United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R HOPKINS (Appearing under the Employment Law Appeal Advice Scheme)
For the Respondent	MR T DRACASS (of Counsel) Instructed by: B&Q Plc (HR Legal Solutions) Portswood House Eastleigh Hampshire SO53 3YX


 


SUMMARY

UNFAIR DISMISSAL: Reasonableness of Dismisal

The Appellant and a manager were involved in a fight on the shop floor. Each alleges the other started it. The Appellant was suspended. After a disciplinary process he was dismissed. The manager was suspended but only for interview purposes. At the conclusion of his interview he was reinstated. Employment Tribunal in error in regarding the investigation as within the band of reasonable responses. Case remitted to the same Tribunal.

HIS HONOUR JUDGE BIRTLES

1. We are going to allow the appeal and remit the case. I will give a judgment and then hear you both on disposal as to whether the case should go back to the same Tribunal or a different Tribunal.

Introduction

2. This is an appeal from the judgment of an Employment Tribunal sitting in Reading on 9 October 2008 and 15 and 16 December 2008. The Employment Tribunal decided by a majority that the claim was not unfairly dismissed. By a minority judgment, Mr E K Jerome, judged that the Claimant had been unfairly dismissed. Therefore, by a majority, the Claimant's claim of unfair dismissal failed and was dismissed.
3. By the unanimous judgment of the Tribunal, the Claimant's second claim which was of discrimination contrary to the Race Relations Act 1976 failed and was dismissed. Today the Appellant, Mr Ververt, is being represented by Mr Robin Hopkins from the Free Representation Unit and the Respondent, B & Q PLC, have been represented by Mr Tim Dracass, of Counsel. As always, the members of the EAT are grateful for the assistance that Appellants get from the Free Representation Unit. Without that organisation and similar organisations, many Appellants in this Tribunal would be unrepresented.

The Material Facts

4. The Employment Tribunal set out their findings of fact in paragraphs 3-30 of their judgment. In summary form, the Claimant was employed by the Respondent as a customer advisor at its Slough store from 24 May 2003 until his dismissal on 12 December 2007. There was a fight at about 4.15 am on the morning of 8 November 2007. This was a night shift that started at the earlier day, 7 November, and continued through into the morning of 8 November 2007.
5. The Claimant, Mr Ververt, and a Mr Deol, his immediate line manager, became involved in a confrontation. Mr Ververt appears to have suffered minor injuries. The parties were separated by other members of staff and a Mr Pat Donachy, the other night crew manager, dealt with the incident and took statements from individuals present. He took statements from a Mr Jubilee Ngobola, a Mr Andrew Wheeler and from Mr Deol himself. Mr Deol complained to Mr Donachy that he had been assaulted by Mr Ververt.
6. It is Mr Ververt's case that he also made a complaint to Mr Donachy that he had been assaulted by Mr Deol. We have been referred to various parts of the Employment Tribunal judgment as well as Mr Ververt's witness statement, prepared for the hearing before the Tribunal. In addition, we have looked at the notes of his interview by Mr Shipley on 14 November 2007. It is not our function to decide whether or not Mr Ververt did complain to Mr Donachy on the morning of 8 November 2007 but for the purposes of this judgment we assume that he did.
7. As has been pointed out to us by Mr Hopkins, it does not appear that the Employment Tribunal made a specific finding of fact as to whether that was correct or not. Mr Donachy investigated the complaint by Mr Deol by taking statements, as I say, from Mr Ngobola, Mr Andrew Wheeler and Mr Deol on the morning of 8 November 2007.
8. Mr Donachy himself did not have the power to suspend anyone but left instructions for the Claimant to be suspended on the allegation that he had acted violently and threateningly towards a manager, Mr Deol. The note is in the Supplementary Bundle at page 15.
9. The Respondent's disciplinary procedure begins with a first step inquiry meeting. This took place on 14 November 2007 and was carried out by Mr Shipley. Mr Donachy was present as the interviewer's witness. The interview notes appear at appeal bundle pages 19 through to 33, see particularly bundle appeal bundle page 28 where Mr Ververt complains that Mr Deol attacked him first and he did complain to Mr Deol. It does not appear from the material before us that Mr Donachy did ever pass on the complaint made by Mr Ververt to him on the morning of 8 November.
10. Following the meeting on 14 November, Mr Shipley saw Mr Deol the following day, 15 November 2007. The Tribunal deal with this at paragraph 13 of their judgment. They say this:

