United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SIMON GOLDBERG (Of Counsel) Instructed by: Messrs Alderson Dodds Solicitors 4/8 Stanley Street Blyth Northumberland NE24 2BU
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR RECORDER LUBA QC

Introduction

1. This is an appeal brought by Mr David Page against a decision made by an Employment Tribunal at Newcastle on his claim that he had been unfairly dismissed by the Respondents to this appeal, the North East Ambulance Service. The Employment Tribunal heard the matter over two days, 30 September 2002 and 1 October and it met to consider its reserved decision on 4 October.
2. By that reserved decision the Tribunal found that, firstly, the Applicant had been unfairly dismissed by the Respondent. Secondly, it found that the Applicant's compensation for that unfair dismissal should be reduced by 60% to take into account his contributory fault. Thirdly, it found that there should be a further reduction of compensation by a factor of 25% to take into account the possibility that a fair dismissal might have resulted had a fair procedure been used.
3. It is not necessary to record the other additional decisions made by the Tribunal in its reserved decision as they turn on other uncontroversial matters. The Employment Tribunal gave extended written reasons for its conclusions to the parties on 20 November 2002. By a Notice of Appeal delivered on 23 December 2002 Mr Page attacks the decision of the Employment Tribunal only in one respect. That is in relation to the assessment of the degree of his "culpability" or contribution, by his own conduct, to his dismissal.
4. In summary, the short point made in the grounds of appeal is that the Employment Tribunal has not dealt adequately (or at all) with one of the two incidents of conduct from which questions of contribution or culpability arose in the context of this case. In order to understand that point is therefore necessary to say something of the factual context or background.

Factual Background

5. From 1988 Mr Page was employed by the Respondent. By the time of his dismissal in January 2001 he had achieved the rank of paramedic station officer. Prior to his dismissal he had been suspended in December 2000 in the course of an investigation into an allegation that he had on 13 December 2000 taken money from a patient's purse whilst transferring her from home to hospital. Following a disciplinary hearing and a subsequent appeal, his employment was terminated. However, that termination, as the Employment Tribunal found, was based on his alleged misconduct in relation to an altogether earlier incident concerning a different patient's money which had occurred in September 2000.
6. The Employment Tribunal plainly considered with thoroughness the employers' handling of the investigatory, disciplinary and appeal processes in this case. They made clear and comprehensive findings entitling them to reach the conclusion that the Appellant's dismissal had been unfair. It is sufficient for the purposes of the present appeal to simply record that the Tribunal found that there had been in their words "an abandonment of basic standards of fairness vis a vis an individual faced with loss of employment and career as a result of the decision reached." We are quoting there from paragraph 11 of the Tribunal's extended reasons.
7. To sum up their review of the employers' handling of the matters leading up to dismissal the Tribunal say at paragraph 13 of their extended reasons:

"We found the actions of the Respondent in this case fall far below the standard which we would have expected to see."

In fact they found that the procedure adopted by the Respondent employers had been "riddled with unsatisfactory elements".

8. That gives a flavour of the matters which led the Employment Tribunal to find that the dismissal was unfair. The Employment Tribunal then turned its consideration to the question whether, in exercise of the powers conferred by sections 122 and 123 of the Employment Rights Act 1996, there should be any reduction in the basic or compensatory awards which would otherwise be made.
9. The power to make such a reduction arises if, to put it in summary terms, the Employment Tribunal finds that the employee has been guilty (prior to the dismissal) of conduct, sometimes called "culpable" or "blameworthy" conduct, which has caused or contributed to the dismissal and which renders it just and equitable that compensation should be reduced. As we have already indicated, there were two matters of potential blameworthy or culpable conduct with which the Tribunal were concerned in this case. They were, respectively, the September 2000 and the December 2000 incidents. Both related to allegations that the Appellant had been involved in taking possession of money from patients when making house calls in the course of his duties.

The Tribunal's findings

10. Dealing first with the September 2000 incident and its effect on the assessment of compensation the Tribunal say this at paragraph 14 of their extended reasons:

"We have found the Applicant's conduct which he admitted in relation to the incident in September to be extremely unsatisfactory and far below the level of conduct which we would have expected from someone in his position. The Applicant admitted so much in his evidence to the Tribunal."

It is accepted by Mr Page that, on that first occasion, in September 2000 he acted foolishly, although he denies having stolen any money and no criticism is made of the Tribunal's finding that his conduct on that occasion should be taken into account in assessing what compensation is properly payable to him. The Tribunal do not identify what element of the reduction they imposed is to be attributed to the September 2000 incident alone.

11. In relation to the second incident, on 13 December 2000, no such admission is made by the Appellant. It is contended by the Appellant that, in relation to their findings on that incident, the Tribunal went wrong and reached a conclusion not justifiable on the face of their extended reasons. What the Employment Tribunal have to say on the question of the December incident is also dealt with in paragraph 14 of their extended reasons but in less than a single sentence. The matter is dealt within these terms:

"It is also clear that his conduct on 13 December also comes within the concept of culpable or blameworthy …"

The Tribunal then find that both incidents contributed significantly to playing a part in the dismissal of the Applicant but again there is no discrete indication of the extent to which the December incident contributes to the overall reduction of 60% which they thought appropriate in the compensatory award.

