United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R BAILEY (of Counsel) Instructed by: Messrs Moorhead James Solicitors Kildare House 3 Dorset Rise London EC4Y 8EN
For the Respondent	MS B AHMED (of Counsel) Instructed by: Messrs O H Parsons & Partners Solicitors 3rd Floor Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR


 


SUMMARY

Unfair dismissal: Reasonableness of dismissal

The Employment Tribunal erred in its approach by going beyond the evidence considered by the Respondent at dismissal and appeal stages and itself investigating the material. It could not be said that on this material a reasonable employer could not have dismissed the Claimant fairly for misconduct. Claim remitted to a new Employment Tribunal for hearing. ACAS conciliation directed.

HIS HONOUR JUDGE MCMULLEN QC

1. This case is about a fight between two London bus drivers in a garage in the context of the law relating to unfair dismissal. The judgment represents the views of all three Members. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal chaired by Employment Judge Pontac, sitting over five days including two in Chambers at London (Central), registered with reasons on 14 August 2007. We say at once they are clear, conscientious and professionally written.
3. The Claimant and the Respondent were represented respectively by Ms Bushra Ahmed and Mr Russell Bailey of Counsel. The Claimant claimed unfair dismissal. The Respondent contended it dismissed him fairly for gross misconduct. The Tribunal decided in the Claimant's favour and set up a remedy hearing. The Respondent appealed. Directions sending the appeal to a full hearing were given in Chambers by His Honour Judge Serota QC. Directions were also given for evidence to be sought from the Employment Tribunal but in fact no reference has been made to it today.

The legislation

4. The relevant provisions of the legislation are not in dispute. Sections 98(1) and 98(2) of the Employment Rights Act 1996 provide for potentially fair reasons; conduct is one. The Claimant was dismissed for conduct. Section 98(4) deals with fairness and provides as follows:

"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):- (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."

5. In addition, Section 98A(2), under the heading of procedural fairness, deals with the reversal of the judgment in Polkey [1988] ICR 142 HL in certain circumstances. Section 122(2) and Section 123(6) allow for reductions in compensation for conduct, and contributory blameworthy conduct respectively.
6. The Tribunal directed itself in accordance with the relevant provisions of Section 98 but sadly made a clear error of law in paragraph 62, which we do not recite. It was not relied upon by Mr Bailey as the Employment Tribunal elsewhere directed itself correctly. It also considered the gist of the leading authority on misconduct dismissals, British Home Stores Ltd v Burchell [1980] ICR 303, to which we will return.

The facts

7. The Respondent is a bus company. It operates out of West London in a depot known as Westbourne Park, where it employs 800 people. The Claimant was a driver from 16 September 2002 until he was dismissed on 14 August 2006. He was an experienced representative of the Transport and General Workers Union, as it then was, and had training in employment procedures, and he also had experience of employment tribunals.
8. The other actors in this drama are co-drivers. Mr Egale and Mr Airewele are accepted to be wholly independent witnesses. Mr Adde, the other fighter, told lies, fabricated evidence and was dismissed. The contribution he made to the evidence could carry little weight in the light of the findings made against him. The managers are Mr Jones, who investigated the fight, Mr Chadha, who made the decision to dismiss both Mr Adde and the Claimant, and Mr Sparkwell, who heard the appeal.
9. There is a sophisticated, collectively agreed procedure for handling workplace disciplinary issues, as one would expect in such an environment, and in this case consisted of a suspension review hearing, a fact finding interview, a disciplinary hearing, an appeal, and a special review hearing at all of which the Claimant was represented by officers of his trade union.
10. The central issue for the employer, as the Employment Tribunal determined, was to decide who was the aggressor and the instigator. If it were the Claimant he would be fairly dismissed. If it were Mr Adde, and the Claimant were a victim, then it would be unfair. The Tribunal said this:

"5. On 25 July 2006, an incident occurred for which the claimant and Mr. M Adde, another bus driver, were both summarily dismissed. The locus in quo of the incident as determined by the respondent appeared to be the critical factor in the respondent's decision to dismiss the claimant. It was on the basis of the dismissing officer's determination of the locus that he concluded the claimant had been "the aggressor and the instigator" of what happened. The respondent accepted, furthermore, that if the claimant had not been found to be the aggressor, it would not have had reason to dismiss him."

