United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER LINSTEAD (of Counsel) Instructed by: Messrs EMW Law Solicitors One Seebeck Place Knowlhill MILTON KEYNES MK5 8FR
For the Respondent	MR MICHAEL MAGUIRE (Legal Adviser) Luton Irish Forum Kathleen Connolly House 102 Hitchin Road LUTON LU2 0ES

SUMMARY

Unfair Dismissal

Reasonableness of dismissal

Procedural fairness/automatically unfair dismissal

An employee was dismissed for two incidents of what the employers considered to be gross misconduct. The Employment Tribunal found that a dismissal was unfair both because of procedural failings with respect to each incident and because the sanction of dismissal did not fall within the band of reasonable responses. The employers pursued many grounds of appeal.

The EAT upheld the appeal in part. The Tribunal erred in finding that the employers' procedures were defective with regard to one of the incidents, and that may have affected their conclusion on the sanction issue. Case remitted for further consideration by the same Tribunal.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal by the employers against the decision of the Employment Tribunal which unanimously found that the Claimant had been unfairly dismissed. We shall continue to call the employee the Claimant, although he is the Respondent before us.

The background

2. The background is as follows. The Claimant worked for the Respondent company for more than twenty years. He was an excellent worker, and highly regarded as a good, honest and disciplined man.
3. During the autumn of 2006 he was working with others on a quality project for BMW. This involved employees spending time at Cowley with the BMW team. The Claimant was the team leader, based on previous experience of working for the Respondent off site, and he had considerable BMW product knowledge.
4. During the course of that project it is said that the Claimant made certain racist remarks. That was reported to Mr Cassidy, the manager of Durability Operations at the Respondent company, by another employee, Paul Playle. He told Mr Cassidy that members of the BMW team had complained to him about the remarks. Mr Cassidy spoke to Mr Alan Neal, who was the company's contact at BMW, to discuss the situation. Mr Neal explained that complaints had been received from three persons. They related to allegations that racist comments had been made, including a comment about running over black people on a zebra crossing. Mr Neal went on to say that the matter had been dealt with and need not go further.
5. Mr Cassidy, however, wanted to take matters further. He asked BMW to put their comments in writing, and told the Claimant that he had to return to his base at Millbrook. The Claimant explained that he had made a comment about people on a zebra crossing. He explained that there had been a Lenny Henry joke about getting extra points for hitting people on a zebra crossing, and he repeated the joke. He intended it as a flippant remark. It was not intended to be racist, and no-one in the car appeared upset about it.
6. When Mr Neal had taken him to one side, he had apologised. Mr Neal was plainly not perturbed by it because after Mr Jefferson's dismissal, he offered him a job.
7. Mr Cassidy relied on two statements, two short handwritten notes from a Mr Phillips and Mr Cort, both of whom had been in the car with the Claimant. Mr Cort could not remember exactly what had been said. Mr Phillips and a Mr Coyle also made short statements about a subsequent incident when the Claimant had allegedly addressed a remark to Eric Tirthdas, who was employed by one of BMW's contractors, to the effect that he would not get a job with the Respondent because of the colour his skin. Mr Tirthdas is Asian. Mr Tirthdas did not personally confirm that this observation had been made. However, the Respondent assumed that it had as a result not only of the statements from the two witnesses, but also from a statement received from Alan Neal, in which he said:

"I asked Eric if he found what Steve had said to him as offensive and he said that he didn't and that he valued Steve as a friend and thought that the comment he had made was aimed at what Millbrook management would have said."

