United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A HARDMAN (Advocate) Instructed by: Messrs Lindsays Solicitors 1 Royal Bank Place Buchanan Street Glasgow G1 3AA
For the Respondent	MR S BORTHWICK (Advocate) Instructed by: Messrs Thompsons Solicitors Berkeley House 285 Bath Street Glasgow G2 4HQ


 


SUMMARY

UNFAIR DISMISSAL

Tribunal found that the claimant was unfairly dismissed. Two allegations of misconduct, one admitted and established but Tribunal found that the respondents did not have reasonable grounds on which to sustain a belief in the other ground. The dismissing manager would not have dismissed in respect of the former ground alone. The manager who heard the appeal thought that that ground did warrant dismissal. Employers appealed; the Tribunal had failed to take account of the view of the appeal manager that the uncontested ground justified dismissal. Appeal dismissed; the employee would not have been dismissed on that ground alone and the matter would never have come before the appeal manager if the employers had not entertained an unjustified belief in the other allegation of misconduct.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an appeal from the judgment of an Employment Tribunal sitting at Glasgow, Employment Judge Ms M Neilson, dated 31 March 2008 and finding that the claimant was unfairly dismissed. It made a monetary award of £8970.
2. We will continue to refer to parties as claimant and respondents.
3. The claimant was represented by Ms H Burns, legal executive, before the Tribunal and by Mr Borthwick, advocate, before us. The respondents were represented by Mrs J Sabba, solicitor before the Tribunal and by Mr Hardman, advocate, before us.

BACKGROUND

4. The claimant was employed by the respondents as a machine operator in their Hamilton factory which manufactures light tubes.
5. On 19 June 2007, there was an altercation between the claimant and another employee. The claimant accepted that he had been verbally abusive during the incident. It was alleged that the claimant had also destroyed a number of light tubes which were "good product" at or about the same time. The allegation emanated from the other employee involved in the altercation.
6. The claimant was disciplined in respect of both matters. The disciplinary hearing took place on 25 June 2007. Mr Adrain, a manager employed by the respondents, chaired the hearing. The two allegations were found to have been proved and the claimant was dismissed summarily on grounds of misconduct. Before the Tribunal, Mr Adrain gave evidence, which was accepted, that the abusive language matter would not, on its own, have warranted summary dismissal. That is, had it not been for the hearing finding the destruction of property allegation to have been established, the claimant would not have been dismissed.
7. The claimant appealed and the appeal was heard on 5 July 2007, chaired by another manager, Mr Waugh. It was not a rehearing. The appeal was refused. His decision that the dismissal was fair was on the basis that both allegations constituted, separately, gross misconduct.

The Tribunal's Judgment

8. The Tribunal found that the respondents had no reasonable grounds on which to sustain the belief that the claimant had destroyed good product. At paragraph 50, they state:

"The respondents did not have reasonable grounds to sustain the belief that the claimant had destroyed good product and by their own evidence, what they were left with, (namely making abusive comments to a superior) would have amounted to misconduct only and would not have amounted to gross misconduct resulting in summary dismissal."

9. We are satisfied that, at paragraph 50, the Tribunal is dealing with the disciplinary hearing and dismissal stage. Paragraph 51 contains their discussion regarding the appeal stage. It is in that paragraph that they record that Mr Waugh's evidence was that he made his decision on the basis that the two allegations each, separately, amounted to gross misconduct. After taking account of what happened at the appeal hearing the Tribunal conclude that the dismissal was, nonetheless, unfair.
10. At the start of paragraph 51, the Tribunal state:

"Obviously, the appeal hearing could have resolved any difficulties had it been a complete rehearing, but clearly it was not."

The Relevant Law

11. The Tribunal have correctly noted the relevant statutory provisions and authoritative references on the subject of unfair dismissal. Under reference to what was at issue in this case, they have taken account of the need for an employer to have had a genuine and reasonable belief in the employee's misconduct and if it did, of the need to ask if so, whether or not dismissal fell within the band of reasonable responses to it.

