United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRIS ANDREWS (Representative) a2emc Limited 53 Aldin Way Hinckley LE10 0GE
For the Respondent	MR GRAHAM MITCHELL (Solicitor) Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB


 


SUMMARY

UNFAIR DISMISSAL: Automatically unfair reasons

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES

Whether infringed

Employment Tribunal decision that employers had, on the facts found, complied with Steps 1 and 2 of the statutory disciplinary procedures. Appeal on the basis of a misdirection as to compliance but viewed as a whole there was held to be no misdirection or other error in the decision as to compliance and rejection of the complaint of automatic unfair dismissal. Appeal dismissed after full hearing.

THE HONOURABLE MRS JUSTICE COX

1. This is the full hearing of the Claimant's appeal against the judgment of a Bedford Employment Tribunal, registered on 19 July 2007, dismissing his claims for unfair dismissal under both Section 98 and Section 98A of the Employment Rights Act 1996.
2. Following a preliminary hearing on 1 April 2008 the EAT ordered that only the first ground of appeal was arguable and should proceed to a full hearing. The two other grounds, which related to the weight given by the Employment Tribunal to parts of the evidence, and sought to raise a perversity challenge, were held to have no real prospect of success and were dismissed.
3. The sole ground of appeal for us to determine is therefore whether the Tribunal erred in their finding of compliance by the Respondents with the statutory disciplinary procedures in the Employment Act 2002, and in dismissing the claim for automatic unfair dismissal under Section 98A.

The facts

4. The relevant facts are as follows. This Claimant had been employed by the Respondents as a forklift truck driver from 31 October 2004 to 24 July 2006. The Respondents' business is warehousing, and they deal with various companies which store their products with them for onward transmission to customers.
5. The Claimant worked at a large warehouse in Crick, Northamptonshire. The Tribunal found that he was an employee who had had ample training and who was very familiar with the Respondents' procedures. Ensuring that they got the right products to the right customers at the right time was the main, if not the only, function of the Respondents' company, as the Tribunal emphasised in their reasons.
6. There were a number of bays in the Crick warehouse storing different products. When these were required to be transported the forklift truck drivers were given a "picking note". On that picking note it would say which bay they should go to and would give a product code identifying the product in question. The drivers were equipped with scanners which, on being held to the product, thereby identified it as the correct one for loading. If the scanner did not give the correct signal to indicate that this was the right product, the Tribunal held that there were two possibilities: the first was that the scanner or perhaps the barcode on the note on the pallet was defective or, alternatively, the scanner had not been applied to the right pallet or the right product. Each pallet contained a note or a sticker on the side giving the product code.
7. On the relevant evening, 19 July 2006, the bay in question was bay GO3, and the picking note showed that there were 15 pallets to pick up from the bay containing some sort of glass or glassware. The Claimant was assisted on this date by another worker, Stephen Alberts, but the Claimant accepted that he was the employee responsible.
8. Usually the bays contained only one sort of product, but sometimes they contained mixed products. It appeared, although the Claimant was not warned about this in advance, that bay GO3 was a mixed bay. The scanner was applied to the goods at the front of the bay, but it did not work, in the sense of identifying the correct product. The Claimant turned the scanner off, then turned it on and tried again. Still it did not identify the pallet as the correct product. Mr Alberts was noting numbers on a clipboard, but the Tribunal found that the Claimant had never said at any stage that he asked Mr Alberts physically to check the numbers. It was not suggested that it was not possible for either Mr Alberts or the Claimant to read them, but the Claimant accepted that he did not go and have a look, nor did he ask Mr Alberts to look.
9. When asked at the hearing why he did not, the Claimant just said he did not think of it at the time. What he did do, the Tribunal found, was go to the charge hand, Mr Walsh. At paragraph 6.7 of their Reasons the Tribunal found that at least twice Mr Walsh asked the Claimant whether he had checked the product, and twice the Claimant said he had. Not unreasonably, they held, Mr Walsh took him to mean that he had had a look at the numbers and compared them with those on the picking note and those on the side of the pallet, but that is not what he did. The upshot of all this was that the wrong consignment was sent out and, of course, the customer noticed. Not surprisingly, the customer complained.
10. This was not the first time that the Claimant had been in trouble for this event. He had received a final written warning some two years previously in June 2005. At paragraphs 6.8 and 6.9 the Tribunal found as follows:

"6.8 In the letter of 28 June 2005 he was given the warning on the grounds of his unsatisfactory work performance and it said that the factors upon which the decision to give him the final written warning were that he had loaded 11 pallets of the wrong sort, that he had failed to check the load before it was cleared for dispatch and the delivery of the incorrect product resulted in a serious customer complaint. They took into account two verbal warnings he had had in January and February 2005. The warning goes on to say that: 'It will remain live on your record for two years, i.e. it will expire at the end of 16 June 2007. Any further breach of discipline within that time will result in the consideration of your dismissal from the company' … It went on to inform him of his right of appeal, which in the event he did not exercise.

6.9. It is also relevant to record that in January 2006 Mr Caster faced disciplinary proceedings for a gross misconduct issue ... and, indeed, he was dismissed. In the letter which appears at page 26 dated 20 January 2006, it took into account that he was issued with a final written warning in June 2005. This was very much in the forefront of his mind and, in fact, Mr Clark, being the Managing Director, heard the appeal in that matter, as well as in this case. Mr Clark decided in January (or perhaps it was February) to reinstate the Claimant. The relevance is that it was very much in the forefront of the Claimant's mind that the written warning was still live and active."

11. The Tribunal found on the evidence that the procedure was clearly established, and if the scanner did not work, there was a duty to check that it was the right product. The Claimant had been trained and had been doing the same job day in and day out for over a year. He was found to be clearly capable of doing the job correctly, but on this occasion to have failed to comply with the established procedure.
12. A letter was sent to the Claimant dated 20 July 2006 by the Human Resources Manager, Paul Hobday, in which he was advised that he was required to attend a disciplinary meeting. He was told that this meeting would be with David Faulkner, Depot Manager, and would take place at the Crick depot at 1700 hours on Monday, 24 July 2006. Paragraph 3 of that letter read as follows:

"The purpose of this meeting will be to discuss with you the Company's serious concerns regarding an incident whereby you apparently loaded a trailer with incorrect product on 19th July 2006. You will be given every opportunity to present your position in regard to these concerns, after which the Company will decide what, if any, might be an appropriate disciplinary outcome."

13. The Claimant was also advised in that letter of his right to be accompanied by a colleague or accredited union representative.
14. Having heard evidence at the hearing from the Claimant and two colleagues, and from five witnesses called for the Respondents, the Tribunal found further as follows at paragraphs 6.11 and 6.12:

"6.11. After the events of 19 July 2006 Mr Faulkner interviewed the Claimant within a day or two, on 21 July 2006. He also spoke to Stephen Alberts and Gerry Walsh. These were the only three people involved in what was a simple, if important, incident. There were no written statements taken, and the letter of 20 July (which I have quoted earlier) called the Claimant to the disciplinary hearing. He made no bones about the fact, when giving his evidence, that he realised when he received that letter and was called to a disciplinary, that he was potentially facing a dismissal. He knew he was at risk of a dismissal. He knew what the incident was about. The date and the loading of the incorrect product had been identified for him. He knew perfectly well what he was facing.

6.12. In the course of the disciplinary interview with Mr Faulkner, whose evidence we accept, he impressed us as a witness, he put to the Claimant what had been said by Stephen Alberts and Gerry Walsh. I should add that Mr Andrews [for the Claimant] does not rely on disparate treatment in terms of punishment, but it is relevant to record that both of those employees were also subject to a disciplinary process. Neither was dismissed but neither was on a final written warning at that stage. In view of the previous similar offence and the final written warning, the decision that Mr Faulkner took was to dismiss."

