United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW SHARLAND (of Counsel) Instructed by: Messrs Martineau Solicitors 1 Colmore Square Birmingham B4 6AA
For the Respondent	MR ROSS GRAY (Representative)


 


SUMMARY

UNFAIR DISMISSAL

Reasonableness of dismissal

The Employment Tribunal erred in holding that a reasonable employer would not have dismissed the Claimant when it found his case was on all fours with three other employees who were given a final written warning for misconduct. The Claimant was two months into a warning indicating further misconduct might lead to dismissal, and he alone had been aggressive to a security guard. The Employment Tribunal failed to apply LAS v Small and look at the material available to the management. The Employment Tribunal's criticisms of the investigation were not borne out.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about dismissal of a swimming pool assistant who wrongly entered his sports centre with colleagues after a students' pyjama party, said to be unfair on the ground of misconduct. It is the judgment of the court to which all members, appointed by statute for their diverse specialist experience, have contributed. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal under the chairmanship of Employment Judge Kearsley, sitting over three days at Birmingham, registered with reasons on 6 August 2009. The Claimant was represented with exemplary care and succinctness by his uncle, Mr Ross Gray, a former police officer. The Respondent was represented by a solicitor, who today instructs Mr Sharland of counsel.
3. The Claimant claimed unfair dismissal. The Employment Tribunal upheld his claim. It then went back and gave its judgment on remedy, which was for reinstatement. On 16 April 2010, it met again to consider the consequence of its order for reinstatement, for the Respondent would not comply. An award of compensation was made in the sums of £168.83, £9962.00 and £5294.00. The liability decision, which is the first appeal today, was the subject of an application for review by the Respondent, which was refused by the Judge.
4. The proceedings form a trio of appeals against those three respective judgments: liability, remedy and failure to comply. It is agreed by the representatives that if the first appeal succeeds, it is not necessary to delve into the second and third, for they would fall with this.

The issue

5. The essential issue as defined by the Employment Tribunal was to determine the fairness of the dismissal of the Claimant. The Tribunal approached its task from a basis of agreed facts for the most part. The Tribunal decided in the Claimant's favour. The Respondent's appeal was sent to a full hearing by HHJ Richardson, to which were attached the second and third appeals.

The legislation

6. Neither the legislation nor the relevant authorities form any part of the attack today. The
   Employment Tribunal set out the law in paragraph 9 of its judgment, citing section 98 of the Employment Rights Act 1996 which deals with a reason for dismissal (in this case, conduct) and fairness under section 98(4) which provides as follows:

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case."

Where misconduct is in issue, the guidance given by the following four authorities cited by the Employment Tribunal is relevant.

"Law

10 It is for the employer to show the reason for dismissal and that it was a potentially fair one. The employer must have a genuine belief based on reasonable grounds after having carried out a reasonable investigation. British Home Stores v Burchell [1978] IRLR 379.

11 In the words of the guidance offered in Iceland Frozen Foods v Jones [1982] IRLR 439:-

a) the starting point should always be the words of section 98(4) themselves

b) in applying the section the tribunal must consider the reasonableness of the employers conduct, not simply whether they consider the dismissal to be fair

c) in judging the reasonableness of the dismissal the tribunal must not substitute its decision as to what is the right course to adopt for that of the employer

d) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might take one view, another quite reasonably take another

e) the function of the tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

f) The correct approach is to consider together all the circumstances of this case, both substantive and procedural, and reach a conclusion in all the circumstances."

12 The Court of Appeal in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 3 concluded that the band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss. In A v B [2003] IRLR 405 the EAT concluded that when considering the reasonableness of an investigation it is relevant to consider the gravity of the charges and the consequences to the employee if proved. Serious allegations of criminal misbehaviour must always be the subject of the most careful and conscientious investigation."

The Tribunal considered also the ACAS Code of Practice. In those short paragraphs, the Tribunal subtly encapsulated the directions on law, and it is common ground that those are correct. The dispute on appeal is as to their application to the facts.

The facts

7. The Claimant was employed as an assistant in the sports centre at the University essentially as a lifeguard. This is known to a substantial body of the judiciary, for it is at Scarman House at the University of Warwick, where we are regularly taken to study and to exchange views. From time to time, Her Majesty's Judges are to be seen in the pool, taking exercise away from those intellectual rigours, no doubt overseen by the Claimant in his official capacity.
8. In October 2008, the Claimant who was 20 years of age, had been employed for a little over a year. He had obtained a disciplinary warning for failure to comply with the rules relating to sickness absence. The provision of a warning is set out in the rules and terms and conditions. The Claimant was warned on 5 August 2008 as follows:

"If you commit a further related act of misconduct in this time, then this warning will be used as evidence in any future disciplinary hearing. However, providing there is no further act of misconduct, this warning will expire on 5 August 2009 and will be deemed to be spent."

