United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A WEIR (Consultant) NorthgateArinso Employer Services Warwick House, Hollins Brook Way, Pilsworth Industrial Estate, Bury BL9 8RR
For the Respondent	MR NICHOLAS M SIDDALL (of Counsel) Instructed by: Messrs Gosschalks Solicitors Queen's Gardens Hull HU1 3DZ


 


SUMMARY

UNFAIR DISMISSAL: Reasonableness of dismissal / Mitigation of loss

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES - Whether infringed

An Employment Tribunal had correctly held that the failure of an employer to provide adequate details of the complaints against an employee vitiated the disciplinary proceedings so that the dismissal was automatically unfair by virtue of Section 98A Employment Rights Act 1996.

The Employment Tribunal had however, inadmissibly substituted its own views of the evidence for those of the Employer when finding that the Employer could not properly have regarded as gross misconduct, the actions of the employee. The employee had driven a company van in an area frequented by children having drunk a small quantity of wine while holding the glass out of the window of the van.

The Employment Tribunal had correctly found that the termination of a subsequent contract of employment [where the Claimant lacked qualifying service to protect her against unfair dismissal] did not break the chain of causation of the original unfair dismissal.


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal from a decision of the Employment Tribunal at Hull sent to the parties on 10 July 2008, Employment Judge Grazin presiding. The Employment Tribunal held that (a) the Claimant had been unfairly dismissed and dismissed in breach of contract (b) the Claimant's compensation should be increased by 40 per cent because of non-completion of the statutory disciplinary procedure being wholly or mainly attributable to the Respondent's failure to comply (c) awarding the Claimant a basic award including the 40 per cent uplift of £651.00 (d) awarding the Claimant a compensatory award including the 40 per cent uplift of £18,100.37 and (e) declining to make any deduction from the award either by way of Polkey deduction or for contribution or under Section 98A(2) of the Employment Rights Act 1996.
2. The appeal was referred to a full hearing by HHJ Ansell on 3 October 2008.

The Factual Background

3. We largely take this from the decision of the Employment Tribunal. The Claimant was employed by the Respondent as Park Manager at Dacre Lakeside Park in East Yorkshire. Dacre Park is a leisure park with pitches and facilities for caravans. There are also permanent lodges. The Claimant in effect ran the park and managed the bar. She had a responsible position which was one of trust. Conditions of employment made clear that drinking alcohol while on duty was prohibited and might be regarded as gross misconduct.
4. The Respondent company was owned by the Mewburn family. Mr Mark Mewburn was the Managing Director and his father Jim (who had retired from an active role) was also a Director. The Respondent also had farming and quarrying businesses and Mr Mark Mewburn and Mr Jim Mewburn spent little time at Dacre Park, possibly attending only once each week.
5. Although the Respondent had some concerns about the Claimant's conduct in 2005, these do not appear to have played any part in matters giving rise to these proceedings and they were ignored by the Employment Tribunal. The Employment Tribunal was satisfied that there was no reason for the Respondent to have any lack of trust in the Claimant before events which took place in September 2007. The Claimant, the Employment Tribunal found, was regarded as conscientious and hardworking.
6. On 24 September 2007 (page 67 of the bundle) Mr Mark Mewburn received an anonymous letter complaining about the Claimant's drinking including the allegation that she was seen driving the Respondent's van with a glass of wine in her hand which was held out of the window of the vehicle. The letter also complained of the Claimant's alleged abusive language and lack of consideration towards certain clients or customers. Mr Mewburn took legal advice and was advised that if the investigation showed the allegations were true the Claimant's conduct could properly be characterised as gross misconduct which might give rise to dismissal.
7. Later on 24 September 2007 Mr Mark Mewburn met the Claimant and gave her a copy of the anonymous letter. He claims that his meeting with the Claimant was an investigatory meeting. The Claimant maintained it was a disciplinary meeting. Mr Mewburn made a minute of that meeting (see page 68 of the bundle). Mr Mewburn asked the Claimant about the allegation that she had driven the company van while carrying an alcoholic drink and pointed out that it was very serious and a case of gross misconduct. The Claimant admitted she had done this on August bank holiday weekend but she was not drunk; she had visited people on the park to be polite and sociable, people had offered her a drink, during that time her phone rang, as it usually did, requiring her to go to the reception, she left in the company van and drove round the park to the reception carrying a plastic glass of wine as she did so. Mr Mewburn is reported as saying that this could not happen:

"as we are responsible for the public on the park and I consider it as an act of gross misconduct and will seek advice from my employment advisers."

