United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Miss C Chudleigh (of Counsel) Instructed by: Dean Wilson Laing Solicitors 96 Church Street Brighton East Sussex BN1 1UJ
For the Respondent	Mr M McDonough (a Representative) McDonough & Associates Jubilee Business Centre Exeter Road London NW2 3UF


 


SUMMARY

Unfair dismissal – Contributory fault/ Polkey deduction

Automatic unfair dismissal under s.98A(1) ERA. Order for reinstatement made. ET found no Polkey deduction after considering Burchell test. Substituted own view as to what would be a reasonable investigation. No adequate fact-finding or reasoning to explain finding of no contributory fault. Appeals allowed; remedy remitted.


 


HIS HONOUR JUDGE PETER CLARK

1. This case has been proceeding in the Ashford Employment Tribunal. The parties are Mr Bauerfield ("Claimant") and Metrobus Ltd ("Respondent"). We shall so describe them.
2. We have before us two appeals by the Respondent against judgments of a Tribunal chaired by Mr R D Salter. The first is a reserved judgment with reasons promulgated on 28 November 2006 (the first judgment); the second was promulgated on 8 January 2007 (the second judgment). We have heard the appeals together and find it convenient to consider the issues raised in the appeals collectively.

Background

3. The Claimant commenced employment with the Respondent's predecessor on 29 December 2004 as a bus driver. In 2005 his employment was transferred to the Respondent on TUPE terms.
4. In short, the Respondent received a report from an off-duty supervisor, Karen Hilling, that she had observed the Claimant speaking on his mobile phone whilst driving his bus on three separate occasions over a period of about half an hour on the afternoon of 13 January 2006.
5. A preliminary investigation was carried out by an Assistant Manager, Mr Wolfe. He recommended disciplinary proceedings which were conducted by Mr Tullett, the Operations Manager. At a disciplinary hearing held on 3 February 2006 Mr Tullett summarily dismissed the Claimant for gross misconduct. Against that decision the Claimant appealed to Mr Carey, the Operations Director. Following an appeal hearing held on 8 February 2005, at which Ms Hilling attended and was questioned by the Claimant, Mr Carey dismissed the appeal. Thereafter the Claimant presented a claim of unfair dismissal to the Tribunal on 2 May 2006. The claim was resisted by the Respondent.

The Tribunal Decisions

6. In the first judgment the Tribunal found the Claimant's dismissal automatically unfair under s.98A(1) of the Employment Rights Act 1996 ("ERA"). It was conceded on behalf of the Respondent that they had failed to comply with step 1 of the statutory Dismissal and Disciplinary Procedure (DDP). Specifically, the letter inviting him to the disciplinary hearing before Mr Tullett did not refer to the misconduct alleged against him. No matter that (a) the first report by Ms Hilling of sighting the Claimant using his mobile phone in transit had been communicated to him by his controller before (b) Ms Hilling had boarded his bus and spoken to him about her alleged sightings on the day in question and (c) Mr Wolfe had made clear the nature of the allegation at an investigatory interview with the Claimant held on 17 January, the statutory procedure does not distinguish between the need to communicate the nature of the disciplinary charge against an individual when it is (a) unknown and (b) blindingly obvious, as in this case. Non-compliance with the DDP renders the dismissal unfair, as the Tribunal correctly concluded.
7. However, that is not the end of the matter. It remains open to a Respondent to argue where appropriate (a) that the Claimant contributed to his dismissal by his own conduct (contribution) and (b) that had the DDP been complied with he would nevertheless have been fairly dismissed or that there was a chance that his would have happened, expressed in percentage terms (Polkey). It is to be noted that separate and cumulative deductions may be made under both heads: see Rao and Civil Aviation Authority [1994] ICR 495.
8. The Respondent took both the contribution and Polkey points. The latter was considered by the Tribunal at the first hearing. They found that even had the Claimant been notified of the charge against him (the narrow basis on which the dismissal was found to be unfair under s.98A(1)) any ensuing dismissal, based on the material before them, would have been unfair. Although the Respondent had a genuine belief in the Claimant's guilt; they honestly believed that Ms Hilling had seen him using his mobile phone whilst driving, they did not, in the view of the Tribunal, carry out a reasonable investigation and accordingly failed that limb of the Burchell test. The dismissal would therefore have been unfair, applying that test (cited by the Tribunal in what appears to be a standard form template self-direction) approved by the Court of Appeal in HSBC Bank v Madden; Post Office v Foley [2000] ICR 1283. No 'Polkey deduction' fell to be made, applying s.123(1) ERA; by which the amount of a compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal.
9. The question of contribution was dealt with by the Tribunal succinctly in their second judgment reasons, following a further hearing held on 8 January 2007. At paragraph 12 they say:

"….the Tribunal found no contributory fault on the part of the Claimant….."

