United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JEREMY BURNS (Of Counsel) Instructed by: The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR NISAL DE SILVA (Of Counsel) Instructed by: Messrs Blake Lapthorn Linnel Solicitors Harbour Court Compass Road North Harbour Portsmouth Hampshire PO6 4ST


 


JUDGE WAKEFIELD

1. This is an appeal by the Ministry of Defence against that part of a decision of an Employment Tribunal sitting at Southampton by which it was determined that the present Respondent Mr Graham North had been unfairly dismissed.
2. The brief background facts were these. Mr North had been employed by the Ministry of Defence since December 1979, latterly as Director of Customer and Technical Services in the Medical Supplies Agency.
3. On 6 April 2001 he was suspended following allegations that he had 'behaved towards a subordinate officer in such a manner as to create for him an intimidating, hostile and humiliating work environment'. A formal charge of serious harassment was set out in a letter to Mr North dated 23 April 2001. Such a charge, if proved, constituted gross misconduct under the Ministry of Defence disciplinary code.
4. There followed a hearing over several days involving oral and documentary evidence resulting in a lengthy and detailed report of the conclusions reached by the Hearing Officer. That Officer concluded that Mr North had been guilty of serious harassment, that this amounted to gross misconduct and that Mr North should be dismissed.
5. The Hearing Officer's report and relevant documents were submitted to a Deciding Officer. He heard further representations from Mr North and his legal representative. The decision was that Mr North be dismissed and this was effected summarily on 18 January 2002.
6. The hearing at the Employment Tribunal took place over four days in April and May 2003. The decision was reserved and the panel met for discussions over a further two days in May. The decision, by a majority with the Chairman dissenting, was that Mr North had been unfairly dismissed. It was further found that he had contributed 25% to the dismissal.
7. In the Extended Reasons sent to the parties on 3 June 2003 the Employment Tribunal first set out in its paragraphs 6-18 the relevant law regarding unfair dismissal. It is not suggested by either party at this appeal that what is there set out is in any respect wrong or incomplete. The Employment Tribunal found that the dismissal was by reason of Mr North's conduct, again an uncontentious finding. They recorded a concession by Counsel for Mr North that the Hearing Officer, Mr Keen, and the Deciding Officer, General Menzies, both had a genuine belief in Mr North's misconduct, that misconduct being serious harassment. The remaining issues therefore in terms of the tests laid down in the case of British Home Stores v Burchell [1978] IRLR 379 were whether there were reasonable grounds for the belief and whether the investigations were in all the circumstances reasonable.
8. Finally, the Employment Tribunal had to determine, in order to answer the question posed in Section 98(4) of the Employment Rights Act 1996, whether in all the circumstances dismissal was within the range of responses of a reasonable employer.
9. Dealing with the question of the reasonableness of the investigation, the Employment Tribunal addressed in detail, especially in paragraphs 30-55 of the Extended Reasons, a number of criticisms made by Counsel for Mr North as to the procedures followed. The conclusion was by the majority in paragraph 58 that 'the investigation was a fair one' and by the Chairman in paragraph 63 that 'the Respondent, through Mr Keen and General Menzies, carried out an extremely thorough investigation of the complaints, considered at length the responses and found the allegations proved.'
10. As to whether the Ministry of Defence had reasonable grounds for belief in Mr North's misconduct, that misconduct being harassment of a junior employee, there were clear unanimous findings that it did. In paragraph 34 of the reasons the Tribunal said this:

"We have no hesitation in finding that Mr Keen conducted a careful conscientious and diligent investigation into the allegations, collected and recorded the evidence and his findings and based his recommendations upon them. General Menzies read all the documentation very carefully; it is perfectly clear that he was fully acquainted not only with the content of Mr Keens's report but the supporting evidence and came to his own conclusion. If he had disagreed with Mr Keen's recommendation he would not have hesitated to change it. Mr Keen saw the witnesses, noted their demeanour and took account of the complexities of the evidence. He drew his conclusions, recorded them and passed them to General Menzies. There was nothing to be gained by permitting the Applicant to start re-presenting the evidence after the findings of fact had been made by Mr Keen, indeed the whole purpose of the fact finding hearing by Mr Keen over four days would have been frustrated had that been done. In the event the Applicant was given the opportunity of presenting his case to Mr Keen and then again to make submissions to General Menzies."

11. In paragraph 54 of the decision the Tribunal said this:

"Mr Keen made specific findings as to the Applicant's behaviour and came to a judgment and recommendation as to the effect of that behaviour on Mr Mayo. Indeed Mr Keen was punctilious in his report in making specific findings of fact and basing his conclusions on them."

12. Clearly therefore the Employment Tribunal were unanimous in finding that the three stages of the Burchell test were satisfied. They then went on to consider the fairness of the dismissal. In paragraph 57 it is recorded that all members of the Tribunal were of the view that they would not have dismissed Mr North in the circumstances. The paragraph continues:

"We are conscious, however, that we did not have the benefit, as Mr Keen did, of interviewing Mr Mayo, Mrs Tunnicliffe, nor did we go into the individual complaints against the Applicant in anything like the same detail. We have rather addressed ourselves to the issues prescribed for us in Burchell, Madden and the Sainsburys case."