The discussion went on to consider other allegations in the anonymous letter with reference to her attitude to other people. It is apparent from the Claimant's ET1 that the Claimant accepted that at this meeting Mr Mark Mewburn did not accept her explanation.

8. The Claimant was told she would be suspended while Mr Mark Mewburn investigated further. The Claimant responded there was no need to investigate because she accepted holding the wine glass. Minutes of this meeting were supplied to the Claimant.
9. A formal letter was sent to the Claimant on 24 September 2007 (see page 70 of the bundle) and the Claimant was warned that the matters being investigated were such that they might lead to summary dismissal. The Claimant was suspended pending further investigations on full pay and it was made clear that the suspension was not punitive nor intended to infer guilt but to allow for further investigation.
10. Thereafter Mr Mark Mewburn carried out investigations. He spoke to staff and clients and it was reported to him that the Claimant had used abusive language and drank alcohol on site; that she was not good for the site and there was a bad atmosphere. She had been seen drinking and some incident had taken place involving her husband's car. He was believed to spend time drinking at a part of the park known as the Basin, an area frequented by her friends at weekends, and it was said that she spent much time there at weekends. Staff reported that they were terrified of her and had difficulties in contacting her when she was at the Basin. However, none of the interviewees, whether clients or employees were willing to put anything in writing. Mr Mark Mewburn made no notes of his own and the first that the Claimant was aware of the particular allegations was when she saw them in Mr Mark Mewburn's witness statement in these proceedings. Although it is understandable why clients might be reluctant to come forward the position of employees was different and in our opinion there was no reason in any event why Mr Mewburn could not have made notes and supplied them to the Claimant in anonymized form if the substance of what he was told was being relied upon to support the complaints against the Claimant.
11. Consequent upon these investigations on 26 September 2007 the Respondent wrote to the Claimant (see page 71 of the bundle) requiring her to attend a disciplinary hearing on 28 September to be chaired by Mr Mark Mewburn. The letter continued,

"The purpose of the meeting is to provide you with an opportunity to present your

Drinking alcohol whilst at work

Driving the company vehicle whilst drinking alcohol

Conduct whilst at work, bad language, sharp and abrasive attitude."

The Claimant was informed of her right to be accompanied. As we have noted the Claimant was supplied with the minutes of the meeting of 26 September but was supplied with no further material which, in our view and in that of the Employment Tribunal, was necessary to enable her to properly defend herself against the allegations of,

"Conduct whilst at work, bad language, sharp and abrasive attitude".

12. The Respondent's case was that at the meeting of 28 September 2007 the Claimant was aware of the allegations against her from the anonymous letter and the minutes. She had a witness with her and admitted she was given a drink and took a sip and drove to reception while carrying the glass "all very light-hearted". Mr Mewburn put it to her that if people were commenting on seeing her do this, it was clearly damaging for the park. The Claimant responded that if Mr Mark Mewburn went round the park nothing bad would be said against her and he should go and read all the letters left in the lodges. Mr Mewburn told her that he had spent time looking into the allegations and spoken to a lot of people on the park and he had not found anyone who would speak a good word for her. Mr Mewburn stated that after his investigations and the comments he had received he felt it only necessary to carry on his actions based on the gross misconduct of driving having had a drink and with a drink in her hand which had been admitted in the previous meeting's minutes. We note that there was also criticism raised of the Claimant for selling her own drinks over the bar ahead of the Respondent's. It was something the Claimant admitted though she maintained it was only a "small amount". This allegation, however, played no part in the decision to dismiss which is set out in the letter of 4 October 2007 (page 76 of the bundle). The reason for the Claimant's dismissal was given as,

"Drinking alcohol whilst at work and driving a company vehicle whilst in possession of alcohol".

The Claimant's employment was terminated with immediate effect. The allegations of misconduct based upon what Mr Mark Mewburn had been told by employees and clients were not relied upon and that was accepted by the Employment Tribunal (see paragraph 16 of the Tribunal's Reasons).

13. It is helpful to have regard to the Respondent's case as set out in its ET3 (page 53 of the bundle),

"6. …The Claimant admitted the conduct for which she was dismissed and such dismissal was within the band of reasonable responses. The Claimant's attempts to trivialise the conduct were not accepted by the Respondent - for the senior manager to not only drink alcohol whilst working but to drive around the site in daylight with the alcohol on display constituted gross misconduct."

14. Mr Mark Mewburn addressed the matter in his witness statement (page 88 of the bundle). We refer to paragraph 21 and 22,

"I was particularly concerned about the allegation of Sally drinking on site and driving with alcohol in her hand, as this raised an issue of safety on site and was potentially very damaging to the reputation and image of Dacre Park.