11. The Tribunal in its 14-page judgment considered in detail all of the evidence which arose at the time of the dismissal and the appeal, together with the material which was put before it at the hearing. In short, it came to the conclusion that the Respondent had a genuine belief that the Claimant was guilty of being the aggressor in a fight, but that the belief was not based on reasonable grounds, for it said this:

"58. That belief was not based on reasonable grounds, in that the decision-makers failed to take into account relevant evidence, but did take into account evidence that could not support their conclusions as well as evidence that they misunderstood or that in fact did not exist. In particular, the dismissing officer Mr Chadha failed to discharge his duty to examine the evidence fully before reaching his decision, both by overlooking or disregarding evidence, and by failing to allow the claimant to set out his whole case. Thus Mr Chadha deprived himself of evidence he required to make a decision founded properly on the facts. If he had considered all the evidence, then inevitably he would have noted the inadequacy of Mr Airewele's plan and the issues raised by his statements, and he would have considered the possible inferences to be drawn from Mr Adde's lies and inconsistencies. If he had done so, he could have concluded that evidence of the claimant's "aggression" was very weak, and we concluded that he must thereby have reached a different conclusion regarding the events of 25 July 2006."

12. The appeal and the special review did not correct the errors which are there identified. On that basis the Claimant was dismissed. In a number of places pointed out by Ms Ahmed, the Tribunal had expressly directed itself to the standard of a reasonable employer. She relied on paragraphs 28 and 35, to which we might add paragraphs 58 and 61.
13. The Respondent was condemned essentially for two reasons; overlooking and disregarding evidence, and failing to allow the Claimant to set out his whole case. In 14 grounds of appeal advanced by Mr Bailey, he candidly accepts that his approach focuses on the first four. There was an impermissible substitution by the Employment Tribunal of its view for that of the Respondent's managers. It was no business of the Tribunal to conduct an examination and evaluation of the evidence, for its task is confined to the narrow question of a review of the material placed before the employer at the time of dismissal and, as he conceded, at the time of the appeal, for all matters up to that stage are relevant.
14. The response of the Claimant to those submissions was that the Tribunal had made a careful examination of the evidence and had discharged its duty, which was not simply to examine the material of the Respondent, but to conduct an evaluation so as to see whether it fell below the standard of a reasonable employer. The Tribunal's conclusion that no reasonable employer, on this material and having conducted such an investigation, could have dismissed the Claimant, was one which should be sustained.

The legal principles

15. The legal principles to be applied in this case are not controversial. In determining whether the dismissal for misconduct was fair under section 98(4) the tribunal was obliged to follow the approach in British Home Stores v Burchell namely did the employer genuinely believe on reasonable grounds after as much investigation as was reasonable that the employee had committed the act of misconduct alleged? It was not the function of the tribunal to substitute its view for that of the employer but to carry out a reviewing function. It was only open to the tribunal to interfere with the decision reached by the employer if it fell outside the range of reasonable responses to these circumstances. The range of reasonable responses test applies to all aspects of the dismissal process: see HSBC v Madden [2000] 1CR 1283, Sainsbury v Hitt [2003] ICR 111.
16. Madden is instructive as to the approach of an Employment Tribunal when considering the allegation of unfair dismissal and reviewing the material which was available to an employer. See the judgment of Mummery LJ at page 1295A.
17. In considering fairness, the material available at the time of dismissal and at the time of the appeal is relevant. It is fairness in the whole process which is to be subjected to the test in Section 98(4). See Taylor v OCS [2006] IRLR 613 CA.
18. The essential task is to consider the evidence before the manager dismissing and the manager conducting the appeal. The test is whether or not, on that material, a reasonable employer could have dismissed the Claimant. If such a putative, reasonable employer could, then the dismissal will be fair. If the dismissal was outside the band of reasonable responses it will be unfair.
19. A Tribunal should be very careful not to substitute its own judgment for that of the employer and must also state its conclusions against that standard. In many cases a reasonable employer will do the same thing as a reasonable Employment Tribunal but there is a distinction; it is an important distinction and must be borne in mind at all times.
20. Where an allegation of perversity is made, the test to be applied is one of overwhelming strength in asserting that the Tribunal either had no evidence or acted in a way which no Tribunal could act upon the material available. See Yeboah v Crofton [2002] IRLR 634 CA.
21. When a Tribunal judgment is set aside, consideration should be given to its remission to an Employment Tribunal, according to the principles set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT Burton P.

