United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS N ELLENBOGEN (of Counsel) Instructed by: Mr Raj Tank Avon Cosmetics Ltd Legal Services Nunn Mills Road Northampton NN1 5PA
For the Respondent	MR K TURNER (of Counsel) Instructed by: Messrs Turner Coulston Solicitors 29 Billing Road Northampton NN! 5DQ


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Avon Cosmetics Ltd, the Respondent, before the Bedford Employment Tribunal, against that Tribunal's Decision, promulgated with Extended Reasons on 9 July 2002 following a three day hearing and a day of deliberation in Chambers, upholding the Applicant, Mr Laker's complaint of unfair dismissal. In this judgment we shall refer to the parties in the same way as below.
2. The Tribunal's Reasons are very full. They come to this. The Applicant commenced employment with the Respondent in February 1990. He worked his way through the ranks until in 2000 he was made Head of Support Services, a senior management role at their Northampton site. Despite his promotions he received no management training, although his performance was from time to time praised. His service record was unblemished.
3. In April 2001 complaints of what the Tribunal described as conduct synonymous with bullying were made by junior members of staff. An investigation was carried out leading to a disciplinary hearing in June 2001 which resulted in the Applicant's summary dismissal. A subsequent internal appeal against dismissal failed.
4. The Tribunal found:

(1) that the reason for dismissal related to the Applicant's conduct, a potentially fair reason for dismissal. The conduct was abusive and threatening behaviour towards his subordinates, inappropriate in a senior manager, synonymous with bullying.

(2) The Respondent had a genuine belief that the Applicant had been guilty of such conduct: they had reasonable grounds for that belief following a reasonable investigation.

(3) A fair disciplinary procedure was used.

(4) The Applicant had accused those four direct reports who complained about his behaviour of lying; the relationship of trust and confidence between him and those employees might have been destroyed.

(5) Bullying was an inherently serious matter, notwithstanding any ambiguity in the Respondent's disciplinary procedures, which did not specifically include bullying of junior staff under the list of acts amounting to gross misconduct.

5. However, the Tribunal concluded that a reasonable employer would take into account, in the Applicant's favour, set against the finding of bullying, that he had eleven years unblemished service; he had been promoted several times; had been publicly praised for his performance and had received no management training . In these circumstances, they found, no reasonable employer would have dismissed him as opposed to imposing a lesser penalty.
6. Miss Ellenbogen submits, in her first ground of appeal on behalf of the Respondent, that in so concluding that the dismissal was unfair the Tribunal fell into error, first, by failing to ask themselves the correct question under section 98(4) of the Employment Rights Act 1996 (see Post Office -v- Foley [2000] IRLR 827), namely whether dismissal fell within the range of reasonable responses, that is, where one reasonable employer might not dismiss but another would, the dismissal is fair. Alternatively, that such conclusion was perverse.
7. In response Mr Turner submits that the Respondent's submission assumes a finding of gross misconduct by the Tribunal. We do not think that it does; although a case of gross misconduct will normally lead to a finding of dismissal falling within the range of reasonable responses, it does not necessarily follow, any more than a case not amounting to gross misconduct necessarily falls outwith the range of reasonable responses in resulting in dismissal. Secondly, he contends that dismissal is not necessarily appropriate. That is part of the range of reasonable responses test. Thirdly he invokes section 98(4). That is the provision which the Tribunal was bound to apply in accordance with Foley
8. Having considered the rival contentions, we accept Miss Ellenbogen's submission, first that the Tribunal misdirected themselves in law as to the correct test under section 98(4) and secondly, that their conclusion was perverse in the way described by Lord Justice Mummery in Foley at paragraph 49. Having done so, we have concluded that this is a case in which we should, on the facts as found by the Tribunal, substitute a finding of fair dismissal. Accordingly we allow the appeal and dismiss the Applicant's complaint.
9. Two further points were taken in the appeal, which it is not strictly necessary for us to determine. However for completeness, we should say first that we would have rejected the ground based on the Polkey principle that it was not just and equitable to award any compensation in this case under section 123(1) of the Employment Rights Act, but that secondly, we would have upheld the appeal against the Tribunal's finding of contribution which appears at paragraph 100(4) of their Reasons. It seems to us that the Tribunal failed to make the necessary findings of fact as to whether the Applicant was guilty of the conduct alleged for the purpose of the contribution argument raised below on behalf of the Respondent; secondly, whether that conduct so found amounted to culpable or blameworthy conduct, something which Mr Turner accepts on behalf of the Applicant in this case; thirdly whether that conduct caused or contributed to the dismissal, and finally, if so, the relative blameworthiness between parties expressed in percentage terms.
10. On the issue of contribution we would have allowed the appeal and remitted the matter not to the same but to a different Tribunal for re-hearing on the basis that this Tribunal appears to have reached a firm conclusion on the merits of this case, and if the matter were to be remitted to that Tribunal, whilst we have every confidence that they would approach the matter fairly, the perception, so far as the Appellant is concerned, would have been that they would not receive a fair hearing. We would have reached that conclusion, notwithstanding the alternative submission made by Mr Turner that in view of the relative financial positions of the parties, it would not have been proportionate to remit the case other than to the original Tribunal.