8. No investigations at any time were made of the individuals who were allegedly said to have overheard these remarks. The company relied, as the Tribunal noted, purely on hearsay and handwritten statements. The Tribunal commented in particular upon the fact that Mr Tirthdas made a number of statements but all of them related to certain questions he was asked rather than a full statement. Initially in these statements Mr Tirthdas simply observed, as he had apparently to Mr Neal, that he was not personally offended by any remarks made by the Claimant. Subsequently, in a statement made between dismissal and the appeal, he denied that the Claimant had made the statement at all, and that was also the position he adopted in his evidence before the Tribunal.
9. The Claimant had a disciplinary hearing before Mr Carl Field, head of Vehicles and Track Operations. The Claimant said that Mr Playle was just making trouble because the Claimant was his manager and was having difficulty in managing him. The Claimant reiterated that his remark was intended to be flippant, and no more than that. Mr Field recommended dismissal. In so doing he took account of the company's equal opportunities policy. His recommendation was confirmed by Mr Coverley, who was a director of the Respondent and who reached his decision by reading the papers provided by Mr Field and hearing representations from the Claimant.
10. There was an appeal to the managing director, Mr Calvert, but he dismissed the appeal. Again he relied on written documents and did not interview anybody, although he also heard submissions from the Claimant. He did, in fact, investigate an issue which had arisen, namely whether another black employee of the Respondent had been subject to any discriminatory behaviour and the employee said he had not been offended by anything.
11. The company considered that the first remark was of a racial nature and the second was totally unacceptable and untrue. The letter confirming the dismissal set out the findings with respect to each of the two incidents and said:

"…you are summarily dismissed for instances of "racial discrimination" and "bringing the company into disrepute" which constitute acts of gross misconduct as described in the Millbrook staff handbook."

The Tribunal Decision

12. The Tribunal reminded itself that it must not substitute its own view for that of the employer and it accepted that remarks of an offensive nature and unjustified slurs on the company were unacceptable conduct. However, it was highly critical of two features of the decision in particular.
13. First, it considered that the interviews had been wholly inadequate. Nobody had sought to talk to the individuals who had made the complaint. Nor had they tried to interview Mr Tirthdas who in fact had subsequently denied that any untoward comments had been made. Furthermore, they had not interviewed Mr Playle either, even although the Claimant was saying that he may have had an ulterior reason for passing on the complaints in the first place.
14. Moreover, they considered that even had fair procedures been adopted, it was simply not appropriate for a reasonable employer to impose the sanction of dismissal in these circumstances. The Tribunal recognised that they had to consider whether the decision to dismiss fell within the range of reasonable responses and they concluded that it did not.
    
15. They first stated in that terms and then added this (para 5 of the decision):

"The Tribunal unanimously consider that a reasonable employer would have taken into account amongst other things

(a) The fact that the remarks were made flippantly and could be described as workshop banter.

(b) The persons against whom they were arguably directed not only could not have heard them let alone be offended by them.

Furthermore there is no evidence that the individuals who heard the remark in the car allegedly and then complained about it to somebody made any remark about it at the time to Mr Jefferson.

(c) The client BMW regarded the matter as having been dealt with after Mr Jefferson had been spoken to by Mr Neal.

(d) The substantial mitigation including the length of service and excellent work record of the Claimant.

e) It was plain from the evidence that the Respondents themselves have submitted that they had not dealt evenly with Mr Jefferson in the sense that examples of other individuals that they gave who were arguably facing much more serious complaints against them of sexual harassment or of downloading pornographic material from the net, had in one case been dealt with by way of a final written warning rather than dismissal."