15. The Claimant then appealed, and the Tribunal found that the Managing Director, Mr Clark, conducted the appeal fairly. They also found that on several occasions during the appeal hearing the Claimant admitted his error. He accepted that it was his responsibility to load the correct pallet, that he did not check the number on the pallet against the paperwork, and that he should have done. Mr Clark upheld the dismissal.

The Tribunal's decision

16. The Tribunal found that the reason for dismissal was misconduct. At paragraph 8 the Tribunal referred to the EAT's decision in Alexander v Bridgen Enterprises Limited [2006] IRLR 422, and set out sections of the head note relating to the duties of employers under the Statutory Disciplinary Procedures.
17. At paragraphs 9 to 11 they concluded as follows in respect of Section 98A:

"9. We take the view in reaching our conclusions that we have to look at the correspondence in the context of the facts of this case. The letter of 20 July 2006, step 1, sets out on the Bridgen test, sufficient material for the employee in question to realise what it is all about: the incorrect product being loaded on the trailer on 19 July 2006. That is easily sufficient. The question that arises is whether the concluding words of what might be an appropriate disciplinary outcome are sufficient.

10. Taken in the context in which they are written, we hold that they are sufficient. If there had been no previous context, if there had been no final written warning and the Claimant was genuinely unaware of the jeopardy in which he was, it would not have been sufficient. That letter out of the blue, with no previous history, would not in our judgment have been sufficient, but the Claimant did have the written warning, he knew what the steps of the disciplinary procedure were and he also knew from his experience at the beginning of 2006 that the final written warning was alive and active. He was under no illusions and it was perhaps a matter that the employer felt too obvious to need stating; and certainly, in terms of communicating the risk, it worked, because the Claimant very candidly, as I said we have no problems with his honesty, said in evidence that he knew that he was at risk of dismissal. Not surprisingly, given the history and given the terms in which the disciplinary procedure worked and the terms in which the warning was written, we hold that that letter does comply with the provisions in section 98A and section 32 in the context in which it was written.

11. Thus we reject the claim for automatic unfair dismissal."

18. The Tribunal then turned to the fairness of the dismissal under Section 98, holding at paragraphs 12 and 13:

"12. That passage from Bridgen also summarises what should happen in a disciplinary process. Mr Faulkner fully complied in the disciplinary interview with that process. He told the Claimant the information that had been passed to him by Mr Alberts and M Walsh, he put to him the case and the Claimant was aware of it and he gave his replies.

13. The Claimant attended an appeal in the course of which he essentially admitted the offence on two or three occasions. It has in our judgment been rightly argued that this is not a minor error or peripheral matter. Getting these things right goes to the heart of the Respondent's business and it cannot be treated lightly. Therefore we conclude that it was a fair dismissal under section 98. There was a belief in a misconduct, it was the reason for dismissal, it was held on reasonable grounds, there had been a reasonable investigation. Mr Caster did have a fair chance to meet the case against him and dismissal lay within the range of sanctions open to a reasonable employer."

19. The Tribunal rejected a suggestion that the two year period for a written warning was unreasonable as being longer than that set out in the ACAS Code of Practice, and repeated at paragraph 15 their conclusion that, looking at this case in the round, the decision to dismiss under Section 98 was a fair and reasonable one.
20. We are told that the Employment Judge was giving the Tribunal's reasons orally at the end of the hearing and in the presence of both parties. Having decided the case against the Claimant his representative, Mr Andrews, then asked for clarification as to whether the Tribunal had decided that step 2 in the statutory disciplinary procedure had been complied with. This resulted in the addition of paragraphs 16 and 17 as follows:

"16. Mr Andrews has asked the Tribunal to clarify that step 2 as set out in the quote from Bridgen that I have given is compliant. It does set out the grounds for the letter of 20 July. It does not merely say 'misconduct'. It tells the Claimant exactly what the conduct in question was. He apparently loaded the trailer with incorrect product on 19 July 2006.