13. Paragraphs 58-61 of the decision then contain the findings of the majority that are the subject of this appeal:

"58. The majority of the Tribunal (the Chairman dissenting) find that while the investigation was a fair one in the terms of Sainsbury's v Hitt, dismissal of the Applicant did not fall within a range of reasonable responses of a reasonable employer. They do not share Mr Keen's and General Menzies' view of the seriousness of the matters proved against the Applicant. The majority considers that it has sufficient information to come to the conclusion not only that they disagree with Mr Keen and General Menzies but that their decision fell outside the range of reasonable responses.

59. Particular matters that draw them to this conclusion are the failure of Keen and Menzies to take into account the conduct of Mr Mayo. Reading the statements and letters of Mr Duddy, Mr Cox-Martin and the support from Mr Bradshaw it is difficult to come to the conclusion that this was anything other than a clash of personalities between two strong minded individuals which should have been dealt with by Mr Nimick at a management level. Both Mr Keen and General Menzies acknowledged Mr Nimick's shortcomings but the majority considers that they both fell into error in leaving the Applicant with the consequences of those management shortcomings. It is quite clear from the evidence presented to us that there was harassment by Mr North of Mr Mayo but also by Mr Mayo of Mr Duddy the warehouseman.

60. Having regard to Miss Carwardine's advice in her letter of 5 November 2001 it was hardly surprising that General Menzies rejected the possibility of mitigation: he was in the view of the majority steered away from it by the statement that long and good service should not be accepted as mitigating factors. She was quite wrong to state that good service could not be accepted as mitigating factors and in consequence of her apparently authoritative advice, a reasonable and relevant consideration was withdrawn from General Menzies' consideration.

61. The most important reason why the majority consider that dismissal fell outside a range of reasonable responses is their view that Mr Keen and General Menzies failed to take properly into account the highly relevant factor of the Applicant's 22-year record of unblemished service. The Applicant was acknowledged to have been a highly competent and committed pharmacist and manager. He felt the need to drive the departments for which he was responsible to get results. He came into conflict with Mr Mayo and made the mistakes that were found by Mr Maddison and Mr Keen. Any reasonable manager considering the circumstances and the long service of the Applicant would not, in the view of the majority, have dismissed. This is not just a difference of view or emphasis between them and Mr Keen and General Menzies; they consider that dismissal was not a response that a reasonable employer would have made it was beyond the range of reasonable responses."

14. The majority having thus found that dismissal was not a response which a reasonable employer would have made, found the dismissal to be unfair. The Chairman's contrary view is set out in paragraphs 63 and 64:

"63. The Chairman, on the other hand, considers that the decision did fall within a range of reasonable responses. I am in no doubt that the decision to dismiss was a harsh one and not one that I would have made. The Respondent, through Mr Keen and General Menzies, carried out an extremely thorough investigation of the complaints against the Applicant, considered at length his responses and found the allegations proved. I consider that, while the conduct of both Mr North and Mr Mayo could justifiably be criticised, it was the Applicant who bore the responsibility of being the senior officer in the case. It was Mr Keen's view (see paragraph 151 of his report) that the Applicant misused his authority in a number of ways and that his actions constituted serious harassment of a subordinate.

64. Mr Keen considered mitigation, including personal factors related to the Applicant and also his long service, and came to the conclusion that they were outweighed by the seriousness and nature of the offences. His decision was not polluted as was that of General Menzies by the inappropriate advice of Miss Carwardine. He came to his conclusions carefully and conscientiously and as he stated in his report with a great deal of reluctance. While I consider his decision to have been harsh, indeed right at the boundary of what could be regarded as a reasonable response, I am not prepared to say that the decision fell outside that range of reasonable responses. I would, therefore, dismiss the complaint of unfair dismissal."

15. There was then the finding that Mr North had contributed to his dismissal by the proportion of 25%.
16. By the Notice of Appeal the decision is said to be wrong in law on the following grounds. Firstly, that the majority erred by substituting its factual conclusions in place of the conclusions of the disciplinary hearing officer. It said that the majority made its own assessment of the evidence instead of examining the conclusion which the employers had reached from the stand point of the reasonable employer. Secondly, it is argued that the majority erred in applying the "range of reasonable responses" test. Thirdly, it is said that the expressed view of the majority that insufficient weight had been given by the Appellant to mitigation, was unsupported by the evidence and was a decision which no reasonable Employment Tribunal could have reached. The fourth ground of appeal relates to the proportion of blame and I shall come to that in due course.
17. On behalf of Mr North it is denied that the approach of the majority in the Employment Tribunal was wrong or that there was any usurping by them of the proper role of the employer in a 'conduct' dismissal. It is argued that what the Employment Tribunal majority were doing was no more than to reach a different and permissible conclusion or interpretation of the facts as found in order to answer the question whether the dismissal was a permissible option. Counsel for Mr North does not contend that the Employment Tribunal were not bound by the findings of fact made by the employer. He argued that the conclusion as to whether those facts amounted to harassment and therefore to gross misconduct was an issue which the Employment Tribunal could and did legitimately determine differently from the employer.
18. We have been referred to the cases of Midland Bank Plc v Madden [2000] IRLR 288 and Post Office v Burkett [2003] EWCA Civ 748. In both cases the issue was whether the Employment Tribunal had properly approached its role in considering a conduct dismissal. In Madden Mummery LJ said at page 7 of the report that we have before us the following:

"In my judgment no reasonable Tribunal properly applying the approach in Burchell's case and the Iceland Frozen Foods' case to the facts, could have concluded either (a) that the bank had failed to conduct such investigation into the matter as was reasonable in all the circumstances or (b) the dismissal for that reason was outside the range of reasonable responses.

Instead of determining whether the bank had made reasonable investigations into the matter and whether it had acted within the range of responses of a reasonable employer, the Tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him. The Tribunal focussed on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the bank's investigation into his alleged misconduct was a reasonable investigation.

This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an Employment Tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the result of that investigation, is a reasonable response."

19. Likewise, in the case of Burkett it was said at paragraphs 26-27 of the judgment of Mr Justice Wall:

"The Employment Tribunal also failed to give sufficient weight to its conclusion that the investigations by the employer were careful and proper. That being so I would have expected the Employment Tribunal to have concentrated on the factual position before the employer when considering whether there were reasonable grounds on which the employer could sustain the belief that Mr Burkett had deliberately overfilled the vehicle. It is implicit upon the fact that the investigations were proper and careful that the facts before the employer were appropriate for the employer to consider. It followed that the crucial question was whether the employer's response to those facts was acceptable. The approach of the Employment Tribunal was incorrect in that they concentrated upon the facts as they found them not upon the facts that where for the employer. The result is that this appeal should be allowed."

20. It is therefore clear that, the Burchell test being satisfied, in asking the question whether dismissal was in all the circumstances a reasonable response, an Employment Tribunal is bound by the factual matrix upon which the employer acted and is not entitled to review the whole or any part of the evidence upon which the employer acted. Looking at the matters referred to in paragraphs 59 and 60 of the Employment Tribunal decision, it is quite apparent to us that the two members of the Employment Tribunal in the majority did make reference to and relied on some of the matters which were evidence leading to the findings by the employer as to the facts. This they were not entitled to do, especially since what they refer to as being matters affecting their conclusions form a very small proportion of the overall history with which the investigation by the employer was concerned.
21. We also note that in referring in paragraph 61 to what is described as the failure by Mr Keen and General Menzies properly to take into account mitigating factors, the opinion of the majority appears to be in stark contrast to the already expressed unanimous view in paragraphs 55 and 56 of the reasons where it is said as follows:

"55. Mr Keen considered mitigation in four paragraphs at the end of his report. He referred to the fact that at the time of the e-mail exchange with Mrs Tunnicliffe in January 2000 the Applicant was under considerable strain because of the recent death of his mother-in-law, the strain of caring for her and the fact that he had back problems which caused him considerable pain. Mr Keen accepted that the Applicant had been under stress at the time. He also took into account the Applicant's unblemished 22 years service with the MOD. He said that he had taken it fully into account but the nature and seriousness of the matters alleged against the Applicant meant that he had no alternative but to confirm his recommendation that the Applicant should be dismissed.

56. Mitigation was referred to by Mr North's solicitors in their submissions to General Menzies and he himself referred to it in three paragraphs on the second page of his decision letter. He concluded - "I do no believe there are any mitigating factors in Mr North's case.""

22. We cannot accept the submissions by Counsel for Mr North that the majority in this Employment Tribunal were merely disagreeing with the interpretation of primary facts rather than with some such facts themselves. The Employment Tribunal is not entitled to say as the majority did in paragraph 58 of this decision already referred to that:

"They do not share Mr Keen's and General Menzies' view of the seriousness of the matters proved against the Applicant."

or that:

"The majority considers that it has sufficient information to come to the conclusion not only that they disagree with Mr Keen and General Menzies but that their decision fell outside the range of reasonable responses."

Nor is a Tribunal entitled to say as did this one in paragraph 59 of the decision:

"It is difficult to come to the conclusion that this was anything other than a clash of personalities between two strong minded individuals which should have been dealt with by Mr Nimick at a management level."

They are not so entitled in circumstances where the investigating officer Mr Keen had specifically considered that matter and had ultimately rejected it in the light of all the evidence which had been before him and which of course was not before this Tribunal.

23. These passages clearly indicate disagreement by the Employment Tribunal with the factual findings of the two officers in circumstances where that Tribunal had already determined that there was a full and fair investigation. We are satisfied that the majority of the Employment Tribunal thereby reached an impermissible conclusion of unfairness. On the basis of the proper factual findings by the MOD, dismissal was clearly within the range of responses of a reasonable employer.
24. We therefore quash the decision of the Employment Tribunal and we substitute a finding that the dismissal was fair. That being so we do not further consider the finding in relation to contributory conduct.