United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O A MOHAMMED (Representative)
For the Respondent	MR EDWARD HUTCHIN (of Counsel) Instructed by: Messrs Abbey Legal Services Corinthian House, (2nd Floor) 17 Landsdowne Road Croydon CR0 2BX


 


SUMMARY

UNFAIR DISMISSAL: Reasonableness of dismissal

JURISDICTIONAL POINTS: 2002 Act and pre-action requirements

The Employment Tribunal conflated the requirements placed on employers under Part 1 of Schedule 2 of the Employment Act 2002 with the duty to conduct a fair and proper disciplinary process. The statute placed minimum requirements only on employers; the sanction for failure to comply with those minimum requirements was a finding of automatic unfair dismissal with uplifted compensation. The standard required of an employer was to show that a dismissal was not unfair under s.98(4) of the Employment Rights Act 1996.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal from a decision of the Employment Tribunal at London Central; Mr Russell, being the Employment Judge, presiding. The judgment is dated 16 April 2008 and the Employment Tribunal dismissed the Claimant's claims for unfair dismissal, unauthorised deductions in relation to holiday pay and discrimination on the grounds of race.
2. The appeal has been limited to the grounds of unfair dismissal only, having been referred to a preliminary hearing by HHJ Ansell on 15 August 2008 and subsequently being referred to a full hearing by Wilkie J, sitting with lay members, on 31 October 2008. We are not, therefore, concerned with any issues save in relation to unfair dismissal.
3. We would make certain observations in relation to the judgment of the Employment Tribunal. The hearing, as we understand it, took place on 8 and 9 April and 10 April and we are told by Mr Hutchin, who appeared on behalf of the respondent, that an extempore decision was given. However, the copy that we have was signed by the Employment Judge on 19 May and sent to the parties on 22 May.
4. Mr Hutchin has submitted to us that certain deficiencies in the structure of the judgment were the result of it having been an extempore judgment but we do note the significant period that elapsed between the delivery of the judgment and it being sent to the parties.
5. We would draw attention to the following: the Employment Tribunal does not set out clearly the facts giving rise to the claimant's dismissal. We recognise that those facts may not have been significantly contentious but nonetheless, it seems to us, that in accordance with Rule 36(c) of the Employment Tribunal Rules of Procedure 2004 that it was incumbent upon the Employment Tribunal to set out the material facts upon which its decision was based.
6. One of the difficulties that we have had is that in the skeleton argument prepared by Mr Mohammed on behalf of the Claimant, there are references to certain factual matters which we have not been able to identify in the judgment; we have, therefore, been unable to have regard to them.
7. Rule 36(d) requires the Employment Tribunal to set out a concise statement of the applicable law. We will refer to the manner in which the Employment Tribunal directed itself as to the law shortly but, in our opinion, the Employment Tribunal cannot be said, in this case, to have concisely set out the law it was to apply, even though it may have had the appropriate principles in mind.
8. We now turn to the factual background as known to us from the Decision of the Employment Tribunal because, as we say, this is extremely lacking. The Claimant was employed as a domestic assistant at St Charles Hospital. She is evidently of Jamaican extraction and had worked for the Respondent for some 13 years. St Charles Hospital is operated by Kensington and Chelsea National Health Service Trust. We assume that the Respondent was a cleaning contractor to the NHS Trust.
9. An incident took place on 7 July 2007 which led to the Claimant's dismissal. It would seem that she and an employee of the Trust a Mrs Abisetu Ajayi, who was of Nigerian EXTRACTOR (we note that the Employment Tribunal has Ms Ajayi's name misspelt to 'Ms Haay'). We know that Ms Ajayi was not subjected to disciplinary proceedings by the National Health Trust, and the Claimant evidently felt this was unfair.
10. The Claimant went through a disciplinary procedure yet again and unfortunately the Employment Tribunal has not set out sequentially the manner in which the investigatory and disciplinary parts of the procedure were carried out.
11. The Employment Tribunal disposed of the claims brought by the Claimant for discrimination on the basis that no grievance had been raised so section 32 of the Employment Act 2002 had not been complied with. The Employment Tribunal went on to note that it could find no evidence of discrimination on the grounds of the Claimant's ethnicity.
12. It went on to dismiss the claims for holiday pay as it found no holiday pay was outstanding.
13. In relation to the question of unfair dismissal; the Employment Tribunal noted that the Claimant's misconduct was not as clear as the Respondent presented. It considered the Respondent's investigation could have been improved as could have been the subsequent disciplinary action. It considered that the decision to dismiss the Claimant was harsh. The Employment Tribunal considered that the Respondent should have considered whether or not it could obtain evidence from a member of the public. Again, this member of the public's identity is not known to us but it would appear that the evidence suggested that this member of the public, who was bereaved, was likely to have witnessed some of the incident. The visitor was apparently bereaving the death of a relation at the hospital.
14. The Employment Tribunal, as is apparent from paragraph 9 of its decision, was critical of the Respondent in this regard. It also considered that the employer, during the disciplinary hearing, did little to challenge the evidence of the Trust witnesses or investigate the alleged spitting by Ms Ajayi at the Claimant, which precipitated the scuffle, or the alleged use of a knife by the Claimant.
15. The Employment Tribunal conclude paragraph 9 in these terms:

"All points we feel therefore that the Respondents could have taken into account and the fact that these were not pursued at the investigatory stage meant that in our view that they got overlooked at the disciplinary hearing and appeal stage perhaps to the Claimant's detriment."

16. The Employment Tribunal then went on in paragraph 10:

"However we also accept the Respondents' submission that where inconsistencies in the evidence existed the Respondents did tend to agree with the Claimant. This is not the same as a full investigation but the employer did substantively comply with the disciplinary rules and procedures in its employee handbook and although the Claimant was unaware of the detailed content she did accept that she had been given the handbook when she joined even though we find it disappointing that she was not reminded more fully of the terms of it or apparently given a copy or access at least to the ongoing further additions of the employee handbook which is perhaps an issue that the Respondents wants to consider for its employees in the future. The Claimant also accepted that if she had been guilty of the conduct as alleged this may well have been violent behaviour and violent behaviour which was something which she accepted as gross misconduct and potentially therefore a summary dismissal offence whatever the handbook may or may not have said. The Claimant was in our view properly suspended, we do not accept the Claimant's evidence that the suspension was inappropriate or that the investigatory meeting was unduly short or happened too quickly bearing in mind that it was only an investigation as to whether disciplinary action was necessary and therefore very much a preliminary step in the disciplinary proceedings. There was an investigatory hearing before Nicola Huckle and there was a disciplinary hearing before Morag Campbell. At both of these the Claimant had representation and a full opportunity to state her case against clear allegations of gross misconduct. The Claimant was properly warned that she faced dismissal and after the disciplinary hearing involving around half an hour adjournment whilst Morag Campbell the Respondents' General Manager considered an appropriate sanction before dismissing the Claimant without notice (the decision that we found that she made alone). The Claimant also had an appeal and did attend this before Catherine Horne a Senior General Manager at which the Claimant was also represented by Mr Mohammed, Union Representative who also represented the Claimant throughout the proceedings at this Hearing."

17. At paragraph 11, the Employment Tribunal went on to find that at each stage the Respondent followed its procedure, explained the steps it had taken both at the disciplinary and appeal stage and it took into account the Claimant's unblemished long service and the fact that she was provoked.
18. At paragraph 12, the Employment Tribunal identified a number of matters that concerned it. The Employment Tribunal was concerned that the Respondent might have been paying lip service to the Claimant's long standing record and as to whether some of the other mitigating circumstances relied upon by the Claimant during the disciplinary process were fully taken into account. The Employment Tribunal note again that the investigating officer might have contacted the visitor to have obtained evidence from her as to the circumstances of the scuffle.
19. The Employment Tribunal considered:

"… the Claimant was rushed through the process a little; a process which she clearly found rather overwhelming a fact which we understand given her lack of experience of such matters and the fact at the material time she did not have representation from more experienced lay advisers or of course any legal advisers."