12. The competing contentions before the Tribunal, as to the 13 December 2000 incident, are recorded by the Employment Tribunal in two paragraphs of their extended reasons each unhappily numbered paragraph 4(c). The first such sub-paragraph contains the allegations of the employer as they were reported to the employer by Mr Henderson, an employee on duty with Mr Page on the day in question. The second sub paragraph 4(c) contains a very short summary of Mr Page's own account of his conduct on that occasion. His explanation is elaborated in his statement which was before the Employment Tribunal (at paragraph 3). In that statement he indicates that, indeed, he had his hand at one point in the handbag of the patient being transferred on that date but that his hand was there for innocent purposes of returning to that bag some door keys belonging to the patient which had come to his possession in the circumstances he set out in his statement.
13. Accordingly, a live issue for resolution by the Tribunal was the question of whether the Appellant had been guilty on 13 December 2000 of blameworthy or culpable conduct which could be taken into account in the exercise of the Tribunal's discretion in determining the proper assessment of compensation arising from his unfair dismissal.
14. That required a clear finding as to what his conduct had been and in so far as his detailed explanation of innocent conduct on his part was rejected by the Employment Tribunal why it was rejected. That was all the more important given that in the course of the disciplinary procedures there had been, as the Tribunal record at paragraph 8 of their extended reasons, firstly no finding of any theft in December 2000 and secondly, no evidence that any money was stolen.

This appeal and our conclusions

15. As we have indicated, the Notice of Appeal complains that the Tribunal's handling of the December 2000 incident fell short of the required standard. By the actual grounds of appeal, ably augmented by Mr Goldberg in his short and direct oral submissions (and in what we would describe as a helpful and pithy skeleton argument) it is contended first that the Tribunal failed to take into account (or give an account of) the detailed explanation provided by the Appellant as to what occurred in December 2000.
16. The second ground of appeal is that, if the Tribunal did not accept the Applicant's explanation, it was incumbent upon them to say so in the course of their extended reasons. The third ground of appeal is essentially that if the Tribunal did accept the Applicant's explanation, but nevertheless considered that his actions were culpable or blameworthy, it did not state how it arrived at that assessment.
17. Furthermore in the course of oral argument before us today Mr Goldberg has contended that the Tribunal failed to indicate to what extent each of the two incidents in September and December separately contributed to the overall assessment that the appropriate reduction was 60%. All of those grounds of appeal can be considered simply by taking up the extended reasons against the background matters we have indicated to see whether the Tribunal discharged the responsibility upon it to give proper, clear and intelligible reasons for the findings that it made.
18. We accept Mr Goldberg's submission that the relevant principles in this class of case can be derived from the helpful judgments of the Court of Appeal in Anya v The University of Oxford [2000] ICR 847. He is right to assert that what the Tribunal should do in a matter of this class is to state their findings of fact indicating in relation to each significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another.
19. We are satisfied that this appeal must succeed essentially for the grounds set out in the Notice of Appeal as elaborated upon in the skeleton argument. Sadly, having given comprehensive and detailed findings in relation to the complaint of unfair dismissal, the Employment Tribunal here has not met the requisite standard in relation to its conclusions on the matter of the December 2000 incident. As we have already indicated, it was crucial in this case that the Tribunal make a clear finding as to what it considered the conduct of the Appellant had been on 13 December 2000 and why it preferred (if it did prefer) the account of one of the parties to the account given by the other. Such findings and reasoning were in our view essential and are not met by the single sentence in paragraph 14 of the extended reasons to which we have already referred.
20. Having concluded unanimously that the appeal must be allowed we turn to the appropriate remedy. As Mr Goldberg has candidly indicated, he primarily sought by his Notice of Appeal and his skeleton argument a simple remission to the Tribunal for them to reconsider and deliver reasons in relation to the assessment of compensation having regard in particular to the December 2000 incident.
21. That is the relief about which the Respondent to this appeal has been alerted. The Respondent has not played any part in this appeal beyond indicating that it does not resist the appeal. It must, therefore, have been proceeding on the basis that if the appeal were allowed the matter should be remitted. Notwithstanding that background, Mr Goldberg has contended before us that we might take the alternative course of ourselves making findings as to the correct apportionment and the degree of deduction to be made from the compensatory or basic awards.
22. We decline that invitation. There are insufficient findings in the extended reasons to enable us to satisfactorily make an assessment for ourselves (even if we were inclined to do that in the absence of giving the Respondent an opportunity to be heard). In the further alternative, Mr Goldberg has submitted that we could simply return the matter to the Tribunal with a direction that they give the reasons that they have not hitherto given.
23. We again reject that alternative submission. It is not one of which the Respondent has been notified. We believe that the proper course is to remit this case to the Tribunal to consider afresh, and to provide a fresh decision upon, the extent to which the basic and compensatory award in this case should be reduced. It is conceded by the Appellant that there should be such a reduction arising from the September incident (although, as we have noted, there is no indication or finding by the Tribunal as to the extent of any such reduction which would follow from the September incident alone).
24. It is plain, however, that the question of the December incident must be remitted and that must mean that the overall question of any reduction and the extent of that reduction is left at large. It would be appropriate for the Tribunal considering the matter which we are remitting to be, if at all possible, the same Tribunal as originally constituted. We therefore remit this matter to the Employment Tribunal and the matter is to be considered, if at all possible, by the same Chairman and members as originally considered the Appellant's Originating Application. We make clear, however, that this is a limited remission. The only decision of the Tribunal which is set aside and remitted for reconsideration is that numbered 2 in their reserved decision that is "the Applicant's basic and compensatory award are to be reduced by a factor of 60% to take into account his contributory conduct".