Just over two months after this warning had been given to him, on 8 October 2008 there was an incident, and these are the facts:

"6.3 On 8 October 2008 there was an incident which resulted in the security officers providing a security report. That security report (page 63) referred to security officers attending an entry gained to the main sports centre and eventually finding males on a stairway near the exit all of whom appeared to have been drinking. Names were taken of four of the individuals. A security officer Mr Phillips went to speak to a male outside the building and the discussion between them became heated. The report continues:

'At this point Mr Gray had to be restrained by IH (Ian Hopkins) the male lost his balance and fell to the floor. At this Mr Gray became very aggressive towards IH (physical and verbal). The situation was eventually calmed down.'

6.4 Mr Hopkins prepared on 8 October a brief statement dealing with his recollection of the incident (page 70). He refers to the Claimant pushing past him and attempting to assault Mr Phillips from behind when Mr Phillips was speaking to the male outside. Mr Hopkins restrained him and at that point he came directly at Mr Phillips very aggressively. Mr Phillips fended him off and he lost his balance. The report continues:

'He seemed very angry at his loss of dignity in front of his friends but the situation was controlled and calmed down with no further attempt at assault.'

6.5 The other sports attendance [sic] who had attended made their own brief statements at pages 72, 73. Each referred to the Claimant being thrown to the ground. Mr Lees, the individual who was standing outside described the Claimant being thrown to the ground (76).

6.6 A student, Mr Wakefield, who had also been in the sports centre was interviewed by Mr Monnington and Ms Quinney. The Tribunal will return to the contents of that interview later in these reasons. Following that interview Mr Wakefield prepared an email which is at page 74 in the bundle. This email describes the attendance [sic] as being drunk and makes a number of references to the Claimant being aggressive. In particular he describes the Claimant as becoming aggressive when his details were being taken by a security officer, now known to be Miss Markham. Mr Wakefield indicated that the Claimant was the aggressive member of the group."

9. The actors in the drama on the one hand were the security officers of the Respondent; and on the other, four employees. Mr Wakefield was both an employee and a chemistry student. The parties were interviewed about what occurred. A lot of time has been taken up by Mr Wakefield's account. He gave, by email, a full account of the events that night. For the purposes of the findings of the Employment Tribunal which are relevant on appeal, he alleged that the four of them were drunk following a pyjama party. They had gone without authorisation or notice into the sports centre, causing the security staff to apprehend them. When they did so, the Claimant became aggressive. Mr Wakefield subsequently withdrew that statement. The events of that night were investigated by Mr Monnington. He carried out a defective investigation. Mr Monnington's decision that the Claimant should be dismissed, Mr Sloane, who handled the Claimant's appeal formed that view too.
10. On the appeal, a hearing was conducted and a further investigation instigated. In simple terms, far more went on before Mr Sloane than Mr Monnington. One thing that occurred to Mr Sloane was that the treatment of Mr Wakefield required more care. Mr Wakefield was again interviewed. There was some cynicism by Mr Sloane towards Mr Wakefield, as a result of which he felt somewhat hurt. But the upshot was that he stood by his account that the Claimant was aggressive to a security officer. It appears now to be common ground that, at the very least, that aggression took place after the security officer had put him to the ground and thereafter he was verbally aggressive and abusive. That aspect seems important to all of the parties in this case.
11. The upshot of Mr Sloane's reception of a report from his officer, Mr Dunn, and the appeal was that the dismissal of the Claimant was upheld. The Employment Tribunal was asked to consider the issues relating to conduct dismissals, that is genuine belief, reasonableness of belief, investigation and reasonable response.
12. The Tribunal criticised the Monnington inquiry. The Respondent does not seek to challenge that. The Tribunal, in a sequential chapter of its judgment, then asked the question, "Given that conclusion, has the conduct of the appeal rectified the deficiencies identified by the Tribunal?" Here, the Tribunal's conclusions require to be set out in full, for they have been the subject of intense scrutiny before us.

"19 The short answer to that is no for two principal reasons. The first is that Mr Wakefield, if interviewed at all, should not have been taken through his withdrawn statement which had already been discounted by Mr Sloane nor should that statement have been used as a prompt for his evidence. Secondly, the Claimant was never shown the statements which supported Mr Dunn's conclusions. It is not enough for the Respondents to say that they were not asked for. The Claimant and his representative were prevented from investigating with those witnesses or by reference to those witness statements, as has happened at this Tribunal, the inconsistencies which appear within them which were not highlighted by Mr Dunn.