That brief finding was made during the course of their consideration of the Claimant's preferred remedy for unfair dismissal; reinstatement. They decided that it was appropriate to make an order for reinstatement and did so.

The first appeal

10. We are satisfied that in answering the Polkey question raised by the Respondent the Tribunal correctly asked itself whether, had step 1 of the DDP been complied with, would the dismissal have been fair, applying the Burchell principles to the s.98(4) ERA question: see Panama v London Borough of Hackney [2003] IRLR 278.
11. Despite the Tribunal's correct self-direction as to the application of the range of reasonable responses test to the reasonableness of the Respondent's investigation (see Reasons para 45, a reference to Sainsbury v Hitt [2003] IRLR 23 and paras 50 and 53). Miss Chudleigh submits that the Tribunal then departed from that self-direction and substituted their own view as to what would have been a reasonable investigation for that of the range of reasonable responses open to an employer: see Whitbread v Hall [2001] IRLR 275.
12. Having considered the Tribunal's reasoning at paras 53-56 and the rival submissions of Miss Chudleigh and Mr McDonough we prefer those of Miss Chudleigh. It seems to us that the Tribunal applied a counsel of perfection, leaving no stone unturned in the potential investigatory process. Their findings go beyond the appropriate range of reasonable responses test.
13. However, we do not accept her submission that the Tribunal was bound to find that the investigation carried out by the Respondent fell within the range; anymore then we accept Mr McDonough's contention that it plainly and unarguably fell outside the range.
14. Consequently we would allow the first appeal and remit the Polkey issue for rehearing before a fresh Tribunal.

The second appeal

15. The Claimant's preferred choice of remedy for his unfair dismissal was, as we have said, reinstatement. Section 116(1)(c) ERA requires the Tribunal to take into account, when exercising its discretion as to whether or not a reinstatement order should be made, whether it would be just to make that order where to some extent he has caused or contributed to the dismissal. The test here is the same as the test for contributory fault under s.123(6) ERA when assessing a compensatory award: see Boots Co Plc v Lees-Collier [1986] ICR 728.
16. On this Tribunal's brief finding at paragraph 12 of their second judgment reasons this factor did not arise. The Claimant was not guilty of any contributory fault.
17. Miss Chudleigh, unsurprisingly, takes the point that the Tribunal has given no or no adequate reasons for that finding. It is not Meek-compliant.
18. Mr McDonough submitted that, if the Polkey finding stands (which it does not) then no question of contributory conduct for the purposes of s.116(1)(c) can arise. We reject that submission. First, because in our judgment the ET made no finding for the purposes of the Burchell enquiry in the first judgment as to whether the Respondent had reasonable grounds for its genuine belief in the Claimant's guilt of the misconduct alleged. We cannot read paragraph 57 of the first judgment Reasons to include such a finding, as Mr McDonough invites us to do. Secondly the question under Polkey is quite different from the contribution question. The first is a speculative exercise; what would have happened? The second requires a factual finding as to whether or not the Claimant was guilty of the misconduct alleged, an enquiry which is not required under the Burchell test for the purpose of establishing the question of reasonableness under section 98(4).
19. Mr McDonough advances the case that Miss Hilling was an unsatisfactory witness. She could not, he contends, have seen what she alleged she saw on the day in question. The Claimant denied in evidence using his mobile phone while the bus was in transit.
20. Interesting though his points are they are simply not dealt with by the Tribunal in their findings of fact in either judgment. What is more, whilst they make no findings as to Ms Hilling's credibility they do in relation to the Claimant. At paragraph 9 of their first judgment Reasons they say this:

"The Tribunal had reservations about some of the evidence given by the Claimant. His evidence was not always consistent. For example he said in evidence that he had not received a letter dated 1 February although in his ET1 he stated that he had received it. In his witness statement he stated that he received a radio message at 16.35 hours. In evidence he at first confirmed the time and the place. Later he changed his account in what could have been a crucial area. In his supplemental witness statement he said that he adopted a position in the cab with his head on his hand when the bus was stationary or in slow moving traffic. In his evidence he stated that it only occurred when stationary. He acknowledged in evidence that the notes taken by Mr Carey of the first part of the appeal hearing represented an accurate record but altered his view when it was pointed out the notes contained no reference to the Claimant raising the issue of the grudge held by Ms Hilling. The Tribunal took account of his inconsistency in its findings of relevant facts and its conclusions."