My advisors agreed with me that if the investigation showed these things were true, these actions by Sally could potentially be actions of a Gross Misconduct nature."

15. We also refer to paragraphs 27 to 29,

"Sally admitted that she recalled the incident where she was offered a drink and had drunk some of it before the phone rang and when the phone did ring, she left with the glass in her hand and drive round the park to the reception carrying a plastic glass of wine as she did so.

Sally admitted she had done this on the August bank holiday weekend, but said she was not drunk and had visited people on the site to be polite and sociable.

Sally made no mention of being offered a beer, nor of the wine being low in alcohol content, nor that she only took a sip of the wine."

16. Mr Mark Mewburn expressed his concerns:

"32. The issue for me, along with the swearing issues, was whether or not I believed Sally had drunk some form of alcohol whilst on duty and whether or not I believed Sally had carried an alcoholic drink on site whilst driving a Company vehicle. If I did believe she had done this, I considered this was very serious from a site safety point of view, not to mention the damage this could have on the park's reputation and the image of the Company and Hoeseasons Holidays.

33. Dacre Park is a holiday site and Sally was the responsible face of it and Hoseasons Holidays. In this industry reputation is crucial to a holiday park's success.

35. The site has lots of people coming and going on it at all times which include small children who are regularly playing in and around the site in between the vans.

36. As I am sure the Tribunal are aware and will agree, children at play pay very little, if any, attention to roads, especially when they are basic gravel roads on a leisure park."

17. The Employment Tribunal at paragraph 22 of their judgment records a submission to this effect being made on behalf of the Respondent at the hearing.
18. On 11 October 2007 the Claimant appealed and complained that the decision to dismiss was "over the top" for taking a sip of low alcohol wine during a rare break merely to be social with guests. She referred to a letter of support she had received from five clients (see page 78 of the bundle) which suggested that she had been offered a beer which she refused but had accepted a "low alcohol fizzy wine" which she took with her while driving to reception holding the glass out of the window.
19. The Appeal was conducted by Mr Jim Mewburn. Mr Mark Mewburn accepted that he had discussed the disciplinary proceedings fully with his father so that Mr Jim Mewburn was aware of everything that had been said to Mr Mark Mewburn by staff and customers. Mr Mark Mewburn had informed his father the Claimant was the responsible face of Dacre Park and had admitted drinking while driving the company van which he considered dangerous and highly irresponsible so that the decision to dismiss for gross misconduct had been correct. Mr Jim Mewburn did not leave matters there but carried out his own inquiries no doubt speaking to staff and clients but he made no notes of his investigations and made no disclosure to the Claimant of their substance. The Employment Tribunal observed at paragraph 18 of their judgment that it was difficult to think of greater involvement in the conduct of an appeal by the original decision-taker than in this case. Unsurprisingly the appeal was dismissed, Mr Jim Mewburn attaching no weight to the letter produced by the Claimant. It is apparent that Mr Jim Mewburn relied upon the substance of the enquiries he and Mr Mark Mewburn had made on site. The letter dismissing the appeal (pages 81-82 of the bundle) stated,

"Having considered all of the available evidence and the facts of the case, I came to the following conclusions:-

1. Having twice admitted to consuming and carrying alcohol whilst driving the company vehicle, your contention that it was not a serious offence is not accepted by the company.

2. Following further investigation, this does not appear to be an isolated case.

3. Your claim of general support is only substantiated by those that you were drinking with, who are occasional visitors, whilst our investigations have brought very little support."

20. After her dismissal the Claimant found employment as the Manager of the Hornsea Golf Club but she was dismissed before she had completed 12 months' qualifying service. The circumstances relating to the termination of her employment at the Club are far from clear. The Employment Tribunal had before it evidence from the Claimant and certain correspondence obtained by the Respondent's consultants, First Business Support. The correspondence reveals that there was some dissatisfaction on the part of the Golf Club because the Claimant was described as being "somewhat indiscreet in her dealings with members"; see the letter of 21 April 2008 to First Business Support. A further letter of 28 April 2008 suggests that she was asked to leave immediately. There was, however, no suggestion of gross or any misconduct. The Claimant gave evidence that the Golf Club wished to replace her with a married couple. Although there is no suggestion of this in the correspondence from the Golf Club that was the Claimant's evidence and that evidence was accepted by the Employment Tribunal.

