United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARC JONES (Solicitor) pro bono representation Messrs Turbervilles Solicitors Hill House 118 High Street Uxbridge Middlesex UB8 1JT
For the Respondent	MR MILES CROALLY (of Counsel) Instructed by: Messrs Dean & Dean Solicitors 21 Gloucester Place London W1U 8HR


 


SUMMARY

Unfair dismissal: Procedural fairness/automatically unfair dismissal

The Tribunal erred in law in failing to address s98A(1) of the Employment Rights Act 1996. Section 98A(1) is at present part of the essential fabric of unfair dismissal law. Whenever a Tribunal is considering whether a dismissal is fair it should consider the issues raised by s98A(1) unless the matter is expressly conceded. The dismissal was to be regarded as unfair by reason of s98A(1). Finding of unfair dismissal substituted. Case remitted to a freshly constituted tribunal for all questions of remedy to be considered.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Antonino Venniri against a judgment of the Employment Tribunal sitting at Watford dated 13 March 2007. By its judgment the Tribunal rejected Mr Venniri's claim that he was unfairly dismissed by Autodex Limited ("Autodex").

The facts

2. Mr Venniri worked for Autodex as a paint sprayer. He mainly did the preparation work before vehicles were sprayed. He was employed from 22 September 2003 until his dismissal on 29 August 2006. He lived in Cowley, Uxbridge. His contract contained a mobility clause. He worked at four different Autodex sites – Cowley, Rickmansworth, Slough and Southall.
3. On Friday 18 August 2006 Mr Venniri was working at Cowley. He was asked by his site manager to go to work at Rickmansworth for three days the following week to cover someone who was on holiday. He was selected because the person who was on holiday at Rickmansworth did the preparation work.
4. Mr Venniri refused to go. The Tribunal found that there were two reasons for his refusal. Firstly, a manager at Rickmansworth had threatened him with disciplinary proceedings about the quality of his work on a previous occasion. Secondly, he feared that the transfer may become permanent. Apparently on a previous occasion he had stayed at a placement for a long time after believing at first that it was for a short time.
5. Mr Chalkley was the Group Body Shop Manager for Autodex. On Tuesday 22 August Mr Chalkley spoke to Mr Venniri about his refusal to go to Rickmansworth. According to the Tribunal's findings Mr Chalkley indicated that he would be considering discipline and that there would be a disciplinary meeting with Mr Kearney, the HR director, when Mr Kearney returned from holiday later that week.
6. The case for Autodex was that in response to what Mr Chalkley said Mr Venniri replied "You can do what the fuck you like, I'm not going" – the remark being made in the workshop to Mr Chalkley, a senior member of management, in front of the line manager and other workshop employees.
7. Mr Venniri's case as to what Mr Chalkley said to him was somewhat different. He said that Mr Chalkley told him that if he did not attend Rickmansworth the following day he would be sacked for gross misconduct that Friday (25 August).
8. It is clear that in the absence of anything in writing Mr Venniri did not accept that he was dismissed or for that matter suspended. He worked all that week and did overtime on Saturday 26 August.
9. On Tuesday 29 August a disciplinary meeting was held, chaired by Mr Kearney. It is common ground that prior to this meeting Mr Venniri had received nothing in writing (except possibly a short minute dated 22 August; he denied receiving this minute and the Tribunal in its original reasons made no finding about it). It was his case that he had attended the meeting at the shortest of notice; but the Tribunal made no finding on this question.
10. Brief minutes of the meeting, prepared on behalf of Autodex, are in the bundle. They read as follows –

"Q. LK asked, "Why was AV working at Autodex Uxbridge as he had been dismissed the previous week".

A. AV responded that he did not accept that he had been dismissed.

LK advised AV of the appeals procedure which is written in the Staff Handbook. LK outlined the reasons for dismissal as being Gross Misconduct and Breach of Employment conditions as follows:

Breach of Employment

AV would not move to another site for three days without a good reason, as detailed in the Autodex Terms & Conditions of employment.

