United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr L G CUNNINGHAM (of Counsel) Instructed by: Renfrewshire Council Legal Services 3rd Floor North Buildings Cotton Street Paisley PA1 1TT
For the Respondent	Mr J S NAISMITH (Solicitor) Messrs Stirling & Mair Solicitors 28 High Street Johnston Renfrewshire PA5 8AH


 


SUMMARY

Unfair Dismissal – Reason for dismissal including substantial other reason

The claimant, who was employed as a refuse collection driver, was dismissed for misconduct consisting of taking an unauthorised break and failing to complete the day's tasks. The Tribunal found his dismissal to have been unfair for various reasons. On appeal, the Employment Appeal Tribunal were satisfied that the Tribunal had erred in law in concluding as they had done and that their decision should, accordingly, be quashed. The Employment Appeal Tribunal substituted a finding that the dismissal had been fair.


 


THE HONOURABLE LADY SMITH

Introduction

1. This is an appeal against the decision of an Employment Tribunal sitting at Glasgow, Chairman Mrs M J Cape, to uphold the claimant's claim that he was unfairly dismissed. Their judgment was registered on 5 July 2006.
2. The respondents before the Tribunal, Renfrewshire Council, have appealed that decision and we propose, for convenience, to refer to parties as claimant and respondents.

3. The claimant was represented by his brother before the Tribunal and the respondents by Mr A MacRae, solicitor. Before us the claimant was represented by Mr Naismith, solicitor and the respondents were represented by Mr Cunningham, advocate.

Background

3. The claimant was employed as a refuse collection driver by the respondents between August 2001 and 22 April 2005, on which date he was dismissed.
4. As from 4 April 2005, the respondents introduced new collection routes which were required by their having determined on a new recycling collection programme. The result was that refuse collectors were liable to have to work longer hours than previously; the "task and finish" basis on which they had worked formerly meant them being able to finish about two hours earlier each day than after the introduction of the new routes.
5. Employees were resistant to these changes and determined to "work to rule" from 4 April 2005, a decision which was made in the absence of the claimant on leave. He returned to work on 4 April 2005.
6. On 5 April, the claimant was working as a refuse collection driver. His vehicle was seen driving towards the Linwood roundabout by supervisors at about 2pm, as was another refuse collection vehicle. Both had drivers, one of which was the claimant but neither of them had a crew. The supervisors found the four crew members drinking alcoholic drinks in a local public house. They then went to look for the claimant and the other refuse vehicle driver. They found them at a nearby industrial estate at about 2.45pm. Both drivers said they had dropped off their crews at about 2pm and that they had then stopped for a snack. The men were told to go and tip their loads, which they did, and report to the depot, which they also did. They were then sent home. Their crews were not considered fit to carry on work that day. Disruption to the respondents' rubbish collection service resulted.
7. The claimant attended an investigatory meeting on 7 April 2005 which was conducted by Mr McManus. He was advised and supported throughout the investigatory and the subsequent disciplinary proceedings, by a union representative, Mr Crawford, of the GMB. He was advised and supported throughout the subsequent appeal process by another union representative, Mr Farraly. At the investigatory meeting, it was plain that the respondents' position was that all vehicles had been told that morning that they should return to the depot when their work was completed. In response to that the claimant said that he could not "remember" being told that he had to return to the depot that evening. Representatives of the respondents made various references at that meeting to other work that would and should have been done if the claimant had returned to the depot instead of taking the unauthorised break.
8. The claimant said, at the investigatory meeting, that he had decided to go for a snack before tipping his load and returning to the depot. He said that he was not really sure what he was going to do in the light of his crew having left the vehicle.
9. The claimant did not tell the investigatory meeting what, on the findings of the Tribunal, had actually happened which was that without prior warning, his crew members had jumped from the vehicle telling him it was no business of his what they were doing and that under no circumstances was he to return to the depot, that one of the crew members had pointed a finger at the claimant and had sworn at him, that thereafter he had spotted the driver of the other refuse vehicle who had spoken to him on his mobile phone and suggested that they both go to the nearby industrial estate to decide what to do and that the claimant had received an aggressive phone call from one of his crew that night, blaming him for the fact that the supervisors found him in the public house. His car had been scratched shortly thereafter. He had previously been ostracised when he had insisted on legally required breaks and refusing to park illegally. In all these circumstances, he had decided not to say much in his own defence at the investigatory meeting.
10. Mr Crawford told the claimant after the investigatory meeting but before the disciplinary hearing that followed thereafter, that he would "broker a deal" with the respondent so that he would receive no more than a final written warning. On that basis, he was to say as little as possible so that he did not incriminate the crew.
11. The claimant was given notice to attend a disciplinary hearing by letter dated 14 April 2005, from the respondents Ms McDougall, head of Commercial Services. In that letter she wrote that the "reasons for the Hearing" were:

