United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LEONIE HIRST (of Counsel) Instructed by: Messrs Oliver Moore Solicitors LLP 135 The Parade High Street Watford Herts WD17 1NA
For the Respondent	MS CAROL DAVIS (of Counsel) Instructed by: Messrs Berrymans Lace Mawer Solicitors Kings House 42 King Street West Manchester M3 2NU


 


SUMMARY

UNFAIR DISMISSAL

The Claimant was head chaplain at an immigration removal centre. He was dismissed for giving an unauthorised interview broadcast on a local radio religious broadcast and because "there was the potential for information to be shared which may have brought the Company into disrepute or bring[ing] serious discredit to the Company." The breach of the company rule of which the Claimant was said to be guilty was "conduct, whether or not committed at work, that in the company's reasonable opinion is likely to bring the company into disrepute or bring serious discredit to the company." The dismissing officer had neither heard the broadcast nor read a transcript of it. The dismissal was unfair but the Claimant had substantially contributed to it.


 


HIS HONOUR JUDGE REID QC

1. This is an appeal from a decision of an Employment Tribunal held at Reading on the 5, 6, 7 and 19 November 2008. The decision was sent to the parties on 5 December. By its decision, the Tribunal held that the Claimant, Rev Vanttinen-Newton, was not unfairly dismissed and that his claim failed.
2. The Claimant had been employed as chaplain and manager of religious affairs at Campsfield House Immigration Detention Centre from 4 June 2001 until 20 November 2007 when he was summarily dismissed for gross misconduct.
3. The staff handbook included the code of conduct. It contained the following instruction: "Dealing with the media: No employee of Geo is authorised to make any comments or to give any interviews to the media without prior and express permission of the managing director. Any employee who is approached by any media must refer the person to a senior manager at the earliest opportunity."
4. The reason for his dismissal was that he had given a short interview to BBC Radio Oxford on 17 July 2007 (which was broadcast on 29 July 2007) and had done so without authority from the Respondent. The interview was used as part of a religious broadcast and was entitled "Faith in the workplace". This was said to be (a) a breach of the specific rule and (b) "a serious breach of the company rules or conduct, whether or not committed at work, that in the company's reasonable opinion is likely to bring the company into disrepute or bring serious discredit to the company."
5. On 19 July the Claimant informed his line manager that he had given the interview and that it was due to be broadcast on 22 July (though in fact it was eventually broadcast on 29 July). He suggested his line manager should look out for it. Neither the manager nor anyone else in authority looked out for, or heard, the interview. No attempt was made before transmission to discover the content of the interview or to approach the radio station in any way. In fact no one in authority either heard a recording of the interview or read a transcript of it before the Claimant was dismissed. However the Respondent's managing director did inform the duty officer of the UK Border Authority (the relevant part of the Home Office) of what had happened. There is no evidence that anyone at the Home Office or the UK Border Authority displayed the slightest interest in the broadcast either before or after the event, still less that it had any repercussions for the Respondent.
6. On 26 July the Claimant was suspended on full pay pending an investigation into "giving an interview to the media without authority, acts of serious insubordination and unauthorised absence from work". The investigation was not said to relate to conduct likely to bring the company into disrepute or bring serious discredit to the company. The investigation was carried out by Mr Sweeney, the Claimant's line manager. There was no evidence that the issue of disrepute or discredit to the company was ever raised in the investigation.
7. On 1 September the Claimant raised his first grievance complaining about the fact that he had been suspended, which he regarded as "unwarranted, hasty, demeaning, intimidating and vindictive". On 8 October he raised a further grievance complaining about the conduct of the investigation and the delay involved. On 12 October Mr Starkey, the contract compliance and health and safety manager, wrote a letter trying to set up a grievance hearing. It contained this paragraph: "I have been asked to advise you that until the grievance process is concluded whilst it may be possible for Alex Sweeney to conclude the investigation progress will be halted on the case as to the two cases are run simultaneously. Therefore your suspension will continue." Thus the Respondent was saying that the disciplinary process would be postponed till the conclusion of his grievance process.
8. At the beginning of November Mr Sweeney submitted his investigation report, to Mrs Henney, the Centre manager. She decided there were sufficient grounds to commence a disciplinary process and on to November 2007 wrote, setting out for allegations which the Claimant was required to answer. Those allegations were "(a) that you have given an interview to the media without the prior and express approval of the Managing Director; (b) refusal to carry out reasonable instructions or other acts of serious insubordination; (c) unauthorised absence from work; and (d) serious breach of the company rules or conduct, whether or not committed at work, that in the company's reasonable opinion is likely to bring the company into disrepute or bring serious discredit to the company". The letter warned that the allegations might constitute gross misconduct and that dismissal was a possible outcome. It is not disputed that the letter complied with step 1 of the statutory disciplinary procedures.
9. The disciplinary hearing was initially fixed for 8 November but was postponed to 13 November. The grievances were unsuccessful and on 9 November the Claimant advised the Respondent that he intended to appeal against the decision in relation to the grievances. A grievance appeal hearing was fixed for 16 November. The Claimant objected to the new date for the disciplinary hearing on the grounds that the disciplinary hearing was fixed for a date before the grievance appeal. By a letter dated 15 November (received on 17 November) the Claimant was informed that the disciplinary hearing would be held on 20 November. The Claimant was warned that if he failed to attend the interview the case would proceed in his absence. On 19 November the Claimant was notified of the unsuccessful result of his grievance appeal. There was one further and final stage of appeal available to the Claimant in relation to his grievance. He invoked this on 21 November, the day after the disciplinary hearing on 20 November. That appeal took place shortly after his dismissal and was unsuccessful.
10. The Claimant did not attend the disciplinary hearing (which was conducted by Ms Henney, the Centre manager) on the basis that he had been told the disciplinary process would be put on hold pending the outcome of his grievances. He took the view that his grievance procedure had not been fully completed. The disciplinary hearing took place in his absence over a period of several hours, and the charge of speaking to the media without permission (count (a)) was upheld as was the charge relating to serious breach of the company's rules (count (d)). The other two charges failed.
11. Ms Henney decided that the Claimant should be summarily dismissed. The reasons she gave were as follows:

