United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S CHEETHAM (Of Counsel) Instructed by: Messrs Steeles (Law) LLP Solicitors 3 The Norwich Business Parl Whiting Road Norwich Norfolk NR4 6DJ
For the Respondents	MISS L DOLAN In Person And MISS D GRAY In Person

MR RECORDER LUBA QC

The issue on this appeal

1. The issue for determination on this appeal is whether an Employment Tribunal erred in law in concluding that the dismissal of two employees for gross misconduct had been both substantively and procedurally unfair and was in wrongful breach of their contracts.

Factual background

2. On 9 September 2002 Miss Laura Dolan and Miss Danielle Gray ("the applicants") began employment with Premier International Foods Ltd ("the employers") as canteen assistants. At that date Miss Dolan was aged 26 and Miss Gray was aged 17. The employers operate a food manufacturing plant in Lincolnshire operating 24 hours a day, Monday to Friday, and employing many hundreds of workers. Miss Gray and Miss Dolan worked the night shift in the plant's staff canteen.
3. The night shift comprised a small team of four persons. In addition to the applicants there was a third canteen assistant, Mandy Frances. The fourth member of the team was a Julie Britton who was the night shift canteen supervisor. Ms Britton, in turn, reported to a Ms Jan Dye who was the overall team leader and worked on the day shift. The company's Human Resources Manager, to whom Ms Dye would report, was a Mr Richard Carr.
4. The employers have a written disciplinary procedure providing for a tiered progression of disciplinary action from oral warnings through written warnings to dismissal, including suspension without pay as a disciplinary sanction. Further, the employers have a staged grievance procedure.
5. The Employment Tribunal found that from about January 2003 Ms Dye had given both applicants a number of informal warnings in respect of poor attendance, misconduct and failure to follow reasonable management instructions. However, none of these had been recorded in documentary form and none had been confirmed in writing to the applicants. In those circumstances, the Tribunal found that the applicants were, for the purposes of the employer's own procedure, to be treated as each having a clean disciplinary record.
6. In August 2003, Ms Dye received a letter from Julie Britton and Mandy Frances complaining that the applicants often failed to attend work on time and, once they were there, would stand about talking. The complaint also was that Miss Dolan repeatedly failed to attend work. It may be noted that there is at least some difference at that stage in the complaints as between the two applicants.
7. In October 2003, Mr Carr received a letter from a canteen customer complaining about the behaviour of the applicants towards Julie Britton (the night shift canteen supervisor) and mentioning the non-wearing of hairnets and the wearing of jewellery in the kitchen in breach of health and safety rules and food hygiene regulations. Neither of these matters (that is to say the letter of August 2003 and the letter of October 2003) appears from the Employment Tribunal's findings of fact to have triggered (or been treated by the employers as triggering) either the disciplinary or grievance procedures. As the Tribunal noted, "those matters were the stuff of shop floor industrial discipline which should have been imposed using the [employers] tiered disciplinary procedure, but that was not done" (paragraph 4.7).
8. On Thursday 16 October 2003, however, Julie Britton and Mandy Frances complained by way of formal grievance that they were being harassed by the applicants. That set in train a series of responses by the employers that led, on the same day, to the suspension of both applicants and, subsequently, on Monday 20 October 2003, to their summary dismissal.
9. On 30 October 2003, an appeal against that dismissal was considered by Mr Sloan, the Head of Canning Operations, of the employers. He confirmed the dismissal by letter dated 5 November 2003. Although we have before us on this appeal neither the letter of dismissal nor the letter rejecting the appeal against dismissal, the Employment Tribunal found that the dismissal was on the grounds of gross misconduct and that:-

"The reasons for gross misconduct were specified as bullying, harassment, threatening behaviour, a total disregard to site health and safety and total disregard to the company food hygiene policy." (paragraph 4.13)

10. Both applicants submitted identical complaints of unfair dismissal and wrongful dismissal to the Employment Tribunal Service. They alleged that there had been procedural deficiencies in the handling of matters leading to their dismissal and that, in any event, immediate dismissal was not warranted in the factual circumstances. By their Notice of Appearance, the employers in each case gave "gross misconduct" as the reason for dismissal and set out a resumé of the procedures that had been followed leading up to the dismissals. The employers denied that the dismissals had been wrongful or unfair either substantively or procedurally.
11. The matter was considered at a hearing by the Nottingham Employment Tribunal (Chairman, Mr J. S. Walker) on 21 May 2004. On the grounds set out in extended written reasons sent to the parties on 17 June 2004, the Employment Tribunal upheld the complaints of unfair and wrongful dismissal and made awards of compensation amounting to £6,200 in each case.

