United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S GORTON (of Counsel) Instructed by: Messrs Mace & Jones Solicitors Drury House 19 Water Street Liverpool L2 0RP
For the Respondent	MR K HILTON (The Respondent in Person)


 


SUMMARY

UNFAIR DISMISSAL: Reasonableness of dismissal

The Employment Tribunal decided that the dismissal was unfair because dismissal for misconduct was outside the band of reasonable responses but gave no explicit reason and the implicit reasoning was redolent of substitution. The case was remitted because it is for the Employment Tribunal and not the Employment Appeal Tribunal to decide whether this was such serious misconduct as to make dismissal a sanction within the band of reasonable responses.


 


HIS HONOUR JUDGE HAND QC

Introduction

1. This is an appeal from the judgment of an Employment Tribunal comprising Employment Judge Hewitt and two lay members sitting at Liverpool over three days; namely 21 November 2008, 18 December 2008 and 19 January 2009, the written judgment having been sent to the parties on 5 March 2009. The decision was that the Respondent had been unfairly dismissed by the Appellant, subject to a finding of contributory fault of one-third.

The Facts

2. The issue that has been raised in this appeal by Mr Simon Gorton of Counsel, who has appeared on behalf of the Appellant, but who did not appear below, is whether, in reaching that conclusion, the Employment Tribunal has substituted its own view for that of the employer. As he did below, Mr Hilton, the Respondent, has appeared in person and represented himself.
3. Apart from a relatively short break in late 2001, the Respondent had worked for the Appellant, or its predecessor, since 1972 as a personal advisor giving guidance essentially, as we understand it, to young people still at school as to their future careers. For some time he had enjoyed the benefits of flexible working, which was important to him on account of his daughter's disability, and he had an excellent and unblemished record up until an incident that occurred on 30 November 2007.
4. The events leading up to that started with a complaint from a school where he had worked. As we understand, it his job would entail him visiting various schools and from one of those schools a complaint emerged. This may have been some weeks before 30 November 2007. It was investigated by the Human Resources Department of the Appellant and on 29 November 2007 the Respondent was advised as to the outcome, which was that no disciplinary action would be taken but, somewhat paradoxically in the light of that, the Respondent was informed that his benefit of flexible working would be removed and he would go back on to a 9.00am to 5.00pm regime.
5. A meeting the following day, 30 November 2007, with a Ms Longmore, a manager with the Appellant, started with the Respondent being told that the decision that had been communicated to him by the letter of 29 November 2007 was not negotiable. This was what the Employment Tribunal found at paragraph 5.11 of its judgment. The Respondent, who had already been angered by the course of events we have just described, appears to have then lost his self control and become abusive. He swore several times. The Tribunal found (again at paragraph 5.11 of its judgment, which appears at pages 3 and 4 of our bundle) that this was not "directed personally at Ms Longman, but rather at the employer generally" and the Tribunal themselves then quote from the evidence of Ms Longman, as it was recorded and given during the course of the disciplinary procedure. Paragraph 5.11 ends with the following sentence:

"The claimant has no recollection of swearing but accepts that he behaved in an unprofessional manner."

6. As a result, on 3 December 2007 he was suspended on full pay. There was a further investigation and a written report was prepared and as a result of that report disciplinary proceedings were started. There was a disciplinary hearing on 12 February 2009 and a record was made of those proceedings although it is not part of the bundle before this tribunal.
7. The matter was not completed that day and further evidence was obtained on both sides. The Respondent said he had suffered a mini breakdown in late December 2007 and he obtained a report from a consultant psychiatrist. In turn the Appellant obtained evidence from its occupational health doctor, whose opinion was that the Respondent had not suffered a mini breakdown.
8. With that new evidence and possibly some other evidence the hearing resumed on 30 April 2008; the proceedings we understand to have been recorded. The record, if it exists, was not part of the papers before us. The outcome of the hearing was a finding of misconduct and summary dismissal with immediate effect. This was communicated to the Respondent by a letter dated 1 May, which is at pages 55 to 56 of the bundle. It is an important document.
9. In the third paragraph of this letter which was written by one member of the panel, Janet Taylor, the following appears:

"The reason for your dismissal is that having carefully considered all of the evidence the Panel believe that you were very abusive and used inappropriate language and behaviour towards two managers on Friday 30^th November 2007. You walked out of a private meeting with your manager where you had been angry and abusive and your unacceptable language and behaviour then continued in the general office in front of other members of staff."

