United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR F TIZZANO (of Counsel) Instructed by: Parker Arrenberg Solicitors 37 Rushey Green Catford London SE6 4AS
For the Respondent	MR S LAMBERT Solicitor Eversheds LLP Solicitors 1 Callaghan Square Cardiff CF10 5BT

SUMMARY
Unfair Dismissal Fairness of the procedure


 


HIS HONOUR JUDGE D PUGSLEY

1. This is an appeal from the Decision of the Employment Tribunal sitting at London Central, in which the majority dismissed her application that she was unfairly dismissed. The issues in the case were set out in the Tribunal Decision. The background is as follows: the Applicant was employed as a Library Assistant with the British Library. At the time of her dismissal she worked at the St Pancras site. Her employment had begun in April 1990 and at the time of her dismissal, her line manager was Joan Darrell, a team leader. Leathea Lee was the team leader of an adjacent team, and there seems to have been an overlap of roles between the two team leaders. Mrs Dobbs was employed on a Grade E basis.
2. There had been a history to Mrs Dobbs' appointment. This is set out in the chronology appended to the most helpful submissions made by the Appellant. It shows a long history for someone who had commenced employment in 1990. By 27 June, 1991 (pages 58-60 of the bundle refers) the Respondent's manager was commenting on the Appellant's poor relations with other staff members, in an annual performance appraisal. In July of the same year, the Respondent extended the Appellant's probationary period to a further six months. In August 1991 the Appellant raised a grievance procedure in respect of an annual performance appraisal.
3. In January 1992 the Appellant successfully completed her probationary period. In November 1996 the Respondent's manager, Keith Ithell, has a formal discussion with the Appellant concerning her allegedly aggressive behaviour, when she feels she has been treated unfairly. The Appellant denied that she behaved in such a manner. On 29 January 1997, Mr Ithell wrote, asking for her to attend an interview to discuss serious concerns regarding her general conduct; there was a meeting on the 30^th between the Appellant and Mr Ithell, during which Mr Ithell records the Appellant's behaviour was unacceptable, and he would raise with her the issue of a final warning.
4. The Appellant was issued with a formal written warning on 7 February 1997 regarding her lateness and refusal to be redeployed and her behaviour towards Mr Ithell. In June 1998 Ms Pitcher, the Human Resource Officer, wrote to Mr Ithell pointing out that there was no review date held on file, in respect of the formal warning issued on 7 February. In June 1998 Mr Ithell wrote to the Appellant inviting her to an interview to discuss her attendance record. In July 1998 Mr Ithell issued a formal written warning to the Appellant, regarding her attendance. In September 1998, at the annual performance report, the Appellant's line manager, Elizabeth McArdle, wrote that the Appellant: "finds difficulty in dealing with authority …… and shows an openly contemptuous attitude". The chronology suggests this was discussed at a meeting on 30 June. We suspect that is a misprint and the meeting was later.
5. In January 1999 there was a further formal warning regarding excessive sickness and a further review. In May 1999 there was an annual appraisal and comments on improvements in the Appellant's behaviour. In November 1999 there was an issue about pay which led to the Appellant thanking Ms McArdle for her "poisonous efforts". In December 1999 Mr Ithell wrote to the Appellant regarding her comments and she was issued with a final warning. According to the findings at paragraph 44 this final warning was issued outside the procedure. There was no disciplinary hearing.
6. The Appellant was transferred to the Rare Books and Music Room in 2000, and in 2001 there was another informal warning concerning attendance. There was then discussion in October about her sickness record; there was then a further warning in October 2001 for poor attendance. There was then a grievance raised by the Appellant.
7. In May 2002 the Appellant wrote, pointing out that the grievance had not been dealt with and no one replied to her letter, and then in October the Appellant spoke to a colleague about the warnings received in October 2001, comments that "she had a rifle on order and that she was going to be the next Sniper at the British Library". This remark, not surprisingly, was reported to management and she was suspended from duty. It is in that context that this Appellant came to be suspended. The solicitors acting for the Appellant wrote to say that if the Respondent took this threat seriously, they would expect the police to be informed. No doubt acting on that letter, the Respondents did inform the police, and they, we suspect very sensibly, said they were not going to be taking any action.
8. There was then a disciplinary hearing in December 2002 and the Appellant was dismissed. The dismissal that was recommended took place in January 2003. It is against that background that we look at the case. Mr Tizzano in the Skeleton Argument sets out the well known cases concerning disturbing a Tribunal's decision acknowledging that he faces a difficult task. Mr Tizzano accepts that in Chief Constable of the Thames Valley Police -v- Kellaway [2000] IRLR 174, Mr Justice Morison, President at the Employment Appeal Tribunal, pointed out the fact that there was a split decision, which may be a good indicator for care, which can be taken by all three members in reaching a decision and even when, as in this case, the Chairman is the dissenting member, that does not give an automatic right of appeal.
9. We are well aware that appellate courts look at the original decision with the specious wisdom of hindsight. Nevertheless we consider that there was a blemish which permeates the whole of this Decision, and it is one which, if we may say so, is serious. It is not necessary for each Employment Tribunal Chairman to rediscover the wheel and state absolutely first principles every time a decision is drafted. There is authority for that rather trite proposition; we do not think it is necessary to refer to it. However, what anyone reading that Decision has to know is not that the law has been recited in its pro forma way, but that it has been applied. Frankly we are not. We do not blame Counsel, apparently they were put under time limits, but neither of them referred to the case of Polkey -v- A E Dayton Services Ltd [1987] ICR 301 HL.
10. Quite simply looking at paragraph 39 and paragraph 47 when the majority members set out their view we do not feel confident that the Tribunal have applied themselves to remembering that it is no longer the case that Tribunals ask this question "Was the dismissal fair? If it was, the fact that procedure was unfair does not matter because it was fair to dismiss".
11. That is a very broad precis of the complexities of the law as it existed in Byrne -v- Labour Pump Company Ltd [1979] ICR 347 EAT, but times have moved on. If one looks at the paragraphs which we have referred to, quite simply they have a curiously dated air about them. The Tribunal had to ask itself not whether any deficiencies in the procedure would have made any difference; they have to simply ask themselves on the Burchell test, did the Respondents believe, on reasonable grounds, that the employee was guilty of the misconduct that took place and the Tribunal had adopted a fair investigation of the procedure. Quite simply, we cannot accept that the finding that this dismissal was fair - in the absence of a Polkey direction.
12. Subsumed within the documents that the Board saw were extremely prejudicial views about Mrs Dobbs. The Tribunal Decision sets out a summary of these matters in paragraphs 44, 45 and 48. The decision to dismiss was, to some extent, based on a final written warning which had not been preceded by a disciplinary hearing, about which the Applicant had not been told she had a right of appeal or right to seek to have it removed after 12 months. To include in the panel's bundle comments such as those that were made

