United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAN STACEY (Of Counsel) Instructed by: FRU Hailsham Chambers 4 Paper Buildings Temple London EC4Y 7EX
For the Respondent	MISS R THOMAS (Of Counsel) Instructed by: Messrs Eversheds Solicitors Kett House 1 Station Road Cambridge CB1 2JY

SUMMARY

Reasons not sufficient on the question whether at the appeal stage a reasonable employer could reasonably find that the Appellant had committed the acts of misconduct alleged. Matter remitted to same Tribunal.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Michael Phillips against a Decision of the Employment Tribunal sitting in Watford entered in the Register on 28 May 2003. By its Decision the Tribunal rejected Mr Phillips' complaint that he had been unfairly dismissed by the Royal Mail Group ("RMG") from his employment with them as a postman.

The Background

2. Mr Phillips was employed by RMG at their Epping Delivery Office. He had worked there for more than twenty-two years. In 2001 there were reported incidents of damage to staff cars while parked in the car park. In December 2001 a colleague of Mr Phillips, Mr Dolling, accused him of causing damage to his vehicle with a post office van. The matter was reported to the Depot Manager. The Depot Manager and Mr Dolling made a plan to watch Mr Phillips secretly to see if he could be caught in the act of causing damage. That was to happen on 20 December 2001. However, as Mr Phillips was on his way to work that morning a member of the public, Mr Cunnew, stopped Mr Phillips and caused him to be arrested. Mr Cunnew accused Mr Phillips of damaging his car on the street. Mr Cunnew also complained to RMG.
3. When Mr Phillips was released by the police RMG suspended him. RMG's Depot Manager investigated. He interviewed members of staff. He received correspondence from people in Laburnum Road as to their suspicions of Mr Phillips damaging their vehicles. He carried out a fact finding interview with Mr Phillips. Then, concluding there was evidence to link Mr Phillips with what happened on 20 December 2001 and with the history of damage to private cars in the yard, he referred the matter to Mr Clingham, a manager with authority to dismiss.
4. On 16 January 2002 Mr Phillips was charged under RMG's Conduct Code with wilful damage to private and official vehicles and with bringing RMG into disrepute within the local community in which it serves. On 21 January 2001 Mr Clingham interviewed him. By letter dated 30 January 2002 he was informed of RMG's intention to dismiss him, Mr Clingham essentially finding the case proved. By letter dated 4 February 2002 Mr Phillips appealed his decision.
5. The appeal was dealt with by Mr Lucking, RMG's Lead Senior Appeals Manager. On 26 February he conducted a hearing at which Mr Phillips was represented by his Union. The hearing lasted two hours. A note was sent to Mr Phillips for him to agree as he did with minor amendments. Following the appeal hearing Mr Lucking carried out further enquiries. He spoke to Mr Cunnew. He took further statements from employees. He inspected vehicles - in particular marrying up certain damage to vehicles with certain damage to Mr Phillips' van. His further enquiries were quite extensive. The Tribunal did not set them out but referred to them in its Decision by reference to documents, which it identified. After making these enquiries Mr Lucking wrote to Mr Phillips. He provided Mr Phillips with the product of the enquiries. He offered him the chance to comment which Mr Phillips did in a detailed written reply dated 6 April.
6. By letter dated 15 April Mr Lucking dismissed Mr Phillips' appeal. He said:

"I believe that Mr Phillips did deliberately damage employees' cars which were parked near to him by opening doors of his royal mail vehicle with considerable and deliberate force onto those cars. He may also have deliberately scratched cars using a sharp object.

I believe that in doing so he damaged over time both doors of the royal mail vehicle.

Further, I believe that he did deliberately scratch Mr Cunnew's car and probably also scratched other vehicles in the Coopersale area. In doing so brought Royal Mail into disrepute in the local community.

Mr Phillips, at his formal interview alleged that he had been set up in some way, but at appeal he said that he felt the employees had nothing against him, also that he was unable to point to any members of the public who had any grudge against him. I believe Mr Phillips is alone responsible for what happened.