Discussion and conclusions

22. We prefer the arguments of the Respondent and have decided that the appeal should be allowed. The argument boils down to what the Tribunal cited in paragraph 5. As the Tribunal correctly indicates, the reason why the Claimant was dismissed by Mr Chadha and upheld on appeal by Mr Sparkwell, was that he had been the aggressor and that Mr Adde, who had been dismissed for fabricating evidence, had been effectively the victim. As to that, the essential material fell into two categories which have described to us as the Egale evidence and the locus.
23. The locus is the more important because the Tribunal considered both photographic evidence from slides of CCTV and also a plan drawn by Mr Airewele. Although we have been seduced into looking in detail at these, the simple proposition is this: if the Claimant was, as he said, going on one side of a barbed wire fence to get his car he would not have been involved in a fight. He made his point about where he said he was assaulted. If, as the Respondent held, he was on the other side of the barbed wire and adjacent to a parked trailer when the fight took place, then he himself would be to blame because he would have been with Mr Adde at a time when he could easily have avoided further conflict.
24. Mr Chadha, had before him evidence consisting of four matters; first he had a statement from the acknowledged independent witness, Mr Airewele; secondly, a summary of the CCTV footage, which was not in this respect challenged; thirdly, Mr Chadha himself saw the CCTV running and, fourthly, although heavily discredited on some aspects, Mr Adde's evidence was the same as Mr Airewele's. At least on the basis of the first three points there was evidence before Mr Chadha for him to form the view as to where the fight took place. As this was regarded as crucial, the material which was available to Mr Chadha has been the subject of a very careful examination.
25. Included in it is an allegation that the Claimant followed Mr Adde down on the left-hand side, that is the trailer side of the barbed wire fence, rather than into the right-hand side where the Claimant's car was parked. In addition there is evidence from Mr Egale pointing to the Claimant having discussions. As to both of those matters the Tribunal's conclusions, which we have cited at paragraph 58, are such that the dismissal was regarded as unfair.
26. Ms Ahmed told us that the evidence which the Tribunal said had been overlooked and disregarded consisted of Mr Chadha paying attention to evidence from Mr Adde and failing to consider the discrepancies in various parts of the evidence. The Tribunal was impressed by that. With respect, it has no substance. It cannot be said that Mr Chadha disregarded the fact that Mr Adde lied and fabricated evidence, for it was Mr Chadha who sacked him for those very offences. It is true that Mr Chadha does not mention that, but it cannot be said that Mr Chadha overlooked the fact that Mr Adde lied..
27. As to the discrepancies, the answer which Ms Ahmed gives betrays the weakness in the point. There was material before Mr Chadha, and there were discrepancies. That was a matter for him to weigh, and it cannot be said that he failed to consider the different pieces of evidence given to him.
28. The second criticism made by the Tribunal is that the Claimant was not allowed to set out his whole case. Again with respect to the Tribunal, this criticism is without substance. When we asked Ms Ahmed to say what it was the Claimant would have said, nothing substantial was forthcoming. The central point of the Claimant's evidence was that he was in the compound on the right of the barbed wire fence going to his car. He said that to Mr Chadha, and he said it again at all stages, whereas Mr Chadha did not accept that. It cannot be said that he was not able to put forward his whole case. What else could he have said? Nothing more was forthcoming.
29. When there is an allegation of unfairness such as this, and also when there is an allegation that an employer failed to investigate matters, it does fall to the Employment Tribunal to inquire as to what it was that should have been produced. For example, when the standard of fairness is breached, as in this case it is said there was a failure to give the Claimant the opportunity to put his whole case forward, it is necessary for the tribunal to decide what was the whole case which would have been put forward that might have so turned the employer, or at least would have made the proceeding fair. As we have found, there was no such opportunity deficit.
30. Similarly, where there is an investigation which is wanting it is the function of an Employment Tribunal to weigh up what evidence would have been forthcoming, had a reasonable line of investigation been followed. By definition, this is not material which was before the relevant manager. It is material which would, on a reasonable investigation, have been produced to him or her. It is generally produced at the Employment Tribunal. The Tribunal must there look at what material would have been forthcoming and what the employer would have done upon a reasonable investigation. It does not look at allegations of unfairness in the investigation in a vacuum. It will look at what the material was which would have been produced properly, had an investigation been conducted as it ought.