"(1) In breach of the Council's Code of Conduct for employees

(2) Unauthorised breaks

(3) Inappropriate behaviour

(4) Incompletion of daily tasks"

12. Ms McDougall had thought about whether the letter should warn the claimant that he could face dismissal but decided not to do so lest it appear that she had prejudged matters. There was, however, enclosed with her letter, a copy of the respondents' Disciplinary Procedures. That document makes a number of references to the possibility of dismissal, at paragraphs 3, 7.1.1, 7.1.2 and 7.4.1. They refer to dismissal being included in a list of possible "punitive action" where "the gravity of the situation warrants such action" and to the possibility of an employee being summarily dismissed in the event of gross misconduct.
13. A disciplinary hearing took place on 22 April 2005 before Ms McDougall. Mr McManus presented the respondents' case and the claimant was again represented by Mr Crawford. The claimant did not, again, tell the "full story". His reasons for not doing so are recorded in the Tribunal's findings in paragraphs 29 and 30:

"29. Mr Boyd did not tell the full story because Mr Crawford had urged him to give an account which would not incriminate his colleagues on the basis that he had brokered a deal which would result in the claimant receiving a warning.

30. Another significant factor however is this. The claimant was not on notice from his employer that he might be dismissed and accordingly did not put those matters forward for that reason either. He did not consider it worth risking the intimidation and ostracism in the workplace …..by telling the truth and incriminating his colleagues who had threatened him."

14. We note in passing that the claimant's evidence about what Mr Crawford told him about brokering a "deal" had been recorded by the Tribunal earlier, at paragraph 20, as being that he "would" broker a deal, not that any deal had already been done, contrary to what seems to be suggested by the finding in paragraph 29.
15. The claimant was dismissed. The letter dismissing him indicated that he was being dismissed for gross misconduct and the reason for that was that he had:

"…..deliberately and wilfully on 5 April 2005:

taking an unauthorised break; and

not completing your daily task

which resulted in service disruption within refuse collection activities during a period of service changes , of which you were fully aware."

16. The tribunal found:

"37. The claimant was utterly shocked by this outcome. He had been expecting at worst a final written warning. He had no notice from his employer that he might face dismissal and the charge for which he was dismissed was significantly more serious than that put to him."

17. The claimant appealed and an appeal was heard on 9 June 2005 before a panel consisting of six elected members of the respondents. The panel allowed the claimant to put forward the explanation of what had happened that he had withheld from both the investigatory meeting and the disciplinary hearing. Once they had heard it, they instructed Ms McDougall to instruct an officer to investigate it. She required Mr Elder to do so. He met with the claimant and his partner. He elicited the explanation to which we have already referred.
18. Mr Elder included in his draft report a comment that he felt that the claimant was genuine in his account and did feel that he was being threatened and harassed. He added, however, that he could not substantiate that further; the other crew members had been dismissed and Mr Crawford, the GMB representative, was off sick. Mr Elder was, however, directed to take these comments out of his report, by a senior personnel officer who was clerk to the Appeal hearing on the basis that the report was intended only to be a factual account.
19. The Appeal panel reconvened on 29 June 2005 and considered Mr Elder's report. Ms McDougall addressed the panel and indicated that notwithstanding the matters set out in the report, she would still have dismissed. The appeal panel considered the question of whether or not dismissal was the appropriate sanction. The appeal was dismissed.
20. The Tribunal record that Councillor Murrin, who chaired the appeal panel, indicated that had he been presented with a report that included Mr Elder's view of the claimant's credibility then it would probably have influenced him and he might have reached a different view as to the appropriate sanction. He also appears to have purported to be able to speak for the other members of the panel in respect that he said that the panel might have reached a different view but we note that the other panel members did not give evidence before the Tribunal nor did Councillor Murrin say that he had discussed with them how they might have reacted if they had received Mr Elder's views about the claimant and it accordingly seems to us that Councillor Murrin can only properly be regarded as speaking for himself on that matter.

