United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS REBECCA THOMAS (of Counsel) Instructed by: Messrs Bond Pearce LLP 3 Temple Quay Temple Back East BRISTOL BS1 6DZ
For the Respondent	MR PHILIP JONES (of Counsel) Instructed by: Messrs Thompsons Solicitors Agincourt 14-16 Newport Road CARDIFF CF24 0SW

SUMMARY

UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal

Employment Tribunal found that the employee had been unfairly dismissed. EAT upheld the appeal, principally on the grounds that the reasoning of the Tribunal was defective. Case remitted to a fresh tribunal.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the Employment Tribunal's unanimous finding that the claimant had been unfairly dismissed. We shall continue to refer to the claimant as the claimant although he is the respondent before us.
2. The background is as follows. The claimant was employed in a responsible managerial position from 29 July 1995 until his summary dismissal on 19 September 2006. We infer that he was employed in the mail centre. It was alleged that he had used racist language and this was considered by the employers to constitute gross misconduct.
3. The incident which gave rise to the dismissal occurred away from the work place on 30 July 2006. Unfortunately the Tribunal gives very little account of precisely what the incident was. It is clear from the decision that the claimant was with two other managers, Mrs Ceri Warner and Mr David Thomas, on a night out in Cardiff. Mrs Warner was also dismissed because of the allegations made in this case, but Mr Thomas was not. It appears that there was some telephone message left with another employee of the respondent, Mr Yusuf Ali. It is not clear from the Tribunal decision what was alleged to have been said. Nor is there any explanation of what role Ms Warner and Mr Thomas may have played in the incident and why she was dismissed and he was not. In fact we have been told by counsel before us today that the incident was at four o'clock on a Sunday morning, after a night of heavy drinking, and that Mr Ali was being contacted because when not at work, he drove a taxi. and the three wanted a lift home. The comments were apparently not intended to be heard by Mr Ali but were made when the phone was accidentally left on. But none of this appears from the decision itself.
4. The decision to dismiss was taken by a Mr Thorne. The Tribunal concluded that he did not act fairly principally, it seems, because he did not allow the claimant to listen to the recording of the conversation on which Mr Thorne had apparently based his conclusion that it was the claimant who had made the inappropriate racist comments. The recording had been deleted from the telephone by the date of the disciplinary hearing, but it could have been put to the claimant at an earlier investigative interview. In addition, the Tribunal held that Mr Thorne had given too much significance in his assessment of the potential consequences that would result from the alleged conversation; he thought that there may be serious industrial relations' problems. The Tribunal described this as a "knee jerk reaction" to the events. We infer that the Tribunal is here suggesting that dismissal was not an appropriate sanction in any event.
5. The Tribunal also held in the light of that conclusion that Mr Thorne did not genuinely hold the view that the relevant misconduct had been committed. As we indicate below, we have some difficulty in understanding the reasoning with respect to that finding. The Tribunal also found that the employers had failed sufficiently to differentiate between the three parties to the incident. Again they do not explain this observation, and it is far from clear what they mean since the two who allegedly made racist comments were dismissed and Mr Thomas, who did not make such comments, was not.
6. Certain observations were made about the evidence of Mr Thorne. The Tribunal stated in terms that they did not find him to be a liar, but they described him as "disingenuous".
7. There was an appeal but the Tribunal found that the failings by Mr Thorne were not remedied by the appeal process. In addition the Tribunal concluded that Mr Thorne had allowed "a lack of candour and credibility to continue into the appeal process itself." We could not understand from the decision itself what was meant by that somewhat cryptic comment. Again, we have had some explanation from counsel. It appears that there were two stages in the disciplinary process; an initial investigatory interview, when the recording was available but Mr Tipper was not allowed to hear it; and a later disciplinary hearing, by which time the recording was no longer available having been automatically deleted from the phone system. The criticism of Mr Thorne was apparently directed to the fact that he had allegedly given a false reason to the claimant as to why he could not hear the recording, and had also misrepresented the position to Mr Heasman, the manager who heard the appeal.
8. The grounds of appeal are very extensive. The principal ground is that there has been a failure to give proper and adequate reasons for the judgment. It is submitted that this decision fails to meet the standards required by rule 30(6) of the Tribunal Procedural Rules and also conflicts with the requirement that the party should know why they have won or lost as the case may be: see Meek v City of Birmingham District Council [1987] IRLR 250. There is clearly significant force in this submission, as will be clear from this judgment so far. We have had to rely on counsel to give an explanation for many of the relevant findings.