The Employment Tribunal's decision

12. The Employment Tribunal correctly directed itself that section 98 of the Employment Rights Act 1996 governed the application before it and that under that provision "gross misconduct" was a potentially fair reason for dismissal. It had then to consider whether, in the particular circumstances of this case, the dismissal had been "fair" both substantively and procedurally. The Employment Tribunal found, in both respects, that the dismissals had been unfair. Further, they found that immediate dismissal by reason of gross misconduct had not been justified and had, accordingly, amounted to a breach of contract.
13. In relation to substantive unfairness, the Employment Tribunal gave consideration to the principles set out in British Home Stores Limited v Burchell [1978] IRLR 379 (the leading case on misconduct dismissals) which it succinctly distilled at paragraph 5.3 of its Extended Reasons. The Tribunal decided that even if it had considered that fair procedures had been adopted (contrary to its conclusion summarised below) it nevertheless found that the dismissals had been substantively unfair in that the employer's response (summary dismissal in the absence of earlier written warnings) to the misconduct of the Applicants had been outwith the range of reasonable responses available to the employer in the particular factual circumstances (paragraph 6.3).
14. As to procedural unfairness, the Employment Tribunal directed themselves that the question of whether a fair investigation had been pursued into alleged misconduct was also to be measured against the "range of reasonable responses" test: Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23. The Tribunal found that the procedure which had culminated in the dismissals of the applicants had been wholly deficient. Gathering up the strands from various paragraphs of the Extended Reasons, to which we give references below, it is plain that the Employment Tribunal found the following shortcomings:-

(1) The earliest oral warnings given by Jan Dye to the two women had not been reduced into writing as required by the employer's disciplinary procedures (paragraph 4.6) but were later taken into account in deciding whether to dismiss them (paragraph 4.12) and in determining their appeals (paragraph 4.14).

(2) Those disciplinary procedures were not activated (nor were the grievance procedures) in respect of the letters of August 2003 and October 2003 (see above, paragraphs 6 and 7) and yet the matters raised in those letters were taken into account in deciding whether to dismiss (paragraph 4.12) and in determining their appeals (paragraph 4.14).

(3) When Ms Britton and Ms Frances presented their grievances (alleging harassment) on 16 October 2003, they were not dealt with in accordance with the grievance procedure (paragraph 4.9).

(4) The grievances expressed by Ms Britton and Ms Frances were not put into writing by either of them at that time, nor reduced to writing at that time by the employers. They were only put in written form after the applications had been made to the Employment Tribunal (paragraph 4.9)

(5) On Thursday, 16 October 2003, when Mr Carr met with Ms Dye, Ms Britton and another colleague, and three other witnesses, the complaints were "listed" to him by Ms Dye but were not then notified to the applicants (who were not at that first occasion present) in note form or otherwise.

(6) Later on 16 October 2003, when the applicants were called to a meeting with Mr Carr, at which they were told of the allegations against them and their seriousness (and in response to which they disputed some of the allegations) no note of the complaints was given to them in writing and yet the notes of the meeting described it as a "disciplinary hearing" (paragraph 4.11).

(7) The two women were suspended on full pay by Mr Carr at that meeting and by letter sent the same day were informed that a further meeting would be held on Monday, 20 October 2003. Again, no note of the complaints was included with the letter and the letter did not say that the allegations could amount to gross misconduct which might result in their summary dismissal at the meeting fixed for the following Monday (paragraph 4.12).

(8) Between 16 and 20 October 2003, Mr Carr gathered evidence by taking statements from other employees but he conducted what the Employment Tribunal considered an "inadequate" investigation (paragraph 6.1). The Tribunal found that the statements contained "generalised complaints", without specified dates or times and that Julie Britton and Mandy Frances did not make statements detailing the allegations made by (the Tribunal inadvertently say "directed towards") them (paragraph 4.10).

(9) At the meeting on 20 October 2003, the applicants were told by Mr Carr that it was a formal disciplinary hearing. Some parts, or perhaps all, of the witness statements obtained were read out but neither applicant had been provided with copies in advance. Neither applicant was represented. None of the witnesses was present to give their account in person nor to be questioned about their statements (paragraph 4.12). Prior to the hearing, therefore, neither applicant knew of the content of the statements and thus had no opportunity to seek advice about them or secure independent representation (paragraph 6.1).

(10) Although the applicants were offered and then declined copies of the witness statements, or the opportunity to question the witnesses, the Employment Tribunal found that reaction understandable in light of their lack of experience and of management's attitude to that stage (paragraph 4.12).