Damage to the official vehicle and to employees' cars were not isolated incidents. The acts which brought this about were deliberate and over a period of time and are sufficient in my view to be classed as gross misconduct for which summary dismissal would normally be appropriate. His bringing the business into disrepute through his activities, at least Mr Cunnew's car reinforced this conclusion.

Mr Phillips offered no extenuating or mitigating circumstances of any substance and I have considered his length of service. Nonetheless I feel that in view of the nature and extent of his offences, that summary dismissal is appropriate."

The Tribunal's Decision

7. The Tribunal heard Mr Phillips' case over three days in November 2002 and on a day in February 2003. Mr Phillips was represented by Mr Stacey from the Free Representation Unit (not, as recorded in the Tribunal's Decision, a union representative). At the end of the hearing both parties presented written submissions. We have seen the written closing submissions of Mr Stacey. They are detailed, thorough and well structured. They pull no punches. The Tribunal summarised them briefly at paragraphs 49-51 of the Decision.
8. The Tribunal's Decision sets out the history (in greater detail than our summary). It quotes from RMG's Code of Conduct. It summarises the arguments briefly but fairly. In particular it records Mr Stacey as arguing that RMG failed to follow a fair procedure at both the disciplinary hearing and the appeal hearing and that a fair investigation was not carried out. The Tribunal sets out the law in a way to which no exception can be taken. It plainly had the correct legal test in mind. The Tribunal found that the reason for dismissal was conduct. The Tribunal reviewed the initial suspension, investigation and decision to charge Mr Phillips. Up to this point it found that RMG acted reasonably – see paragraphs 59-60.
9. However, the Tribunal went on to find that the disciplinary stage of the procedure was unfair. The Tribunal found that Mr Clingham had unrecorded discussions with the Depot Manager, which was unfair; and further that by the time the hearing took place he had made up his mind to the point where nothing Mr Phillips said could have persuaded him. Moreover, the evidence gathered up to this stage, the Tribunal found, did not link Mr Phillips to particular damage caused to staff vehicles. Moreover, for Mr Clingham the issue as to Mr Cunnew's car was a secondary matter. He made no findings about it. For these reasons the Tribunal concluded, there was no satisfactory basis in evidence for Mr Cannew's conclusions – see paragraphs 61-66 of the Decision.
10. We pause to say that the manner in which the Tribunal dealt with the disciplinary stage of the procedure and the reasoning it gave was exactly what we would expect. It was succinct but it dealt with the principal issues in the case before reaching a conclusion.
11. It is the Tribunal's findings about the appeal hearing which are subjected to criticism in this appeal:

"67. The Tribunal find that the appeal hearing was a full re-hearing and as such was capable of remedying any failings of the disciplinary hearing.

68. The Tribunal in examining the appeal hearing, is satisfied that Mr Lucking offered the Applicant every opportunity to present his case having been fully appraised of the allegations against him and furnished with all documentation.

69. The Tribunal is further satisfied that the conduct of Mr Lucking in carrying out investigations following receipt of the Applicant's explanation was reasonable and cannot be reproached by this Tribunal and indeed the Applicant has not sought to challenge the Respondent in this respect.

70. Having considered all the evidence in this case, it is clear that the issues to be decided upon at the appeal hearing turned on whether the circumstantial evidence pointed sufficiently to the Applicant, and whom the Respondents ultimately believed, having heard the evidence. In this instance, this Tribunal cannot say that a reasonable employer seized of t-he facts in this case, could not reasonably find, as the Respondents have found, at the appeal hearing, that the Applicant had committed the acts alleged.

71. Turning to the question whether dismissal on the findings of the Respondent was reasonable, this Tribunal is satisfied that by the Respondent's procedures, the alleged acts of misconduct were sufficient to amount to an act of gross misconduct and for which dismissal without notice as a sanction was available.

72. With regards the sanction of dismissal, the Tribunal notes that whilst it appears harsh, taking into account the Applicant's previous record of conduct and length of service, considering the role of the Tribunal in this respect, the Tribunal find that the Respondents cannot be said to have been unreasonable in terminating the Applicant's employment in the circumstances of this case, that sanction being within the reasonable responses available to a reasonable employer."

