United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr T Martin, In Person 89 Lauchope Street Chapelhall AIRDRIE ML6 8SW
For the Respondents	Mr D W Reid, Representative Of- Mentor Services 2 Stewart Drive Clarkston GLASGOW G76 7EZ

SUMMARY
UNFAIR DISMISSAL

(1) No error on ET's finding R. acted reasonably in dismissing A. at the instance of its sole client, albeit R. acknowledged an injustice to A.

PRACTICE and PROCEDURE

(2) Application to adduce new evidence refused. PD para 8(2) applied.


 


HIS HONOUR JUDGE McMULLEN QC:

1. This case is unusual for it is about the dismissal of an employee, at the behest of his employer's sole client, in circumstances which are accepted to have created an injustice to the employee. The judgment represents the views of all three members who have pre-read the relevant papers. We will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against a majority decision of an Employment Tribunal sitting at Glasgow, where the Chairman, Ms L J Crone, was in the majority, registered with extended reasons on 10 December 2003. The Applicant was represented by his solicitor, and, today, represents himself. The Respondent was represented there and here by Mr D Reid, a Consultant. The Applicant claimed unfair dismissal. The Respondent accepted that it had dismissed the Applicant but argued that it was for some other substantial reason and was fair.

The Issues

3. The essential issues for the Employment Tribunal were to determine the reason for the dismissal and its fairness. It rejected the Applicant's complaint by a majority. He appeals against that decision. Directions were given twice in this case by the Honourable Lord Johnston in Chambers. First, he decided that this matter should be sent to a full hearing; secondly, following submissions made by the Applicant to introduce new evidence, and, submissions by the Respondent, it was ordered, in effect, that that issue should be decided by us today.

The Legislation

4. The relevant provisions of the legislation are sections 94(1) and (2) of the Employment Rights Act 1996 which provide a potentially fair reason for dismissal, and, in this case, it is argued to be some other substantial reason justifying dismissal. Section 98(4) deals with fairness and provides as follows:-

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The Practice Direction 2002 deals with fresh evidence provides as follows:-

"8 FRESH EVIDENCE AND NEW POINTS OF LAW

(1) Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the Respondent's Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence must be disclosed in a document, where appropriate an affidavit from the relevant witness, which must be similarly lodged and served."

5. The Employment Tribunal directed itself by reference to those relevant provisions of the statute and what we hold to be the relevant authorities which are cited in its reasons including Grootcon (UK) Ltd v Keld [1984] IRLR 302 and Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329. Other authorities were cited but they do not assist us on appeal.

The facts

6. The Tribunal found the relevant facts to be as follows, having heard from the important actors in this drama, James Farrell, the owner and Managing Director of the Respondent, William Hughes, his Manager and David Mowat, the Supervisor of the Applicant. The Applicant also gave evidence himself of course and called another witness.

"1. The respondent company is in the business of delivering DX mail and consigned parcels. They have one client, Hays.

2. The respondent company employs approximately 40 employees, 36 of whom are drivers and 4 administration staff. The drivers each have their own route in particular geographical areas where Hays operate.

3. Hays have a distribution centre in Hillington. Steve Lawson is the General Manager responsible for that site, and it is his responsibility to ensure that standards are met by the respondent's drivers.

4. The applicant commenced employment with the respondent on the 1^st August 1999 as a driver. He earned £12,000 per annum, giving a net monthly take home pay of £822.40.

5. The applicant's route was in the Bellshill/Motherwell/Wishaw area. This was a route he had always worked.

7. The goods to be delivered could consist of mail; consigned and non consigned goods. The consigned goods are important: their delivery is time specified and they must be signed for upon delivery. The non consigned goods have no time specification for delivery and no signature is required to confirm delivery."

7. The Respondent received a complaint from Steven Lawson of the sole client of the Respondent, Hays DX, relating to the failure of the Respondent, through its driver, Mr Martin, to carry out the duties of delivering materials on 7 March 2003.
8. The complaint was followed shortly by a complaint in similar terms about another driver. As a result both were dismissed. There is a procedure within the Respondent for dealing with matters, and, in any event, the Tribunal found that Mr Farrell was so concerned about the complaint made by Mr Lawson and the consequences for the Applicant, that he sought to negotiate with Mr Lawson for a change of position. The Applicant in due course was dismissed and his appeals within the Respondent were also dismissed.
9. The Respondent accepted that the effect on the Applicant should be considered carefully. There was injustice to him in Mr Farrell carrying out the diktat of Mr Lawson. But, that, nevertheless, in the interests of the business, the dismissal would be effected. It was accepted by Mr Farrell that many of the points made by Mr Lawson were inaccurate, and, on proper investigation, would be resolved in favour of the Applicant. And thus had Mr Farrell been in charge of the decision unfettered by the third party, he would not have dismissed the Applicant although he might have disciplined him for what occurred.
10. The Tribunal came to the conclusion that the reason for the dismissal was that Mr Lawson instructed that the Applicant was no longer to be allowed to carry out his duties for Hays DX. Mr Lawson did not demand the dismissal of the Applicant but the Tribunal noted that the effect of such instruction amounted to the same thing where there were no alternative places to deploy the Applicant. Thus the Respondent satisfied section 98(1) and (2) and the Tribunal went on the consider 98(4).
11. It found as follows:-

"We carefully considered whether the respondent reacted reasonably to the pressure exerted by Mr Lawson, in dismissing the applicant. We noted the following points from our findings in fact:

( Mr Hughes immediately asked the applicant to attend the office to discuss the situation with him; the applicant was shown the letter and given an opportunity to comment.