The grounds of appeal

16. Essentially they fall under four categories. First, it is submitted that the Tribunal erred in saying that it was unreasonable for the company not to obtain a statement from Mr Playle. It was not suggested that he had colluded with any of the individual witnesses, he was not himself a party to either of the incidents, and in those circumstances, whatever his motives may have been for making the complaint, that did not affect the question whether the Claimant had committed the misconduct alleged.
17. We accept this submission. We agree that it is not necessary to obtain a statement from the person who triggered the procedure: see Corus UK v A M Mainwaring UKEAT/0535/07 at para. 28. However, we should say that it seems to us to be very much a peripheral basis for the Tribunal's decision and it does not affect their basic analysis. Accordingly, it is not of itself a basis for interfering with the decision.
18. The second ground is that the Tribunal was not entitled to conclude that it was unreasonable for the Appellant not to interview the two witnesses to the original conversation in the car. The Respondent submits that the question is whether it was reasonable for the employer to accept the facts and opinions which it did: see Linfood Cash & Carry v Thompson [1989] ICR 518, 523.
19. An important feature of this case was that the Claimant had admitted the comment he had made, and in those circumstances it was reasonable for the Respondent to take the view that no further investigation was necessary. There was in the circumstances no purpose in carrying out any further investigations.
20. Mr Linstead, who presented the case most ably on behalf of the employers, submitted that the Tribunal had erred in effectively substituting its own view for the employer as to what investigation was required. He said that the attitude which the employers had adopted to this incident was that it mattered not whether the comments were made flippantly by way of a joke or whether they disclosed some deeper racist intent. Either way, they were wholly unacceptable and justified dismissal.
21. We would accept that if the employers were intending to take that view – and it may be the better interpretation of their position on the evidence although we have not seen all the evidence – then a finding that they ought to have interviewed the two complainants would not be merited, given the admission by the Claimant as to what he had said. If, however, they were intending to reject his claim that the remarks were flippant and to give them any greater significance then we have no doubt that the Tribunal was entitled to find that the two complainants should have been interviewed. Their observations may have been highly relevant to the question whether the comments were made light heartedly or with a different overtone.
22. Mr Linstead submitted that the Tribunal's reasons for stating that the two complainants should have been interviewed were unconvincing. We agree that in so far as the Tribunal suggested that the complainants may not be trusted, being contractors of BMW, that is true. But the Tribunal also emphasised the gravity of the charge, and in any event we think it obvious that it is impossible to understand the intent with which the comment was made without asking the recipients. The fact that one of them considered the comments to be unacceptable tells us nothing about that.
23. The Claimant's contention was that this remark was made flippantly, repeating a joke he had heard from the comedian Lenny Henry. It seems to us plain that if the company had accepted that the comment may have been made as a joke, albeit not a joke in very good taste, that could be potentially very significant in determining what an appropriate sanction was. It is for this reason in our judgment there is an inter-relationship between this ground of appeal and the fourth ground which challenges the Tribunal's decision that no reasonable employer could have properly dismissed the employee, for this reason
24. The third ground of appeal relates to the second incident. It is said that the Tribunal has substituted its own view for that of the employer in analysing this incident. The question, says Mr Linstead, is whether a reasonable employer could have taken the view that there was adequate evidence that the remark had been made to justify not making any further investigation of the witness.
25. It is pointed out that all the evidence before the employer at the time of dismissal was that the statement had been made. Mr Tirthdas was not at that stage denying it. Rather he was saying that he was not personally offended by it, which is a different thing.
26. Of particular importance is the email from Mr Neal, which we have set out above, which was plainly premised on the assumption that Mr Tirthdas had accepted before Mr Neal that the statement was made. In those circumstances, submits Mr Linstead, the fact that he had subsequently denied that any such matter had ever been discussed between them was of no materiality. It was not the position before the employers at the time and they were not at the stage, of determining whether or not to dismiss, put on notice that Mr Tirthdas was saying anything else. On the contrary, there was every reason for a reasonable employer to take the view that the statement had been made.
27. We accept this submission. It seems to us that the Tribunal did place too much weight on the subsequent statement by Mr Tirthdas that there had been no conversation of the kind referred to by the witnesses. We think that the Tribunal may have been too influenced by their own assessment of the evidence which was given in the Tribunal to them by Mr Tirthdas.
28. It is, of course, trite law that the test is whether the employer was acting reasonably at the time of dismissal in the light of the evidence reasonably gained at that stage, rather than whether in hindsight the conduct has been reasonable in the light of the evidence given to the Tribunal. We were referred to well known passages from the decision in Linfood Cash & Carry v Thompson [1989] ICR 518 and Sainsbury v Hitt [2003] IRLR 23 to that effect.