"She has little to recommend her; on the contrary she seems to have problems that affect the people around her. She could become more of a liability than an asset"

[paragraph 39 of the Decision].

is to conduct a procedural hearing in a way that raises issues as to its fairness. One member thought that some of the documents that were before the Tribunal should have been. The other member sided with the Chairman on various issues, but nevertheless thought overall the Decision was fair. At paragraph 39 it is stated:

"However this did not render the dismissal, which in his opinion was fair, an unfair one"

13. In paragraph 47 and 48 the Tribunal say this:

"47 The Tribunal focussed in particular on the fairness of the disciplinary inquiry. Despite the shortcomings which were acknowledged by one Member in particular, both Wing Members found that the inquiry satisfied all three limbs of the Burchell test. They were also satisfied that, by her conduct, Mrs Dobbs aggravated the original incident when, in offering an explanation, she said she did not mean what she had said because she would need to take shooting lessons first. In saying this, she compounded the original offence.

48 The Chairman's view is that the Respondent's inquiry and investigation were fatally flawed because of the inclusion of so much prejudicial information. The inclusion of this documentation, which was highly prejudicial to Mrs Dobbs, was taken into consideration in reaching the decision that she was guilty of gross misconduct. This undermines the second limb of the Burchell test, that the employer had in his mind reasonable grounds upon which to sustain belief in the employee's misconduct. The evidence which was relevant, was tainted by the irrelevant prejudicial documentation and rendered the inquiry flawed. In addition to this documentation, Ms Tylee confirmed that the Respondent also had in mind the fact of the final warning. This influenced the finding of gross misconduct and also the sanction. This was not a "true" final warning and should not have been on the file. In the circumstances, the Chairman's conclusion is that the Respondent did not follow a fair procedure and the dismissal was substantively unfair."

If we may say so we are uncomfortable with the findings in paragraph 47. We consider this case should go back to a fresh Tribunal to consider whether or not, in the light of the case of Polkey, this dismissal was unfair. If it decides the dismissal was unfair, it then has to ask itself the question "if a fair procedure had been adopted what is the percentage chance that the Appellant would still have kept her employment?"

14. The Tribunal would still have to consider the question of the extent to which the Appellant contributed to her dismissal. We hope we are not sounding prejudiced in saying that, this is a case where the Appellant has some considerable difficulties. We are not satisfied that the Tribunal properly set out and applied that area of law enshrined in what is conveniently called the "Polkey" issue, and there is an element of justifying the procedure in the light of justifying the dismissal, which is the very thing that Polkey says you must not do.
15. This is not one of those rare and exceptional circumstances, where one could say that there is no need to investigate the matter, or any procedural matters. Polkey was a redundancy case and there are circumstances in one can envisage that that might be the case; if, for example, the whole of the factory was closing down. On the facts of this particular case we consider the appropriate matter is to allow this appeal; to remit it to a differently constituted Tribunal and for them to ask this question "Was there a dismissal? If so, was it unfair; do we make contributions on the basis of a fair procedure the Appellant would still have been dismissed, or may have been dismissed, and if so what are the percentage chances, and for them to consider the issue of contribution of conduct?
16. What we consider fundamentally tainted this was the admission of matters, which we consider arguably lay outside the ambit of a reasonable response of an employer to include within a disciplinary procedure without asking the appropriate question. In those circumstances, we do not think there is any other alternative but to allow the appeal and to send this matter back afresh to another Tribunal. Despite the attractiveness of the argument put to us by Mr Lambert, for the Respondent, we consider that the failure to adopt the approach laid down in Polkey is fatal to this case.