31. In this case, the contention that the Claimant was not allowed to set out his whole case is now solely that he was not given the chance to say where the fight took place. (That he could not fill in all the details on the form he was asked to fill in, an earlier contention, is of course confounded by his agreement, as we see in the notes, that he could have gone on to more pages). The contention includes that Mr Chadha relied, as the reason for dismissal, upon a matter which was not put to the Claimant during the course of the dismissal interview. It is that the Claimant followed Mr Adde down the left-hand side by the trailer in order to confront him. As to that, we accept the submission of Mr Bailey that all of the material in the index of documents before the Chadha hearing was vouchsafed to the Claimant. It includes Mr Adde's statement as to where he was and why he was followed. He was unreliable, nevertheless at the appeal hearing Mr Sparkwell was fully seised of that weakness. That the Claimant followed Mr Adde to the wrong side of the barbed wire fence formed part of the reason for dismissal in the dismissal letter and of course was a ground on which it was argued the dismissal was unfair. This matter was dealt with fully at the Sparkwell appeal.
32. With respect to the Employment Tribunal, if there were the defect which it identified in failing to put to the Claimant that he had followed Mr Adde up the road, it was corrected on appeal. See Taylor v OCS. Thus the account given by the Employment Tribunal of the Sparkwell appeal hearing, see paragraphs 45 to 47, is complete answer to its own criticism of the failure to allow the Claimant to put his case. In those circumstances the Tribunal erred in its otherwise careful judgment.
33. It is not necessary for us to make specific holdings on each of the 14 grounds of appeal advanced by Mr Bailey, since this will dispose of the case, and our analysis of the relevant law will guide the next Employment Tribunal. Its task will be to look at the material before Mr Chadha and before Mr Sparkwell, in order to determine whether or not the dismissal fell within the band of reasonable responses of an employer who had conducted a reasonable investigation. It will not be necessary on remission for there to be any dispute about the reason for the dismissal, or the genuineness of the belief. Both of those features in British Home Stores Ltd v Burchell having been proved here. Nor will it be necessary to review the law in any detail. The Tribunal must also pay attention to the separation between the findings of fact which it makes for the purposes of unfair dismissal, and since it will be called upon from the outset to consider Polkey, section 98A(2) and contribution, when it makes those findings it must be clear to separate them from the findings as to what material was available, or should have been available, to Mr Chadha when comparing that against the standard of a reasonable employer. This was a one-day case. It went for five. We support Mr Bailey's submission that the Tribunal has done far more than it was required to do and may have been guilty of overstepping the lines set out by Mummery LJ in Madden by a too careful evaluation of the evidence.

Disposal

34. This will be remitted. Applying the principles in Sinclair Roche, professionalism is not in issue. We have every confidence that the Tribunal would dedicate itself to a new hearing.
35. While the hearing lasted five days, we see no utility in sending it back to the same Tribunal for the saving of time and we consider that the passage of time would make it not impracticable but more difficult for the Tribunal to be reconstituted. There is no question of bias or apparent bias in the Tribunal's judgment and that is not a factor we need to consider. However, since we have found an error in the judgment which involves also criticisms of the Respondent's witnesses, it would be more satisfactory for the case to be sent back to a differently constituted Tribunal.
36. All three of us are of the view now that this case may be susceptible to conciliation. The Claimant is represented by experienced solicitors through his trade union, the Respondent also has equally competent professional advisers. There will certainly be more management time and more union resources deployed to it. It cries out for some sort of conciliation. The Respondent can take some solace from the fact that its approach has been vindicated at this level, but it is not out of the woods because it will have to face another hearing. Evidence and a schedule of loss will be served on the Respondent within 14 days. The appeal will be allowed and the claim remitted.