17 In the meeting itself the evidence was given and the grounds, or the detail of evidence, was summarised by Mr Faulkner so that the Claimant could deal with it:

'At the second step the employer must inform the employee of the basis for the ground or grounds given in the statement.'

The grounds which are given in the statement, which is the letter of 20 July was the apparent incorrect loading of a trailer with incorrect product on 19 July 2006 and at the meeting the employer must inform the employee (and I am merely quoting now) of the basis for the ground or grounds given in the statement. This information need not be reduced into writing, it can be given orally. That puts it clear beyond a doubt what is meant there."

21. Mr Andrews' main submission in this appeal is that the Tribunal erred in these paragraphs in their interpretation of the requirements of the statutory disciplinary procedure. He submits that they failed to identify that the basis for the grounds provided in the step 1 letter must be provided prior to the step 2 meeting, and in sufficient detail for the Claimant to know what the case is that he has to meet. The Tribunal, in this case, appear erroneously to have conflated information which must be forthcoming before the hearing with that which they found was forthcoming during it.
22. Mr Andrews also made a number of submissions in order to set his main submission into context, as he put it, relating to the Tribunal's factual findings. A number of these were matters of extensive dispute below, and Mr Andrews fairly accepted during argument that whilst the Claimant did not agree with a number of the findings made, he was nevertheless bound by them before this Appeal Tribunal. We, of course, cannot go behind any of the factual findings contained in the Tribunal's decision.
23. Mr Mitchell, for the Respondents, submits that there was no error of law on reading this decision as a whole. Whilst he suggests that the wording of paragraph 17 was "unfortunate" and provides perhaps an example of the difficulties which can arise when an ex tempore judgment is being dictated at the end of a full hearing, in fact he submits that the Tribunal's earlier findings on the evidence show quite clearly that they had approached the matter correctly and had concluded, as they were entitled to, that in the context of the facts of this particular case this Claimant had been provided with the ground for disciplinary action and the basis for it before the meeting within the meaning of the statutory procedures. Thus, he submits, the wording of paragraph 17, unfortunate as it was, had no impact on the Tribunal's decision-making in this case, and their judgment should be upheld.

The law

24. In this appeal it is necessary to refer only to the statutory dismissal and disciplinary procedures in Part 1 of Schedule 2 to the Employment Act 2002. It is common ground that the standard procedure in Chapter 1 applies to this case. Steps 1 and 2 provide as follows:

"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."

25. These provisions were considered in the case of Alexander v Bridgen, and the relevant passages of the judgment of Elias P, giving the judgment of the EAT are now well known and frequently cited to Employment Tribunals. At paragraphs 33 to 39 the following guidance is given to Tribunals:

"What information is required?

33. The issue, therefore, is what information ought to be provided to an employee in order for the employer to comply with the statutory obligation. In answering that question, it seems to us that there are three matters in particular which should inform the answer, although they do not all point in the same direction.

34. First, the purpose of these statutory procedures is to seek to prevent the matter going to an Employment Tribunal if possible by providing the opportunity for differences to be resolved internally at an earlier stage: see the observations in the Canary Wharf case, para. Hence the reason why these procedures apply at the stage when dismissals are still only proposed and before they have taken effect. However, to achieve that purpose the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss.

35. Second, these procedures are concerned only with establishing the basic statutory minimum standard. It is plainly not the intention of Parliament that all procedural defects should render the dismissal automatically unfair with the increased compensation that such a finding attracts. They are intended to apply to all employers, large and small, sophisticated and unsophisticated. They are not intended to impose all the requirements breach of which might, depending on the circumstances, render a dismissal unfair. This suggests that the bar for compliance with these procedures should not be set too high.