The Tribunal's Decision

21. The tribunal found the dismissal to have been unfair. Their reasons for doing so can be summarised as being:

- the claimant did not know , in advance of the disciplinary hearing , that he could be facing dismissal

- the reason for dismissal was significantly more serious than that of which the claimant had been given notice ; the claimant was dismissed for having deliberately taken the actions alleged with a view to disrupting the service in the context of a work to rule

- Ms McDougall did not , in the circumstances , have a reasonable belief after a reasonable investigation

- the Appeal panel did not know of the claimant's ignorance of the fact that he could have been facing dismissal as he approached the disciplinary hearing

- the Appeal panel was not impartial because they were significantly influenced by Ms McDougall's views

- in removing Mr Elder's views on credibility from the report , the respondents had removed a "key observation".

22. The Tribunal did, however, find that the claimant contributed to his dismissal, to the extent of 15%.

The Appeal

23. Mr Cunningham submitted that the Tribunal had erred in law and their decision should be quashed. The test for interference as set out in Melon v Hector Powe 1981 SC(HL) 1, was met. The Tribunal had, contrary to the guidance set out in Iceland Frozen Foods Ltd v Jones 1982 IRLR 439, when considering the question of the reasonableness of the dismissal, substituted its own view as to what would have been the right course to adopt and failed to recognise that not all reasonable employers would have shared their view as to whether or not it was reasonable to dismiss. The findings in fact made by the Tribunal did not and could not lead to the conclusion that the claimant had been unfairly dismissed. We should, accordingly, uphold the appeal and substitute a finding that the claimant was fairly dismissed.
24. The Tribunal had, it was said, approached matters on the basis that the claimant had not been notified that he might face dismissal. The claimant had, however, said Mr Cunningham, had the benefit of union representation and assistance throughout and it was plain from the Disciplinary Procedures document that the respondents had had sent to him with the letter calling him to a disciplinary hearing, that dismissal was an option. The respondents knew he had union representation. They could reasonably have expected his representative to discuss the disciplinary procedures with the claimant including the fact that dismissal was a possibility.
25. Mr Cunningham also referred to the fact that the Tribunal had, at paragraph 65, linked the claimant's ignorance of the risk that he might be dismissed with his decision not to give a full account and submitted that in taking the latter into account, the Tribunal were relying on an irrelevant factor. The respondents were entitled to proceed, at the disciplinary hearing, on the basis of what they were told by the claimant at the time.
26. Regarding the Tribunal's finding that the reason for the claimant's dismissal was significantly more serious than the charges in the letter, Mr Cunningham submitted that the Tribunal had erred because, firstly, the claimant had had notice both in the course of the investigatory hearing and in the course of the disciplinary hearing that the respondents regarded as relevant the fact that by taking the unauthorised break the claimant made himself unavailable for further work for which he should have reported back to the depot, and were relying on it. Secondly, they had erred in respect that they seemed to approach the dismissal letter as though the claimant had been dismissed for deliberately setting out to disrupt the service but that was not right. The Tribunal had confused the consequence of the misconduct, namely service disruption, with the misconduct itself. Further, by the time the claimant's case went to the appeal panel, he can have been in no doubt that the respondents were relying on the fact that service disruption had occurred.
27. Regarding the Tribunal's finding that the dismissing officer did not have a reasonable belief following a reasonable investigation, he submitted that the Tribunal simply had no basis on which such a finding could be made. There had plainly been a detailed investigation. The statutory requirements had been met, as was accepted by the Tribunal. There was ample material to entitle the respondents to conclude as they had done, on the facts of the case which included that the claimant accepted that he had taken an unauthorised break and that the claimant had repeatedly failed to give a full account of events to his employers. In respect that the Tribunal had made a finding that the claimant had been told by Mr Crawford to say as little as possible as he was going to broker a deal in which the maximum penalty meted out to the claimant would be a final written warning, it could not be said that it was unreasonable of the respondents not to have discovered that prior to dismissal.
28. Mr Cunningham drew attention to the Tribunal having regarded as significant the claimant's position that he did not consider it worth risking intimidation and ostracism by telling the truth and said that a public interest concern might also arise. It ought not to be suggested to employees that apprehension of such matters afforded justification for withholding the truth of such matters from the employer. To do so would fly in the face of the principles that lie behind the whistleblowing regulations.
29. Mr Cunningham then turned to the Tribunal's approach to the appeal. Firstly, they had wrongly regarded the process as being one of review when it was patently a rehearing, in accordance with the respondents' appeal procedure as set out in paragraph 8 of the Disciplinary Procedures document. Secondly, the deletion of the part of Mr Elder's report dealing with his views on the claimant's credibility was not a "key" matter. Any decision as to whether or not to accept the claimant's account was not a matter for Mr Elder. It was for the appeal panel. It was of note that even at that stage, the claimant seems to have withheld the information about "deal brokering" that he had from Mr Crawford, from the panel. It only emerged at the Tribunal. Further, the fact that the appeal panel took account of the views expressed by Mc McDougall did not make them partial. She was entitled to comment in response to Mr Elder's report, on behalf of management. As regarded the comment that Councillor Murrin might have decided differently if he had known of Mr Elder's views, that was irrelevant. He was but one member of a panel of six.
30. Finally, Mr Cunningham submitted that it was clear from a reading of paragraphs 73 and 75 that the Tribunal had approached matters by substituting its own view rather than assessing what was open to a reasonable employer in all the circumstances.

