United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S JAGPAL (Representative)
For the Respondent	MR A KAMARA (Appearing under the Free Representation Unit Scheme)


 


SUMMARY

UNFAIR DISMISSAL – Polkey deduction

Having found the Respondent's dismissal of the Claimant was automatically unfair, the Employment Tribunal erred by not considering the submission that the award should be affected by Polkey principles. Remitted to the same Employment Tribunal for that point to be decided.

HIS HONOUR JUDGE McMULLEN QC

1. This is an appeal which raises the question of the assessment of the chance of a dismissal which is unfair for procedural reason occurring, in any event, with a fair procedure. We will refer to the parties as the Claimant and the Respondent. It is the Judgment of all three members to which each has contributed.

Introduction

2. It is an appeal by the Respondent in those proceedings against the Judgment of an Employment Tribunal which sat under the chairmanship of Employment Judge Benson at Birmingham over two days and issued a Reserved Judgment on 25 March 2010. The Claimant represented herself. Today she has the advantage to be represented by Mr Abou Kamara, who gives his services for the Free Representation Unit. The Respondent has throughout been represented by Mr Sonny Jagpal of Peninsula Business Services, a consultant.
3. The Claimant claimed that she was unfairly dismissed. The Respondent contended she was dismissed for gross misconduct, dishonesty, the Respondent having followed a fair procedure. The Tribunal upheld the Claimant's claim that she was automatically unfairly dismissed but reduced her compensation to £1,992.75 having taken account of her contributory conduct to the dismissal which was of 75 per cent. The Respondent appeals against that judgment. We understand there is no separate appeal against the award if this Judgment otherwise stands.
4. The issues were defined by the Employment Tribunal in the following way:

"2.1 (i) have the Statutory Disciplinary and Dismissal procedures been completed? (ii) if not, was non-completion wholly or mainly due to Respondent's failure?"

2.2 (i) what was the reason for dismissal?

(ii) whether that reason falls within the one of the potentially fair reasons for dismissal,

(iii) was the dismissal procedurally unfair?, if so,

(iv) has Respondent shown on balance of probabilities that Claimant would have been dismissed if fair procedure had been followed?,

(v) did Respondent otherwise act reasonably in dismissing Claimant, such that the decision to dismiss was within the band of reasonable responses open to the Respondent?"

5. The Respondent's appeal was sent by HHJ Serota QC to a full hearing in relation to the statutory disputes procedure and other matters, including whether the Tribunal substituted its view impermissibly for that of the management.

The facts

6. The Respondent is a large hotel chain employing 1,400 staff. The Claimant was employed by the Respondent as a cleaner from 22 June 2004 until 20 March 2009. The Tribunal made the following findings:

"6. On 17 February 2009 the Claimant requested 3 weeks holiday from the Respondent. She spoke to Sharon Smith, who refused 3 weeks leave but told the Claimant that she could take her 4 days entitlement remaining, together with 2 weeks unpaid leave. She asked the Claimant to telephone her back with the date she intended to return to work. There was a dispute on the evidence as to whether the Claimant did call back, however, the Respondent expected her to return after 4 days and included her on the work rota for 22 February when her paid holiday expired.

7. The Claimant attended her doctor's surgery on 18 February with a wheeze and a cough.

8. The Claimant did not attend for work on 22 or 23 February 2009.

9. On 25 February the Claimant called the Respondent and spoke to Tony Smith. She was told that there was no work for her that week as she had not been included on the rota, as she had not attended for work on 22 or 23 February. He told her to phone back on 4 March to find out her shifts for the week commencing 6 March.

10. On 26 February the Claimant sent a doctor's note to the Respondent from her GP stating that she had a chest infection and signing her off until 2 March.

11. On 8 March the Respondent received a further doctor's note dated 6 March signing the Claimant off for 1 week. Following receipt of that note, on or around 15 March, Sharon Smith gave evidence that the Claimant telephoned her and asked her to throw away the GP's note because she was fit to work. Sharon Smith stated that she told the Claimant that she couldn't return to work whilst her GP said that she was medically unfit, however, she asked the Claimant to attend for a meeting which has been referred to as a return to work interview. The Claimant denied the contents of that conversation, specifically that she had said that she was fit for work or that the doctor's note should be thrown away. The Claimant's explanation at the Tribunal for making the call to Sharon Smith was to find out why she had been "banned" by Tony Smith from attending work.

12. A return to work interview took place on 16 March. Christine Parker and Sharon Smith conducted the meeting. An interpreter was present as although the Claimant, who was Slovakian, could understand some English, she could not express herself well in English. The Claimant also had some difficulties reading. There was a dispute as to what was said at the return to work interview. The Respondent's evidence was firstly that the Claimant admitted that she had gone to her GP for a sick note because she was scared that she would lose her job. The Respondent then indicated that the Claimant agreed with the suggestion that this was the case so she could claim SSP whilst she had no work. Additionally, it was the Respondent's evidence that the Claimant had confirmed that she was fit for work, had lied about being ill, and apologised accordingly. The notes of the return to work interview presented by the Respondent to the Tribunal further recorded that the Claimant had said she had another sick note which she could provide if there was no work on the next rota."

