Appellant's reason for dismissal was gross negligence and it was this rather than untruthfulness that was the subject of the Appellant's honest and genuine belief. That conclusion was consistent with the evidence and was in no sense a substitution by the Tribunal of its own view.
10. The second criticism of the Tribunal's approach relates to the finding of a procedural defect in the form of Mr Gibson and, subsequently, Mr Halls not having allowed Mr Sharp, as the Respondent's representative, to develop a "fundamental explanation for the [Respondent's] behaviour in failing to move the fence". This related to cockerel mortality in the other sheds. It is apparent from the Chairman's notes of evidence that, in his evidence, Mr Sharp (who was found to be the most impressive witness) had given evidence about Mr Gibson not allowing consideration of the other sheds. Initially Mr Sharp appeared to concede that they had had a full chance to put the case to Mr Halls but, in answer to a question from the Chairman, Mr Sharp said that it was a criticism of Mr Halls that he would not allow Mr Sharp to develop the point concerning the difference in the mortality rates between the cockerels and the pullets. In our judgment this provided a tenable evidential basis for the procedural defect found by the Tribunal.
11. We are satisfied that, although we detect some imperfection of expression in the Extended Reasons provided by the Tribunal, it did not stray outside the Burchell tests. We shall have to consider its approach to the sanction of dismissal separately under the second ground of appeal.

Ground (2): the sanction of dismissal

12. In Post Office v Foley and HSBC v Madden [2000] IRLR 827 at paragraph 52 Mummery LJ said:

"It was … made clear in Iceland Foods v Jones ([1983] ICR 17) that the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses 'which a reasonable employer might have adopted'."

Mr Powell submits that, in finding that the sanction of immediate dismissal was unfair, the Employment Tribunal substituted their own view rather than apply the "band of reasonable responses" test. He went through the five factors which the Employment Tribunal considered had been accorded insufficient weight. He was particularly critical of the description of the Respondent's performance at the time being based upon "a misjudgement honestly but erroneously held", repeating his earlier submission that that did not reflect the Appellant's honest and genuine assessment of the matter. However, we have already explained why we do not accept Mr Powell's submission as to what the Employment Tribunal considered the Appellant's honest and genuine assessment to be. In our judgment, there is no significant difference between that assessment and the formulation "a misjudgement honestly but erroneously held". It was then suggested that two of the listed factors - the lengthy, exemplary work record and the consequences of loss of accommodation and pension rights – had on the evidence been taken into account by Mr Halls. Moreover, it was inappropriate to criticise the Appellant for failing to give weight to the Respondent's illness on the night because, in the course of his evidence, the Respondent had himself conceded that his decision not to move the fence was unaffected by his illness. In addition, he had admitted that he knew gross negligence or gross misconduct could result in dismissal.

13. We are satisfied that the Employment Tribunal did not fall into the error which Mr Powell seeks to attribute to it. It was precisely in relation to this issue that the Tribunal said that it had

"asked itself, bearing in mind the language of section 98(4) … , whether the [Appellant] acted reasonably in treating the deaths of the chickens as a sufficient reason for dismissing the [Respondent]. The question we have to ask is – how would a reasonable employer have acted?"

Although the language used does not include the words "band of reasonable responses", it seems to us that the Tribunal was approaching this issue in a manner which was consistent with the Iceland test. In effect, it was saying that any reasonable employer would have regard to the specified factors and, having done so, would have responded with a sanction less than dismissal. That is simply another way of saying that dismissal was outwith the band of reasonable responses of a reasonable employer. To the extent that the Tribunal may have overstated the significance of the Respondent's illness, we do not consider that that was such as to vitiate its decision.

14. In our judgment, there is force in Miss Morris' submission that this is a case of substituted judgment rather than substituted decision. In Post Office v Foley, Mummery LJ, in a passage following immediately on the one we have already quoted, said (paragraph 53):

"In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to 'reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."

This is, if we may say so, a most helpful analysis. It convinces us that the Employment Tribunal did not fall into legal error in this regard. Moreover, we consider it highly probable that they were permissibly influenced by what Mr Halls, the ultimate decision-maker, said in evidence, namely that apart from the deaths in the other sheds, he did not think that he had taken any mitigating factors into account before he came to the decision to dismiss.

Ground (3): the evidence of Mr Pearson

15. The final ground of appeal is in the form of a criticism of the Employment Tribunal for failing to take into account the evidence of Mr Daniel Pearson. Mr Pearson is a veterinary surgeon employed by the Appellant. He gave evidence on the basis of a Witness Statement which explained heat stress in poultry and went on to opine that it was grossly negligent of the Respondent not to have moved the internal fencing so as to alleviate the position in relation to the pullets in shed 3. In the Extended Reasons, the Tribunal referred to the fact that Mr Pearson had given evidence (albeit that they misnamed him), describing him as "a vet in the [Appellant's] employment", but that evidence is not otherwise mentioned. Mr Powell criticises this omission, referring to Mr Pearson at all times as an expert witness.
16. In our judgment there is nothing in this ground of appeal. Mr Pearson was not an independent expert witness and, in any event, it is questionable to what extent his opinion on "gross negligence" took the matter any further. In the event, the Tribunal was particularly impressed by the evidence of Mr Sharp, a man with 45 years' experience in the poultry industry, who was called on behalf of the Respondent. He was described in the Extended Reasons as "the most impressive of the witnesses the Tribunal heard … vastly experienced in the poultry business and sensitive to the issues in the case". He had represented the Respondent at the disciplinary hearing and the appeal. The Tribunal found his interpretation of what transpired on those occasions to be "more accurate" than the other witnesses "because of his perceptive disposition and the objective inclination he displayed in answering questions put to him". In some respects, his evidence dealt with the same subject-matter as that of Mr Pearson. It is plain from its comments that the Tribunal must have placed more reliance on Mr Sharp if there was conflict. We find no error of law in the omission to say more of Mr Pearson than that he had given evidence, nor any failure to give sufficient reasons by reference to Meek v Birmingham City Council [1987] IRLR 250.

Conclusion

17. It follows from what we have said that we are unimpressed by all the grounds of appeal and, for the reasons we have given, the appeal will be dismissed. We do not say that the Extended Reasons for the decision of the Employment Tribunal are a model of clarity and distinction. They are not. However, in our judgment they are adequate and unafflicted by legal error.