The decision of the Employment Tribunal

21. The Employment Tribunal set out the facts as it found them. It went on to conclude (see paragraph 10 of the judgment) that the hearing on 24 September 2007 could not be considered as an investigatory meeting within the statutory disciplinary procedure. The Claimant's solicitor had submitted that it went beyond mere inquiry and reached a conclusion that the conduct in question was an act of gross misconduct. The Employment Tribunal accepted the submission and found that the meeting was a disciplinary meeting rather than an investigatory meeting; see paragraph 10 and paragraph 28. The Employment Tribunal concluded that reaching a definite conclusion that the conduct in question was an act of gross misconduct was "incompatible with the task of investigation" a dismissal was automatically unfair, therefore, by reason of failure to comply with the statutory disciplinary procedure.
22. At paragraph 29 the Employment Tribunal record a further submission from the Claimant's solicitor to the effect that dismissal for the admitted offence of taking a sip of wine and driving through the park holding a plastic cup was outside any band of reasonable responses. It did not amount to gross misconduct. Any reasonable employer considering all the circumstances would, he submitted, at most have imposed a warning if anything. The Respondent, it was submitted, had taken no account of the circumstances in which the Claimant worked, or the need for her to enjoy a social relationship with the park's customers.
23. The Employment Tribunal concluded that the reason for the Claimant's dismissal was the Respondent's belief in her misconduct which was of course an admissible reason for dismissal pursuant to the provisions of s98(2) of the Employment Rights Act 1996. At paragraph 29 the Employment Tribunal went on to conclude that even if it was wrong as to its finding that the initial meeting of 24 September was a disciplinary meeting, the Respondent entirely failed to provide the Claimant with the safeguards contained in the statutory disciplinary procedure at the stage of the subsequent disciplinary hearing. The Employment Tribunal considered that if and insofar as the Respondent wished to rely upon matters beyond the allegation of drinking and carrying alcohol while driving:

"there was a clear duty upon the Respondent to set out the grounds of that belief. The grounds were very simple, namely Mr Mewburn had obtained a substantial amount of information during his visits to the park between 24 and 28 September 2007. Unfortunately, he entirely failed to tell the Claimant that was the case."

The Employment Tribunal also considered that the same applied to the additional information obtained by Mr Jim Mewburn. The Employment Tribunal accordingly concluded,

"We have no doubt whatsoever that the Respondent failed to comply with the provisions of step 2, in that the Claimant had not been informed of the basis for the grounds of the belief in misconduct, nor did the Claimant have any reasonable opportunity to consider her response to that information. In our judgment, it does not matter, at all, that the dismissal was not, apparently, for a reason related to this last allegation. For those reasons, we find that the dismissal was automatically unfair."

24. The Employment Tribunal went on to consider the position were it to be held to be wrong in the conclusion that the dismissal was automatically unfair. The Employment Tribunal concluded that the Respondent would not be entitled to rely upon Section 98A(2) of the Act:

"Section 98A(2) only assists a Respondent if it can show that there was more than 51% chance that an employee would have been fairly dismissed in any event. We cannot find that there was any chance that a fair dismissal would have occurred, let alone a 51% chance."

25. The Employment Tribunal at paragraph 33 noted that before going on to consider remedies there had been an opportunity for the parties to give further evidence in relation to the Claimant's conduct but none was given. The Employment Tribunal then concluded,

"[…] the Claimant having admitted both personally and through Mr Flannagan that she had driven through the park with a glass of wine in one hand. She further admitted that she had taken a sip of low alcohol wine. We find as a fact that the Claimant was guilty of that conduct but, on the evidence we have heard, we can make no further findings of any other conduct on the part of the Claimant which we could properly take into account pursuant to the provisions of Section 123(6) of the 1996 Act."

The Employment Tribunal then went on to reject submissions made by Mr Weir that compensation should be discounted by a factor of 100 per cent pursuant to s123(1) on the basis the Claimant would inevitably have been dismissed if the Respondent had followed a fair procedure pursuant to the guidance in Polkey. He had argued there should be an appropriate reduction of both 100 per cent in respect of both contributory conduct and pursuant to the guidance in Polkey.

26. The Employment Tribunal concluded,

"36. We reject both submissions. The Polkey issue on remedy is, of course, different from that to be decided under Section 98A(2), but there are similarities. We do not see any basis, if we were to speculate on a fair procedure being followed, to find that the Claimant would inevitably (to the extent of 100%) have been dismissed. Apart from any other factor, the proved and admitted misconduct did not justify the sanction of dismissal upon any basis, it being outside the response of a reasonable employer. For the same reason, the contention that the Claimant was 100% responsible for her dismissal by her own conduct, i.e that it was culpable and blameworthy, has no merit. This conduct was for the reason set out above, nowhere near sufficiently serious to justify such a dismissal."