36. Third, we think that it is relevant to bear in mind that once the statutory procedures have been complied with, employers are thereafter provided with a defence for failing to comply with fuller procedural safeguards if they can show that the dismissal would have occurred anyway even had such procedures been properly followed. This factor, in our view, militates against allowing the bar for the statutory procedures being set too low.

37. It must be emphasised that the statutory dismissal procedures are not concerned with the reasonableness of the employer's grounds, nor the basis of those grounds, in themselves. It may be that the basis for a dismissal is quite misconceived or unjustified, or that the employer has adopted inappropriate or vague criteria, or acted unreasonably in insisting on dismissing in the light of the employee's response. These are of course highly relevant to whether the dismissal is unfair, but it is irrelevant to the issue whether the statutory procedures have been complied with. The duty on the employer is to provide the ground for dismissal and the reasons why he is relying on that ground. At this stage, the focus is on what he is proposing to do and why he proposing to do it, rather than how reasonable it is for him to be doing it at all.

38. Taking these considerations into account, in our view, the proper analysis of the employer's obligation is as follows. At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy. That is consistent, we think, with the approach which this Tribunal has adopted in relation to grievance procedures in the Canary Wharf and other cases. Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.

39. It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met."

26. Subsequently, in the case of YMCA Training v Mrs A Stewart [2007] IRLR 185, Underhill J giving the judgment of the Appeal Tribunal added the following observations of relevance to the question of whether there has been compliance with step 2 of the statutory procedures at paragraph 11:

"Again, it is important to focus purely on the words of the statute. The first question must be when Mrs Stewart was informed of "the basis" for the grounds of the contemplated action, as required by para. 2 (2) (a). As is made clear in Alexander (above), the "basis" for an allegation does not mean all the detailed evidence that may be relied on but, rather, a sufficiently detailed statement of the case against him to enable him properly to put his side of the story: see para. 39 of the judgment in Alexander, at p. 1288. In our view Mrs Stewart was plainly given such a statement in the form of Miss Brackley's witness statement. It does not of course matter that the requirements both of para. 1 (1) and of para. 2 (2) (a) were addressed in the same letter (or letter and enclosure). The statutory procedure permits the employer to present his case in two stages – stating the "grounds" first (para. 1 (1)), and supplying the "basis" for them later (though in good time before the meeting) - but it does not oblige him to do so, and no doubt it will be common for employers to do what the Appellant did here and state both the grounds for the contemplated action and the basis of those grounds at the same time."

27. The Employment Appeal Tribunal in Homeserve Emergency Services Limited v Dickson (UKEAT/0127/07/CEA), a decision of HHJ Peter Clark and Members, recently endorsed and adopted the same approach (see in particular paragraph 15).