( Mr Hughes and Mr Farrell visited Mr Lawson the following day to discuss the situation with him.

( Mr Hughes and Mr Farrell (and Mr Mowat) agreed that it was not accurate for Mr Lawson to describe a day's work by merely noting the times consigned packages were delivered; nor was it fair to compare one day's deliveries with another when only consigned packages were being considered, and informed Mr Lawson of this.

( Mr Hughes and Mr Farrell raised all of these issues with Mr Lawson.

( Mr Farrell discussed the matter with Mr Lawson on at least three occasions to try to persuade him to change his mind.

We were satisfied, having taken into account the above points, that there was consultation with the applicant to inform him of the situation; and that there were discussions with Mr Lawson from a very early stage regarding the situation - these discussions included providing Mr Lawson with information/advice as to why his method of analysing the situation was not correct. All of these discussions were in vain."

12. It then went on to consider what is the central issue on the appeal, which is whether or not, faced with the obduracy of Mr Lawson, it would have been reasonable to go above his head, ss to which the Tribunal's considerations were as follows:-

"The next issue to consider is whether a reasonable employer, placed in the same position as the respondent, would have taken the matter over Mr Lawson's head to a higher authority. In considering this matter we took into account the fact that (a) the respondent is a small employer with 40 employees -36 of whom are drivers; (b) the respondent has only one customer - they work exclusively for Hays at the Hillington depot; (c) Mr Lawson was the senior manager on site, he was responsible for the standard of the work provided by the respondent on site and in servicing the needs of the customers; (d) the respondent had no written contract for carrying out work with Hays, and they were in the middle of negotiations for a franchise for the work; (e) Mr Lawson had no authority to terminate the respondent's contract; (f) negotiations for the franchise were taking place with people in higher positions than Mr Lawson; (g) Mr Farrell was of the opinion that although Mr Lawson was not directly involved in those negotiations, he would have a say in the matter to the extent of how the respondent had performed in carrying out the work thus far; (h) Mr Lawson had already written to the respondent (R10) stating that if he did not see an improvement in performance he would have to review their long term relationship; (i) Mr Farrell described Mr Lawson as a difficult person to deal with and (j)Mr Farrell felt the survival of his company was at risk if the work with Hays disappeared."

13. In those circumstances a division appeared at the Employment Tribunal, for the Chairman and one member had great sympathy for the view that the Respondent behaved unreasonably, but could not come to that conclusion. It seemed to be common ground that this was the essential point in the case. Indeed, strength is given to that view, (see page 13 line 23), by the fact that it is in essence the sole ground of appeal in this case.
14. The Tribunal majority said this:-

"A reasonable employer would have considered the suggestion of the employee to go over the head of Mr Lawson - Mr Farrell did this and reached the decision that it was not in the best interests of his company to do so. His evidence that on-going negotiations for a franchise were at stake, was not disputed; and there was also the letter. (R10) from Mr Lawson which cautioned that unless matters improved the "long term relationship" will have to be reviewed."

15. The Tribunal then stood back and looked at the procedure as a whole, relating to the unusual circumstances which were facing the Respondent in dealing with the Applicant. Could there have been more attention to investigation and so on? The Tribunal acquitted the Respondent of charges of failing to carry out a proper procedure and there is no appeal against those aspects.
16. The Tribunal addressed itself to Dobie ...above) and said this, citing from it:-

"The Dobie case (supra) made it clear that "the justice or otherwise to the employee in the employer's conduct is plainly a matter which has to be taken into account in deciding whether the employer acted reasonably or unreasonably in dismissing the employee". The Chairman and one member were satisfied that this has been taken into account in considering the actions of the employer, but for all the reasons stated above, we find the dismissal to have been fair. The dissenting members decided the dismissal had been unfair for the reasons set out above."

In those circumstances, we think with a heavy heart, the Tribunal dismissed the Originating Application.

The Applicant's case

17. The Applicant submitted:-

"The grounds upon which this appeal is brought are that the employment tribunal erred in law in that they found the respondents acted reasonably in not discussing the third party pressure which lead to the dismissal of the Applicant with the superiors of the third party."

18. It is also asserted that the Tribunal acted perversely when it held that the justice to the Applicant was not taken into account. In support of the Applicant's case is an affidavit produced by John Docherty. We will deal with this evidence in accordance with the Practice Direction which mirrors both the authority of the Court of Appeal in Ladd v Marshall and the later EAT case of Wileman v Minilec Engineering Ltd [1988] IRLR 144 Mr Justice Popplewell presiding, at paragraphs 13 to 15.
19. Having heard the circumstances with which this affidavit was produced, we are asked to exercise our discretion to allow it to form part of our considerations.