Gross Misconduct

Being abusive to a senior member of staff.

AV acknowledges that he had a dismissal conversation with NC but did not accept the dismissal as it was not in writing - he now accepts this and has advised LK that upon appeal he will "go legal"."

11. These minutes might be thought to suggest that Autodex had intended to dismiss Mr Venniri the previous week; and might be thought to indicate that Mr Kearney took dismissal for granted at the meeting.
12. It is, as we have said, common ground that Mr Venniri's dismissal actually took effect from 29 August. He appealed against the decision dismissing him. The dismissal was upheld. The minutes of the appeal meeting also suggest that the decision to dismiss was taken prior to 29 August: see "NB1" on the first page of those minutes.

The Tribunal's reasons

13. In paragraph 3 of its reasons the Tribunal stated the issues which it had to determine in the following terms:

"3. The Tribunal established at the outset that there was no dispute in this case that there was a dismissal. That was agreed. The reason advanced was conduct. No alternative reason was suggested by the Claimant. The issue that the Tribunal had to determine was that of fairness. Was the reason that the Claimant was dismissed and the circumstances surrounding his dismissal fair in all the circumstances of the case?"

14. The Tribunal then set out what it must have considered to be the key facts. Its summary of the facts was brief – substantially briefer, indeed, than our summary above, which incorporates written records from the time. The Tribunal then concluded its reasons in the following way:

"5. The Tribunal find as a fact that the reason for the Claimant's dismissal was conduct and in considering the fairness or otherwise of the Respondent's decision to dismiss him in the circumstances of this case, and having regard to the size and nature of the Respondent's organization, the Tribunal find as a fact that the Respondents acted fairly towards the Claimant and in those circumstances this claim fails."

Statutory provisions

15. It is convenient, before going any further, to have in mind the key statutory provisions.
16. Within the Employment Rights Act 1996 the following well known provisions provide the framework within which a Tribunal considers the question whether a dismissal for misconduct is unfair.

""98 General

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal 'of an. employee holding the position which the employee held.

(2) A reason falls within this subsection if it—

…

(b) relates to the conduct of the employee,

(4) 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 unreasonab1y 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.

98A Procedural fairness

(1) An employee who is dismissed shall be regarded for the purposes of. this Part as unfairly dismissed; if—

(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act."

17. It is also relevant to note the terms of steps one and two of the Standard Dismissal and Disciplinary Procedure set out in Schedule 2 to the Employment Act 2002.

"SCHEDULE 2 STATUTORY DISPUTE RESOLUTION PROCEDURES Section 29 PART 1 DISMISSAL AND DISCIPLINARY PROCEDURES CHAPTER 1 STANDARD PROCEDURE

Step 1 statement of grounds for action and invitation to meeting

1 —(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2.—(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless—

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it."

18. In this case it is not in dispute that the Standard Disciplinary and Dismissal Procedure was applicable: see reg 3(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Reg 12(1) of those Regulations provides –

"12 Failure to comply with the statutory procedures

(1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to

paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure."

Further reasons by the Tribunal

19. Mr Venniri's Notice of Appeal complained that the reasons given by the Tribunal were inadequate – in particular, as regards the lack of any findings on whether the statutory disciplinary and dismissal procedure had been completed, and as regards the lack of any explicit consideration whether dismissal was a reasonable sanction to impose.
20. By its Order dated 10 May 2007 the Appeal Tribunal invited the Tribunal to say whether and if so how it dealt with these issues.
21. On the question of compliance with the statutory disciplinary and dismissal procedure the Tribunal replied as follows –

"The evidence before the tribunal was that the Claimant had been told verbally on the 22nd August that the matter would be dealt with on the 29^th August and was then told just prior to the meeting on the 29^th August that he was going to be disciplined. He had however been told at the time of the incident itself that he was to be disciplined by the Manager he swore at. The Minutes of the incident were produced to the Claimant before the disciplinary hearing and so although he was not provided with a letter specifically setting out the matter of complaint the tribunal were entirely satisfied that he was fully aware firstly that there was to be a disciplinary hearing and secondly exactly what the allegation was.