Response to the Appeal

31. This case did not turn on credibility and there were no findings in which the evidence of any of the respondents' witnesses was rejected but, for reasons which are not entirely clear, Mr Naismith began by submitting that the main difficulty for the respondents was that their witnesses were discredited and the Tribunal was disinclined to believe them whereas the claimant was an impressive witness. In similar vein, he stressed that the Tribunal had heard the evidence and seen the witnesses. He also made a number of general submissions that this Tribunal should be slow to interfere with the Tribunal's findings, that the Tribunal's findings should be respected as they were the industrial jury, that it had an ample factual basis to reach its conclusion, that the facts were clearly identified, that there were a considerable number of facts , that the law was clearly identified, that the decision of the Tribunal on each issue had been clearly set out and that the judgment was one which was well written and could not be improved upon.
32. Mr Naismith did not specifically respond to each point addressed by Mr Cunningham. He confined himself to the removal from Mr Elder's report of his views on credibility, the Tribunal's finding that the respondents did not form a reasonable belief following a reasonable investigation, the finding that the appeal was not impartial and the question of whether or not the claimant had in fact had notice of the risk of dismissal.
33. Regarding the removal from Mr Elder's report of his views on credibility, he questioned: why should it have been removed? There must be many occasions, he said, when employers hear views and opinions in the course of an investigation.
34. Regarding the matter of whether the respondents formed a reasonable belief after a reasonable investigation, he said that the question that had to be asked was whether there was a genuine belief by the employer in the "guilt" of the employee, as required by British Home Stores v Burchell 1978 IRLR 379 and thus the Tribunal were entitled to take the view that they did. He persisted in that submission notwithstanding his acceptance that it was indeed the case that it had never been disputed that the claimant had been discovered in his vehicle taking an unauthorised break in the circumstances to which we have already referred. In short, that the "guilt" of the claimant was never disputed.
35. Regarding the finding of impartiality, Mr Naismith said that the Tribunal had been concerned about impartiality because where an appellate body "blindly" follows the dismissal decision, that would be partial.
36. Regarding notice of the risk of dismissal, Mr Naismith said that he would not attach significance to the Disciplinary Procedures document in that it only gave examples. There needed to have been notice of the actual risk of dismissal.
37. Overall, he said that the submissions for the respondents were not weighty enough and the appeal should be refused.

