United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N ASHLEY (of Counsel) Instructed by: Southend-on-Sea Borough Council PO Box 6 Civic Centre Victoria Avenue Southend-on-Sea Essex SS2 6ER
For the Respondent	MR I WRIGHT (of Counsel) Instructed by: Messrs Chennells Solicitors 585 London Road Westcliff-on-Sea Essex SS90 9PJ


 


HIS HONOUR JUDGE J R REID QC

1. This was an appeal from the decision of an Employment Tribunal held at Stratford on 7 to 9 October and 22 November 2002. By their decision the Tribunal held that Mr Bartlett had been dismissed by the Southend-on Sea Borough Council ("the Council") for a reason connected with his conduct, but that he was unfairly dismissed and that he had contributed to his own dismissal to the extent of one-third. The decision was sent to the parties on 7 January 2003. Against this decision the Council appealed. At the conclusion of the hearing of this appeal we announced that we were allowing the appeal and remitting the case to be reheard before a different Employment Tribunal. We now give the reasons for our decision.
2. Mr Bartlett began employment with Essex County Council in September 1977. In early 1994 the Applicant was made manager of a new Employment Training and Quality Manufacturing Unit (ETQM) which was part of Essex County Council's facilities for teaching work skills to young people with learning difficulties. From the outset he was responsible for and effectively ran ETQM, his line manager (Mr Peter Jackson) being located at the remote parent unit, the Maybrook Centre.
3. On 1 April 1998 there was a local government reorganisation which resulted in a statutory transfer of responsibility for the Southend area from Essex County Council to the Council which became a unitary authority. ETQM and the Maybrook Centre were amongst those establishments that transferred to the Council. Almost immediately the workshop at ETQM was refurbished and some repair issues which had been identified by Mr Bartlett as being of concern were addressed. The extent of the refurbishment was not clear from the evidence.
4. Following the transfer a brief internal audit took place of all Social Services establishments. This highlighted some concerns over the financial procedures at the Maybrook Centre. In March 1999 the Council's Health and Safety team received a report of an accident involving a nail gun at ETQM and Mr Wall visited the unit. The accident did not give rise to further action but Mr Wall noticed a fire exit was blocked.
5. In July 1999 ETQM was the subject of a more detailed internal audit, it being in a high-risk category given the earlier concerns regarding the Maybrook Centre. The audit identified considerable concerns regarding all aspects of the financial management of ETQM. As a result, a subsequent visit took place to enquire into the running of ETQM generally. This visit revealed significant concerns regarding financial matters, environmental matters and the health and safety of both staff and service users. As a result of those concerns the Respondent's health and safety officer visited a few days later and recommended the immediate closure of ETQM.
6. Mr Bartlett was suspended by a letter dated 19^th October 1999 and following a detailed investigation, a disciplinary hearing took place. The Chair of the hearing, Ms Jane Held, found the majority of allegations proven and dismissed the Applicant for gross misconduct. The dismissal was on the basis both of health and safety matters and on financial irregularities. He appealed. Due to various delays that appeal was eventually heard by an Appeals Sub-Committee of Councillors on 23 October 2001 and 8 November 2001. The sub-committee held that some of the charges had not been made out but upheld the decision on other matters and upheld the decision that Mr Bartlett be dismissed. Mr Bartlett applied to the Employment Tribunal asserting he was unfairly dismissed. His application was in fact made before his appeal had been determined. As indicated in paragraph 1, Mr Bartlett's application was successful but he was held to have contributed by his own conduct to the extent of one-third.
7. On this appeal the first submission on behalf of the Council was that the Tribunal had found, applying the British Home Stores -v- Burchell test, that the Respondent had (a) a genuine belief in the Applicant's misconduct, (b) reasonable grounds for sustaining that belief and (c) carried out a reasonable investigation. The Tribunal's finding of unfairness turned purely upon the issue as to the reasonableness of the sanction. In making its finding the Tribunal had re-visited issues which had already decided in favour of the Council. The Tribunal, it was said on behalf of the Council, should not have done so.
8. From paragraph 24 to paragraph 29 of its decision, the submission continued, the Tribunal examined the factors which led the Council to dismiss Mr Bartlett. The Tribunal criticised the views formed by Ms Held and the Appeal Sub-committee and expressed the view that they had taken inadequate account of various matters. For example at paragraph 24 the Tribunal said:

"First the Tribunal considers that the Respondents, whether through Ms Held or at the appeal stage, did not give proper consideration to what Mr Jackson had said in interview, and at paragraph 29 "However the Tribunal also considers that the Respondents failed to pay adequate heed to Mr Bartlett's length of service."

