United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr F H Lefevre, Solicitor Of- Quantum Claims Employment Division 70 Carden Place Queens Cross ABERDEEN AB10 1UP
For the Respondents	Mr S McLaren, Solicitor Of- Messrs Kippen & Campbell Solicitors 48 Tay Street PERTH PH1 5TR


 


LORD JOHNSTON:

1. This appeal arises in a rather unusual way.
2. The appellant brought proceedings before the Employment Tribunal claiming unfair dismissal. The ostensible reason for dismissal was stated by the employer to be capability, based on health. However, it appears that on the night of 31 January 2002, the appellant did not complete his scheduled run as a bus driver which led to certain complaints being made to the respondents. The appellant received intimation albeit, not by letter specifically, that he was to be subject to a disciplinary procedure in this respect. However, matters were overtaken by the appellant being signed off work for health reasons. According to the findings of the Tribunal, the respondents decided to defer disciplinary proceedings until he had returned to work. The latter never happened and he was dismissed on 25 March 2002 on alleged grounds of ill-health and, thus, capability.
3. At the hearing before the Tribunal, the respondents, by way of cross-examination, sought to introduce the issue of the disciplinary exercise with regard to the incident on 31 January. Mr Lefevre, for the appellant, objected but the Tribunal ruled in favour of the respondents, giving as their reason the following:-

"The tribunal agreed that the traffic complaint incident was not a subsequently discovered fact and, even if it were the case that Mr Edwards was unaware of it at the time he conducted the appeal, that was nothing to the point, since it was Mr Beveridge who took the decision to dismiss the applicant on the grounds that "the business could no longer sustain his long-term sickness" (R13). That decision was upheld on appeal by Mr Edwards. The respondents' notice of appearance supported the conclusion that ill health was the principal reason for the applicant's dismissal. The question there fore was whether the tribunal was entitled to take into account the traffic complaints against the applicant when it reached the stage of considering what compensation it would be 'just and equitable' to make in all the circumstances. In concluding that evidence relating to the applicant's reasons for not running the last 1A bus on 31 January and his explanation for his failure, should be a matter for inclusion in the tribunal's consideration and that such evidence was not impermissible, as contended for by Mr Lefevre, the tribunal took into account the decision in the case of O'Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 615. In that case the Court of Appeal held that, "An employment tribunal must award such compensation as is "just and equitable". If the facts are such that a tribunal while finding that an applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed fairly by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis. An exercise such as that undertaken by the employment tribunal in the present case, although of an exceptional nature, is not precluded as necessarily impermissible by Polkey or King v Eaton, given the adverse view which the tribunal formed of this particular applicant". The Court went on to hold that the tribunal did not err in principle when rejecting making an assessment of the percentage chance that at a date later than her actual unfair dismissal the applicant might have been dismissed early."

4. Before us, Mr Lefevre submitted, on behalf of the appellant, that the Tribunal had misdirected itself. The case of O'Donoghue, he submitted, was special to its own facts where it was proved to the satisfaction of the Tribunal and, thus, to the Court of Appeal, that the general attitude and conduct of the employee, quite separate from the reason for which she was dismissed, was such that dismissal would have occurred in any event and that was a relevant factor in assessing damages under section 123 of the Employment Rights 1996 under the umbrella of "just and equitable". The issue here, he submitted, had never been joined before the employer and had effectively not been followed up by them. That being so, it was no longer part of the case. The employer, he submitted, could not return to a matter which he had effectively abandoned while the employment period was still current, favouring a different route to terminate it. This, he said, clearly emerged from the case of Trico-Folberth Ltd v Devonshire [1989] IRLR 396, the substance of which was that, once the entitlement to compensation was established, it could not be withdrawn or reduced by reference to an alternative course of action which the employer might have followed but did not do so.
5. Mr McLaren, for the respondents, submitted that it must be within the purview of the Tribunal's exercise with regard to assessing compensation assuming such was due, to try and take account of what might have happened if the dismissal had not been effected for the ground upon which ex hypothesi at this stage of the case been found unfair. Such a point had not yet been reached but nevertheless the evidence must be relevant. Trico made it clear there was a broad exercise to be taken where the Tribunal, in that case, were entitled to conclude that, effectively, the employer had abandoned the alternative line he might have taken. In this case it had merely been deferred and overtaken by events. The evidence should be allowed as relevant at this stage, if nothing more.
6. We agree with the position adopted by the Tribunal and Mr McLaren. We consider that under the umbrella of justice and equity it must be relevant to investigate what might have happened upon the evidence if the employee had not been dismissed on the ground which, by this state of the exercise, ex hypothesi has been found to be unfair. The issue of course does not arise unless such a finding is made. In that context, while in certain cases, if the employer has expressly abandoned or withdrawn an alternative line that might have been taken, the issue may be foreclosed against him. It does not follow that where the matter, as here, was merely deferred and taken no further, it does not remain relevant for investigation. The Tribunal will have to be very careful in its assessment of how likely such a dismissal would have been considered fair or unfair against the evidence proffered to it and it may be slow to come to the conclusion that a fair dismissal would have occurred on the basis of the January incident. But we cannot say at this stage that it is not entitled to consider the matter. Obviously it is conducting its own investigation to a hypothetical situation and must make its own decision on that matter. This differs from a situation where, in investigating misconduct, the employer has already conducted an investigation where the role of the Tribunal is limited to determining whether or not such investigation was reasonable and appropriate.
7. Obviously, we offer no view as to whether the dismissal in this case was, in fact, fair or unfair, nor, whether or not, on the alternative hypothesis, a fair or unfair dismissal would have been effected in relation to the disciplinary matter. These are matters still at large for the Tribunal but, in our opinion, they are competent and relevant to the decision they have to make.
8. This appeal will be refused.