We are not clear as to "the reason set out above" referred to in this paragraph although the Claimant suggested that it referred to the Claimant's admissions as set out in paragraph 33 or possibly Mr Flanagan's submissions at paragraph 26.

27. The Employment Tribunal, having directed itself to the decision of the Court of Appeal (wrongly described as Employment Appeal Tribunal) in Dench v Flynn & Partners [1998] IRLR 653 went on to find that the Claimant's loss of her position at Hornsea Golf Club did not amount to a break in causation and that continuing loss of salary flowed from the original dismissal; see paragraph 36. The Employment Tribunal noted that the Claimant was subject to a trial period, the evidence did not suggest she had been dismissed for gross misconduct and the Employment Tribunal accepted the Claimant's sworn evidence that she was dismissed as the Respondent wished to employ a married couple as Caterer and Manager. The Claimant, however, was required to give credit for her earnings at the Golf Club and also at a public house where she also worked. At paragraph 41 the Employment Tribunal chose to uplift the Claimant's award pursuant to Section 31 of the Employment Act 2002, it did so because of the defective breach of the statutory procedure in relation to the disciplinary hearing and the appeal hearing,

"In our view, it is not material that there were, as we find, two breaches of the statutory procedure. It is more important that the second breach was a very serious matter. It is of the essence of the statutory procedure that an employee should be provided with the detail of the evidence against the employee, so that he or she can properly prepare for any disciplinary hearing. The statutory procedure sets that out in more formal terms but that is, in our view, the real issue. It is contrary both to ordinary principles of fairness and to the statutory procedure that an employer makes its own enquiries, reaches conclusions based upon those enquiries and entirely fails to tell the employee what has been discovered. It is quite impossible for there to be a fair disciplinary hearing if that hearing proceeds on the basis that one side is totally ignorant of the evidence in the possession of the other. That was a very serious breach and one where an increase in the award by a factor which is very near the maximum allowed (of 50%) is justified…"

Grounds of Appeal (General)

28. Three principal issues have been raised on this Appeal. The first challenges the finding of automatic unfair dismissal for failure to comply with the statutory disciplinary and grievance procedure. The second group of grounds of appeal challenges the conclusion of the Employment Tribunal that dismissal was outwith the reasonable band of responses and that no deduction should be made either for contributory fault or under the Polkey principle. The third ground of challenge is as to the conclusion by the Employment Tribunal that the subsequent employment at Hornsea Golf Club did not break the chain of causation.

The Relevant Law

Automatic unfair dismissal

29. The Employment Rights Act 1996 Section 98A provides as follows,

"98A Procedural fairness

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

(a) one if the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employer shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act."

30. Insofar as relevant to this case the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 are as follows:

"Step 1: statement of grounds for action and invitation to meeting

1 (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2 (1) The meeting must take place before action is taken, except in the case where the disciplinary actions consists of suspension

(2) The meeting must not take place unless-

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it."

Step 3: appeal

3 (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision."

31. The regulations referred to in Section 98A(3) are the Employment Act 2002 (Dispute Resolution) Regulations 2004 insofar as these are relevant they provide as follows:

Application of dismissal and disciplinary procedures

3. – (1) Subject to Paragraph 92 and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

12. – (1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure."

32. There is now a body of law which gives guidance as to what constitutes compliance or non-compliance with the regulations. It is helpful firstly to refer to the judgment of Elias J in Alexander v Bridgen Enterprises [2006] IRLR 422 in which Elias P explains the minimum requirements for compliance with the statutory procedures.

"What information is required?

33. The issue, therefore, is what information ought to be provided to an employee in order for the employer to comply with the statutory obligation. In answering that question, it seems to us that there are three matters in particular which should inform the answer, although they do not all point in the same direction.

34. First, the purpose of these statutory procedures is to seek to prevent the matter going to an Employment Tribunal if possible by providing the opportunity for differences to be resolved internally at an earlier stage: see the observations in the Canary Wharf case. Hence the reason why these procedures apply at the stage when dismissals are still only proposed and before they have taken effect. However, to achieve that purpose the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss.

35. Second, these procedures are concerned only with establishing the basic statutory minimum standard. It is plainly not the intention of Parliament that all procedural defects should render the dismissal automatically unfair with the increased compensation that such a finding attracts. They are intended to apply to all employers, large and small, sophisticated and unsophisticated. They are not intended to impose all the requirements breach of which might, depending on the circumstances, render a dismissal unfair. This suggests that the bar for compliance with these procedures should not be set too high.