Conclusions

28. We agree with Mr Andrews that at paragraph 17 this Tribunal misstate the effect of steps 1 and 2 of the statutory procedures and, in particular, in line 7 of paragraph 17 refer to the employer having a duty to inform the employee of the basis of the ground (or grounds given in the statement) at the meeting rather than (as the procedures require) before it.
29. If, in fact, this was how this Tribunal had directed themselves in order to decide the issue of compliance with the statutory procedures and the claim for automatic unfair dismissal, their conclusion in favour of the Respondents on this issue could not be sustained.
30. In our judgment, however, on a closer analysis of this judgment as a whole, no error of law is disclosed in the body of the judgment and, in our view, paragraph 17 does not affect the integrity of this Tribunal's decision.
31. The facts of this case were stark indeed, and we agree with Mr Mitchell in that respect. This Claimant was an experienced and well trained employee who was found to have known the warehouse procedure and to be capable of operating it correctly, but to have failed to do so on this occasion. As the Tribunal found, the essence of the Respondents' business, and of this Claimant's job, was to identify the products correctly. There is now no appeal against the Tribunal's finding at paragraph 6.10.
32. The Claimant had previously received a final written warning for the same misconduct, which he had not appealed against, which was still live on 19 July 2008 and of which the Tribunal found he was well aware. It seems that at the hearing below the main emphasis in relation to the statutory procedures was being placed by the Claimant on whether the step 1 procedure had been complied with and, in particular, whether the letter of 20 July contained sufficient information to put the Claimant on notice that he was at risk of dismissal (see in particular paragraphs 3, 9 and 10 in this respect). The Tribunal concluded, on the particular facts of this case, that it did and rightly, in our view, there is no appeal against that finding.
33. Our reading of the Tribunal's judgment and, in particular, the finding at paragraph 6.11 is that they were entirely satisfied that before the Claimant attended the disciplinary meeting on 24 July he knew in broad terms from the letter of 20 July and the interview he had with David Faulkner on 21 July, which he admitted in his witness statement had taken place, that the ground for the proposed disciplinary action was misconduct and that the basis for it was the loading error which he had made, and which he accepted he had made, in bay GO3 on 19 July.
34. Mr Mitchell also points out that in addition to the interview with David Faulkner there was unchallenged evidence before the Tribunal from Gerry Walsh that he too had had a conversation with the Claimant before the disciplinary meeting in which he had discussed a problem with the wrong bottles being sent out (see Mr Walsh's witness statement at pages 80 and 81 in our bundle).
35. The Tribunal found that the Claimant had been working at that time with Stephen Alberts and Gerry Walsh, who were the only relevant witnesses to a straightforward incident, and that no written statements were obtained. It is, of course, unnecessary for employers always to provide detailed evidence in the form of witness statements in order to comply with the statutory procedures, although it is the experience of all members of this appeal tribunal that a number of employers do provide the materials on which reliance is placed. What was essential here was that the Claimant was found to have had information which was sufficient to enable him to give a considered and informed response to the proposed decision to dismiss him, of which he was found to be aware.
36. In this case, no doubt having regard to the guidance in Bridgen that the bar for compliance should not be set too high and that the fundamental requirement was fairness, the Tribunal in our view were clearly satisfied that on its particular facts this test was met and that the Respondents had complied with both step 1 and step 2 of the statutory procedures.
37. It is common ground that the Tribunal had been referred to the statutory procedures and to Bridgen, and we have no doubt that they were well aware of the requirements imposed. By the time the Employment Judge had concluded his oral delivery of the Tribunal's reasons at the end of paragraph 15, he had been dealing in those closing paragraphs with the overall fairness of the dismissal under Section 98, and in considering that issue in the round, he had dealt with what had happened at the disciplinary meeting on 24 July.
38. It is, we agree, unfortunate that on being asked to provide some further clarification the Employment Judge then, in haste, cast paragraph 17 in the form as it now appears. He referred, firstly, to the evidence which was given at the meeting. As we have already indicated, the detailed evidence relied upon is not required to be served in advance of the step 2 meeting in order to comply with step 2. What is required in every case is that sufficient basis is given for the ground, or grounds, relied on so that the employee knows the case that he or she has to meet at the meeting.
39. The Employment Judge then referred in paragraph 17 to an extract from the head note to the Bridgen case rather than going back to the words of the statutory procedures themselves. This, in our view, led him to confuse the words "second step" there referred to with Step 2 of the statutory procedure.
40. Paragraph 17, in our assessment, suffers from its hasty addition at the conclusion of the ex tempore judgment, such paragraphs always being vulnerable to attack in such circumstances. However, it does not in our view detract from the clear and logical findings in the body of the reasons on the stark facts of this case and, in particular, those set out at paragraph 6.11.
41. The Tribunal's findings lead inevitably and inexorably, to a conclusion that these Respondents had complied, in the particular circumstances of this case, with both step 1 and step 2 of the procedure and to their decision against this Claimant on automatic unfairness. For these reasons, therefore, we dismiss this appeal.