The tribunal did not consider that the dismissal was automatically unfair in those circumstances."

22. On the question whether dismissal was a reasonable sanction, the Tribunal said that neither party had addressed it on this question. However –

"The respondent's case was that it was a matter of gross misconduct. The claimant refused to carry out what the respondents regarded as a perfectly reasonable request namely to work on another site for a few days in circumstances where they felt that was necessary and the swearing by the claimant at the manager in the presence of other employees.

The claimant had his own reasons for not wanting to go to the alternative site but the tribunal was satisfied on the evidence that the request by the employer was entirely reasonable in all the circumstances and there was no reasonable excuse for the claimants outburst and use of bad language even though the workplace in question was a place where bad language might occasionally be used.

The tribunal did consider whether or not dismissal was reasonable in all circumstances and came to the conclusion that the decision on the part of the respondents fell within the bands of reasonableness namely that the decision to dismiss was one that a reasonable employer could make in the circumstances of the case."

Submissions

23. On behalf of Mr Venniri Mr Jones submitted that the Tribunal had fallen into error in several ways.
24. Firstly, he submitted that the Tribunal had not given itself a correct self direction in law. Contrary to rule 30(6) of the Employment Tribunal Rules there was no concise statement of the applicable law: see rule 30(6)(d). There was no indication that the Tribunal had in mind well known authorities on the approach to be followed in relation to section 98(4): for example, Iceland Frozen Foods v Jones [1982] IRLR 439, Post Office v Foley [2000] IRLR 827, setting out the band of reasonable responses test. Moreover the reasons make no reference to section 98A and to Part 1 of Schedule 2.
25. Secondly, he submitted that the Tribunal's reasons did not amount to a properly reasoned decision: see Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold [2003] IRLR 710.
26. Thirdly, he submitted that the Tribunal did not apply the law correctly in respect of the Standard Disciplinary and Dismissal Procedure. The matter was plainly one which the Tribunal should have considered; indeed Mr Venniri, though appearing in person before the Tribunal, actually included in his bundle a document summarising the requirements of the procedure. There was no letter satisfying step one of the procedure. Although the Tribunal, in the additional reasons given, seems to have thought that Mr Venniri received a document entitled "Minutes of Incident", in fact he always denied receiving that document and there was no evidence that he received it. Moreover it did not in any event satisfy step one of the Procedure: he relied on Alexander v Bridgen Enterprises Limited [2006] IRLR 422 at paragraph 36. Moreover the minutes of what was described as the disciplinary meeting showed that it was no such thing, because they demonstrated that he had already been dismissed.
27. Fourthly, in any event, he submitted that the Tribunal's reasons did not show that it correctly applied the law on the question whether dismissal was a reasonable sanction. The Tribunal's further reasons, given some months later, are insufficient to show that it had regard to the correct test, and in particular that it considered equity and the substantial merits of the case.
28. In response Mr Croally made the following submissions.
29. Firstly, he submitted that the Tribunal's reasons were sufficient to comply with the test in Meek v City of Birmingham DC [1987] IRLR 250 at paragraph 8. A comprehensive and detailed analysis of the law was not required: see Ucatt v Brain [1981] IRLR 225 at 227. The reasons were sufficient to tell Mr Venniri why he had lost the case.
30. Secondly, he submitted that the Tribunal had applied the law correctly. He submitted that, since no argument was addressed below to the question whether dismissal was a reasonable sanction, it was not open to Mr Venniri to argue the point on appeal. In any event, he submitted that it was implicit in the Tribunal's original reasons and explicit in the Tribunal's further reasons that it had considered the matter and applied the correct test.
31. Thirdly, he submitted that since no argument was addressed below to the question whether the dismissal was automatically unfair for failing to comply with the statutory disciplinary and dismissal procedures, it was not open to Mr Venniri to argue this point on appeal either. He relied on Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 at 524-525. He submitted that it was insufficient for an employee to say (for example) that his employer gave him nothing in writing; it was essential for the employee, even if unrepresented, to submit that the dismissal was automatically unfair for failing to comply with the statutory procedure. If the point is open to be taken on appeal, then he conceded, correctly in our view, that step one of the Standard Disciplinary and Dismissal Procedure had not been complied with. He submitted that it ought to be concluded that Mr Venniri would have been dismissed even if the statutory dismissal procedure had been followed, and he should receive no compensatory award.

