United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ELESINNLA (of Counsel) Instructed by: Messrs J R Jones Solicitors 58 Uxbridge Road Ealing London W5 2ST
For the Respondent	MR B LYNCH (of Counsel) Instructed by: Messrs Bircham Dyson Bell LLP 50 Broadway Westminster London SW1H 0BL


 


SUMMARY

UNFAIR DISMISSAL: Reasonableness of dismissal

Dismissal for gross misconduct – argument based on disparate treatment of alleged comparators failed on the facts.

THE HONOURABLE MR JUSTICE BEAN

1. The Appellant, Mr Ashraf, was dismissed from his post as an Administrative Officer with the Metropolitan Police Service on 28 July 2006. He had been employed for some 6½ years. He appeals against a decision of an Employment Tribunal, sitting at Watford under the Chairmanship of Mr R Postle, rejecting his claim for unfair dismissal.
2. The background was that on 24 June 2006 the Police had received an emergency call from the Appellant's wife reporting that she had been attacked by him. Officers and an ambulance were despatched to assist. The officers found the Appellant's wife upset and crying and with a large swelling to her left cheek as a result of an assault. The Appellant was interviewed, as was his wife. It is not necessary on this appeal to go into the details. On 25 June the Appellant was given a written caution described as: 'a formal adult caution for common assault' by an inspector. In order to be given an adult caution an offender must admit the offence in question and the Appellant signed a declaration to that effect.
3. The relevant disciplinary policy of the Respondent provides that being given an adult caution amounts to gross misconduct. If an employee is given such a caution he will have to appear before a Convictions Board. Such a board may recommend dismissal and a disciplinary hearing, held subsequently may result in dismissal; the employee then has a right to appeal. The Appellant, accordingly, attended a Convictions Board which after hearing from him and his representative recommended to the Borough Commander that the Appellant be dismissed. The Acting Borough Commander, Mr Corkhill, held a disciplinary hearing on 28 July 2006 with the Claimant present and represented by his trade union official. Among the arguments put forward was one that it would constitute inconsistent treatment were he to be dismissed because a police community officer, Mr Burroso, had been convicted for a similar offence but not dismissed. Mr Corkhill did not make further enquiries about that individual. He concluded that dismissal was the appropriate sanction. He took the view that domestic violence was a serious crime and that the Metropolitan Police Service must do all in its power to prevent it.
4. The Appellant exercised his right of internal appeal. That was heard by Mr Kirby, the Director of Territorial Police Business Support, on 1 September. Again the Claimant was represented by a trade union official. At this hearing the question of inconsistent treatment in relation to Mr Burroso was raised again. Mr Kirby had made enquiries of the Human Resources Department about the case of Burroso. Although he was not sent the file, he was told that it was a significantly less serious case, involving damage to a telephone and Mr Burroso holding his wife by the arm. Mr Kirby having heard what was said in mitigation concluded the sanction of dismissal was fair and should be upheld.
5. The argument before the Employment Tribunal was mainly concerned, and the argument before us has been wholly concerned, with questions of inconsistency or disparity of treatment. That was the one point on which Langstaff J, before whom the appeal came at a Rule 3(10) hearing, decided that the appeal should proceed.
6. So, far as Mr Burroso was concerned, the Tribunal accepted that Mr Kirby had a clear and rational basis for distinguishing the Claimant's case from that of Mr Burroso and that the two cases were, as the Tribunal put it, "certainly not similar". Mr Elesinnla, for the Appellant, has not pursued, rightly in our judgment, any appeal from that finding of the Tribunal.
7. The Tribunal, however, were presented, as Mr Corkhill and Mr Kirby had not been, with a list of other cases put forward as comparators. We have it in our bundle. It begins with the heading, "Examples of cases where convictions have been altered and individuals reinstated." and proceeds to give 14 examples. The first two involve civilian employee service and in these two cases, but not the others, there is a small quantity of supporting documentation. The remaining twelve examples concern uniformed officers. Mr Lynch, for the Respondents, sought to argue that uniformed officers were not potential comparators. We do not accept that and we shall consider the list as a whole later in this judgment.
8. In paragraph 4.2 of the judgment, in the section dealing with the law, the Tribunal said:

"On the question of consistency of treatment the Tribunal reminds itself that although an employer should consider how previous similar situations have been dealt with, the allegedly similar situations must truly be similar. Secondly an employer cannot be considered to have treated other employees differently if he was unaware of their conduct. Thirdly if an employer conscitiously [sic] distinguishes between cases, the dismissal can be successfully challenged only if there is no rational basis for the distinction made."

9. The first and third of these propositions, have not been the subject of any dispute before us. The first is supported by numerous authorities, including Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, Paul v East Surrey District Health Authority [1995] IRLR 305 and Proctor v British Gypsum Ltd [1992] IRLR 7. The third, which is closely linked to the first, is supported by, for example, Securicor Ltd v Smith [1989] IRLR 356. Mr Elesinnla concentrated his fire on the second, to which we shall return shortly.
10. The Tribunal concluded their decision as follows:

"5.5 One final point in the course of these proceedings the Claimant's representative has alluded to a number of other individuals within the Respondent's organisation who have been treated differently, but it has to be said none of these was put forward by the Claimant or his Trade Union Representative at any stage during the course of his disciplinary process and the appeal.