9. An aspect of the appeal is that the Tribunal has simply not recounted material and relevant evidence concerning the nature of the investigation by Mr Thorne. For example, it is submitted that there was plenty of evidence to support Mr Thorne's conclusion that Mr Tipper did make the comments. Mr Thorne had identified the voices of the three persons before he even knew that they had been out socialising together; it was not disputed that he had accurately identified the voices of the other two. Moreover, although the claimant never did accept that he had said these words on the grounds that it was not the kind of thing he would have said, neither did he categorically dispute it. Indeed, in the formal interview he observed that he was "ashamed of his moment of madness" and wished it known that "no malice was intended to anyone by his actions". Moreover he was provided with a transcript of the relevant conversation although again there is no reference to this in the decision of the Tribunal.
10. Accordingly, it is said that there was no basis on which the Tribunal could conclude that there was any real doubt as to whether the claimant had made the call. Moreover, it is submitted that given these matters, the finding that Mr Thorne did not genuinely believe that the misconduct had been committed by Mr Tipper was in the circumstances perverse.
11. The second principal ground of appeal is that the tribunal substituted its view for that of the employer with respect in particular to the seriousness of the offence and the question whether dismissal was within the range of reasonable responses. It is submitted that the employers were entitled to treat this as serious, even although taking place outside the workplace. Moreover, it was not for the Tribunal to substitute its view of the potential implications of the misconduct for the managers on the ground. There was evidence of hostility by the workforce to work with Mr Thomas merely because he had been associated with the racist comments, even although it was not alleged that he had made them.
12. A third ground of appeal is that the Tribunal failed to determine whether the dismissal was fair in any event on the grounds that dismissal would have occurred even if a fair hearing had taken place (see section 98(A)(2) of the Employment Rights Act 1996), and that there had been a failure to have regard to the issue of contributory fault.
13. Mr Jones, counsel for the claimant, in a conspicuously skilful argument, recognised that the decision is in some respects unsatisfactory. However, he contends that there is sufficient reasoning to make the decision Meek compliant and in accordance with the Tribunal Rules. This was, he submits, essentially a simple unfair dismissal case which took a day to hear. It did not require detailed analysis. Moreover, the reasons must be assessed from the perspectives of the parties involved, who would be fully aware of the disputed issues: see Derby Specialist Fabrication v Burton [2001] IRLR 69, para 21 per Keene J. The criticisms of Mr Thorne are clear and justified.
14. Mr Jones submits that there were really two bases for the decision. First, he says that on a fair reading it is plain that the Tribunal had concluded that Mr Thorne's evidence could not be relied upon and that they did not believe that he genuinely considered that Mr Tipper had made the offensive remarks. He says that the finding of the Tribunal is that in effect Mr Tipper was being made a scapegoat for the incident. Mr Thorne felt that someone should be disciplined to placate the workforce, and Mr Tipper was selected for that reason.
15. Second, the uncontested and essential failure was not putting the actual recording to Mr Tipper. This could have been done at the initial investigative stage and yet there was a deliberate decision at that time not to produce it. This was the best evidence there was identifying Mr Tipper. The failure to provide that evidence prevented him from having the chance to exculpate himself. Had the recording been heard again, the claimant may have been able to satisfy Mr Thorne that he was in error in attributing the words to the claimant, even assuming that this was Mr Thorne's genuine view.
16. Mr Jones also made certain observations on the other grounds of appeal, but he accepted that if he did not succeed in satisfying us that the decision could be justified on either of the two grounds we have set out above, then his response to the other grounds would not save the decision. He did, however, deny that the Tribunal had fallen into the trap of substituting its view for that of the employer. The Tribunal was fully entitled to conclude that Mr Thorne's analysis had been wrongly influenced by his perception, which the Tribunal did not share, that there would be serious industrial relations' consequences as a result of the incident.
17. As to the section 98(A)(2) argument, whilst Mr Jones accepted that the Tribunal strictly ought to have dealt with it, it was plain that it could go nowhere. The procedural failure went to the very identity of the wrongdoer and once that was seriously left in doubt, it could not be reasonable to infer that dismissal would have occurred on the balance of probabilities even had proper procedures been adopted. That would be to assume that the recording would have established that the voice was that of Mr Tipper, but that was the very matter in issue. Similarly if the Tribunal was not satisfied that there was any misconduct and therefore any fault at all, there could not be a finding of contributory fault.