10. The employer, in the personality of Ms Taylor, then went on in the fourth paragraph as follows:

"When you were originally questioned about the incident on 19 December 2007 you accepted you had lost your temper and raised your voice and you said that you could categorically state that you did not use bad language in the outer office and in your manager's office you could not recall using what would be deemed as swear words. However at the disciplinary hearing you were unable to recollect swearing at all, save for one word which was a commentary on the way you had been treated."

11. The paragraph goes on to refer to the medical evidence to which we adverted a few moments ago. Ms Taylor then continues in what is the fifth paragraph of the letter as follows:

"We accepted that you may well have been stressed at the time of the incident and we considered carefully whether this could excuse your behaviour. We concluded that even if you were stressed because you were unhappy with what your manager was telling you this did not outweigh the gravity of your behaviour. We also considered the fact that you have long service and a previously unblemished record but again we felt that the gravity of the situation was such that dismissal was the only appropriate outcome."

12. The next paragraph advises Mr Hilton that he has been summarily dismissed with immediate effect and the letter goes on to give details as to how he might appeal against that decision. There was in fact an appeal on 27 May 2008 and the appeal was dismissed by a letter dated 29 May 2008.

The Judgment

13. In its judgment which starts at page 1 of the bundle the Employment Tribunal made three criticisms of the Respondent. These appear at paragraph 7.2 which is entitled "Applying the Findings of Fact and Applicable Law to Determine the Issues". As Mr Gorton suggested in his helpful submissions, those criticisms may well have been pertinent to the issue of contributory fault.
14. The judgment, sent to the parties as it was on 5 March 2009, preceded the judgment of the Court of Appeal in the case of London Ambulance Service NHS Trust v Small [2009] IRLR 563 by a few days and therefore the Tribunal cannot have been aware of the judgment in that case, which was given on behalf of the court by Mummery LJ. In particular the Tribunal cannot have been aware of the suggestions made by that learned judge as to what he called, "separate and sequential fact-finding". In those passages of the judgment under that heading, which are paragraphs 44 to 46, the learned judge suggested that it would be helpful for tribunals to separate out findings of fact as to the issue of dismissal and findings of fact as to other issues in a case such as discrimination, wrongful dismissal, or contributory fault. So, Mr Gorton's suggestion seems sensible, otherwise it is difficult to know why the Tribunal's views as to the shortcomings of the Respondent, Mr Hilton, were pertinent in relation to decisions as to the fairness or unfairness of his dismissal.
15. Having dealt with its criticisms of Mr Hilton at 7.2, in paragraph 7.3 the Tribunal indicated that there could be no criticism of the procedure adopted by the Appellant in this case. This is what was said in that subparagraph:

"There can be no criticism of the respondent in the procedural sense in the manner in which it investigated the matter and carried out the subsequent disciplinary and appeal hearings. There is a detailed investigation against a background of the claimant to having admitted he had behaved unprofessionally (the only issue in effect is the extent of the claimant's misconduct). The original disciplinary hearing was adjourned in order for further evidence to be obtained, including medical evidence to establish whether or not there was a medical reason for the claimant's behaviour on the day. Both the disciplinary hearings and the subsequent appeal hearing were properly convened and conducted."

16. In the case to which we have referred, London Ambulance Service NHS Trust v Small, at paragraph 3 of his judgment, Mummery LJ, having referred to the well-known authorities of British Home Stores v Burchell [1978] IRLR 379 and Post Office v Foley [2000] IRLR 827 said the following:

"The essential terms of inquiry for the ET were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct. If satisfied of the Trust's fair conduct of the dismissal in those respects, the ET then had to decide whether the dismissal of Mr Small was a reasonable response to the misconduct."