The Appeal

12. Before turning to the submissions made on behalf of Mr Phillips and RMG it is desirable to give an account of the history of this appeal. This is necessary for an understanding of certain submissions made by Mr Stacey on behalf of Mr Phillips. By the current standard of this Appeal Tribunal the interval between the Tribunal's Decision and the appeal is substantial, some eighteen months. That is now unusual. By reason of beneficial changes in the practice and procedure of the Appeal Tribunal over the last two years most appeals are now heard within a matter of months. On this occasion the new procedures did not prevent delay; but they have done so in the vast majority of cases.
13. The initial Notice of Appeal dated 24 June 2003 contained six grounds. The appeal was stayed while one aspect was referred to the Tribunal pursuant to the procedure recommended in English v Emery Reimbold & Strick Ltd (2002) 1 WLR 2409 at paragraph 25, a practice adopted by this Appeal Tribunal – see Burns v Consignia (2004) IRLR 425 at paragraph 15. On 14 August 2003 the Tribunal dealt with the point fully and there is now no further appeal concerning that point.
14. On 23 September 2003 Judge McMullen QC directed the Appellant to amend or withdraw what became knows as the Sally Barnes' point within seven days. On 1 November 2003 there was an application to amend the Notice of Appeal. The amendment sought to develop the Sally Barnes' point and to add a ground relating to paragraph 69 of the Decision. This is the first emergence of the way in which the appeal is now put before us; but at this stage the ground related only to paragraph 69 rather to paragraph 70.
15. The next portion of delay seems to come because the application to amend the Notice of Appeal was not processed within the Appeal Tribunal. In consequence on 21 January a letter was sent under rule 3(7) of the Employment Appeal Tribunal Rules and an Order was made striking out the appeal for failure to comply with the Order of Judge McMullen QC.
16. Mr Phillips appealed and sought a hearing under rule 3(10) of the Employment Appeal Tribunal Rules. There was a hearing before the President on 24 March 2004. The President allowed the appeal, permitted a new ground 6(v) to be added and dismissed all other grounds. Ground 6(v) is the new ground relating to paragraph 69 of the Decision. The appeal was stayed until 4.30 pm on 24 May for the Employment Tribunal to address paragraphs 69 and 70 and set out how it found Mr Lucking's investigations and all procedures to be reasonable and to enable the Respondent to form a reasonable belief.
17. The reference in the Appeal Tribunal's Order to paragraph 70 as well as paragraph 69 is explained by the President in the judgment which he delivered on 24 March: see the transcript at paragraph 27, where he described paragraph 70 as "arguably inadequate" to deal with the giving of the Tribunal's reasons and to grapple with the details of Mr Stacey's submissions. The President had it in mind that the Tribunal would indicate its findings relating to paragraph 70 as well as paragraph 69: see paragraph 31 of the transcript of his judgment.
18. On 25 May 2004 the Chairman of the Tribunal responded to the Appeal Tribunal Order. He dealt with paragraph 69 and those parts of the closing submissions which were specifically addressed to paragraph 69. He did not deal with Paragraph 70 in terms. Therefore he did not deal with the submissions of Mr Stacey in relation to the reasonableness of the appeal decision, which are contained in paragraph 9 of his closing submissions.
19. In July 2004 The President, pre-reading for the hearing of 29 July, noticed this omission. He asked the Chairman to comment. The Chairman replied with commendable speed. He said, in essence, that the paragraph 9 points were considered by the Tribunal in so far as the Tribunal was able to do so having regard to the points which had been made. But he did not have in front of him his hand written notes (as he made clear himself). He said:

"It is his recollection that the submissions of the Applicant at Paragraph 9 of his closing submissions presented argument as to issues that had not been raised in the Tribunal in examination of Mr Lucking or any other witness by the Applicant's representative."

He then gave an example - paragraph 9.6.2 of the closing submissions.