5.6 The Tribunal therefore concluded there was a reasonable investigation carried out into the conduct complained of. From that investigation there were clearly reasonable grounds to form a reasonable belief that the conduct complained of did occur on balance. After a full and fair disciplinary and appeal, the sanction of dismissal was fair, namely a reasonable response of a reasonable employer given the conduct that had occurred."

11. Mr Elesinnla's principal ground of appeal is that the Tribunal misstated the law in their second proposition in paragraph 4.2 of their decision by stating that:

"… an employer cannot be considered to have treated other employees differently if he was unaware of their conduct,"

at any rate if "employer" just means the decision-maker. Mr Elesinnla argues that where the employer is an organisation, such as the Metropolitan Police Authority, it is the corporate knowledge of the employer that is relevant and not simply the knowledge of the individual decision-maker.

12. The sentence we have quoted from the Tribunal's judgment is a direct citation from Harvey Volume D1, paragraph 1140, in which the learned editors attribute the proposition to the decision of Phillips J in Wilcox v HGS [1975] ICR 333. As it happens, we doubt whether that case is authority for the proposition. Wilcox was a case where an employee was summarily dismissed for failing to carry out a mandatory safety test. He admitted the failure but contended that nobody else had carried out such tests and that that mode of behaviour had been known to, and condoned by, what was described in the judgment as "higher management" for many years. It is, therefore, not a case about disparity of treatment between one disciplinary decision and another but a case of condonation of undesirable or unsafe behaviour. In a case of condonation it seems to us clear that where senior management as a whole are unaware of a practice going on, they cannot be said to have condoned it. Mr Wilcox's case was that senior management as a whole knew very well what was going on and there was, therefore, a case of condonation.
13. We consider that a more accurate statement about knowledge is to be found at Proctor v British Gypsum Ltd at paragraph 27:

"… before reaching a decision to dismiss, an employer should consider truly comparable cases of which it knows or ought reasonably to have known.

The information may be forthcoming at the initial stage or on appeal. If the employee or those representing him know of other such incidents it will, no doubt, be in his best interests that they should be identified or at least drawn to the attention of the employer. If necessary an adjournment can be taken for further investigation. A small concern may not keep any records of dismissal. A large employer may do so as a matter of sound administration. We do not suggest any obligation so to do. Unless the personnel manager has been in post for a substantial period it may be reasonable to make enquiry of others as did Mr Scott [the decision maker] in the present case."

14. Mr Elesinnla is content with this as a summary of the law, provided that the word "employer" is understood to mean the employer as a whole. We have concluded that it is unnecessary to decide that question in the present case. That is because, in our judgment, none of the cases put forward in the list, at pages 47 onwards of our bundle, was a true comparator. Mr Elesinnla submits that the Tribunal, at paragraph 5.5 of their judgment, did not properly deal with the list of comparators and that the case should be remitted to them to do so. Although we think there is force in the criticism that that paragraph in the judgment does not properly engage with the list of comparators, we are in as good a position as the Tribunal were to deal with it. None of the witnesses who gave evidence before the Tribunal knew anything about the comparator cases except what is set out in the document. The Tribunal therefore had to deal with the issue on the papers and we are in a position to do the same as this Appeal Tribunal did in London Borough of Harrow v Cunningham [1996] IRLR 256.
15. We remind ourselves of the proposition that comparators must be truly similar and that in the well known words of Waterhouse J, in the EAT in Hadjioannou, disparity arguments must be scrutinised with particular care.
16. The list, at pages 47 to 48, concerns a variety of criminal offences for which the individuals concerned were convicted or for which they were formally cautioned. Only two of them are offences of violence, and the second one, number 14, is an incident which led to a disciplinary hearing and appeal hearing in March and July 2007, respectively: that is to say well after the decisions of the Convictions Board, the Acting Borough Commander and Mr Kirby, the internal appeal tribunal in the present case. It could not, therefore, have been an alleged disparity which the decision-makers in the present case ought to have taken into account. Moreover, neither that nor the other offence of assault on the list, number 3, so far as the documents disclose, was an offence of domestic violence, let alone one which, as the decision-makers in the present case apparently held and the facts set out by the Tribunal in paragraph 3 as a finding of fact disclose, was a fairly serious example of its kind, even though a caution was administered only for the offence of common assault. The fact that, in January 2004, a Sergeant convicted of common assault and ordered, at first instance, to be dismissed had that sanction varied in appeal from a reduction in rank from Sergeant to Constable does not, in our view, even arguably, make the case a truly similar one such as Hadjioannou and the other authorities on this subject require.
17. As for the twelve examples which do not involve violence, we think they are even further from the facts of the present case. Many concern driving a motor vehicle having consumed excess alcohol. As a comparator for a domestic violence case we find them of no assistance at all.
18. Accordingly, we do not consider that the decision to dismiss can be criticised. Although our reasons on the inconsistency point are not exactly the same as the Employment Tribunal's, we consider that the conclusion they came to was undoubtedly the right one. We are grateful to Mr Elesinnla for his succinct and forceful submissions which put the Appellant's case as well as anyone could have put it, but we conclude that the appeal must be dismissed.