United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J DUTTON (Solicitor) Croner Consulting, Litigation Department Croner House Wheatfield Way Hinckley Leicestershire LE10 1YG
For the Respondent	MR KEVIN HARRIS (of Counsel) Instructed by: Messrs Nikki Modie & Co Solicitors Crown House 405 London Road CROYDON CRO 3PE


 


SUMMARY

UNFAIR DISMISSAL: Contributory fault / Polkey deduction

PRACTICE AND PROCEDURE: Chairman's notes of evidence

Unfair dismissal. Contribution and Polkey deduction. Challenge to ET findings of fact. Need for Chairman's Notes of evidence. Findings by ET permissible. No error law.

HIS HONOUR JUDGE PETER CLARK

1. The parties before the London South Employment Tribunal were Mr Ketman, the Claimant, and John Brown Printing t/a Eldram Ltd, the Respondent. This is an appeal by the Respondent against the judgment of an Employment Tribunal chaired by Employment Judge Gary Self, promulgated with reasons on 12 December 2007. The appeal is directed to issues of contribution and a possible Polkey deduction affecting the final award made by the Employment Tribunal of £11,536.75 in respect of the Claimant's unfair dismissal by the Respondent. The finding of unfair dismissal, both under s98 and s98A of the Employment Rights Act 1996 ('ERA') is not challenged on appeal.
2. The Respondent is a family-run printing business employing some 16 people. The Claimant was employed as a van driver and had completed 18 years unblemished service at the time of his summary dismissal by Mr Phillip Brown, the Managing Director, on 12 June 2007.
3. The background to the dismissal was that on about 29 May 2007 the van regularly driven by the Claimant broke down. It went into the garage for repair. The garage informed the Respondent that it was more than 13,000 miles past its next routine service. The garage bill was about £1,100. A replacement van was hired for seven days.
4. Mr Brown was plainly angered by this state of affairs. On 12 June the Claimant made an urgent delivery and was then asked by his supervisor, Mr Mardle, to accompany him to Mr Brown's office. On arrival the Claimant found Mr Sullivan, the Sales Director, present. Mr Brown then came in and handed the Claimant a letter of summary dismissal. That letter listed five reasons for dismissal, but Mr Brown accepted in evidence that only the fifth caused him to dismiss the Claimant. That reason read:

"Taking care of the van and making sure it is kept serviced, clean and in general working practice is your responsibility. Due to the van running 13,000 miles over its service time has constituted in the van now needing serious repair and has cost us £2,400. This more than constitutes a serious failure in your job."

5. Subsequently an appeal hearing took place. It lasted about five minutes and was conducted by Mr Brown, who had taken the initial decision to dismiss. The Tribunal accepted the Claimant's account of that hearing. It was not really an appeal hearing. Mr Brown threatened the Claimant with litigation and then left the room. The Tribunal observed that Mr Brown did not take his obligations under employment legislation seriously. Mr Sullivan, meanwhile, sought to apply pressure on the Claimant to drop this litigation in order to secure a reference.
6. Against that background the Employment Tribunal had no difficulty in finding the dismissal automatically unfair under section 98A ERA. There had been no step one letter under the dismissal and disciplinary procedure and no proper appeal had taken place.
7. Further the Tribunal found the dismissal unfair under s98. At paragraph 11 of their reasons they said:

"So far as the `standard` section 98 unfair dismissal is concerned we accept that the potentially fair reason for dismissal was the perceived conduct of the Claimant. We have suspicions that the gross misconduct charge may have been seen as an inexpensive way to reduce staff at a time of reduced business, thus saving a significant redundancy payment, but find ourselves unable on the balance of probabilities to find those suspicions as fact."

8. Thus, we conclude, the Tribunal accepted the Respondent's reason for dismissal.
9. As to fairness under s98(4), a question arose as to who had responsibility for ensuring that the van went in for servicing at the appropriate mileage. The Tribunal found (paragraph 12):

"We find that the Claimant had brought the van's need to be serviced to the attention of his manager Mr Mardle. There was then a lack of clarity as to the proper procedure to deal with that. The office had booked it in previously and the Claimant could see no reason why it should be his responsibility. At worst the Claimant demonstrated a lack of flexibility."

They added at paragraph 13:

"There was no firm evidence that the lack of servicing caused the breakdown of the van or even what the additional cost was to the Respondent of any delay. As there was no investigation into the facts at the time of the dismissal the respondent never got to the real issue which was whether or not the Claimant failed to carry out Mr Mardle's instruction to get the van serviced. We are unable to accept on the evidence that there was in reality any wilful default or negligence on the Claimant's part that caused damage to property. The issue was one of not carrying out Mr Mardle's instruction. An investigation would have demonstrated that any fault lay between the two men."

10. On those findings the Tribunal concluded that dismissal fell outside the band of reasonable responses and further that no part of the well-known Burchill test for conduct dismissals was satisfied.
11. On behalf of the Respondent Mr Dutton raised two relevant arguments which went to a possible reduction in compensation. He submitted that the Claimant had contributed to his dismissal by his own conduct and that, had a proper procedure been followed, the Claimant might have been dismissed fairly. The Polkey deduction.
12. The Tribunal dealt with those submissions at paragraph 15 in this way:

"As previously stated the wholesale failure to use established and commonplace procedures meant that there was little chance that the facts would be established and the employee treated fairly. It is hard to see that any part of the Burchill test is satisfied. It is impossible to see that there may have been a circumstance that could have rendered a dismissal fair in the future and so Polkey does not apply. We consider that the Claimant's lack of flexibility did contribute to his dismissal to a small extent and will reduce the Claimant's compensation by 10% to reflect that fact."