20. On 29 July 2004 the President allowed the rule 3(10) application and set down the appeal for a full hearing. He gave directions about the appeal. There is a transcript of his judgment. He accepted that there was reason to suppose that the Chairman's perfectly understandable urgent response given very quickly and without re-addressing of his own notes and Decision might not have been fully satisfactory. He said also that the third response in essence did not deal fully with the request that had been made. He said:

"8 There is no question at all, subject to any application that may hereafter be made, pursuant to paragraph 7 of the Practice Direction, for some part of the Chairman's Notes in the absence of agreement, for the Chairman to be any further troubled by this, and certainly there is no question of any referral back to the Chairman at this stage, for questions to be answered, the Chairman having manfully done what he has done. It is clear that his latest response was indeed that which it says, namely provided urgently, and without refreshing his recollection from his Notes of Evidence."

21. Very shortly thereafter there was a proposed Amended Notice of Appeal to take account of the points which arose from the two hearings before the President. On 2 September the President ordered that that the application for permission to amend the Notice of Appeal to be stood over to the hearing of the appeal. At the outset of the appeal we stood it over to be considered with the appeal as a whole. We will return later to this application.
22. In October 2004 RMG applied for an order that the Tribunal have the opportunity to respond yet further. That application was administratively referred by the Registrar to me. I took the view that to invite a further response from the Chairman again at very short notice was not what the President had intended and not a desirable course to take. It seemed to me that the point had been reached where the issues in the appeal ought to be fully ventilated. That is what has happened today.
23. We have also had an application on behalf of Mr Phillips, for extensive notes taken by a representative behind Mr Stacey to be admitted for the purpose of showing that Mr Stacey did indeed take in cross-examination most of the points at paragraph 9 of his closing submissions. Again we will return to this application later in the judgment.