Our conclusions

32. It is convenient to begin with the question whether the dismissal was to be regarded as unfair by reason of s98A(1) of the Employment Rights Act 1996.
33. In its original reasons the Tribunal did not identify this question as an issue and made no findings concerning it.
34. In our judgment s98A(1) of the Employment Rights Act 1996 is part of the essential fabric of unfair dismissal law as presently enacted by Parliament. Whether there is an applicable procedure, whether there has been "non-completion" of that procedure, and whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements, are matters which the Tribunal should have in mind in every unfair dismissal case. It is not necessary for a claimant to raise s98A(1) explicitly; the Tribunal should have the matter in mind as an issue.
35. Now that the statutory procedures under the 2002 Act are becoming well known, it is to be hoped that in most cases an employer will have complied with them. Often, particularly where a claimant is represented, a few moments of discussion at the beginning of a case will establish that it is conceded that the relevant procedure has been complied with by the employer. But in the absence of an informed concession on the question, the Tribunal should regard s98A(1) as an issue and deal with it in its reasons.
36. In this case the Tribunal should have identified s98A(1) as an issue, and dealt with the issue in its reasons. There was no concession by Mr Venniri. He had, indeed, actually included the relevant procedure in his bundle with a star against step one. Moreover in his witness statement he expressly complained that he was given nothing in writing before the meeting on 29 August.
37. In these circumstances we consider that it is open to Mr Venniri to raise the matter on appeal. He is not raising a fresh point of law to which the principles in Jones v Governing Body of Burdett Coutts School apply. He is complaining that the Tribunal has not dealt with an issue which it was duty-bound to address.
38. Mr Croally conceded, to our mind correctly, that Autodex did not comply with step one of the Standard Disciplinary and Dismissal Procedure. It follows, applying the statutory provisions we have set out above, that the dismissal is automatically unfair under s98A(1).
39. Quite apart from the question whether Autodex complied with paragraph 1(1), it seems to us that there would have been a serious question whether it ever held a meeting which complied with paragraph 2. If the minutes to which we have referred above are accurate, it would be at least arguable that Autodex had taken action prior to the meeting on 29 August 200. Nor is it at all obvious that Autodex had complied with paragraph 2(2). But since the dismissal is automatically unfair by reason of non-completion of stage one, we do not need to address this point further.
40. For those reasons it is in our judgment inevitable that the appeal must be allowed and a finding of unfair dismissal substituted.
41. We wish, however, also to say a word on the question whether dismissal was a reasonable sanction. The Tribunal, in its original decision, neither set out the law in these terms, nor gave any express consideration to the question. Although it set out reasons subsequently, these reasons are unimpressive and do not directly grapple with the argument Mr Venniri put forward in his claim form. We think that on remission the Tribunal should consider all issues related to remedy afresh without being in any way bound by the conclusions of the present Tribunal.
42. The appeal will therefore be allowed. A finding of unfair dismissal will be substituted. The matter will be remitted for a fresh Tribunal to consider all questions of remedy, which may include Polkey issues and contributory conduct issues. These are matters for a Tribunal, not for the Appeal Tribunal, which deals only with questions of law. The fresh Tribunal should make its own findings of fact for the purposes of these issues and should not regard itself as bound by any of the conclusions of the original Tribunal.