36. Third, we think that it is relevant to bear in mind that once the statutory procedures have been complied with, employers are thereafter provided with a defence for failing to comply with fuller procedural safeguards if they can show that the dismissal would have occurred anyway even had such procedures been properly followed. This factor, in our view, militates against allowing the bar for the statutory procedures being set too low.

37. It must be emphasised that the statutory dismissal procedures are not concerned with the reasonableness of the employer's grounds, nor the basis of those grounds, in themselves. It may be that the basis for a dismissal is quite misconceived or unjustified, or that the employer has adopted inappropriate or vague criteria, or acted unreasonably in insisting on dismissing in the light of the employee's response. These are of course highly relevant to whether the dismissal is unfair, but it is irrelevant to the issue whether the statutory procedures have been complied with. The duty on the employer is to provide the ground for dismissal and the reasons why he is relying on that ground. At this stage, the focus is on what he is proposing to do and why he is proposing to do it, rather than how reasonable it is for him to be doing it at all.

38. Taking these considerations into account, in our view, the proper analysis of the employer's obligation is as follows. At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy. That is consistent, we think, with the approach which this Tribunal has adopted in relation to grievance procedures in the Canary Wharf and other cases. Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.

39. It is at the second step that the employer must inform the employee of the basis for the ground or grounds in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met."

33. We also refer to the judgment of Elias P in Ingram v Bristol Street Parts [2007] UKEAT/0601/06, BAILII: [2007] UKEAT 0601_06_2304 at paragraph 19 in relation to the nature of the employer's obligation to inform the employee of the basis of the grounds given in the statement referred to in step one,

"In essence, the obligation is to provide a basic outline sufficient to enable the employee to understand the fundamental nature of the case and to give a response."

We also refer to paragraph 21 at which he said,

"The Tribunal was wrong to assume that the statutory requirements oblige the employers to provide in advance all the evidence on which they intended to rely. It merely requires sufficient material to enable the employee to put her side of the story."

34. A similar point had been made by Underhill J in YMCA Training v Stewart [2007] IRLR 185 when he noted that the duty to provide the grounds given in the statement,

"… does not mean all the detailed evidence that may be relied on but rather a sufficiently detailed statement of the case against him to enable him properly to put his side of the story."

35. Underhill J added at paragraph 15,

"15 But 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."

36. Once automatically unfair dismissal has been established under Section 98A(1) by reason of the breach of the statutory procedures a Respondent can nevertheless seek to reduce the compensatory award under Section 123(1) which allows for a Polkey deduction or under Section 123(4) for contributory fault. The basic award, however, cannot be reduced (see Section 120 (1A) Employment Rights Act together with Section 31(3) of the Employment Act 2002 together with Section 124A of the Employment Rights Act). Further, in the case of automatically unfair dismissal, an employer cannot rely upon Section 98A(2) by showing that his action was not unreasonable and that he would have decided to dismiss the employee if he had followed the appropriate procedure. Section 98A(2) does not apply in cases where there has been a breach of the statutory procedure.
37. We remind ourselves of the relevant parts of Section 123 of the Act,

"123 Compensatory award

(1) Subject to the provisions of this section and sections 124[, 124A and 126], the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

…

(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

…

(6) Where the tribunal finds that dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

38. We need to remind ourselves of the Polkey principle that where a dismissal is unfair because of a procedural defect, if the Employment Tribunal considers there is a doubt whether or not the employee would have been dismissed had there been a proper procedure, compensation may be reduced by a percentage representing the chance that the employee would still have lost his employment.
39. We also remind ourselves as to the importance of the Employment Tribunal applying the "reasonable band of responses" test to all steps in the dismissal process; see cases such as British Homes Stores Ltd v Burchell [1978] IRLR 379 and other such cases we need not refer to. The reasonable band of responses applies to matters including the employer's assessment of the evidence and categorisation of misconduct. It is not for the Employment Tribunal to substitute its views for those of the employer. Nevertheless, if the Employment Tribunal concludes that a response is outside of the reasonable range of responses the Employment Appeal Tribunal should be reluctant to substitute its views for those of the Employment Tribunal. In this regard we have regard to decisions such as Strouthos v London Underground [2004] IRLR 636 and Draper v Mears [2006] IRLR 869.
40. We also have in mind the high burden placed on an Appellant seeking to make out a case of perversity; see for example Yeboah v Crofton [2002] IRLR 634 and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440.
41. We were also referred to the decision of Dench v Flynn & Partners [1998] IRLR 653 which is relevant to the issue of causation. Beldan LJ had this to say,

"19 No doubt in many cases a loss consequent upon unfair dismissal will cease when an applicant gets employment of a permanent nature at an equivalent or higher level of salary or wage than the employee enjoyed when dismissed. But to regard such an event as always and in all cases putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable.