17. It seems to us that is an admirably succinct summary of the principles that need to be addressed by any employment tribunal in the context of a misconduct dismissal.
18. Paragraph 7.3 of this Employment Tribunal's judgment deals with the first of those. It deals with this matter in unexceptionable terms and, having indicated that the employer's investigative and disciplinary procedures were reasonable, the other two issues that remained to be decided in the rest of the judgment were whether the employer genuinely believed on reasonable grounds that Mr Hilton had been guilty of misconduct and if so whether the dismissal of Mr Hilton was a reasonable response to that misconduct.
19. The Tribunal do not appear to have expressly analysed the matter in terms of those two concepts in the succeeding subparagraphs of paragraph 7; namely paragraphs 7.4, 7.5 and 7.6. Instead, what the Tribunal have done is to set out in two subparagraphs what are described as "criticisms" of the Respondent. Mr Gorton in his submissions emphasised and suggested that we should take notice of the second sentence of paragraph 7.4 which then leads to further subparagraphs. In particular, he emphasised the following words:

"... in broad terms the Tribunal believes the respondent failed to attach sufficient weight to a number of matters."

20. What then follows in lettered subparagraphs (a) to (e) in the judgment of the Employment Tribunal at pages 8 and 9 of the bundle are factors that can be briefly summarised without the need for full quotations from the judgment in the following way: (a) the length of service, (b) the excellent work record, (c) the events of 30 November were out of character, (d) that this was not a personal attack but part of a general tirade, and (e) that the employer knew of the domestic difficulties and the employee's need to have flexible working to cope with them.
21. The Tribunal then, at paragraph 7.5, produced a further list of criticisms. It has been observed by Mr Gorton that since that list is not preceded by the preamble which precedes the list at paragraph 7.4 it must have been regarded by the Tribunal as a different category. The list of criticisms is similarly lettered (a) to (e) and again without we hope being inaccurate we think it was possible to summarise the matters set out rather than quote in full.
22. So far as (a) is concerned, the criticism is as to the comment as to upholding the integrity of the profession, and the Tribunal remarks that it is understandable that the Respondent, Mr Hilton, would regard that as an affront to his dignity. The second matter, subparagraph (b), is that the removal of flexible working must in fact have been not only a disciplinary sanction but also a breach of contract. Subparagraph (c) is a criticism that the employer never revealed the details of the complaint from the school; in particular the letter was never shown to the Respondent. Subparagraph (d) is a criticism that starting the meeting by saying that the decision was not negotiable was unhelpful and when matters became heated Ms Longman should have adjourned the meeting. Subparagraph (e) is perhaps of a somewhat different character: it is recording that the Tribunal had heard no evidence from those present on 30 November, an omission that the judgment describes as being, "a pity".
23. The Tribunal then, at paragraph 7.6 of the judgment, sets out three, as we understand them, disconnected matters. It firstly reiterates that the Employment Tribunal in conduct cases must not seek to substitute its own decision for that of the employer. That is a reprise of what had been quoted more extensively at paragraph 6.5 of the judgment where the Tribunal recited the law and in particular referred to the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439.
24. Secondly, in paragraph 7.6 the Tribunal deals with what appears to have been an argument perhaps mounted on behalf of the Appellant at the Employment Tribunal, that during the course of the appeal it had been submitted by, or on behalf of Mr Hilton, that in the circumstances there ought to be a final written warning as opposed to the sanction of dismissal.
25. Then finally, there is this single sentence that ends paragraph 7.6:

"The Tribunal is unanimously of the view that dismissal was not within the band of reasonable responses available to the respondent and thereby finds the dismissal to be unfair."