20. The Employment Tribunal say that:

"The Respondents presented this as fair steps to take to avoid the Claimant hanging around unaware of what was going to happen to her, but her job was at stake and they could have given her more time to come to terms with and answer the allegations. She was unaware of all the company procedures and this could have been spelt out more to her with more notice. Her defence was noticeably more substantive at the appeal stage when she had had a chance to think about it further and Mr Mohammed her representative was able to give some more substantive assistance and she had less than a day between knowing of the allegations and having to defend these at an investigatory hearing where she had not seen the evidence against her and then only three days to the disciplinary hearing itself when again she was not in all probability supplied with witness statements which is a very different situation to them being read out by the Respondents and having to respond to them at the time. We also believe that Ms Huckle should only have been at the disciplinary hearing to clarify for both the Claimant and Respondents points arising from the hearing. Yet the Claimant received no forewarning of Ms Huckle's presence and was only told that she was going to be there as a minute taker. This we find was intimidating for her and unhelpful given that Ms Huckle and Ms Campbell were alone together at the adjournment prior to the decision being made and we can quite see why the Claimant may have thought that the decision was not an independent one and thought there was collusion on the Respondents' part by this fact."

21. The Employment Tribunal, at paragraph 13 concluded that it would have been better had the Claimant been shown copies of witness statements but in paragraph 14 the Employment Tribunal has this to say:

"14. We do however fall short of finding that there were fatal flaws in the procedure on this occasion because the disciplinary procedure was itself followed and we find that both at the investigatory meeting stage and disciplinary stage that

(a) The Claimant admitted striking Ms Ajayi and doing so first.

(b) The Claimant accepts that she was provoked by Ms Ajayi and accepted that she was spat at.

(c) It was accepted by all that the incident occurred in or at least approximate to a public ward causing embarrassment to the Respondents and patients and their visitors alike.

(d) The Claimant accepted that she could have walked away from the incident despite severe (in our view) provocation and not struck Ms Ajayi.

(e) On areas of possible dispute the Respondents tended to simply accept the Claimant's evidence."

22. The Employment Tribunal, therefore, at paragraph 15, concluded:

"In part due to the Claimant's own honesty and own admissions we find the Respondents' duty to investigate and clear up the inconsistencies in the evidence was reduced."

23. The Employment Tribunal then purport to direct themselves as to the law:

"16. In an unfair dismissal case once establishing that the Claimant has got a right to complain (which she did) and that the minimum statutory dismissal procedure was followed (which we will come on to). We have consider the reason for the dismissal and whether this was a potentially fair one and whether the dismissal was procedurally fair and did the employer otherwise act reasonably in dismissing the Claimant under Section 98(4) of the Employment Rights Act 1996.

17. In determining this we had mind to the case law submitted by the parties' representatives as part of their submissions and in particular the cases of Foley -v- Post Office [2000] IRLR 827 dealing with the 'band and reasonable responses' test as originally set out in the Iceland Frozen Foods -v- Jones [1983] ICR 17 and we also had particular reference to the Hussain -v- Elonex [1999] IRLR 2000 and other parallel authorities dealing with the disclosure of witness statements."