9. The Council submitted that, having already found the Burchell test to be satisfied, the Tribunal should have considered simply whether the sanction was reasonable given the matters which it had found the Council to genuinely and reasonable believe and not gone back to re-visit matters which were relevant to the Burchell issues. By way of example, it was submitted that in paragraph 25 of the decision the Tribunal departed from what it was that the Council genuinely believed at the time of dismissing the Applicant and appeared to suggest that the absence of an express allegation of dishonesty meant that dismissal could not be a reasonable sanction. In respect of the health and safety matters it was said the Tribunal fell into the same error. At paragraph 26 it detailed a number of matters which went directly to the question of whether the Respondent had grounds upon which to sustain its belief in the Applicant's misconduct at all. It was submitted that the Tribunal lost sight of those matters found proved by the Council and the details of those matters.
10. In our view this is not a valid criticism of the decision. The Tribunal had the findings of Ms Held and the appeal body as to what the disciplinary offences were which the Council found proved. It did not seek to re-visit those findings. It did however have to analyse what it was the Council had found proved in order to determine the question whether the decision to dismiss was within the reasonable band of responses. In our view the Tribunal were not only entitled but bound to consider the precise matters found to be proved in considering whether the Council's decision to dismiss Mr Bartlett was within the reasonable band of responses to the matters which were found proved.
11. On behalf of Mr Bartlett in addition to submitting that the Tribunal had been entitled to re-visit the matters found proved in considering the reasonableness of the penalty, it was pointed out that the Tribunal held that the Council "did not give proper consideration" and "did not take properly into account" what was said by Mr Jackson in the course of the investigation. Counsel submitted that in these circumstances the Tribunal should not have found the second limb of the Burchell test satisfied and should therefore have found that the dismissal was unfair for that reason rather than simply because of the penalty, and that in those circumstances (even if the Tribunal was in error in the way in which it approached the question of reasonableness) the decision should be affirmed on those grounds. In our view this is to misinterpret what the Tribunal meant by those words. It seems to us that in the context all the Tribunal meant was that the Council had failed to give adequate weight to those matters when considering penalty.
12. In our view the Council was on firmer ground when it submitted that the Tribunal (although it said it was being careful not to do so) substituted its own view as to what the penalty should have been for that of the Council instead of determining whether the decision fell within the bounds of reasonable response. This apparent defect is highlighted by the finding of the Tribunal that Ms Held:

"failed to give adequate weight to the fact that Mr Jackson knew what was happening at ETQM" (para 27) and that "the Respondents failed to pay adequate heed to Mr Bartlett's length of service"

(paragraph 29). These expressions lend support to the view that the Tribunal was substituting its own view as to the gravity of the offences found proved.