Discussion

38. The issue for the Tribunal was whether, in the case of this conduct dismissal, the dismissal was fair. The dismissal being on conduct grounds, the respondents required, so far as the claimant's "guilt" was concerned, to entertain a reasonable belief that he had committed the misconduct in question. Certainly, as discussed in Burchell, an employer cannot hold a reasonable belief to that effect unless he has reasonable grounds for it and has carried out whatever, in the particular facts and circumstances, amounts to a reasonable investigation. However, in the present case, the claimant having been "caught red handed" little was required by way of investigation so far as confirming whether the claimant had committed misconduct or not was concerned . The claimant could hardly have disputed that he was parked in the industrial estate at the time, his crew having left the vehicle and that he was taking a break. It was never suggested that the break had been authorised. We cannot see that it was open to the Tribunal to find, as they did, that the respondents did not have a reasonable belief following a reasonable investigation in the Burchell sense yet that is what they appear to have done. We also note that this criticism on the part of the Tribunal appears as one of the reasons advanced by them as to why they found that dismissal was not a reasonable response to misconduct yet that does not make sense since "lack of reasonable investigation before forming a reasonable belief" criticisms have their place at the point when the conclusion as to misconduct is drawn, not at the subsequent stage of considering sanction.
39. The next question for the Tribunal was whether dismissal was within the range of responses that was open to the respondents in the light of the claimant's misconduct and the whole circumstances of the case. In answering that question they required to bear in mind that where misconduct has occurred, a range of reasonable responses within which one employer might reasonably take one view and another quite reasonably take another, is usually open to the employer. Indeed, they seem to have accepted that that was so in the present case. Importantly, the Tribunal also required to refrain from simply substituting its own view as to what was the right course to adopt, all as explained in Iceland Frozen Foods.
40. Turning to the various points of criticism advanced on behalf of the respondents, we consider that they are all justified and do, as was submitted, show that the Tribunal erred in law. We agree that it was not open to them to approach matters on the basis that the claimant had no notice that he might be dismissed, given the content of the Disciplinary Procedures document that was sent to him and the fact that he was supported and advised by union representatives. That being so, we consider that the respondents were entitled to approach matters on the basis that he was aware of the risk and there was no intrinsic unfairness arising from the fact that the risk of dismissal was not spelt out in the letter. Ms McDougall gave an explanation for not having done so that seems to have been accepted. In any event, by the time of the appeal hearing, the claimant cannot have been labouring under any misapprehension about the matter yet he still refrained from telling the panel about the "deal brokering" of which Mr Crawford had advised him.
41. As regards the suggestion that the claimant was dismissed for something significantly more serious than that of which he had been given notice, we agree that it was not open to the Tribunal to take that view. It is plain from the documentary evidence to which we were referred that the effect on the service in terms of disruption was something which concerned the respondents, was something which, to their minds, had resulted from the claimant's actions and which must have been plain to him from what was said. We do not see that there was any unfair lack of notice, as seems to be suggested by the Tribunal. Further, the claimant was not dismissed for having deliberately set out to disrupt the service, which is how the Tribunal have approached matters. We agree with the approach submitted by Mr Cunningham namely that the Tribunal have confused the nature of the misconduct of which the claimant was found "guilty" with its consequences.
42. Regarding the removal from Mr Elder's report of the paragraph in which he states a view of the claimant's credibility, we agree that that did not show that the respondents acted unreasonably. We consider that it was plainly open to the respondents in the circumstances to take the view that the purpose of the report was only to relay information gathered and not to risk trespassing into an area of assessment and decision making which was a matter for the appeal panel. That seems to us to be a perfectly proper approach for a decision making body to adopt particularly when they had heard from and seen the claimant for themselves. That trespass into the appeal panel's territory was a real risk was borne out by what Councillor Murrin said about how he would have reacted if he had seen the deleted paragraph.
43. Moving then to the matter of taking account of Ms McDougall's views, the fact that the appeal panel was influenced by her views does not mean that they were not impartial. They could, equally, have declined to follow them. The fact that they agreed with her is not evidence of their being partial to or biased in favour of management. It seems to us that the Tribunal have misunderstood the concept. Further, we do not accept that the findings support the view that the Tribunal blindly followed the decision of the dismissing officer, as was suggested by Mr Naismith.
44. We are, accordingly, satisfied that it was not open to the Tribunal to conclude as they did in any one of the foregoing respects. That being so, the reasons for their decision fall away and it is apparent that there was no basis on which they could determine that the dismissal was unfair. We can only agree with the respondents that what has actually happened is that the Tribunal have reached the view that the dismissal was unfair by substituting their own view that dismissal should not have been chosen as the appropriate sanction in the claimant's case. In so doing, we are satisfied that they failed to take account of the range of reasonable responses that was, in all the circumstances, open to the respondents; whilst dismissal was at the harshest end of that range, we do not see that it fell outwith it.

Disposal

45. We will, accordingly, allow the appeal and substitute a finding that the claimant was fairly dismissed.