"Mr Shipley also interviewed Mr Deol and having regard to the Claimant's allegation that Mr Deol had been the aggressor he held a first step enquiry meeting with Mr Deol. He suspended Mr Deol before the commencement of this meeting. Mr Deol said that he had to raise his voice when speaking to the Claimant in the warehouse yard because the Claimant was standing further down the yard than him. Mr Shipley considered that Mr Deol's description of the incident was consistent with Mr Wheeler's account and did not feel there was any case for Mr Deol to answer. At the conclusion of the meeting he told Mr Deol that he was satisfied with his explanation and that there should be no further action."

Paragraph 14:

"Mr Shipley met with the Claimant on 19 November 2007 and told him he was not satisfied with his explanation and had decided the matter should go forward to a Step 2 formal meeting."

11. That was conducted by a Mr Paw and the rescheduled meeting took place on 12 December 2007. Mr Paw concluded it was reasonable to believe the Claimant had used violent and threatening behaviour towards his manager and he considered that dismissal was the appropriate sanction. The Claimant was dismissed. He appealed against that dismissal and the appeal was heard by a Mr Gillis. The appeal took place on 19 February 2008. The appeal was dismissed.
12. The Employment Tribunal conclusions are at EAT bundle pages 8-12. The first part of those, paragraphs 35- 41 concern the claim for race discrimination which was dismissed. There was no appeal against that decision. The conclusions of the Tribunal in the claim for unfair dismissal are at paragraphs 42-55.
13. The Tribunal first considered Section 98(1) of the Employment Rights Act 1996 and referred to Sections 98(2)(b) and 98(4). In paragraph 45 of its judgment, it referred to the leading case of British Home Stores Limited v Burchell [1980] ICR 303 and rightly held it applied to this case. They set out the three-fold test. At paragraph 46, they reminded themselves that it was impermissible for an Employment Tribunal to substitute its view for the employer and at paragraph 47 they said this:

"In this case however the matter as reported to the Respondents was put on the basis that an employee had assaulted his manager, Mr Deol. The Respondents state that when it emerged later on interviewing the Claimant that he maintained the aggressor was Mr Deol, they responded in the same way by suspending him. The majority view of the Tribunal was that this was paying lip service to a suspension and that whilst Mr Shipley was keen to interview Mr Deol, in their view it was relatively meaningless to suspend him and carry on the interview. He was satisfied with the explanation and at the conclusion of the interview lifted the suspension. The minority member of the Tribunal considered the suspension of Mr Deol a sham."

14. Paragraph 48:

"The majority would not go so far as to say that, the implication being that the Respondent was going through the motions. We accept that Mr Shipley certainly thought there were grounds for suspending Mr Deol as soon as he heard the allegation from the Claimant that Mr Deol was the aggressor. With hindsight he should have done exactly what he said, namely sending Mr Deol home, and revisiting the meeting on another occasion. The majority finds nothing sinister with Mr Shipley's approach. We just take issue with the mode of operating the suspension."

15. Paragraph 49:

"All members of the Tribunal find that the Respondent did in fact hold a reasonable belief in the culpability of the Claimant."

16. In paragraphs 50 and 51, the Tribunal say this about the investigation:

"50. As regards the investigation the majority consider that looked at in the round it was a reasonable investigation. Certainly all relevant witnesses were interviewed and some of them on a number of occasions.

51. The majority would comment that it was unwise for Mr Gillis to delegate some further interviews to Mr Shipley because of his difficulties in attending the premises. Mr Shipley had been involved in the initial investigation and whilst Mr Shipley was not the dismisser Mr Gillis should have made more effort to deal personally with the investigation or to delegate the interview to somebody who had no part in it. However, that is an observation but we did not consider this to be an element of unfairness that would undermine a reasonable investigation. It is a minor issue on which we choose to comment."