29. We accept that other employers might have thought it fairer personally to interview Mr Tirthdas or even to confirm with Mr Neal precisely what Mr Tirthdas had said to him but the question, as we have said, is whether a reasonable employer could fairly have concluded that it was not necessary to carry out any further investigation of that question, given the evidence before them.
30. We emphasise again that at that stage Mr Tirthdas had not denied that the statement had been made. Further, as Mr Linstead emphasised, it is not a case where the relevant witness had not been interviewed at all. He had been questioned by Mr Neal and whilst the evidence was therefore second hand, it was not a case of a complete failure to obtain the observations of the other party to the conversation.
31. In those circumstances we think the Tribunal did err and that the only proper conclusion was that a reasonable employer could have thought it appropriate to act on the evidence that they had at the time, and that the finding of misconduct with respect to that incident was justified.
32. The fourth ground is an allegation that the Tribunal substituted its view for that of the employer as to the appropriate sanction. Mr Linstead submits that the Tribunal simply identified certain factors which a reasonable employer should have taken into account, whereas the test is whether a reasonable employer could have decided in the circumstances to dismiss.
33. We do not accept that the Tribunal did make that error. They said in terms that they were recognising that there was a band of responses and the question was whether this dismissal fell within it, and they concluded that it did not. In setting out the factors (set out in para 15 above), in our view they were merely indicating why they reached that decision. We think that read fairly they were saying that a reasonable employer would have taken account of the factors they identified and that having done so, the reasonable employer would not have dismissed.
34. Mr Linstead also submitted that the Tribunal was perverse in relying on these factors in any event. We do not accept that. We would agree that the factor in the first paragraph of ((b) is irrelevant, but in our view the other factors are all potentially material. The attitude adopted by another party, as is reflected in para (c) which refers to the stance taken by Mr Neal, would in most circumstances be immaterial. However, we think that the Tribunal was right to say that it would have some, if relatively light, weight here where the employers were placing significant weight on the evidence given to Mr Neal.
35. In our view points (a) and (d) are highly material and in our judgment on their own fully justify the Tribunal's conclusion with respect in particular to the first incident. This links with the second ground. If the employer was indifferent to whether the remark was made flippantly or not, then it seems to us that the reasonableness of the dismissal must be assessed on the basis that it was flippant and merely intended as a harmless joke.
36. We have no doubt that on that assumption, the Tribunal could properly conclude that dismissal for this reason was outside the band of reasonable responses. In short, if the employer took the view that the comments were not flippant, it was unfair to reach that conclusion without seeking further observations from the two complainants. If, on the other hand, they were saying that it did not matter whether they were flippant or not, then the decision to dismiss fell outwith the range of reasonable responses.
37. Mr Linstead also submitted that it was an error for the Tribunal to say that the employer had failed to have regard to these matters when they plainly had considered some of them, and in particular the length of service. In our view that is a misunderstanding of the decision. In our judgment the Tribunal were not here criticising the employer specifically because they did not have regard to these matters. They were explaining why the sanction of dismissal was not within the range of reasonable responses.
38. Finally, there is a distinct ground of appeal directed against the order of reinstatement made by the Tribunal. Since we have found that the Tribunal erred in its approach to the second issue, it follows that this aspect of the decision must fall in any event. Suffice it to say that we would have upheld the specific ground with respect to this, namely that the Tribunal could not properly make this order without making a finding as to the extent, if any, to which the Claimant contributed to his own dismissal. That is one of the factors which has to be considered before reinstatement can be considered: see section 116 (1)(c) of the Employment Rights Act 1996, and it has not been.

Disposal

39. That leaves open the question of what we should now do with this decision. We have found that the employers were entitled to treat the second incident as established. At the same time we have concluded that the Tribunal was entitled to conclude that the dismissal did not fall within the range of reasonable responses.
40. However, it is right to say that in our view that aspect of the decision relating to the sanction of dismissal focused principally on the first incident only. There appears to have been limited consideration of the justification for dismissing for the second incident. It is not entirely clear to us that the Tribunal would necessarily have reached the same conclusion had they treated the second incident as established. In the circumstances we think that it is desirable to send the matter back to the Tribunal to reconsider that aspect of the decision and either to confirm that the decision fell outwith the band of reasonable responses or not. It will be for the Tribunal to decide what further evidence, if any, it wishes to hear on that matter, or whether submissions are sufficient.
41. Of course if the Tribunal remains of the view that the dismissal is unfair, it will have to reconsider the issue of reinstatement in any event, for reasons we have given.