(11) There was insufficient specificity in the written statements that had been taken to conclude that both women had been guilty of the particular gross misconduct alleged in relation to "food fights" and "harassment" (paragraphs 4.17, 4.18 and 6.3).

(12) Neither applicant had been represented by a union steward at the meeting on 20 October (notwithstanding the employer's assertion to the contrary). The Tribunal accepted the union official's evidence that she had been present simply to witness the event, had not participated in the hearing, and had not represented the applicants (paragraph 4.12).

(13) The process of evidence-gathering, investigation, adjudication and decision-making in relation to the dismissal had all been conducted by Mr Carr. As a result, he was "acting in judgment on his own investigation" (paragraph 6.1).

(14) The employers throughout treated the allegations made against the two women as the same allegations whereas, at least to some extent they manifestly were not (paragraphs 4.16 to 4.18).

(15) The disciplinary procedure provided that pending any appeal any sanction would be suspended, but the employers in this case failed to suspend the sanction pending determination of the appeal (paragraphs 4.4 and 4.18).

(16) On the appeal, Mr Sloan took into account:

(a) the earlier matters which had not been properly subject of disciplinary complaints (see above); and

(b) a new statement given by Ms Dye (paragraph 4.14) about which the applicants were not told and on which they accordingly had no opportunity to comment (paragraph 6.2).

(17) The disciplinary procedures had been used as a means of imposing sanctions rather than, as they should have been, as a way of helping and encouraging improvement (paragraph 5.6).

15. In sum, the Employment Tribunal found that the employers had failed to comply with their own grievance and disciplinary procedures, had not observed the relevant provisions of the ACAS Code of Guidance, had not complied with the requirements of basic fairness and, in all those circumstances, had conducted themselves beyond the range of reasonable procedural responses an employer might make to allegations of the nature in play in this case.
16. At the opening of the hearing before us, Mr Cheetham for the employers, characterised the whole tenor of the Employment Tribunal's decision as one wholly adverse to, and critical of, the employer's conduct. We accept that categorisation of the Employment Tribunal's findings. It would be fair to summarise the Employment Tribunal's conclusions as being that the employers had failed to observe the proper or reasonable procedures to be undertaken in a case of this nature at almost every step.
17. Before turning to the appeal itself, it is necessary to say something further about the repeated reference made by the Employment Tribunal, in relation to the two applicants, to "their limitations of competence". The Employment Tribunal were, in our judgment, not there being critical of the applicants but simply attempting to summarise their personal characteristics. The Tribunal well knew that, at the relevant time, Miss Gray had been a mere teenager and they found that Miss Dolan (herself a young woman) was not able to read or write. These are not unimportant matters in the context of the Tribunal's findings on matters of procedure. The Tribunal found, however, that each applicants' evidence was "straightforward" and "simple".

The Appeal

18. By their Notice of Appeal the employers take three discrete points. The first ground of appeal is that the Tribunal erred in law in holding that the employer's acted unreasonably in failing to undertake a "quasi-judicial investigation". The Notice of Appeal indicates that the particular complaint is that the Tribunal wrongly considered that a reasonable employer would have called the complainants to give their evidence in front of the two women so as to give them an opportunity to challenge directly what had been said against them. The Notice of Appeal contends that this is to impose too high a requirement in assessing the fairness of the procedure followed.
19. The second ground of appeal asserts that the Tribunal erred in law in holding it to be unnecessary and unreasonable for the same individual (Mr Carr) to undertake the roles of both investigating the complaints and determining the disciplinary process. The Tribunal's approach is said to be contrary to authority.
20. The third ground of appeal is that, in relation to the finding of unfair dismissal more broadly, the Tribunal had made findings of fact that were wrong and/or were not supported by the evidence. The employers ask that the appeal be allowed and the matter remitted to the Employment Tribunal.
21. Having begun his helpful submissions with a candid recognition that the Tribunal's findings were overwhelmingly adverse to his clients, Mr Cheetham sought to develop the three specific grounds of appeal.

Ground 1: cross-examination

22. As we have recorded above, one aspect on which the Employment Tribunal was critical of the employer's procedure was in relation to their failure to ensure that the complainants articulated their complaints in the presence of the applicants so that the applicants would be able to both hear those complaints and challenge them directly (see paragraph 14(9) above). Mr Cheetham submits that this requirement for a quasi-judicial approach, or a virtual "trial", goes far beyond what may be reasonably required of an employer, certainly on the basis of the authorities. He put before us Ulsterbus Limited v Henderson [1989] IRLR 251, a decision of the Northern Ireland Court of Appeal and also a decision of this Tribunal in Santamera v Express Cargo Forwarding [2003] IRLR 273, adopting the Ulsterbus decision.
23. We consider those authorities to establish three clear propositions:-

(1) There is no general obligation on an employer to carry out a quasi-judicial investigation involving a confrontation of witnesses, and/or cross-examination of witnesses, before concluding that an employee should be dismissed.