17. The Tribunal then go on, in paragraph 52, to deal with the appeal which does not form part of this appeal and then refer to the view of the minority member in paragraphs 54-55.
18. The Notice of Appeal is set out in the Employment Tribunal bundle at pages 13-22. The Respondent's answer is at pages 24-30. Although the Notice of Appeal is long, much of it is concerned with setting the scene and the relevant facts as seen by the drafter of the Notice of Appeal.
19. There are two grounds of appeal in the Notice of Appeal.
20. The first ground of appeal is called "Material Considerations" and the second ground of appeal is called "The Investigation". Each is set out in detail in the Notice of Appeal.
21. Today, Mr Hopkins who has presented the Appellant's case with great skill, has refined the argument. In essence, there are two issues for us to deal with. Issue 1 is, did the Appellant make a complaint to Mr Donachy on 7 or 8 November 2007? Mr Dracass submits that if that is not the case then the appeal should be dismissed but we have already indicated at the beginning of this judgment that we do not feel that it is the function of the Employment Appeal Tribunal to act as a fact-finding Tribunal. We are precluded from doing that. Our function is to review the judgment of the Employment Tribunal to see whether or not there is an error of law or the decision is perverse.
22. Mr Hopkins and Mr Dracass have referred us to various documents that were before the Employment Tribunal. We do not feel able or, indeed, that we should make a finding of fact that Mr Ververt did complain to Mr Donachy on the morning of 8 November 2007. It is regrettable that there is no expressed finding of fact by the Employment Tribunal to that effect one way or the other. Quite clearly, in our judgment, it was a live issue before the Employment Tribunal.
23. For the purposes of this appeal, we make the assumption that Mr Ververt did complain to Mr Donachy on the morning of 8 November 2007 that he had been assaulted by Mr Deol. There is no dispute that Mr Deol made complaint to Mr Donachy that the he had been assaulted by Mr Ververt.
24. However, it would appear from the material before us that Mr Donachy did not either record that fact, that is, that Mr Ververt alleged that he had been first assaulted by Mr Deol. Neither does it appear from the material before us that he passed that information verbally to anyone above him involved in the subsequent investigation. So the position on 14 November, when Mr Ververt was first interviewed under the step 1 procedure, was that Mr Shipley, who conducted that interview, had in front of him three witness statements taken by Mr Donachy on the morning of 8 November 2007 from (1) Mr Jubilee Ngobola, (2) Mr Andrew Wheeler and (3) Mr Deol himself. It is clear to us that Mr Shipley was not aware until he started the interview with Mr Ververt that part of Mr Ververt's case, indeed a substantial part of Mr Ververt's case, was that he had first been assaulted by Mr Deol.
25. He proceeded to conclude the interview which, as I have indicated from the page references, took some time and the following day, 15 November 2007, saw Mr Deol. At the commencement of that interview he suspended Mr Deol and carried on with the interview. At the end of it he was satisfied that Mr Deol had not done anything sufficiently wrong to justify the suspension continuing and, therefore, lifted the suspension on the same day.
26. Mr Hopkins submits that the Employment Tribunal made an error in its findings in relation to the investigation stage, the second part of the Burchell test. We remind ourselves that that the Tribunal found the Respondent satisfied the first part of the Burchell test in that they had concluded unanimously that the Respondent did, in fact, hold a reasonable belief in the culpability of the Claimant: see paragraph 49. However, as far as the investigation is concerned, the Tribunal simply recorded this in paragraph 50 of its judgment:

"As regards the investigation the majority consider that looked at in the round it was a reasonable investigation. Certainly all relevant witnesses were interviewed and some of them on a number of occasions."