The Appeal

12. For the respondents, Mr Hardman submitted that the Tribunal had erred in law. Their approach to the appeal hearing indicated that they considered that the appeal hearing was not capable of curing any difficulty at the earlier stage on account of it not being a rehearing. That was wrong as a matter of law. He relied, in support of that submission, on the case of Taylor v OCS Group Ltd [2006] IRLR 613.
13. Further, the Tribunal had erred in failing to take account of its own finding that Mr Waugh regarded the abusive comment matter as gross misconduct in itself. Had they taken it into account they would not have concluded that all that the respondents were left with was the making of abusive comments to a superior, which would not have amounted to misconduct. They would have recognised that there were two views on the matter, one Mr Adrain's and one Mr Waugh's. In these circumstances, there should be a remit to the Tribunal to consider, having taken account of Mr Waugh's evidence, whether the respondents acted reasonably or unreasonably in treating the claimant's misconduct consisting of the making of those comments, as a sufficient reason to dismiss.
14. For the respondents, Mr Borthwick accepted that the Tribunal were wrong to disregard the appeal on the basis that it was not a rehearing and that if that was all that the Tribunal had said, the respondents would be on weak ground. However, the Tribunal had gone on and considered what actually happened at the appeal. Further, had the destruction of property matter not featured, it was evident that the claimant would not have been dismissed. Looking at matters in the round, it would be perverse to support the dismissal on the basis that notwithstanding that there would have been no dismissal if the respondents had not founded on the destruction of property matter, it could have been upheld at appeal stage on account of Mr Waugh's view as to the characterisation of the abusive comments conduct. The Tribunal were entitled to accept Mr Adrain's evidence that he would not have dismissed on the basis of that conduct alone.

Discussion and Decision

15. We are not persuaded that we should uphold this appeal.
16. Firstly, we note that the Tribunals' finding that the respondents did not have reasonable grounds on which to hold their belief that the claimant had deliberately destroyed good product. It is not challenged. It follows from that that the claimant should never have been disciplined in respect of that allegation.
17. Secondly, whilst it is accepted by the claimant that he could and would have been disciplined for making abusive comments to his superior, on the Tribunals' findings, any such disciplinary procedure would not have resulted in dismissal. That follows from the Tribunals' finding that Mr Adrain would not have regarded the abusive comments matter as gross misconduct had that been the only matter he was considering.
18. Thirdly, if the claimant had only been disciplined for the abusive comments matter, since he would not have been dismissed, there would have been no question of there being any appeal. In those circumstances, the forming by Mr Waugh of his view that it, of itself, amounted to gross misconduct, would not have arisen. There would have been no appeal in the context of which he could have done so.
19. It is against the above background that the Tribunal made the comments that they did in paragraph 50, namely that without the destruction of property matter all that the respondents would have been left with would have been misconduct which would not have given rise to dismissal.
20. There is a fundamental flaw in the respondents' approach. It requires matters to be approached by taking account of Mr Waugh's evidence about the view he would have formed in the context of an appeal hearing which would not have taken place if the respondents had not, unjustifiably concluded that the claimant was guilty of having deliberately destroyed good product. On no view were the Tribunal in error in refraining from adopting that approach. They would have been in error if they had done so. It is not, as Mr Hardman sought to suggest, a matter of starting from the basis that the claimant was in fact dismissed after an appeal hearing and thus the evidence about the view Mr Waugh formed at that stage had to be taken into account. On the contrary, the Tribunal did require to hypothesise as, in effect, they did, and ask themselves what the position would have been had the respondents refrained from acting in respect of the destruction of property allegation.
21. In short, the claimant was dismissed following an appeal hearing which, had the respondents acted as they ought to have done, would not have occurred. In those circumstances, no account can properly be taken of the reasoning of the person who determined the appeal.
22. Without that reasoning, the respondents' own characterisation of the conduct for which they were entitled to discipline the claimant was, via Mr Adrain, that it was not gross misconduct. That is an end of the matter.
23. As a postscript we would add that we agree that the Tribunal does appear to have indicated at the beginning of paragraph 51 that to resolve earlier difficulties an appeal requires to be a rehearing. That is not the law, as explained in the case of Taylor v OCS. Their error did not, however, matter. The comment is made in the context of considering the destruction of property matter and the respondents do not challenge their conclusions regarding it. They may, in any event, have said just enough to show that despite the impression given by that sentence, they did give full consideration to what actually happened at the appeal rather than proceeding on an assumption that because it was not a rehearing, it could not remedy an earlier deficiency of approach.

Disposal

24. In these circumstances, we will pronounce an order refusing the appeal.