13. So far as health and safety was concerned, the Tribunal, the Council submitted, ignored the post-May 1998 position which was, from the perspective of the Council, the most important period. The Tribunal noted in paragraph 15 of their reasons that Ms Held considered the health and safety matters to be the most serious. Her findings as to health and safety matters were in part (but not wholly) upheld by the Appeals Sub-Committee. In finding the sanction to be unreasonable, the Tribunal stressed in its decision that there had been long-term problems with various repair issues at ETQM and the fact that Mr Bartlett had complained about these regularly. Indeed it appears that the Tribunal relied on this as crucial in paragraphs 26, 27, 28 and 30 of its decision. However, in addressing this issue the Tribunal made no mention of the Council's case that these long-term issues were largely were resolved by May 1998 by the refurbishment which took place after the Council inherited ETQM from Essex County Council and over a year before the investigation that led to Mr Bartlett's suspension. Despite being a central aspect of the Council's, this was not mentioned anywhere in the decision. Furthermore, the Tribunal gave no apparent attention to what Mr Bartlett's evidence about the state of the premises at the date of his suspension. Mr Bartlett gave evidence on oath that he had allowed ETQM to go completely downhill, that he 'couldn't be bothered' and 'didn't care anymore'. Again, despite being a central aspect of the Council's case, this is not mentioned anywhere in the decision. This evidence was so central to the issues and to the Respondent's case that at the very least the Tribunal would be expected to address it.
14. The Tribunal placed much weight on the evidence of Mr Jackson as line manager of Mr Bartlett (who had not given evidence before Ms Held, but who did give evidence on the appeal). It took the view that insufficient weight had been given to what he said in interview in the inquiries before Ms Held's hearing (notes of which were before Ms Held) and in evidence before the Appeal Sub-Committee. In this respect the Tribunal does appear to have been second-guessing the Council's disciplinary proceedings as to the extent to which Mr Jackson could be relied upon. Counsel before the Employment Appeal Tribunal stressed the reservations which the Council clearly had about the reliability of Mr Jackson, who left the Council by reason of ill-health at a time when there was at least the possibility of disciplinary proceedings against him. Whilst the Tribunal were, of course, able to make a judgment about Mr Jackson's reliability as a witness in the testimony he gave to them, that was not a basis for it to overturn the view which the decision makers in the disciplinary proceedings took of what he had to say.
15. The Tribunal concluded that it was unreasonable for the Council to take the view that Mr Bartlett was guilty of gross misconduct when he had sought assistance from his line manager and when his line manager had failed to give him the assistance to which he was entitled, and that he could not have been expected to go over the head of his line manager. The Tribunal's conclusions appear to be based on taking a very limited view of Mr Bartlett's personal responsibility. In doing so the Tribunal does not appear to have had regard to the evidence which was given by Mr Browning (his opposite number at the Queensway Activity Centre) as to what his responsibilities were. Nor does it appear to have regard to Ms Held's evidence that the responsibility for health and safety matters was a personal responsibility of the site manager, or her evidence that his responsibility was to take the matter higher than his line manager if dissatisfied or to take it up with Health and Safety. Again, one would have expected this evidence at least to be mentioned by the Tribunal.
16. There seems to be implicit in the decision a view that if Mr Jackson was at fault, then Mr Bartlett's fault was substantially diminished. This view does not accord with the view expressed by Ms Held and impliedly upheld by the Appeal Sub-Committee that Mr Bartlett had personal responsibility, given his position and taking into account his experience and management responsibility in local government service. It was his failings on a day-to-day basis in providing an adequate health and safety environment which led to his dismissal. The reasons for rejecting the view that this was a disciplinary failing which warranted dismissal is never properly explained by the Tribunal. It was suggested by the Tribunal that he could not have taken responsibility for closing the site himself and that Mr Jackson had done little (or without success) to remedy matters. It is implicit in this that Mr Bartlett was entitled substantially to pass the buck to Mr Jackson. It was precisely this attitude which the Council did not regard as an adequate excuse in an employee of Mr Bartlett's experience and seniority. Counsel for Mr Bartlett submitted that the Tribunal was obliged to consider his conduct in respect of the allegations against him and not peripheral matters such as his 'experience in business' and the Council's special status, but in determining the appropriate penalty Mr Bartlett's experience was a material factor: inexperience might have been a factor of mitigation.
17. The Tribunal's rejection of the Council's view of the appropriate penalty (without dealing with some of the evidence central to that view) suggests again that the Tribunal was in fact substituting its own view of what was reasonable.
18. So far as the financial irregularities were concerned, we take the view that, as Ms Held said, these were less important than the health and safety issues. However, in relation to these, again the Tribunal made findings based on its view that the Council did not give enough weight to the evidence of Mr Jackson. In doing so it discarded without comment or mention the findings expressed by Ms Held and the evidence of Mr Vadden, central to this issue. Ms Held's findings made it clear that she took a different view as to the level of Mr Bartlett's personal responsibility and level of awareness from that which the Tribunal did, basing itself on Mr Jackson's evidence. Again the decision gives no clue as to why this was.
19. Counsel for Mr Bartlett high-lighted the findings of the Tribunal that Mr Jackson (a) was not aware that ETQM were contravening the Appellant's financial systems,(b) considered he had financial control of ETQM, and (c) did not have any documents setting out expectations or good practice that he could pass on to Mr Bartlett. Whilst these findings were made by the Tribunal, they did not coincide with the view that Ms Held took of the position. She found that Mr Bartlett had been left in no doubt by Mr Vadden that he had to operate with proper financial and trading practices and that rules and manuals did exist. In these circumstances the fact that Mr Jackson did not have the documents and so could not pass them on is of little consequence. As an experienced middle manager the least Mr Bartlett could have done was ask for them.
20. Counsel for Mr Bartlett also stressed (as the Tribunal did) that the allegation of financial irregularity against the Respondent was one of failing to follow proper and appropriate procedures and not dishonesty ('This reflects on the seriousness of the misconduct and the sanction that was appropriate to it' as the Tribunal put it at para 25). So far as this is concerned, Ms Held's evidence was that although the financial irregularities were serious they alone would not have led to dismissal. Both she and the Appeals Sub-Committee regarded the offence as "liable to bring the Authority into disrepute": see the dismissal letter of 11 January 2001 and the appeal decision letter of 12 November 2001. In these circumstances the financial irregularity charge is of comparatively lesser importance, though the fact remains that the Tribunal appear to have reached a decision whilst failing to take into account relevant evidence or (if it did) without explaining why it felt able to disregard it.
21. When we look at the whole of the decision against the background of the totality of the evidence we are driven to the conclusion that either the Tribunal substituted its own view of the appropriate penalty for that of the Council or that, if it did not, it failed adequately to explain why it has taken the view that the penalty imposed was outside the bounds of what was reasonable. The Council in our judgment raised unanswered questions as to how the Tribunal dealt with substantial matters of evidence which were central to the Council's case. The Tribunal appear to have been playing down the level of Mr Bartlett's personal responsibility (notwithstanding his great experience and apparently responsible position) without making it clear why it felt it should do so in the face of the views taken by the Council.
22. In these circumstances, taking all these matters together, we take the view that the decision is not one that can stand. We do not think we can properly say that the Tribunal only substituted its own view and so simply reverse its decision. Unfortunate though it is the case will have to be remitted to the Employment Tribunal for re-hearing before a different panel.