(2) There is, accordingly, no requirement that in each and every investigation of a disciplinary nature the complainants be available to be cross-examined by the employee subject of the complaints.

(3) However, there will be exceptional cases in which a properly or reasonably conducted workplace investigation of misconduct will require that the complainants make their statements in the presence of the employees whose conduct is in question and/or that they can be questioned about those complaints.

24. Those principles are to be applied against the general background that the question that the Tribunal hearing a claim for unfair dismissal has to ask itself is "whether, in all the circumstances, the investigation undertaken as a whole was fair".
25. We are quite satisfied that in the context of this particular case, on the particular facts that this Employment Tribunal found, the procedure followed as a whole was not fair and was outwith the range available to a reasonable employer. The Tribunal's finding that, in this particular case, an element of the unfairness was the failure to have the witnesses called to give their account in front of the applicants (and for them to have the opportunity to challenge directly what was being said against them) was amply justified by other findings of the Employment Tribunal. In particular:-

(1) The written statements of the complainants had not been furnished in advance to the applicants.

(2) When the statements were read out they were challenged by the applicants.

(3) The content demonstrated that the complaints were not identical against each applicant and the extent of those differences was important.

(4) The applicants lacked the competence to deal with written statements or respond to them in writing.

(5) There had been earlier (and were to be subsequent) failures to operate a fair procedure.

26. The Tribunal was not here directing itself that some form of quasi-judicial investigation or "trial" was a necessity. What it was doing was finding that in the particular circumstances of these cases, basic procedural fairness required that these particular employees should hear the allegations made against them orally and be given an opportunity to respond directly to the complainants' assertions. This would not be so much by way of permitting "cross-examination" but by way of providing a facility for the applicants to challenge what was said in relation to either or both of them. This is all the more so given that the complainants were making, at least in part, different complaints in relation to each of the two women.
27. Pressed on his submissions on this ground of appeal, Mr Cheetham readily conceded that the overall approach adopted by the employers on the procedural side was "not a model of excellence". We agree, but find it necessary to go further. It seems to us that the Employment Tribunal were perfectly justified on the material before them, and for the reasons that they gave, in holding that one element in the overall deficiency of the procedure followed by the employers in this case was the absence of an opportunity for these particular applicants to hear directly from the mouths of the employer's witnesses the nature of the allegations, or complaints, made against them. As we have already indicated, this was not simply a matter of them being deprived of an opportunity to "cross-examine" but, more importantly, to ensure that they adequately knew and understood what was being said against them and had an opportunity to respond to it. We do not find any error of law disclosed under this ground of appeal.

Ground 2: the "judge and jury" point

28. This ground contends that the Tribunal was wrong to find that a feature of the disciplinary process open to criticism was Mr Carr's joint role as an investigator of the facts and as the presider at the subsequent disciplinary hearing which culminated in the dismissal.
29. The Tribunal expressed themselves in the following terms on this point:-

"Moreover, Mr Carr undertook all roles of investigating the matter and conducting the disciplinary hearing and dismissing both applicants. In effect, as Chairing and holding the disciplinary hearing, he was acting in judgment upon his own investigation. Given the size and nature of the employer that was unnecessary and unreasonable." (paragraph 6.1)

30. Before coming to the specifics of the challenge under this ground, we remind ourselves that this criticism is directed to but one element of the Tribunal's overall finding that the procedure followed by the employers was deficient and unfair. Indeed, the criticised sub-paragraph opens with "Moreover ...".
31. In support of his submissions on this ground, Mr Cheetham took us to Slater v Leicestershire Health Authority [1989] IRLR 16 and Sartor v P&O European Ferries (Felixstowe Limited) [1992] IRLR 271. Both are decisions of the Court of Appeal and, submitted Mr Cheetham, both substantially support the proposition that there is nothing irregular or unfair in the same official of an employer making his own enquiries and then taking the decision whether he should or should not dismiss the employee. Neither authority appears to have been cited to the Tribunal and neither is recorded in their Extended Reasons. It appears that this point was simply not pursued before the Employment Tribunal at all.
32. Mr Cheetham sought to establish from those authorities a "golden rule" that a tribunal can never find that there is procedural unfairness simply because a particular senior employee both conducts the investigatory process and makes the decision to dismiss (based on his or her own conduct of a disciplinary hearing).
33. However, in our judgment, it is for the Employment Tribunal, as the "industrial jury" to determine whether, on the facts of a particular case, having regard to the nature of the allegations made, the manner of the investigation, the size and capacity of the employer's undertaking, and all other relevant circumstances, whether it was unfair in a particular case for the investigator to also chair the disciplinary meeting and be the dismissal-decision-taker.
34. It does not seem to us to be possible to categorise as an error of law the approach taken by the Tribunal in this respect. These questions are very much "fact-sensitive". However, even if we are wrong as to that and this Tribunal did err in respect of the matter subject of this ground of appeal, in our judgment it would make no difference to the overall result. The Employment Tribunal found a veritable catalogue of deficiencies on the employer's part and we have no doubt that even if the error of law alleged under this ground had been made, and ought to have been taken out of account in the Tribunal's reasoning, the overwhelming conclusion would nevertheless have been that the dismissal in this case was procedurally unfair.