20 Although causation is primarily a question of fact, the principle to be applied in deciding whether the connection between a cause, such as unfair dismissal, and its consequences is sufficient to found a legal claim to loss or damage, is a question of law. The question for the Industrial Tribunal was whether the unfair dismissal, could be regarded as a continuing course of loss she was subsequently dismissed by her new employer with no right to compensation after a month or two in her new employment. To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes, is to treat as the effective cause that which is simply closest in time.

21 CauseS, in my view, are not simply beads on a string or links in a chain, but, as was said many years ago, they are influences or forces which may combine to bring about a result. A tribunal of fact has to consider the appropriate effect of the wrongful or unfair dismissal and the effect of the appropriate effect of the wrongful or unfair dismissal and the effect of the termination of any employment which is subsequently obtained. That is a function which an Industrial Tribunal is called upon frequently to perform and, provided it does not regard itself as rigidly bound in every case to take the view that a subsequent employment will terminate the period of loss, it seems to me that it will be able, fairly and equitably, to attribute to the unfair dismissal the loss which has been sustained."

Automatically Unfair Dismissal

42. Mr Weir submitted that the Employment Tribunal was wrong in determining that the initial meeting on 24 September 2007 was a disciplinary as opposed to an investigatory meeting. Mr Siddall has wisely not sought to justify this finding which in our opinion was plainly wrong. The meeting was described and treated as an investigatory meeting. It led to a suspension for further investigation (suspension in such circumstances of course is not a disciplinary matter) and to subsequent disciplinary proceedings. We therefore consider whether the subsequent disciplinary hearing and appeal hearing complied with the provision set out in Part 1 of Schedule 2 to the Employment Act 2002. A crucial question was whether the Respondent had complied with its obligation to inform the Claimant of the basis of the matters set out in the letter of 26 September 2007 and consequently whether the Claimant had a reasonable opportunity to consider her response to that information. Mr Weir boldly submitted that those requirements were met by the provision of the anonymous letter and the minutes of the investigatory meeting. We are wholly unable to accept this submission. The failure to supply any form of particularised information relating to the conduct complained of apart from the single incident relating to the drinking, both at the initial disciplinary hearing and the subsequent appeal, clearly constituted a significant failure to observe the statutory requirements. The Claimant was not informed of the nature of the behaviour, the dates when it occurred and the persons to whom it may have been addressed so it would have been quite impossible for her to deal with these allegations. We are of the opinion that the decision in this regard of the Employment Tribunal at paragraph 29 cannot be faulted.
43. There is no appeal as such in relation to the decision by the Employment Tribunal to uplift the award of compensation by 40 per cent. We note that the Employment Tribunal at paragraph 41 concentrated on the breaches of the disciplinary procedure as being far more serious defaults than the failure to have an investigatory meeting. We can see no reason for finding that the decision of the Employment Tribunal was flawed and it is not for us to substitute our views for those of the Employment Tribunal. This ground of appeal is dismissed.