The Respondent's case

20. On behalf of the Respondent on the issue of the new evidence, it is contended that the affidavit meets none of the three requirements of the Practice Direction. As to the Applicant showing that he could not, with reasonable diligence, have produced it before the hearing, the Applicant has failed to prove such contention. It is also contended that the evidence would probably have no important influence on the case, and, thirdly, that it is not apparently credible.
21. Turning to the substance of the affidavit, if it were to be admitted, it is contended on behalf of the Respondent that the evidence does not address the single ground of appeal on which this case proceeds, ie the material available to Mr Farrell at the time he made his decision, both to dismiss the Applicant and not to go above Mr Lawson's head. As to the allegation of perversity in relation to consideration of the justice to the Applicant, it is contended that the Tribunal, on its reasons, plainly considered justice, and, indeed, holding in favour of the Applicant that an injustice was committed to him by the Respondent.

The legal principles

22. The legal principles are set out plainly in Dobie, (para 16 above). In addition it is clear that what is in contention is the reasonableness of the action of Mr Farrell, and his fairness in the decision which he made. As to the introduction of new evidence, the principles are clear from the authorities we have cited and the Practice Direction.

Conclusions

23. We reject the arguments of the Applicant and have decided to uphold the Respondent's contentions. First, we will deal with the application for new evidence to be adduced.
24. We will accept the Applicant's position that he was not with reasonable diligence able to produce this material before the Employment Tribunal hearing. After all, he did not know about the conversation relied on, and so we would support the introduction of the affidavit in respect of that ground. However, we have grave doubts about it meeting the condition of apparent credibility. When we asked Mr Martin what he wanted to say about the written response of the Respondent relating to what might be described as bad feeling, between Mr Docherty and Mr Farrell, he acknowledged that he could not add anything to that matter.
25. In our judgment, we have to bear in mind that we would need quite clear evidence in order to allow this material to influence ours. Issues such as credibility are ones for the Employment Tribunal and we are dealing only with what is apparently credible. We have not seen Mr Docherty or been able to listen to his answers on cross-examination, but in a number of respects, it appears to us that his credibility would be the subject of forceful attack by the Respondent if his evidence were to be put before the Employment Tribunal on remission by us.
26. For example, it is asserted by Mr Docherty that letters were sent requiring the dismissal of employees, and although the Tribunal has noted, that, in effect, that was the impact of the letters, they are not expressly in those terms. Thus we would reject the introduction of this evidence on the grounds that it does not meet the test of "apparently credible".
27. We would also reject the contention that it could be sufficiently influential, for we do not consider that it goes to the heart of the appeal now before us, given, as we have indicated, what the correct question was. Mr Docherty's evidence does not attack the state of knowledge of Mr Farrell as at the time he made his decision to dismiss. It will be recalled that he and Mr Hughes had approached Mr Lawson for a change of mind and they had anxiously considered the effect on their business of taking the matter above Mr Lawson. Mr Lawson, at a critical time in the relationship between Hays DX and the Respondent, was capable of having some influence since, he was Hays DX relevant manager, although we accept not the decision-maker. Thus for that reason we will also reject the application to introduce Mr Docherty's evidence and we will turn to the substance of the case.
28. The Tribunal plainly did not find the question easy to answer. The fact that a decision is split, does not make the conclusion of the majority any less safe, although it is often tempting to make submissions to that effect (see Chief Constable of The Thames Valley Police v Kellaway [2000] IRLR 170 EAT Mr Justice Morison presiding.
29. The essential issue for us is whether the Employment Tribunal majority committed an error when it held that Mr Farrell did not give consideration to taking the matter over Mr Lawson's head, or, if he did, that he behaved unreasonably when he decided not to.
30. In our judgment, the anxious consideration given by the Employment Tribunal, majority and minority, to this position reflects the very difficulties faced by Mr Farrell. No error of law has been identified in the approach of the Tribunal to the evidence of Mr Farrell. We have already cited the detailed reasoning of the Tribunal giving a number of factors which swayed it to decide the way it did, and, at the same time, those factors which could only be described as favourable to the Applicant, that is, that the Applicant, had he been given a fair approach to this by a person uncluttered by the shadow of Hays DX, would not have been dismissed and would have made his points soundly.
31. It must be remembered that the issue in this case is not whether or not the Applicant committed the offences alleged by Mr Lawson but iwhether the Respondent acted reasonably in deciding to dismiss him having not gone above Mr Lawson's head. Views plainly differed as to the reasonableness of that decision and we can see that both the minority and the majority had cogent arguments for their position. But, ultimately, the decision was made. We do not see an error which entitles us to intervene in this case in a jurisdiction which relies upon questions of law. And whilst we too have great sympathy with Mr Martin and the difficulty he faced, and, indeed, with Mr Farrell, in losing an otherwise good employee and driver, we cannot detect an error of law in the Tribunal's careful approach to weighing all these factors and we will dismiss the appeal.
32. We would like to thank both Mr Reid and Mr Martin for their very careful and measured approach to our proceedings today.