United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RAJEEV THACKER (Of Counsel) Instructed by: M O'Donoghue Bradford Law Centre 31 Manor Row Bradford BD1 4PS
For the Respondent	MISS HELEN GOWER (Of Counsel) Instructed by: Mr David Hardwick EEF Yorkshire and Humberside Fieldhead Sandhills Thorner Leeds LS14 3DN


 


SUMMARY

UNFAIR DISMISSAL

Reason for dismissal including substantial other reasonable adjustments

Reasonableness of dismissal

Claimant dismissed because major customer of Respondent stated that claimant was banned from its premises. Employment Tribunal held dismissal justified because of "some other substantial reason". Respondent appealed.

Held: case had to be remitted to Employment Tribunal as in the original decision there was no consideration of what was described in Dobie v Burns [1984] ICR 812,817 as the "very important factor of…whether there will be injustice to the employee and the extent of the injustice"


 


THE HONOURABLE MR JUSTICE SILBER

1. David Greenwood ("the claimant") appeals against a decision of the Employment Tribunal sitting in Leeds which is dated 5 March 2007 by which it dismissed the claimant's application for unfair dismissal against Whiteghyll Plastics Ltd ("the respondent").
2. The issue raised on this appeal is whether the respondent acted fairly in dismissing the claimant because a major customer of the respondent, namely Morrison's Stores, had informed the respondent first that the claimant was no longer an acceptable representative and second that he was barred from working at Morrison's Stores.
3. The facts found by the Employment Tribunal were that the respondent carried out shop fitting at various stores including Morrison's supermarkets, Ann Summers and British Home Stores. The claimant had been involved in the conversion of Safeway Stores to Morrison's stores but this work ended and by the turn of 2006, the claimant was engaged at other work at Morrison's stores. That work was described as "roll-outs", which basically was a series of promotions of rolling-out of new lines by that company. In order to do this work, the claimant had worked throughout the night so that the new set-up was ready when the store opened the next day.
4. The Employment Tribunal found that everything went very well until the middle of July 2006 when the respondent received in very quick succession three complaints from Morrison's about the standard of the claimant's work.
5. The claimant was, however, bemused by this as each time he left a store at night, it was necessary for him to get the duty manager employed by Morrison's to sign a report and that would have been an opportunity for the duty manager to indicate that the claimant's work was of an unsatisfactory nature. On none of the occasions did that happen but it seems that when the day shift started, complaints were raised about the inadequacy of the claimant's work.
6. In consequence the respondent was told that the claimant was no longer an acceptable representative and that he was barred from working in Morrison's Stores. The Employment Tribunal found that this may have come about because the person in charge of "roll-outs" at Morrison's was pressed by deadlines and that he simply would not tolerate any failing on the high standard previously demonstrated by the claimant and his colleagues.
7. The Employment Tribunal found that Morrison's had, what they described as "the whip hand" as they were a much larger company than the respondent with the result that they could dictate who and what was and was not acceptable to them. In those circumstances, the Employment Tribunal found that "the respondent had very little choice in the matter, it seems to us, other than to dismiss the claimant unless there was alternative work for him".
8. The Employment Tribunal found that enquiries about alternative work had been made and that there was no slack within the respondent's organisation to move the claimant into an area where British Home Store's work was also being done as there simply was not enough spare work there for the claimant to be engaged there. In other words, the Employment Tribunal found first that there was "no spare capacity" and second in any event, that the work done to British Home Stores was regular but not necessarily guaranteed while the respondent already had a team working on those stores as it did at Ann Summer's stores. Although there was work to be done in the respondent's factory from time to time, the Employment Tribunal considered it noteworthy that shortly before they received the complaints about the claimant's work, the respondent had had to lay off nine people.
9. A disciplinary procedure followed which the Employment Tribunal considered fair "overall". There had been a problem as the disciplinary procedure should have been heard by a Mr Egan or Mr Burley but they had been involved in the investigation so that if they had conducted the disciplinary inquiry they would have both acted as investigators and as judges, which was not good employment law practice. Thus a conscious decision was taken by the respondent to appoint Mr Ward, who was the respondent's general production manager, to hear the initial disciplinary hearing with Mr Owen, who was the managing director, hearing the appeal.
10. The claimant was not provided with the e-mails from Morrison's or the engineer's report for the first hearing but he was provided with that material on the appeal with the result that the Employment Tribunal concluded that any lack of fairness on the first hearing was ultimately corrected. The claimant was dismissed and in the words of paragraph 8 of the Employment Tribunal's reasons, "he did not consider it fair that Morrison's should dictate to the respondent". The Employment Tribunal concluded in relation to the claimant's approach in paragraph 8 of its reasons that:

"we can see his point of view in that, but the economics of the world are that the larger players often dictate the terms of work to the smaller players and, in those circumstances find that the claimant was dismissed for some other substantial reason".

11. The Employment Tribunal said that the next matter which they had to consider was that contained in section 98 (4) of the Employment Rights Act 1996 which provides that:

"… where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case".

12. The Employment Tribunal said they had to consider the circumstances and having regard to the size and administrative resources of the respondent in particular, they had to determine whether the reason for dismissal was sufficient reason to dismiss having regard to equity and the substantial merits of the case. Their conclusion as stated in paragraph 9 of the reasons was that:

"if Morrison's would not accept the claimant on site and there was no other work available there was nothing else the respondent could do than to dismiss the claimant and therefore the dismissal was fair"

13. The claimant appeals. Mr Rajeev Thacker, counsel for the claimant, contends that the Employment Tribunal failed to consider the issue of injustice and that it did not consider the significance issue of the injustice caused to the employee.
14. He relied on the decision of the Court of Appeal in Dobie v Burns [1984] ICR 812 in which the employee, who was a security guard working at an airport, was dismissed from his employment following the direction from the airport operator to his employer. The Court of Appeal held that whilst the Employment Tribunal had been justified to hold that pressure from a third party was capable of justifying an employee's dismissal, it had failed to go on to consider the next issue which was the extent and nature of the injustice to the employee. So the appeal was allowed and the case remitted to the Industrial Tribunal.
15. Reliance was placed by Mr Thacker on two passages in the judgment of Sir John Donaldson MR (with which Slade and Parker LJJ agreed) who said at page 816D-E that:

"On the face of it it is an astonishing proposition that in determining that question, namely whether the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee, in accordance with equity and the substantial merits of the case, one should have no regard to any injustice suffered by any employee; and, indeed, the appeal tribunal has held [1983] ICR 478 that is a misdirection."

16. He then reviewed the authorities before continuing at page 817 B –D by saying in a passage strongly relied upon by the claimant on this appeal that:

"In deciding whether the employer acted reasonably or unreasonably, a very important factor of which he has to take account, on the facts known to him at that time, is whether there will or will not be injustice to the employee and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee's service, the difficulties which may face the employee in obtaining other employment, and matters of that sort. None of these is decisive, but they are all matters of which he has to take account and they are all matters which affect the justice or injustice to the employee of being dismissed".

17. Mr. Thacker contends that the Employment Tribunal failed to give any consideration to the injustice suffered by the employee such as the matters referred to in Dobie (supra) and from which we quoted in paragraph 16 above. His case is that the Employment Tribunal moved straight from the circumstances surrounding the dismissal to the conclusion that the dismissal was fair. Mr Thacker points out that this conclusion could be inferred from use of the word "therefore" in paragraph 9 of the decision where the Employment Tribunal concluded (with our underlining added) that:

"If Morrison's would not accept the claimant on site and there was no other work available there was nothing else the Respondent could do other than to dismiss the Claimant and therefore the dismissal was unfair"

18. In response, Miss Helen Gower counsel for the respondent points out that this tribunal should not interfere with the decision of the Employment Tribunal even if it would have come to a different conclusion and that this Appeal Tribunal should avoid concluding that an experienced tribunal has overlooked a point merely because it was not expressly mentioned (see Retarded Children's Aid Society v Day [1978] ICR 437). She points out that there is a clear difference between the approach of the Employment Tribunal in this case and the approach in Dobie (supra) where according to page 815H to 816 A of the judgment, it was said wrongly by the Industrial Tribunal that:

"The test which the tribunal has to apply is in the words of the statute, whether the employer acted reasonably and section 57 (3) of the Act… clearly directs the tribunal to focus its attention on the conduct of the employer and not on whether the employees suffered any injustice".