7. The Claimant disagreed with that statement of affairs. The Tribunal went on:

"14. On 16 March the Respondent wrote to the Claimant inviting her to a disciplinary hearing to take place on 18 March. There was confusion about the date this meeting took place but it was accepted that it was 18 March. The purpose was to discuss the Claimant claiming to be unable to work due to illness, from 26 February to 19 March, when the Claimant had admitted that she was not ill and was fit to work. The letter did not state the seriousness of the allegation nor the fact that it could amount to gross misconduct and that dismissal was a possible outcome."

8. A disciplinary meeting took place on 18 March, as to which the following findings were made:

"17. The disciplinary meeting took place on 18 March and was conducted by Tony Smith and Christine Parker. The Claimant had an interpreter, Ludka Gadjosova. Again there was a dispute between the parties as to what was said in this meeting. The Respondents revisited the events of the return to work interview with the Claimant. Minutes of the disciplinary meeting were produced to the Tribunal and confirmed the version of events given in the Respondent's evidence, namely; when asked why she had made a claim for SSP when she had admitted she was not ill; the Claimant had responded that the illness came and went; on being questioned as to why she had produced another sick note and again claimed to be sick, the Claimant's response was that maybe she was crazy or stupid, and she did not know why she said it; the Claimant admitted she had told Sharon Smith in the telephone call and Christine Parker on 16 March she had lied about being sick; the Claimant had confirmed she had lied because she was worried about her job and that she had not understood the question that had been put to her."

9. Again, the Tribunal noted that the Claimant's account was very different. The disciplinary meeting was adjourned to 20 March so that a decision could be made and the meeting was reconvened. The Claimant was dismissed for gross misconduct in that the Respondent concluded that she had admitted that she had lied about being ill and had fraudulently received Statutory Sick Pay for three weeks, to which she was not entitled. There was reference to a previous incident of lying and she was, therefore, dismissed.
10. She appealed. The grounds of appeal included that the procedure was unfair because she had not been provided with a copy of the disciplinary procedure and that she was shocked, stressful and under pressure. She did not believe that she had done anything wrong in providing the doctor's notes; she did not understand the sickness procedure; the dismissal was harsh and she did not lie.
11. An appeal hearing took place conducted by Mr McDonagh on 21 April 2009. There the Claimant was assisted by an interpreter in the Slovak language and she had two observers. The Claimant's case was she never admitted at any time that she had lied about her sickness and fitness. The Employment Tribunal found that the Respondent's decision to dismiss her for dishonesty would amount to gross misconduct, sufficient for dismissal to occur summarily. The Tribunal examined the law relating to investigation under the British Homes Stores Ltd v Burchell [1980] ICR 303 test, when there has been an admission by the employee, and it accepted the principle where there are clear admissions.
12. The Tribunal preferred the evidence of the Respondent's witnesses who had formed the view that the Claimant admitted that she had lied to them about being ill (see paragraph 36). The Tribunal found against the Respondent principally on the following grounds:

"37. Turning again to the Respondent's submissions, we do not however consider that this was a case where there were absolute admissions, which could be taken without question. Although we believe that the Claimant had a reasonable understanding of English and that she had the help of an interpreter, she had difficulties in explaining herself clearly. She was, on the Respondent's own evidence, confused and nervous at times within the meetings, and there were sick notes in existence which appeared to contradict the Claimant's admissions. We consider that in these circumstances The Royal Society for the Protection of Birds v Croucher [1984] IRLR 425 can be distinguished and that the principles within British Homes Stores Ltd v Burchell would apply.

39. We turn then to whether the Respondent had carried out a reasonable investigation. We consider that a reasonable employer, faced with the Claimant's admissions and the contradictory evidence of the doctor's notes, coupled with the Claimant's confusion, and language problem, would have carried out further investigation and not simply relied upon the admissions. This might have included writing to the Claimant's GP to find out her true medical condition and fitness to work. Had this been obtained either at the dismissal or appeal stage, the evidence set out in the GP's letter of 16 June to which we were referred might have been available to the Respondent and may have influenced their decision."

13. The finding by the Tribunal in these paragraphs is auxiliary to its principal finding that the Respondent had failed to carry out step one of the statutory dismissal and disciplinary procedure. That is not the subject of any challenge on appeal and so the finding was inevitable that this was an unfair dismissal for failure to follow the statutory procedures. The Tribunal acknowledged that it was unnecessary to dilate further in the light of that finding but as is often the case it is useful to have findings based on ordinary unfair dismissal as well as automatic unfair dismissal in case the Tribunal is found to be wrong about the other. It came to this conclusion:

"41. Although not necessary in view of our findings at paragraph 31 above, we have considered whether the Respondent has shown, on the balance of probabilities, that Claimant would have been dismissed if fair procedure had been followed. Submissions were made by the Respondent to the effect that the Claimant would still have been dismissed, even if the Respondent had followed a fair procedure and therefore in circumstances where the dismissal was not automatically unfair, within section 98(A), the dismissal would be fair within ERA s98(2)A. We do not accept the Respondent's submission in this regard. Had the Respondent carried out further investigation and obtained evidence from the GP of the Claimant's medical condition during the disciplinary process, we do not believe that the Respondent would have dismissed her."