"The reasons for your dismissal are:

With regards to the first allegation relating to Media Contact, I believe that the evidence provided, on the balance of probability, that you were aware of the Company Rules and breached them.

[She then stated she found counts (b) and (c) to be unproven and continued]

The final allegation relating to serious breach of Company rules or conduct (whether or not committed at work) that in the Company's reasonable opinion is likely to bring the Company into disrepute or bring serious discredit to the Company is supported by your admission that you did give interviews to be used in the media, and regularly spoke at external functions on behalf of GEO and relating to Campsfield House. In addition, you have confirmed during your interviews that you are fully aware of the procedures in place. As the Company were not aware of the contact with the media or speeches given to external agencies, the content of the information given has not been notified to or approved by the Managing Director. As you were fully aware of the requirement to seek approval, it is my reasonable belief that, as we did not have control of this information, there was the potential for information to be shared which may have brought the Company into disrepute or bring serious discredit to the Company."

12. The Claimant exercised his right of appeal and the appeal was heard by the Managing Director, Mr MacGowan. He dismissed the appeal, which was by way of review only.
13. The Tribunal found that the Respondent was ultimately answerable to the Home Office and had a legitimate interest in ensuring that the Immigration and Asylum Act 1999 was complied with and that the "immigration rules of conduct" were closely followed. The Claimant's contract of employment made clear that among other things breach of the rules of conduct would be regarded as gross misconduct and that withdrawal authority of the Home Office by the Secretary of State could lead to the termination of the individual's employment. The staff handbook incorporated the code of conduct of which the Claimant was well aware and the restriction on dealing with the media in particular. It was no excuse that he notified his line manager after he had given the interview.
14. The Tribunal criticised the failure of the employer to wait until the final conclusion of the grievance procedure before holding a disciplinary hearing and held this potentially rendered the dismissal unfair. But having held that the statutory disciplinary procedures had been complied with, the Tribunal went on to consider the position under section 98A(2) of the Employment Rights Act 1996 (ERA). It concluded that had the defects in the procedure being put right the results would have been entirely the same. Mr MacGowan had been entitled to hold that the appeal should be dismissed on the evidence before him. The Respondent was entitled to take a strict view on the charge of speaking to the media without authority and whilst the Tribunal felt that the decision might have been harsh it was unable to say that it was outside the range of reasonable responses in the circumstances. It therefore concluded that the statutory test in section 98 for the ERA, and the tests set out in BHS v Burchell [1980] ICR 303 had been satisfied.
15. The Claimant attacks the decision of the Tribunal on two bases. The first is that the Tribunal failed to consider relevant material evidence and the second that it misdirected itself as to the application of the Burchell test to the circumstances of the case and that its conclusion in relation to the Burchell test was therefore perverse.
16. As to the first of these, the Claimant submitted that the Tribunal failed to consider or to make findings on three supposedly crucial matters of evidence: (1) the fact the Respondent had not listened to or read the Claimant's interview; (2) the fact the Claimant had previously given media interviews including one to BBC Radio 4 without disciplinary sanction and (3) the question whether the Claimant understood he would be summarily dismissed for giving an unauthorised interview. The submission proceeded on the basis that it was necessary to make findings in relation to these matters, because the Claimant was dismissed on a charge of "a breach of rules, which was likely to bring the company into disrepute or bring serious discredit on the company." It was submitted that it was central to the reasonableness of the decision that the Respondent should have formed a view having listened to, or at any rate read a transcript of, the interview before the dismissal or the appeal hearing.
17. So far as the first of these criticisms is concerned, this is in reality a part of the second ground of appeal and should be dealt with as such.
18. In our judgment the second of these criticisms is unfounded. The evidence was that the Claimant had given one interview to BBC Radio 4 in company with a senior manager. This was clearly an authorised interview. The other talks or interviews which he gave were:

(i) To the Kidlington Voice, a gathering of local business people at which the manager of the Centre attended and participated. This was (a) not an interview with the media and (b) was plainly authorised:

(ii) To the Oxford Rotary Club which was not an interview with the media, though which coincidentally led to Rev Headley Feast approaching him for the interview in issue:

(iii) To the Bible Society, apparently 2002, which led to the publication of an article in journal of the Bible Society:

(iv) To The Door, the Oxford diocesan newspaper, in 2005.

The management was unaware of the publication of the two articles. There was therefore no evidence before the Tribunal on which it could have found that the management was aware of, and turned a blind eye to, other unauthorised media contact.

19. As to the third matter, we were referred to Brooks v Skinner [1984] IRLR 379 in which at para 16 of the judgment Beldam J said:

"It seems to the Tribunal that whether or not an employer is justified in treating a particular matter of conduct as sufficient to justify dismissal must include the question whether the employee knew, in a particular case, that his conduct would merit summary dismissal. Of course, there is much conduct which any employee will know will merit instant dismissal; it is unnecessary to give examples. But equally there are instances of conduct, particularly those which have been dealt with in other ways, at other times, by an employer, which the employee may well consider will not merit summary dismissal. Therefore this tribunal considers that the consideration of the question whether the Respondent knew he would be dismissed was a relevant matter- not the only matter- but it was a relevant matter for the Tribunal to take into account."