26. Mr Gorton in his submissions has analysed the judgment. It is, he submits, clear that the Tribunal at paragraph 7.3 has exonerated the Appellant in terms of the procedure. Moreover he submits that it is clear that the Tribunal, in terms of the second matter in the summary of Mummery LJ, which we have quoted above, namely whether there is a genuine belief on reasonable grounds that the employee was guilty of misconduct, has plainly reached a conclusion that there was such a belief. That is so from two passages in the judgment: paragraph 5.11 to which we have already referred and paragraph 7.2(a).
27. During the course of his submissions Mr Gorton was inclined to take exception to the finding that was made at paragraph 5.11. He submitted that the Tribunal had misunderstood the quotation from a transcript of a conversation between Ms Longman and a fellow employee during the course of the investigation.
28. At paragraph 7.2(a) the Tribunal say that Mr Hilton had admitted that he "behaved unprofessionally at this meeting with Ms Longman". The Tribunal then go on to make what must be in our judgment a finding of fact. They say:

"In the Tribunal's view, his behaviour went further than that; he swore on a number of occasions and over-reacted to what was being said to him."

29. Whether or not the precise finding at paragraph 5.11 is a correct or incorrect interpretation of the evidence from Ms Longman's statement it seems to us to be a matter of fact for the Tribunal and at the end of the day what the Tribunal have found seems to us to be encapsulated not only by paragraph 5.11 but by the finding, as we think it must be, at paragraph 7.2(a). In other words, the Tribunal have found that the Respondent swore on a number of occasions and over-reacted to what was being said to him.
30. In some respects that is of course not the function of the Tribunal. The Tribunal should not decide what it thinks did happen; it should only decide whether there were reasonable grounds for the employer to conclude that misconduct had taken place. In terms of this case the employer's conclusion is what appears in the third paragraph of the letter of dismissal of 1 May 2008, as already quoted above in this judgment. Despite the different ways in which it is expressed and despite the fact that the Employment Tribunal appears to have been making its own fact-finding as to what did happen on 30 November 2007 it seems to us that the Tribunal must be taken to have concluded that the third paragraph of the letter at page 55 and the conduct that is set out there was a matter as to which the employer held a genuine belief on reasonable grounds. Whilst there may be some differences between the description set out in the third paragraph of the letter and the way that the Tribunal set it out at paragraph 5.11 (and for that matter at paragraph 7.2(a)) it seems to us that although it is not set out clearly or explicitly in the judgment the Tribunal had reached a conclusion that the employer did genuinely believe on reasonable grounds that Mr Hilton had misconducted himself.
31. Accordingly, we accept Mr Gorton's submission that really what was at issue in this case was the third of the three limbs of Mummery's LJ analysis; namely, was dismissal a reasonable response to that misconduct? We are fortified in that by the last sentence of paragraph 7.6 which we have quoted above. Plainly that is what the Employment Tribunal itself regarded as the fulcrum of its decision.
32. We turn therefore to the question as to whether the decision set out in that sentence is one that can stand or must be set aside because it is based on an error of law. Mr Gorton makes two fundamental criticisms and one other set of criticisms which we think are of less consequence. He set them out in the following order: firstly there was, he said, substitution by the Tribunal of its own judgment for that of the employer; secondly, the Tribunal had made a series of what he called baseless criticisms; and thirdly, there was a fatal lack of reasoning.
33. We regard the first and third as sustained and regard them as fundamental flaws. We deal first with the question of lack of reasoning. There was, as it seems to us, no explicit reasoning to support the last sentence of paragraph 7.6 of the judgment. Try as we might, we cannot uncover material that directly bears on that. The only material that could possibly bear on it are the so-called criticisms set out at paragraph 7.4 and 7.5. Mr Gorton accepts that 7.4 might bear on the reasonableness of the sanction, but in his submission paragraph 7.5 is really harking back to procedural matters which the Tribunal need not have considered at all, having regard to the finding that they made in paragraph 7.3 of the judgment.
34. We are not so confident that the analysis is so clear-cut. All of the criticisms levelled by the Tribunal at the Appellant in paragraphs 7.4 and 7.5 seem to us to go to the issue of the circumstances in which this outburst on the part of Mr Hilton took place. Having said that, it is not entirely clear what the Tribunal thought the significance of any of the matters in 7.5 were and as to which aspect of the case they applied.