Thus, in the absence of any express findings, it might have been expected that the Tribunal would prefer the evidence of Ms Hilling about whom no such reservations are expressed, to that of the Claimant. But we simply do not know. One possible explanation for the lack of direct fact-finding is that in the first judgment the Tribunal was principally focused on the Burchell question; did the employer have a genuine belief based on reasonable grounds following a reasonable investigation that the Claimant was guilty of the misconduct alleged? That is not the same as asking, was he in fact guilty of that misconduct? However, that is the question when considering contributory conduct; an issue not considered in the first judgment. When they returned to that question, highly material to the reinstatement issue, they failed to make any further necessary findings of fact.

21. Further, leaving aside the simple question of credibility, it should be noted that Ms Hilling's evidence was not simply that she had seen the Claimant using his mobile phone in transit on 3 occasions, it was also that he effectively admitted doing so when she boarded his bus. That she did board the bus is not in dispute; he raised a formal grievance about her behaviour, later rejected by the Respondent. In her original written statement to the Respondent she recorded her alleged conversation with the Claimant. Having greeted each other on first name terms she pointed out what she says she observed, to which the Claimant replied:

"Yeah I know sorry Kaz but my son has been taken ill."

That is repeated at paragraph 8 of her witness statement to the Tribunal.

22. It was the Claimant's case that his daughter had telephoned him when he was stationary to inform him that his son had been assaulted.
23. In these circumstances Ms Hilling's evidence consisted of observation plus admission. If the Tribunal found that the Claimant had made that admission the factual dispute is resolved. An admission against interest is the best evidence of guilt. However the Tribunal did not embark on that fact-finding exercise.
24. If Ms Hilling's version was accepted that raises a further factual issue as to whether the Claimant knew that it was contrary to the Respondent's disciplinary rules to use his mobile phone when driving. The Respondent's evidence was that the rule appeared in the handbook issued to staff; it was highlighted on a poster at the Claimant's depot and anyway it is illegal to use a mobile phone when driving.
25. Yet a further issue, raised by the Claimant during the internal disciplinary proceedings, was whether one or more other drivers had received a sanction short of dismissal for this offence. Mr Carey's evidence in his witness statement was that the Claimant did not name any such drivers and all those whom he, Mr Carey, had dealt with had been dismissed. Again, this issue has not been dealt with by the Tribunal.
26. If the Tribunal had found (a) that the Claimant had been using his mobile phone in transit (b) he knew that was wrong and (c) the usual penalty for such an offence was dismissal, then it would have been open to them to find that he was guilty of culpable or blameworthy conduct leading to a finding of contributory fault of up to 100%. On that basis a very real question would arise as to whether to order reinstatement and if no reinstatement was ordered a nil compensation award might follow regardless of the Tribunal's findings on the Polkey issue. But since none of this was explored by the Tribunal we are unable to resolve the matter.
27. It therefore follows, since we are not a fact-finding Tribunal, that we would allow the second appeal on this point also and remit the matter for rehearing by a fresh Tribunal.

Disposal

28. It follows that we shall allow both appeals and set aside the Tribunal's decisions as to remedy, including a further judgment as to compensation following the Respondent's refusal to reinstate the Claimant.
29. The whole question of remedy will be remitted to a fresh Tribunal for rehearing, given that the dismissal was unfair contrary to s.98A(1).
30. The issues for determination at the remitted hearing will be:

(1) The Polkey issue, by reference to the question as to whether, but for the procedural defect under step 1 DDP, the dismissal would have been fair, applying s.98(4) and the Burchell test.

(2) Whether the Claimant contributed to his dismissal

(3) Whether an order for reinstatement is appropriate.

(4) If not, what, if any, compensation should be awarded for the unfair dismissal.