24. We would make the following observations; although it may be that paragraph 16 adequately sets out what has to be determined in relation to section 98(4) of the Employment Rights Act, paragraph 17, in our opinion, is not adequate. The Employment Tribunal, even if the parties were not in dispute as to the law, should clearly have set out the principles in relation to the band of reasonable responses test and should also have made clear the distinction between the Respondents' obligation to comply with its statutory obligations under Part 1 Schedule 2 of the Employment Act 2002 and its duty to apply a fair disciplinary procedure under section 98.
25. In paragraph 18 of the Decision the Employment Tribunal found that the reason for the dismissal was the Claimant's conduct. The Employment Tribunal says:

"… for the reasons given we do not find it procedurally unfair despite some concerns which we have identified. Even though the Respondents could have improved their procedure we do not think there has been a breach of the minimum statutory requirements or the Respondents' own procedure in the way in which the disciplinary proceedings were pursued. In particular we find that despite rushing the process somewhat and not investigating the matter as thoroughly as we would have liked the Respondents complied with its obligation under inter alia Part 1 of Schedule 2 of the Employment Act 2002 on the points of giving the Claimant a reasonable opportunity to consider her response to the clear allegations made and we find that although she did not see all the witness statements obtained she was told of their content and did have a chance to give comment. The Respondents did not have a legal obligation to go further than that even though we would have preferred them to have done so."

26. We pause at this stage. It seems to us that the Employment Tribunal has conflated the minimum requirements placed on employers under Part 1 of Schedule 2 to the Employment Act 2002 with the duty to conduct a fair and prompt disciplinary process. It is well recognised that statutory procedures are to be regarded as the minimum and that the sanction for an employer failing to comply with the minimum standards required is the risk of the award being uplifted. However, the minimum standard required to avoid a finding of automatically unfair dismissal does not prevent a finding of unreasonableness under section 98(4). This appears to us to be axiomatic but see, in any event, paragraph 1703.01 of Part D1 to the current edition of Harvey on Industrial Relations and Employment Law.^[1]
27. As we have said in our opinion the Employment Tribunal has conflated the question of fairness under section 98(4) with whether or not the employer has met the minimum standards required by the statutory procedures and, having regard to the many concerns raised by the Employment Tribunal as to the manner of the investigatory and disciplinary procedures, we cannot be satisfied that, had the Employment Tribunal considered the two points separately, it was bound to have found that the dismissal was fair within the meaning of section 98(4).
28. It is in those circumstances unnecessary for us to go into the various complaints set out in the Notice of Appeal and we say nothing further about them. A number of detailed criticisms of the manner of dismissal were made, but if correct these all stem from the failure of the Employment Tribunal to distinguish between the minimum standards required of employers under part I schedule 2 of the 2007 Act and the duty to conduct a fair process, that is a necessary requisite to showing that a dismissal is not unfair under s98(4) of the Employment Rights Act 1996. Mr Hutchin has sought to persuade us that, although the findings of fact were brief, this was because the judgment was delivered extempore and that the legal principles were adequately set out - something with which we are not able to agree - but that is beside the point. In relation to the question of whether the Employment Tribunal has conflated the statutory minimum requirements and the question of fairness under section 98(4), he submitted it was clear that the Employment Tribunal had applied its mind separately to both issues.
29. Despite the able way in which he made those submissions to us, we are not able to accept those submissions and, in our opinion, this decision of the Employment Tribunal is flawed because the Employment Tribunal conflated the two matters. In those circumstances, the appropriate course for us to take is to allow the appeal and to have the case remitted to the Employment Tribunal but only, of course, in relation to the issue of unfair dismissal.

Note 1   Between the date when the judgement was delivered and the date of approving the transcript the relevant page in Harvey has been amended following the repeal of the statutory standard dismissal procedures. The loose leaf page is no longer available to me. The point that I had in mind was that set out by Underhill J in YMCA Training v Stewart [2007] IRLR 185 “...the essential point that has to be borne in mind is that the statutory procedures are no more than a minimum. Complying with them will not necessarily mean that the employer escapes liability for unfair dismissal: it does no more than get him over the first hurdle, and there may (depending on the case) be other steps that he is obliged to take. All that such compliance means is that he will not be liable for "automatic" unfair dismissal, which - quite deliberately and as a matter of policy - is intended only to be available where the employer has failed to conduct even the most rudimentary procedure.”     [Back]