Sufficiency of Reasons

24. Against that background we turn to the principal points on the appeal. Mr Stacey makes two principal submissions. The first submission that he makes is that the reasons of the Employment Tribunal in paragraphs 69 and 70 (viewed individually or together) were not Meek compliant. He says that there simply is no process of reasoning to show how the Tribunal reached their conclusion. The issue to which his argument principally relates is the question whether the Tribunal had a proper process of reasoning for their conclusion in paragraph 70 of the Decision. It is Mr Stacey's submission that they do not grapple with or address the arguments which he raised.
25. He refers to his own closing submissions. Paragraph 9 of these submissions dealt particularly with the question whether there were sufficient grounds for belief in guilt at the appeal stage. He raised questions about witness inconsistency; about the spread of gossip; about the fact that one witness who alleged that she had seen something directly was dealing with a matter long before the appeal process. He asserted that none of the interviewees had seen Mr Phillips personally cause damage apart from Mrs Aley. He said that no interviewee had said they saw him deliberately attempt to cause damage. He attacked Mr Lucking's reliance in his decision on the apparent exact fit between damage to two cars and damage to Mr Phillips then. He said that this apparent fit was not testable; and Mr Phillips had no adequate opportunity to challenge the supposed fits. (Pausing there it is right to say that on 2 April the bundle of material that was sent to Mr Phillips included a handwritten note about the match; whether that handwritten note drew to Mr Phillips' attention the extent to which Mr Lucking was relying on that evidence is a matter not directly addressed in the Tribunal's Decision).
26. On behalf of RMG Miss Thomas submits that there is sufficient reasoning in the Tribunal's Decision. She says, correctly, that the Tribunal's Decision must not be read as a statute and must be read as a whole. She points out that in addition to paragraph 70 the Tribunal made relevant findings earlier in the Decision - particularly the finding of the reason for dismissal at paragraph 40, and the findings at paragraphs 36 and 37 which include that Mr Lucking married up the damage on the vehicles to that occasioned to the van. She submits that the Decision of the Employment Tribunal sufficiently tells the parties why they have won or lost. She also submits that the second answer given by the Tribunal, that is the answer given in May 2004, supplements to a significant extent what is in the Reasons. The Tribunal Chairman does repeats that in the Tribunal's view Mr Lucking had reason to believe that Mr Phillips committed the alleged acts.
27. A Tribunal has a duty to give sufficient reasons for its decision. Mr Stacey has referred us in his Skeleton Argument to Tran v Greenwich Vietnam Community [2002] ICR 1101 at 1110 and Anya v University of Oxford [2001] IRLR 377 and English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at 2418. Essentially reasons must show parties why they have won and lost. The intensity that is required of the reasoning will depend on the subject matter of the case. The intensity required will be at its greatest in discrimination cases where the Tribunal must find primary facts and must be escute to keep in mind the possibility that discrimination may be unconscious and a high probability that if contrast it will not be admitted. The intensity will be less in an unfair dismissal case where the Tribunal is concerned to review the decision of an employer whose primary responsibility is to carry out the investigation and reach the decision. Nevertheless the Tribunal should deal with the principal issues raised by the parties, so that they know (and an appellate tribunal can see) why they won or lost on these issues.
28. In our judgment paragraph 70 of the Decision – and paragraph 69 – did not contain sufficient reasons for the Tribunal's conclusions. We do not wish it to be thought that every point which was made by Mr Stacey needed to be dealt with in the Decision of the Tribunal. That is not the function of a Decision. However, in our judgment the Tribunal should have set out in more detail why the Tribunal found Mr Lucking's conclusions to be reasonable and why it rejected the arguments put on behalf of Mr Phillips.
29. We refer by way of comparison to the manner in which the Tribunal dealt with the earlier stage of the disciplinary procedure in paragraphs 62-66 of its Decision. There its reasons were perfectly adequate – clearly set out and an admirable example of the way in which reasons should be expressed. But paragraphs 69 and 70 lack any similar level of analysis. We have at the back of our bundle the full text of Mr Lucking's statement. Mr Lucking's statement sets out succinctly in a page or so the process of his reasoning for the decision that he made. We would have expected a summary of Mr Lucking's reasoning coupled with a succinct review of why the Tribunal regarded that reasoning as proper and rejected the arguments that were put on behalf of Mr Phillips.
30. We turn to consider the question whether the inadequacy of reasoning has been put right by the further comments that have been put in by the Chairman. So far as paragraph 69 of the Decision is concerned, we think, they have been put right. So far as paragraph 70 of the Decision is concerned, regrettably they have not. This should not be seen as an unmixed criticism of the Chairman. The Chairman did not have the transcript of the President's judgment before him when he gave the May answer. When he gave the July answer he was giving it at very short notice.
31. Whether or not each or all of the detailed submissions of Mr Stacey were in play before the Tribunal it was certainly necessary in our judgment for there to be some succinct process of reasoning and conclusion in the Tribunal's Decision - something to show that it grappled with the issues raised by this case. In our judgment this was not in the Tribunal's Decision, and it was not in the additional page provided in July 2004. On this first ground, therefore, in our judgment the appeal ought to be allowed.

Failure to address Mr Phillips' case.

32. Mr Phillips makes a second submission. He submits, based upon the July 2004 answer of the Chairman, that in fact a substantial part of his case was not considered by the Tribunal at all.
33. The position in our judgment may be summarised as follows. Firstly, the Chairman was right to say that paragraph 9.6.2 (which is the particular submission that the Chairman highlights) was not put in cross examination. Secondly, however, we are satisfied from the Chairman's own notes, which we have read, that other points in Mr Stacey's submissions were put in cross examination. As we have said, the Chairman's answer in July 2004 was given a very short notice, some time after the Decision, when the Chairman did not have a full review of all his notes available to him.
34. Mr Stacey has applied to admit lengthy notes of cross examination taken by the representative sitting behind him; we do not grant that application. Mr Stacey has brought home his point without them. The Chairman's own notes show that a significant number of the points were in play and that his letter written in July 2004 was written without a full recollection of the points in question.
35. We are satisfied having regard to the Chairman's original notes and having regard to what Mr Stacey has said to us today that his closing submissions at the time they were given were fully in play before the Tribunal (with the exception of the point at paragraph 9.6.2). We do not think there was any failure by the original Tribunal to take into account Mr Stacey's submissions; we think rather that the Chairman was in error when he wrote his letter in July 2004 at short notice.