Ground 3: the findings of fact

35. Mr Cheetham very responsibly recognised the uphill task that faces an appellant when seeking to criticise, or upturn, findings of fact made by the Tribunal in an appeal which can proceed only by a point of law. As a preface, however, to his submissions under this ground, Mr Cheetham drew our attention to various "deficiencies" in the way in which he asserted the Employment Tribunal had expressed themselves in making their findings of fact. He drew our attention, in particular, to the rather "loose" use of language and the Tribunal's failure to make specific findings. As an example, we reproduce (with our own emphasis) paragraph 4.11 of the Tribunal's reasoning:-

"The meeting with the applicants on 16 October 2003 is described in the notes of that meeting as [a] disciplinary hearing". Both were said to have been informed of the allegations against them and that they were informed of their seriousness. However, they were not given a copy of the allegations contained in the grievance complaints of earlier that day. They were both said to be informed of the appeal procedure. When Mr Carr went through what was said to be the list of complaints, the applicants are recorded as denying only some of the claims. They were then suspended with pay for the rest of the week while Mr Carr "would be gathering together more witness statements". Those appear to have been by Lynn Haycock, Paul Hendry and Carol Barnes, the nature of which we have already criticised."

36. Mr Cheetham suggests that this particular use of language by the Tribunal, which is not confined to paragraph 4.11 and of which further instances appear in the Tribunal's decision, leaves the reader too often asking what it was that the Tribunal actually meant by the language that they used.
37. We are satisfied that there is some substance in this criticism of the Tribunal's wording. It would have been much better had the Tribunal avoided the terminology we have emphasised and had instead made more explicitly stated findings of fact on the material before them. However, it is not our function to approach the judgment of the Employment Tribunal as though it were the judgment of senior jurists. It is not our task to give "marks" for the use of language. The question for us is whether it sufficiently appears from the Tribunal's findings and reasoning what it is they found and why. As we have already indicated, it is as plain as a pikestaff that this Tribunal found that the procedure followed by the employers was shot-through with unfairness and that the decision substantively to treat the reasons for dismissal as amounting to gross misconduct justifying summary dismissal was unfair and wrongful. Had the final judgment of the Tribunal been one of close balance, this inelegant use of language by the Tribunal may have been important, or perhaps determinative. In the particular context of this decision, such criticism as might be directed to the Tribunal's language in our judgment runs into the sand.
38. We have then gone on to carefully consider each of the specific instances of an erroneous finding of fact urged upon us in the Notice of Appeal and by Mr Cheetham in his oral submissions and in his Skeleton Argument. In so far as they turn on the deficiencies in the Tribunal's use of particular language, we have already dealt with them above. In so far as they assert inconsistencies in factual findings between different paragraphs of the Tribunal's decision, we do not consider, with respect, that there are any material deficiencies or inadequacies. In any lengthy statement of reasons given by an Employment Tribunal it is possible to find some differences in use of language, or emphasis, at different passages of the decision. In particular, this may be true of comparisons between the findings of fact and the way in which reasoning is subsequently expressed. Having carefully considered the various complaints made by the employers in this case we are not satisfied that there is anything amounting to an error of law in the Tribunal's findings of fact or the reasons it has given for its decision.
39. As we have repeatedly emphasised throughout this judgment, this is a clear case of the Tribunal explicitly finding, for comprehensive and readily comprehensible reasons, that the approach taken by the employer was procedurally and substantively unfair and, further, that in both respects there was a failure to act within the range of reasonable responses open to an employer.
40. It follows from our substantive rejection of all three grounds of appeal that this appeal must be dismissed.