35. Turning to the second of Mr Gorton's substantial points, so far as paragraph 7.4 is concerned, we accept his submission that the language adopted by the Employment Tribunal is redolent of substitution or the substitution mindset, as Mummery LJ calls it in the case of Small.
36. This is apparent to us from the phraseology adopted by the Tribunal; namely that the employer "failed to attached sufficient weight to a number of matters". Not all of the factors set out there are dealt with by the fifth paragraph of the letter of dismissal on page 56, but plainly some of these matters were taken into account by the employer as can be seen from consideration of that paragraph, which we have quoted above.
37. It seems to us that by indicating that not sufficient weight had been attached to these matters the Tribunal was accepting that some weight had been attached but indicating that it would have attached more weight. Whether one speaks in terms of entering the arena, as did the former President of this Tribunal, Elias J, in the case of Rhondda Cynon Taff County Borough Council v Close [2008] IRLR 868, or the "substitution mindsets" as identified by Mummery LJ in the case of Small, it seems to us that the Employment Tribunal were at that point in fact weighing what the employer had considered instead of asking itself whether dismissal was a reasonable response to the misconduct.
38. Like Mr Gorton we have some difficulty in categorising the so-called criticisms that are set out in paragraph 7.5. The last of the criticisms, 7.5(e), refers to the fact that "it is a pity" that there was no oral evidence from those present on 30 November. This too seems to us to be very redolent of the Tribunal wishing to descend into the arena and regretting that it had not been able to do so.
39. So we have come to the conclusion that the reasoning of paragraphs 7.4 and 7.5 cannot be taken to be adequate reasoning to support the conclusion arrived at by the Tribunal in the last sentence of paragraph 7.6. It follows that the last sentence of 7.6 remains unreasoned or unsupported by prior reasoning, and such reasoning as there is appears to be based on an impermissible approach by the Employment Tribunal to some of the factors involved in the case.
40. In simple terms, the Tribunal has decided that dismissal was not a reasonable sanction because more weight ought to be given to the factors set out in paragraph 7.4 and possibly 7.5. So there is no reasoning, and in so far as there is any reasoning it appears to be based upon a misconception by the Tribunal. It is perfectly true that the Tribunal has warned itself against substitution but, as Mummery LJ said in the case of Small, it is all too easy to slip into a substitution mindset.
41. Mr Gorton submits that the consequence of that is that this case should be decided, in effect, by this Tribunal. There is clearly an error of law, which we have accepted, and Mr Gorton submits that it is quite clear on the facts of the case that there is only one possible outcome. He is able to point to the outcome in the conjoined cases of HSBC Bank Plc v Madden and Post Office v Foley and to the outcome in the Rhondda Cynon Taff County Borough Council case where appellate tribunals were able to substitute their own conclusion that the dismissal had been fair, having uncovered areas as to procedure, or areas as to substance in those two cases. On the other hand, in the case of Small Mummery LJ, much as he wanted to do, felt unable to reach a conclusion because he felt that there were factual matters that needed to be investigated so the case was remitted.
42. Mr Gorton submits that it is clear here that there is misconduct of a character in respect of which dismissal is within the band of reasonable responses. Swearing and being abusive, he accepts, might in some circumstances not be conduct in respect of which dismissal is within the band of reasonable responses. The language of a building site, he submitted, may be different from that of an office environment where in the modern era the integrity of those present should be protected from abuse, bad language and other egregious behaviour by a code of discipline that reasonably includes the extreme sanction of summary dismissal.
43. We have found this aspect of the case extremely difficult and we have reached the conclusion, not without some hesitation, that we do not think we are qualified to accept that submission. That is a matter for an industrial jury and accordingly we propose to remit this case to the same Employment Tribunal with the direction that it is to hear submissions as to whether in the circumstances the sanction of dismissal was within the band of reasonable responses and that it is to decide that issue in the light of those submissions, there being no further evidence to be called.
44. Accordingly, this appeal will be allowed and the matter will be remitted to the Employment Tribunal for it to consider again the question of whether dismissal was within the band of reasonable responses in the circumstances of this case.