20. The Claimant submitted that the fact that he informed the Respondent of the interview was strongly suggested that he was not aware that he might be liable to summary dismissal for giving the interview and that his lack of knowledge was highly relevant to the reasonableness of the decision to dismiss, particularly as he had given interviews before, without sanction.
21. In our view, the Tribunal made adequate findings on this point. The Claimant had readily accepted that giving interviews to what he described as the secular media without prior authorisation was a serious matter. He sought to draw a distinction between the secular media and religious media. It could not be said that he was unaware of the possible consequences of breaching the rule, and the Tribunal was entitled to take the view that the fact that he chose to make a distinction in his own mind as differences between the particular elements of the media was not an excuse for failing to comply with an express instruction. He was not entitled to subdivide the media into different types and seek to attribute different possible disciplinary sanctions to dealings with each type of the media.
22. Whilst the fact the Claimant told his line manager about the prospective broadcast before it occurred indicated he did not think the Respondent would object to the interview, it does not excuse him. This was not a case in which the Claimant could point to differential treatment. There was no evidence to suggest that what was done was out of line with what had happened to other employees and there was no evidence (for the reasons given above) that he had had other unauthorised media contact which had not been not the subject of sanction.
23. The Claimant's second ground of appeal is that the Tribunal misdirected itself as to the application of the Burchell test to the circumstances of the case and its conclusion was therefore perverse.
24. It was accepted (not surprisingly) that the Respondent had a reasonable belief that the Claimant had given an unauthorised interview and that the belief was formed on reasonable grounds. The Claimant said that the issue was whether the Respondent had formed a reasonable belief that by giving the interview the Claimant was guilty of gross misconduct. It followed that the issues, according to the Claimant, were whether the giving of the unauthorised interview was a serious or gross breach of the company rules and a breach of the rules likely to bring the Respondent into disrepute or serious discredit.
25. We do not accept this formulation by the Claimant. There were two relevant separate counts. The tribunal described the second as "a subset of how the Respondent viewed the matter in the light of the interview given to the media", though this does not appear to be accurate in the light of the reasons given for dismissal. The second, count (d), contained in itself two separate charges: (1) "a serious breach of the company rules" and (2) "conduct, whether or not committed at work, that in the company's reasonable opinion is likely to bring the company into disrepute or bring serious discredit to the company." Counsel for the Claimant misquoted the rule in her skeleton argument: the wording of the rule is "a serious breach of the company rules, or (our emphasis) conduct, whether or not committed at work…." It is not "a serious breach of the company rules of (our emphasis) conduct, whether or not committed at work…."
26. Thus there was an issue as whether the breach of the rules in giving the interview could of itself be considered gross misconduct (ie count (a)). If so the Respondent could have dismissed the Claimant for that breach of his employment contract taken by itself. Even if the giving of the interview of itself did not amount to gross misconduct there was the further issue as to whether the particular interview amounted to a serious breach of the company rules or alternatively to conduct likely to bring the Respondent into disrepute or bring serious discredit on the Respondent.
27. The Respondent's case was that the mere giving of the interview was properly held by it to be gross misconduct. Counsel for the Respondent also sought to stress that the Tribunal had found that "the principal matter of concern was the unauthorised interview." She submitted that Ms Henney dismissed the Claimant because she believed that he had deliberately chosen to give the interview despite knowing all media interviews required express prior approval from the managing director and by giving an unauthorised media interview the Claimant had created a situation which had the potential to cause serious repercussions for the Respondent in its relationship with the Home Office. The Respondent submitted that an unauthorised broadcast given by one of its employees was likely to convey to the Home Office that the Respondent was unable to comply with its contractual obligations to the Home Office and so likely to bring the company into disrepute or bring serious discredit to the company, though there was no evidence that it had had any such effect.
28. The Respondent did not contend that in dismissing the Claimant it had found that the contents of the interview was in the company's reasonable opinion likely to bring the company into disrepute or bring serious discredit to the company. It was forced into this position because it was accepted before us that neither Ms Henney nor anyone else in authority had heard the interview or read a transcript by the time of the disciplinary hearing, though at the appeal Mr MacGowan who conducted the appeal agreed to listen to and read the transcript after the hearing.
29. The prime difficulty with the Respondent's submission was the dismissal letter. This letter set out the basis on which the Claimant was dismissed and in particular focused on there was the potential for information to be shared which may have brought the Company into disrepute or bring serious discredit to the Company." There is a considerable difference between something having "potential" and something being "likely" to occur. In any event it was quite impossible for Ms Henney to have formed any view as to the likelihood or potential without having either heard or read a transcript of the interview. It is to be observed that her reasoning was that "there was potential for information to be shared which may have brought the company into disrepute". She did not give as a reason that which was advanced by counsel to us (though not, it seems, to the Tribunal) that the interview was likely to convey to the Home Office that the Respondent was unable to comply with its contractual obligations to the Home Office and so likely to bring the company into disrepute or bring serious discredit to the company.
30. On any fair construction of the dismissal letter it seems to us that the principal reason for the dismissal was what might be described as the second limb of count (d). In dealing with count (a) Ms Henney, whilst make a finding of a deliberate breach of the rules did not comment on the seriousness or possible effect of the breach. She left that for her consideration of count (d). In our view this approach demonstrates that the dismissal must necessarily have been unfair. An essential element of the count was the content and potential effect of the interview which Ms Henney chose not to investigate. Nothing in Mr MacGowan's review remedied that deficiency. It cannot be said with any degree of certainty that if the employer had followed a fair procedure by listening to the interview or reading a transcript, notwithstanding Ms Henney's evidence that she formed the view that certain passages in the interview had potential for causing problems, it would necessarily have decided to dismiss the Claimant and we therefore take the view that the Respondent cannot escape the consequences of its failure by reliance on section 98A(2) of the Employment Rights Act 1996.
31. It follows that the decision of the Tribunal should be set aside and in its place it be declared that the Claimant was unfairly dismissed.
32. At para 44 of its judgment the Tribunal dealt with the extent to which it would have found the Claimant responsible for his dismissal had it found the dismissal was unfair. It would have held him 85 per cent responsible for his dismissal. We see no reason to depart from that view, nor was any point on this determination raised in the Claimant's Notice of Appeal or submissions. It is to be hoped that the parties will be able to agree the amount on compensation, but if they are unable to agree the matter will be remitted to the Employment Tribunal (the same Tribunal if reasonably practicable) to determine the appropriate amount of compensation on that basis.