Reasonable Band of Responses, Contributory Fault and Polkey Deduction

44. Mr Weir submitted that the Employment Tribunal had both substituted its views for those of the Respondent in its approach to the evidence before Respondent during the investigatory and disciplinary procedures and with the Respondent's categorisation of the Claimant's conduct. It is also submitted that the decision that a reasonable employer could not have considered dismissal and that there should in any event be no deduction at all for contributory fault, were perverse. It was submitted that the Employment Tribunal appears to have accepted the Claimant's evidence as to what occurred and rejected or ignored Mr Mark Mewburn's approach to that evidence and in effect substituted its views of the evidence for his. It did not consider whether his approach to the evidence was outwith the band of reasonable responses. Mr Mark Mewburn had not accepted the Claimant's explanation that she simply could not refuse to take a drink and had only had a sip. Again, for example, the evidence suggested that she had in fact refused to accept a beer and there was no reason why she could not have refused to accept the wine also. No specific mention is made in paragraph 35 of the other matters causing concern to the Respondent, including the fact that the Claimant was employed in a position of trust, regarded as the face of Dacre Park and was driving with one hand on the wheel of a company van while holding a glass full of wine through the window in an area where children were likely to be present. It was submitted the Employment Tribunal has given no explanation as to why that conduct was not sufficiently serious to justify dismissal and as to why it should not be regarded as contributory fault. The Employment Tribunal had not said in terms that the conduct was not "blameworthy". What of course the Respondent is obliged to show is that the conduct concerned contributed to the dismissal rather than to its unfairness and that it must be culpable or blameworthy.
45. At this point in time we note that at some point in time during the hearing Employment Judge Grazin made some remark about not agreeing that he would be concerned if alcohol was smelt on the Claimant's breath. It was accepted by the Claimant that Employment Judge Grazin did make some such remark during the course of submissions. The precise remark and the context in which it was made have not been agreed so we are unable to allow this matter to affect our decision.
46. Mr Siddall submitted that the Employment Tribunal was entitled to conclude that dismissal was outwith the band of reasonable responses and thus the chances of dismissal should have been discounted to zero. We should only interfere with this finding if we were satisfied the decision of the Employment Tribunal was perverse or that the Employment Tribunal had misdirected itself on the authorities (as it did not). Mr Siddall also drew our attention to the case of Draper v Mears (supra) to which we have referred above; in which case there had again been a breach of zero tolerance for alcohol policy and where the breach was said to be de minimis. Mr Siddall submitted that even where there was a zero tolerance policy this case illustrated that a breach could still properly be regarded as de minimis although, he submitted, the Respondent could have disbelieved the Claimant's assertion she had merely had a sip, once there was a possibility the Employment Tribunal was correct there was no scope for the Employment Appeal Tribunal to intervene.
47. The decision may have been "benevolent" or "generous" to the Claimant but it was not perverse.

Conclusions

48. As I informed the advocates during the course of the hearing I had the benefit of sitting with experienced lay members well versed in industrial practice. Both of my colleagues considered in their experience that the modern approach to alcohol in the workplace is very different to what it was and is very much more strict. Zero tolerance policies are commonly strictly enforced in cases of employees who are driving or working machinery.
49. We are concerned that it would appear that the Employment Tribunal has, as Mr Weir has submitted, substituted its views of the evidence for those of Mr Mark Mewburn without considering whether the acceptance of that evidence was outwith the band of reasonable responses and it has rather tended to trivialise what the Claimant did and disregard the Respondent's concerns. For that reason we consider that the decision of the Employment Tribunal in relation both to the Polkey deduction and contributory fault cannot stand.
50. We would add that with a degree of hesitation we would regard the decision of the Employment Tribunal that dismissal was in any event outwith the band of reasonable responses as being perverse. However, when it comes to consideration of contribution under Section 123(6) the Employment Tribunal can, in our opinion only properly have excluded the possibility of any deduction had it characterised the Claimant's conduct as not being blameworthy or culpable. In this regard not only has the Employment Tribunal substituted its views for those of the employer, and we would say it is clearly and manifestly wrong to trivialise the Claimant's conduct, and placed a gloss on the evidence rather than asking whether the Respondent's view of the evidence was within the reasonable band of responses. We repeat that the evidence suggested that Mr Mewburn had not accepted the Claimant's explanation at face value, and that no attempt was made to address the Respondent's expressed concerns that the Claimant as a person in trust virtually running Dacre Park was driving with a glass of wine in her hand in an area where there were children.

Break in the chain of causation at Hornsea Golf Club

51. The Respondent argued that the evidence before the Employment Tribunal showed the Claimant was dismissed for misconduct and thus the chain of prior causation was broken. The Claimant, on the other hand, submitted the Employment Tribunal was justified in making the findings it did and correctly directed itself on the law as set out in the case of Dench v Flynn & Partners (supra).
52. We can set out our conclusions shortly. The Employment Tribunal heard the evidence. The correspondence does not suggest that the dismissal was for misconduct let alone gross misconduct and the Employment Tribunal were entitled to rely upon the Claimant's evidence. This ground of appeal, therefore, fails.

Disposal

53. We have carefully considered whether this case should be remitted to the same Employment Tribunal. We have in mind the important decision of the Employment Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763. Having regard to the nature of this decision we do not consider it would be appropriate for this matter to be referred back to the same Employment Tribunal. Accordingly, we allow the appeal only insofar as the Employment Tribunal failed to make any deduction in respect of contributory fault or under the Polkey principle. The case will, therefore, be remitted to a differently constituted Employment Tribunal to determine these issues.
54. We would earnestly draw the parties' attention to the possibility of mediation through ACAS, which is, of course, available through the Employment Tribunal.
55. Finally we would like to express our gratitude to Mr Weir and Mr Siddall for their helpful skeleton arguments and succinct submissions. Thank you very much.