14. As to contributory fault, the finding that the Claimant was culpable to the extent of 75% is not challenged.

The legal principles

15. Employment Rights Act 1996 s 98(4) deals with fairness. The legal principles to apply in this case emerge from Burchell which requires a genuine belief in the misconduct put against the Claimant, following as much investigation as is reasonable, and the decision being based on reasonable grounds and falling within the band of reasonable responses (see Sainsbury plc v Hit [2003] ICR 111). Where an allegation is admitted there is a lighter standard of investigation (see The Royal Society For the Protection of Birds v Croucher [1984] IRLR 425).

Discussion and conclusions

16. It is, of course, clear that where there has been a finding of a failure to follow the statutory dismissal procedure, the dismissal is automatically unfair. There is no scope for the reversal of that position under what is known as the reverse Polkey [1988] ICR 142 HL provision Employment Rights Act 1996 section 98(A)2. So the Respondent was condemned in unfair dismissal.
17. The real issue in the case is whether it was wrong in its failure to make a decision that the dismissal would have occurred in any event. The failure identified by the Claimant was upheld, that is that she did not receive a step one letter prior to the disciplinary meetings in March. However, the correct approach is to look at the procedure as a whole (see Taylor v OCS Group Limited [2006] IRLR 613).
18. At the hearing of the appeal before Mr McDonagh the Claimant had been given, again, the up-to-date disciplinary procedure, which the Tribunal found the Respondent had failed to do prior to the initial hearing and which was a defect. The Claimant also had the benefit of an interpreter in the Slovak language and two observers. So, standing back and looking at the procedure as a whole, the issues identified by the Tribunal as being unfair at the disciplinary hearing were capable of being cured and, as Mr Kamara accepts at least in respect of the disciplinary code, were cured at the appeal hearing.
19. The principal finding against the Respondent is that it was unfair not to investigate further by a direct enquiry of the GP. Mr Jagpal contends that that is an error by the Employment Tribunal and we agree. The issue in the case was the trustworthiness of the Claimant. There would be no point in going to the GP. What would the GP say? The Claimant presented with a cough and a wheeze and the doctor wrote sick notes accordingly. An enquiry of the GP would, we consider, be irrelevant. The GP would be bound to say that he or she uttered a sick note on examining the patient as being unfit.
20. However, the real point in the case is the Claimant's retraction of that and her assertion that she was fit and, if so, claiming Statutory Sick Pay. This is an issue of honesty which taxed the Respondent. Thus, the Tribunal unfairly put against the Respondent its decision to reject the Claimant's plea that the GP be contacted since what was relevant here was what material was presented to the Respondent in making its decision about the dishonesty of the Claimant.
21. In our judgment the failure to make an enquiry of the GP is no error of law. The correct approach would be to say on the material which was available to the management, that is as a whole at the end of the appeal, was it within the band of reasonable responses to dismiss the Claimant? If there were a procedural failure what would have been the effect had the procedural failure been absent? Had the Respondent done what was required?
22. We hold it was not required to enquire of the GP and so this procedural failure cannot be attributed to the Respondent. The failure of not giving the Claimant the procedures was cured at the appeal. So, it would seem to us that the correct approach would be to examine in the light of that curative effect what is the percentage chance that the Claimant would have been dismissed and when? On this material it is likely a debate could arise about the Claimant staying in employment until she was sufficiently furnished with the procedures and understood what was going on. That might not have occurred until the appeal hearing, which would give her, let us say for purposes of illustration only, about four weeks' pay.
23. We consider the Tribunal erred in paragraph 41 of its judgment. It seems to be the implication, and Mr Jagpal asserts this, that the Tribunal did not consider the Polkey reduction, given that it had decided that the dismissal was automatically unfair. It is, of course, open to an employer to try and change an unfair dismissal to a fair dismissal if it shows on evidence that, on balance, the dismissal would have occurred anyway, even if the defects in the procedure had been put right. That is section 98(A)2 and is not available in this case.
24. What is available in any event is a Polkey reduction. The passage in paragraph 41 indicates to us that Mr Jagpal is right. The Tribunal seems to have concluded that it was not open to it to make a decision, reducing compensation on the Polkey principles given a finding of automatically unfair dismissal. It is open to it and it should have done so.
25. This matter will, therefore, be remitted to the Employment Tribunal for its decision on the matter of Polkey. It may be able to do this without additional argument because Mr Jagpal has already put this point to the Tribunal and we understand at the second hearing too, but that will be a matter for the Employment Tribunal. We strongly urge the parties reach a negotiated settlement of this matter for on our broad approach to this, and we are not the industrial jury in this case, the sums appear to be relatively small.
26. Having canvassed the views of both advocates there is no dispute that this should go back to the same Employment Tribunal for further hearing on the compensation point.