13. In this appeal Mr Dutton takes the following points:

1) The Tribunal made perverse findings of fact which were contrary to or unsupported by the evidence.

2) Those findings were material to the Tribunal's contribution/Polkey findings and undermine the Tribunal's conclusions on both those issues. Based on the true factual position, it is argued, the level of contribution should be materially higher and a Polkey deduction is appropriate.

14. We can deal shortly with one of Mr Dutton's submissions. He contended that the Tribunal rejected the Respondent's reason for dismissal and instead found, impermissibly, that the reason for dismissal was the Claimant's failure to follow Mr Mardle's instruction to have the van serviced. (See paragraph 13.) We accept Mr Harris' submission that, at paragraph 11, the Tribunal, albeit with some reluctance, accepted the Respondent's reason for dismissal, the fifth reason in the dismissal letter set out above.
15. Next we interpose the issue of the Chairman's (now Employment Judge) notes of evidence. Application was made by the Respondent to the Employment Appeal Tribunal for the Chairman's notes. The Registrar wrote a letter to the parties dated 14 May 2008 giving the following direction:

"The Appellant's Note of Evidence has been served upon the Respondent. The Representative has responded that she has some disagreement but that he requires further time to elucidate. This was on the 10^th April and since that time there has been no further response. However, the Respondent has now instructed Solicitors who do not respond to the issue of the notes and state that the application is irrelevant. That is not the case. The Respondent has had ample time and professional advice.

It is now the 14^th May and it would not be possible at this stage to obtain the Employment Judges notes in time for the hearing. In the absence of any proper submission to the contrary by the Respondent the Registrar directs that the Appellant's note be included in the bundle.

The Respondent's note may be included as well. Any appeal against the Registrar's Order and application for an adjournment will be dealt with by the Judge as a preliminary point."

In that direction the reference to Appellant is to the employer and Respondent to the Claimant.

16. It became clear to us at an early stage in the argument, and indeed from pre-reading the papers, that the question as to what evidence was before the Tribunal was critical to this Appeal. Further that the parties did not agree as to what the evidence was. The note prepared by Mr Dutton on behalf of the Respondent sets out material passages from the Claimant's evidence below and those passages are not repeated in the Claimant's note.
17. We enquired whether either party wished to appeal the Registrar's Order, and eventually Mr Harris indicated on behalf of the Claimant that he wished to do so. The difficulty was that such an appeal was two days out of time and he invited us to extend time. We felt unable to do so, there being no good reason put forward for the delay in appealing under the terms of Rule 21 of the EAT Rules. However, it occurred to us that in fact the Registrar had made no decision on the application before her, that is to say she neither ordered nor refused to order the Chairman's notes. In these circumstances, we felt able to entertain a renewed application by the Respondent for the Chairman's notes and to grant it in relation to the relevant evidence, that is the evidence given in cross-examination by Mr Mardle and by the Claimant.
18. At that point we feared that it may be necessary to adjourn this hearing and put the parties to further expense and inconvenience in coming back for a reconvened hearing. However, we should all of us wish to express our gratitude, first to the staff at London South Employment Tribunal and secondly in particular to Employment Judge Christopher Baron, who perused the file, found Mr Self's handwritten notes which we had ordered, and had them faxed to the EAT so that this hearing could resume after the short adjournment and we could reach a conclusion without time and expense being wasted.
19. On the basis of Mr Self's notes, as Mr Dutton accepts, nothing said by the Claimant in evidence amounted to an admission by him that the van breakdown, leading to expensive repairs to replace the van's turbocharger, silencer and exhaust, was caused by the lack of servicing. In these circumstances we think that the Tribunal was perfectly entitled to find, on the evidence (see paragraph 13 of their reasons) that there was no firm evidence that the lack of servicing caused the breakdown.
20. However, Mr Dutton takes a further point which is supported by the Chairman's note. He submits that the Claimant admitted that he had not followed Mr Mardle's instruction to have the van serviced and challenges the Tribunal's finding at paragraph 13 that the Respondent never got to the real issue, which was whether or not the Claimant failed to carry out Mr Mardle's instruction to get the van serviced. In truth, submits Mr Dutton, that fact was not in issue.
21. We think that remark by the Tribunal must be seen in context. It is correct that no such investigation was carried out before the Claimant's summary dismissal without a hearing. Further, the Tribunal go on to find that an investigation would have demonstrated that any fault lay between the two men, that is the Claimant and Mr Mardle.
22. In our judgment that was a permissible finding on the evidence. The Tribunal accepted the Claimant's evidence that he told Mr Mardle on a number of occasions that the van needed servicing and that Mr Mardle told him to get it serviced but that the Claimant challenged that instruction. He pointed out that he was not privy to the work schedule (into which the servicing would have to be fitted). The booking in for service had always been done by the staff in the Respondent's office in the past. Mr Mardle, on the Claimant's evidence, did not assert his authority and warn the Claimant that he would somehow be in trouble if he did not book in the van.
23. Thus having seen the Chairman's note of the relevant evidence given below we can readily understand the Tribunal's modest finding of 10 per cent contribution on the part of the Claimant for his lack of flexibility - that is to say not taking on the booking task which had formerly been done by the office, as he made plain to his supervisor, Mr Mardle. The lack of servicing was not shown to have caused the breakdown and consequent repairs, that is separate from the routine service charges. The finding in our judgment was a permissible one.
24. As to Polkey, having found that the Claimant's dismissal was not simply procedurally unfair under section 98A ERA, but also substantively unfair in that, in the Tribunal's judgment no part of the Burchell test was satisfied and dismissal fell outside the range of reasonable responses, we can see that the Polkey principle simply did not arise on the facts as found.
25. In these circumstances we can discern no error of law in the Tribunal's approach. Consequently this appeal fails and is dismissed.