19. Ms Gower says that in contrast in the present case, the Employment Tribunal weighed up all the relevant facts and having done so, it came on balance to the conclusion that the dismissal was fair and in particular it had to weigh the injustice to the claimant against the difficult situation in the present case in which a small employer was being given an instruction by a customer who "held the whip hand". She says the balancing exercise was correctly conducted by the tribunal and that there was no error of law or basis on which this tribunal should interfere. Miss Gower points out that in a case in which the Employment Tribunal expressly finds that there is injustice to the employee, it can nevertheless still legitimately conclude that the decision to dismiss is fair and she draws attention to the decision of this Appeal Tribunal in Thomas Martin v JF X-Press Ltd (UKEAT/0010/04).
20. In our view, the difficulty for the respondent in this case is that there is no evidence that that the Employment Tribunal considered what Sir John Donaldson MR considered that they should have done when he said in Dobie (supra) at page 817 (with our underlining added) that:

"In deciding whether the employer acted reasonably or unreasonably, a very important factor of which he has to take account, on the facts known to him at that time, is whether there will or will not be injustice to the employee and the extent of that injustice" .

21. The reasons of the Employment Tribunal do not show that there was any evidence on this point adduced to it on this "very important factor" and neither the notes of the respondent's disciplinary hearing on 21 July 2006 nor the initial letter of dismissal of 27 July 2006 nor the decisions at the respondent's appeal hearing on 7 August 2006 show that this factor relating to the injustice to the employee or the extent of the injustice was considered by the respondent in the way described by Sir John Donaldson in Dobie (supra) in the passage set out in paragraph 16 above or indeed in any way at all.
22. We considered whether we could conclude as the Court of Appeal did in Day's case (supra) in respect of a Code of Practice that:

"So reading between the lines, it seems to me that, although not explicitly stated in the Reasons, this Tribunal very probably did have all the considerations in mind which it is not suggested they may not have had" ( per Lord Denning MR at page 443 G)."

23. In our view, this case is very different as there was nothing in the documents or anywhere else to which we were referred to show that the injustice to the appellant was considered by the respondent in deciding to dismiss the appellant or to dismiss his appeal from that decision or was even the subject of any evidence to the Employment Tribunal. Thus we reach the conclusion in spite of Miss Gower's clear submissions that the Employment Tribunal did not consider as the Court of Appeal said that they should have done and what they described as the "very important factor" of whether the respondent considered the injustice to the claimant and the extent of the injustice in deciding whether the respondents acted reasonably. This we regard as an error.
24. It might well have been that if the injustice to the claimant had been considered, it would have made no difference to the decision of a reasonable employer. It is noteworthy that the Employment Tribunal did not make any finding criticising the claimant's work or his capability. Perhaps the injustice suffered by the claimant from dismissal was so severe that the respondent might have been able to reorganise its business so that the claimant could have taken the job of the person who took over his job with the respondents working for Morrison's or perhaps there could have been a reorganisation of jobs so that the claimant could have worked for another customer of the respondent in place of an existing employee who would have taken over the claimant's job or how else the matter could have been resolved without the claimant being dismissed. We do not know how the Employment Tribunal would have determined this matter and it cannot be shown that after considering these matters, it would have inevitably have upheld the dismissal of the claimant as being a fair one.
25. Thus as we explained at the end of the hearing, this appeal must be allowed and the case remitted to a different tribunal. The reasons why we did not remit to the same tribunal are essentially that we want this matter to be resolved as speedily as possible and we are conscious that in any event the hearing would not be appreciably longer if conducted by a different tribunal than if conducted by the original tribunal, who are unlikely to have a clear recollection of the evidence at the earlier short hearing. Thus there would be no increase in costs by remitting this case to a different tribunal rather than the Employment Tribunal which heard it originally. Thus to that extent the appeal is allowed.