27. That is as far as it goes. They make one or two criticisms of the investigation in paragraph 51 but it does not affect their finding in paragraph 50 that it was a reasonable investigation. We remind ourselves following J Sainsbury Ltd v Hitt [2003] ICR 111 that the band of reasonable responses test applies to whether or not an investigation is a reasonable one or not. That is the test the Employment Tribunal have to apply.
28. Mr Hopkins submits that the Tribunal simply did not grapple with the Claimant's case before the Tribunal that he had maintained from the beginning that Mr Deol had started the fight and attacked him and that he had, therefore, defended himself. If he reported that to Mr Donachy on the morning of 8 November, Mr Donachy neither recorded that nor passed on that information. The Tribunal made no finding of fact that either Mr Ververt had made that complaint to Mr Donachy or that if he had, Mr Donachy had not passed it on to anyone else. What they do find is that claim was made by Mr Ververt to Mr Shipley on 14 November.
29. Mr Hopkins submits that that tainted or made unreasonable the remainder of the investigation carried out by the Respondent. What it should have done, having received that information on the 14th, was to have suspended Mr Deol immediately and gone back to the beginning and conducted the investigation from the start. Mr Hopkin's principal submission is that where there are in effect, cross complaints by two members of staff involved in a fight, both should be suspended and an investigation should be directed into the guilt or responsibility of both of them at the same time. That issue was not grappled with by the Tribunal.
30. Mr Dracass, for the Respondent, submits first that Mr Ververt did not make such a complaint to Mr Donachy on the morning of 8 November for the reasons we have already given. We think that this appeal should proceed on the basis that he did. There is no express finding of fact by the Tribunal and we are not prepared to draw any inference that he did not make such a complaint.
31. Second, and this is his principal submission, Mr Dracass submits that it would have, effectively, made no difference. He points out to the fact that Mr Shipley took over the investigation from Mr Donachy. He is made aware on 14 November 2007 that Mr Ververt's case was that he was assaulted by Mr Deol first, and he points to the fact that the following day, 15 November 2007, Mr Shipley saw Mr Deol, suspended him, and then interviewed him and decided to take no further action and lifted the suspension. He also points to the fact that Mr Shipley re-interviewed Mr Wheeler and Mr Ngobola and he referred us to the findings of the Tribunal at paragraphs 10-13 of the judgment.
32. In essence, his submission is that the Tribunal's finding at paragraph 50 of its judgment, that this was a reasonable investigation within the bounds of reasonable inquiries, would be exactly the same. We are not able to agree with that submission. It seems to us that this is not a case where we can substitute our view for that of the Tribunal and say on what may well be contested facts where there has been certainly a failure by the Tribunal to find certain facts that the result would have been the same and this Tribunal would inevitably have come to the conclusion that the Respondent carried out a reasonable investigation.
33. We see force in Mr Hopkin's submission that the Tribunal did not address its mind for whatever reason to the issue that, from the beginning, Mr Ververt had accused Mr Deol of starting the fight and that the Respondent thereafter followed the wrong procedure, or at least a procedure that was correct until they became aware of the allegation by Mr Ververt on 14 November 2007 and that thereafter the procedure should have been that Mr Deol should have been suspended and the procedure restarted.
34. We do not feel that we can say on the material before us that either as a matter of law or fact that the Respondent carried out a responsible investigation or that on the material before us the majority of the Tribunal would inevitably have come to the same result.
35. It follows that the appeal will be allowed to that limited extent. The remaining grounds of appeal have not been canvassed before us and they will be dismissed. The order we are proposing to make, therefore, is that the appeal be allowed on the point argued before us and the matter remitted to an Employment Tribunal.
36. Having heard counsel on the question of disposal. We order that this case be remitted to the same Tribunal.
37. This is an addendum to my judgment. I should have mentioned the effect of Section 98(2)(a) of the Employment Rights Act 1996. The only reference to this is in paragraph 55 of the Tribunal's judgment, that is, the last paragraph of the judgment. The Tribunal there recalled that having recorded the minority member's view at paragraph 54 they go on to say that in view of the minority member the dismissal cannot be found to be fair having regards to the provisions of Section 98A(2) of the Employment Rights Act 1996. That issue was not, in fact, directly considered by the majority.
38. We make the assumption that the effect of its judgment at paragraph 50 means they did not feel it necessary to consider the effect of Section 98A(2). That is a matter also, of course, which it will have to consider. On the material before us, we certainly do not feel able to make such a judgment.