Conclusions.

18. We are unanimously of the view that this judgment singularly fails to provide a sufficiently cogent account of the story or of the material factors to enable us properly to assess the merits a number of the points raised on appeal. We of course recognise that a tribunal does not have to set out its findings in detail and can be assumed to be addressing its reasons to those who are already aware of the detailed context. Having said all of that, this decision is simply too sparse and impressionistic.
19. We also accept that on the face of it there was certain evidence adduced by the employers which we should have been dealt with in the body of the decision. In particular we consider that the Tribunal should have analysed the material, such as that identified in para 9 above, which supported the conclusion that it was Mr Tipper who made the offensive remarks. It seems to us that this evidence needed to be considered by the Tribunal even if it were ultimately to be rejected
20. We also suspect that there is force in the point that the Tribunal did substitute their view for that of the employer, particularly with respect to the appropriateness of dismissal as a sanction, but the lack of reasoning makes it difficult to reach any confident conclusion on that point.
21. We do, however, agree with Mr Jones that if he can satisfy us that the Tribunal was entitled to find against the employers for either of the two principal errors on which he relies, then we would be able to uphold the decision notwithstanding its other obvious defects. So the issue is whether they are sustainable grounds.
22. As to the first, we do not accept that the Tribunal was making a finding that Mr Thorne did not genuinely believe that Mr Tipper had spoken the offensive words and had simply sought to make him a scapegoat. It seems to us that the Tribunal concluded that Mr Thorne did not have that genuine belief so as to satisfy the first stage of the Burchell test simply because he had exaggerated the likely effect of the incident on the workforce. We do not understand that reasoning. Whilst that factor may go to the appropriateness of the sanction to dismiss, we do not see how it can cast light upon the question whether Mr Thorne genuinely believed that Mr Tipper was the culprit. Moreover, there was plainly evidence to support the inference that he was. In addition, the Tribunal's finding that Mr Thorne was not lying does not sit happily with the notion that he was simply manufacturing a case against Mr Tipper that he did not believe.
23. The second ground has more merit. There is no doubt that the Tribunal did properly conclude on undisputed evidence that the recording was not made available to the claimant. That could have been done at the first investigatory hearing, but it appears that at that stage the decision was taken to produce it later at the disciplinary hearing, as was in fact done with Mrs Warner. However, Mr Tipper's hearing was at a later date than hers (apparently because the claimant was on holiday) and by then the recording had been automatically deleted. It is not alleged that it was deliberately deleted.
24. The essence of the argument here is that the Tribunal was entitled to find that the failure to provide the recording, even although it was not in existence by the date of the disciplinary hearing and could not then have been produced, rendered the procedures unfair. That presupposes that a reasonable employer would necessarily have produced it at the earlier investigatory stage. We agree with Ms Thomas, counsel for the employers, that this could not be assessed without at .least considering the purpose of the various stages of the disciplinary process and asking what information was required to be disclosed at each stage. After all, the employers were not seeking to deny that claimant an opportunity to hear the recording at any stage; it was envisaged that this would indeed occur during the course of the disciplinary process. With hindsight it is obvious that it would have been better had the recording been provided at the first stage, but that does not show that it was unreasonable to fail to take that step since it would not have been apparent to Mr Thorne at the time that the message would be deleted. However, the Tribunal did not consider the significance of the procedural stages at all.
25. In our judgment the crucial question was whether the employers had fairly concluded that the claimant had made the offensive remarks. In determining whether the employers had reasonably so concluded, the Tribunal had to look at all the evidence relied upon to justify that inference, including the fact that the claimant was potentially disadvantaged because what might have been exculpatory evidence was no longer available. In our view the significance of the alleged procedural defect could not be determined independently of the other relevant material which the employers had. Contrary to the view of Mr Jones, this was not a case like Spink v Express Foods Group Ltd [1990] IRLR 320 where the case against the employee was not put fully and fairly to him. Here it was put quite unequivocally to the claimant that he had made this comment and he had the opportunity to deal with that allegation. The failure lay in the fact that some potentially relevant evidence was not put to him, because it was no longer available at the time when it was proposed that he should deal with it. That does not, in our view, support Mr Jones' submission that this amounted to a fundamental breach of natural justice which inevitably rendered the dismissal unfair. We do not accept that if evidence, even important evidence, is lost or destroyed that this necessarily means that it is unfair for an employer to determine whether or not to dismiss on the basis of the evidence available. The lack of evidence which should ideally have been available, for whatever reason, is a factor to consider when assessing the reasonableness of the decision to dismiss but it does not lead to the inevitable conclusion that the decision must be unfair because the evidence has not been fully tested. This Tribunal did not focus at all on the nature and quality of the evidence that was available, nor did it assess the significance of the untested evidence in the light of that.
26. Accordingly, we do not think that the decision can be saved on either of the grounds advanced by Mr Jones.

Disposal.

27. It follows that the appeal succeeds. We have considered whether we should send the decision back to the same tribunal for further reasons to be provided. However, we think that the failings here are too fundamental, and the reasoning too deficient, to be put right by giving the Tribunal a further opportunity to rectify matters. Nor of course would it be appropriate for us to engage in speculating whether this was a conclusion which could properly be sustained had the decision been presented in a more rational way with relevant evidence properly considered.
28. We have reluctantly come to the conclusion that the case has to be remitted to a fresh Tribunal for a complete rehearing. Nothing in this judgment is intended to give any indication of the merits of the case one way or the other.