Leave to amend

36. We stood the application to amend the Notice of Appeal over to be considered with the appeal as a whole. As we have demonstrated in our history of the appeal the point which Mr Phillips identified was raised fully in about March 2004 before the President. It might have been raised some months earlier except that the application for permission to amend was not processed by the Appeal Tribunal.
37. Having (as we have) had regard both to the history and to the merits of the appeal, we are satisfied that it is right to grant permission to amend, to raise the points Mr Stacey has raised. We are satisfied that RMG has had an opportunity to deal with those points. We are satisfied that notwithstanding the delay in identifying the precise points at the heart of this appeal it is right and in the interests of justice that the amendment should be allowed and those points dealt with.

The question of remission

38. The appeal is accordingly allowed on the first ground which Mr Stacey has argued. It is clear that the appeal must be remitted; the question arises whether it should be remitted to the same Tribunal or to a different Tribunal. On remission of course the Tribunal must consider the issues afresh; and it is open to the Tribunal either to affirm conclusion reached before or to reach different conclusions. Should this be done - assuming it to be available - by the same Tribunal or should it be done by a freshly constituted Tribunal?
39. In Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46 the Appeal Tribunal considered this question and set out considerations which are relevant to what is essentially a discretionary decision. We have had regard to that authority; and we have drawn it to the attention of Mr Stacey and Miss Thomas so that they could address us on it.
40. The fundamental point which underlies Sinclair Roche & Temperley v Heard is that if there is to be a remission to the same Tribunal, the Appeal Tribunal must be satisfied that there can be a fair hearing of the remitted issues. Subject to that overriding point the judgment of the President sets out (not exclusively or exhaustively but helpfully) factors which are likely to be relevant to whether it is right to remit to the same Tribunal. We shall address those factors.
41. On the question of proportionality this is not the largest of cases, we are told, in terms of quantum.
42. If the hearing returns to the same Tribunal they will be able to refresh their memory of the case from the bundle and from notes. We have seen the Chairman's notes and they are full. They will be able, so to speak, to read their way back into the case. They will then be able to hear further submissions on behalf of the parties and consider afresh their decision on the essential question. That will be substantially a shorter and less expensive exercise for the present Tribunal than it would be for a new Tribunal which would require considerable further work and, of course, evidence. We do not say that the same Tribunal could not hear further evidence but what is plain is that a new Tribunal would require it. It would be a significant task.
43. Another question which we take into account is the passage of time. It is a significant time since the Tribunal dealt with this matter. But there are notes and there was a bundle of documents and we are confident that with the assistance of notes and a bundle of documents and submissions from the parties the existing Tribunal will have a good grasp of the case.
44. If on the other hand we remit to a different Tribunal that has to hear evidence there is the obvious difficulty that it is now more than two years since these events , and Mr Lucking at the very least would have to give evidence and be cross-examined afresh about matters a long time ago. In this case the passage of time in our judgment is not an obstacle to a re-hearing by the same Tribunal. If anything it is a pointer to the advantage of it.
45. We turn to the question of bias or partiality. We are entirely satisfied that this Tribunal will not be bias or partial in its re-consideration of the case. Plainly the Tribunal conscientiously and carefully considered the case below - making as we have seen findings in favour of Mr Phillips as to the first stage of the disciplinary procedure. We are confident that the Chairman will not be biased by the fact that he has written letters which turn out once his notes are reviewed to be incomplete. He himself said that he was doing his best without an opportunity fully to review his handwritten notes.
46. We turn to the question whether this was a totally flawed decision. It is far from a totally flawed decision as we have sought to demonstrate earlier in this judgment. On the contrary, the decision is until paragraphs 69 and 70, well expressed and thorough.
47. We turn finally to the questions which are summarised under the two headings of "second bite" and "Tribunal professionalism". To an extent these factors are two sides of the coin. We are confident that the Tribunal will be prepared to look afresh at the aspects set out in paragraphs 69 and 70 of its Decision and will be prepared to come to a different conclusion if it is appropriate to do so. We have no doubt that the Tribunal will be professional in its approach to this matter.
48. So, the remaining issues will be remitted to the same Tribunal.