United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal from a decision of an Employment Tribunal held at Shrewsbury on
   27 January 2003. The decision is dated 31 January and was sent to the parties on 4 February 2003. The Chairman was Mr S J Williams. By that decision the Tribunal unanimously held that the Applicant was not unfairly dismissed.
2. The story behind the dismissal can be taken in fairly short form from the chronology which has been provided by the solicitors who represented Mr Phillips below. Mr Phillips started employment with Inergy Automotive Systems UK Ltd on 13 November 1998. On Saturday 17 November while he was working on a day shift, he raised a quality issue with his cell leader. He was not happy with the way in which the issue was dealt with. He asked to speak to senior management, who dealt with the matter over the phone. He was then asked to return to work on the mainstream production line which, it is said, is work he had not been doing for some time. He said he had been dealing with quality control and he believed that there were health and safety issues which were not being properly addressed.
3. The Tribunal found as a fact that Mr Phillips spent a lot of his time on quality assurance matters but it was well within his competence to work on the line and if that is what Mr Furey, his superior, was asking him to do on that day in the interests of best serving the production needs of the company, then he had no reason to refuse. As the Tribunal observed, he could have taken it up as a grievance under the grievance procedure, but the Tribunal found as a fact that there was no reason for him:

"to get on his high horse and refuse to obey that instruction."

The matter, as the Tribunal found, did not stop there, because Mr Furey's superior was contacted by telephone. He also told Mr Phillips to do what Mr Furey had instructed him to do or go home. Mr Phillips did neither of those things. He thus further disobeyed an instruction from Mr Williams. He was, in due course, suspended, initially on basic pay, and was later asked to transfer to another shift so that he could return to work and, of course, earn more money but he refused to do that, and curiously, the company went along with that. The matter with which the Tribunal was concerned was what thereafter happened.

4. On 21 November 2001 he returned to work and was invited to a meeting with Mr Williams and the Human Resources Managers, Karen Bird. At the end of that meeting, of which he had little warning, he was suspended. Thereafter, he was again summoned to a further meeting, on 18 December, which was a continuation of the disciplinary meeting. At that meeting Mr Scott Phillips, Mr Les Williams, Mr Stuart Newsom and Karen Bird were all present. At the conclusion of that meeting he was dismissed for failing to carry out reasonable instructions from management of the company. On 4 January 2002 he appealed. The appeal went against him and he remained dismissed.
5. The Tribunal were critical of the length of time that the disciplinary process had taken. They were also, to some extent, critical of the written disciplinary procedures which the company had. They said that in the absence of adequate provision in those procedures they had recourse to the ACAS Code of Practice on Discipline. The Tribunal went on to find:

"We find that the only thing that we really could criticise the respondent for is failure to disclose the written statements which were obtained."

They expressed themselves satisfied that he was never given the written statements of Mr Furey and the other surrounding witnesses, but, they pointed out, that this was a very simple factual scenario which could be precised in no more than a few sentences. They held that they were unable to find that the failure of the company to disclose to the Applicant the written witness statements rendered the dismissal unfair because he knew the substance of the case against him, he had his opportunity to say his piece, he had an opportunity to bring someone him to accompany him if he so wished, and furthermore he had, and indeed had exercised, a right to appeal. They therefore held that the decision was a proper one. They said:

"In all the circumstances we have to say that this dismissal was for a reason, namely conduct, which is a potentially fair reason and that the respondent did not act unreasonably in dismissing the applicant for it. Had we found the procedural complaints made carried some weight and rendered the dismissal unfair then we would have been minded to make a high award of contributory conduct against the applicant, because plainly it was his conduct that set all these matters in motion."

6. The first complaint which is made in the Notice of Appeal is that the Tribunal misapplied or misconstrued the statutory test under Section 98(4) of the Employment Rights Act in that it decided the issue on the basis of how the Tribunal would itself have acted had it been the employer rather than considering, as it should have done, whether the Respondent's decision to dismiss the Appellant was one which was open to a reasonable employer to take in the circumstances of the case. The written submissions make reference to British Homes Stores Ltd v Burchell [1978] IRLR 379 and assert that the Tribunal exercised its own judgment rather than looking to see whether the decision was within the reasonable band of responses. It goes on to say that the decision was perverse.
7. It seems to us perfectly clear that the Tribunal did not substitute its own judgment for that of the employer. When one looks at paragraph 9, the words 'we have to say that … the respondent did not act unreasonably in dismissing the applicant for it', makes it perfectly clear that they are adopting the appropriate test.
8. The complaint made then goes on that the decision was perverse because of the criticisms made of the disciplinary proceedings and procedure. Reference is made to Whitbread plc v Hall, Court of Appeal, and Aggregate Industries v Murphy, Employment Appeal Tribunal.
9. In our judgment neither of those decisions is of any assistance to the Appellant. The Whitbread case, which is reported at [2001] ICR 699, says this, in the headnote:

"…the wording of section 98(4) of the Employment Rights Act 1996, which required a tribunal to determine "in accordance with equity and the substantial merits of the case" whether the employer had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal, suggested that there were both substantive and procedural elements to the determination; that the "band of reasonable responses" test should be applied to both elements; and the, accordingly, even where the misconduct had been admitted, it was open to the tribunal in making its determination under section 98(4) to consider not only whether dismissal fell within the band of reasonable responses but also whether the process by which the employer had arrived at the decision had been reasonable."

In our judgment, the Tribunal did precisely that. They looked at the way in which the proceedings had been conducted. They took account, first of all, of the fact that there was only a short period, with little notice given, before the initial part of the disciplinary hearing. They took account of the inadequacy of the procedure in that written statements had not been given, but looking at it overall, they were satisfied on the facts of this case that there was no unfairness. The Tribunal were not perverse on reaching their conclusion.

10. So far as the remaining point is concerned, it was suggested that the terms of the letter by which he was summoned to the further meeting on 18 December were inadequate in that that letter made no specific reference to the possibility of dismissal or any disciplinary action. The Tribunal clearly considered that. It was clear that these were disciplinary proceedings, and, in our judgment, there is no indication in the material before us that the Tribunal in any way erred in law in the conclusions to which it came.
11. It follows that we take the view that this appeal contains nothing which warrants it going to a Full Hearing and that it should be dismissed at this stage.