20 Given that conclusion, the Tribunal has considered whether a fair process would have resulted in a fair dismissal.

21 It is the Tribunal's conclusion that a fair process would have led the dismissing officer to conclude on a balance of probabilities that the Claimant was not drunk, that he had walked towards Mr Phillips (something which is apparently demonstrated by the CCTV) (189), and that he reacted when he got up from the floor after the shock of physical contact with Mr Hopkins. The individual holding the disciplinary hearing would have been entitled to take into account the fact that the Claimant had a written warning, though not a final written warning, for a previous unrelated event. The previous misconduct of failing to notify sickness absence was of a wholly different nature. Absent that earlier warning the Claimant would have been on all fours with those attendants who went into the building without permission and without notifying security. Each of these received a final written warning. The Tribunal concludes accordingly that a fair process would have led to the imposition of a final written warning and not to dismissal as dismissal would have been outside the range of reasonable responses, even taking the earlier warning into account.

22 In fairness to Mr Hopkins the Tribunal are not suggesting that Mr Hopkins was looking for a fight. He was reacting to events. However, they have not found him to be a credible witness in his description of the Claimant being drunk, being aggressive from the start and running towards Mr Phillips as if to assault him.

23 Given the funding that no dismissal would have followed a fair process, the Tribunal has then considered whether by his conduct the Claimant has contributed to his dismissal. The Tribunal concludes that he has. The contributory conduct consists of his entering the sports centre without notifying security, that is something which he has acknowledged from the start and this action clearly contributed to the actions which followed. It is a matter for the Tribunal's discretion as to what is just and equitable and the Tribunal concludes that it is just and equitable to assess that contribution at 20%."

The Respondent's case

13. The primary argument of the Respondent is that the Employment Tribunal failed to apply its correct self-directions. It failed to apply the band of reasonable responses and substituted its own view for the decision of Mr Sloane, the relevant manager. The unfairness noted by the Employment Tribunal did not form part of the Claimant's case, except in a broad sense that the Claimant had said that Mr Sloane had pre-judged the matter. Nevertheless, the particular ground on which the unfairness was founded was not specifically raised.
14. Of the two points upon which the Tribunal made its decision, it is said that: (1) the Wakefield matter was properly investigated by the independent officer, Mr Dunn, and Mr Sloane was entitled to take the view he did; (2) the absence of interview notes of Mr Dunn of relevant witnesses was unimportant given the "clear and detailed report", as the Tribunal put it, of Mr Dunn, and the full gist of the material had been disclosed to the Claimant. The Claimant had been represented by an officer of his union, Unison, and the points could properly have been made, which they were not, if they were to form the basis of the judgment. The Employment Tribunal had sidelined the warning which had been given to the Claimant, which plainly pointed out to the Claimant that any further misconduct might result in his dismissal.
15. It was further contended that there were inadequate reasons. The Tribunal had incorrectly approached the issue of credibility of Mr Hopkins. It was not for the Employment Tribunal to make decisions on credibility, but was for Mr Sloane. As to contributory fault, the Tribunal failed to note that the Claimant has admitted that he had been verbally aggressive and abusive and was the subject of a recent extant warning. For those reasons, the judgment should be set aside.

The Claimant's case

16. As advanced on his behalf by Mr Ross Gray, the Claimant supports the judgment of the Employment Tribunal and contends that the finding that the decision was outside the band of reasonable responses was one which was open to the Tribunal. Indeed, it was correct. The Tribunal had the relevant material and its job was to assess credibility of the witnesses. There were significant defects in the investigation, and that was sufficient to set aside the finding by Mr Hopkins and to condemn it as unfair. As to contributory fault, on the information which we have been given by Mr Gray and his family who were there, no argument was presented by the Respondent, so the findings are based upon the Tribunal's decision unassisted by the parties.
17. Mr Gray contends that the rulebook of this employer requires two warnings to be given before a dismissal, although he accepts that this point was not squarely put to the Employment Tribunal, albeit it is in the rulebook which was before it. It forms no part of the judgment, and indeed, the finding of the Tribunal is that the Respondent was entitled to take into account the fact the Claimant had a written warning (see the extract in paragraph 21 cited above).

The legal principles

18. The legal principles to be applied in this case are those which the Tribunal cited above. In addition, it is plain from the judgment in Fuller v Lloyds Bank plc [1991] IRLR 336, that a failure to provide a witness with evidence may make a disciplinary hearing unfair, but if the gist of the material is given to the Claimant, and he or she knows the case that has to be met, that error will not occur.
19. We drew the parties' attention to London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA. The importance of this case to the present is as follows. As Mummery LJ pointed out, in a misconduct case, an unsuccessful employee will often seek to re-run a case with new evidence, and with evidence in some ways different from that below in order to vindicate his position. The case was an appeal by the employer, just like ours. There, the issue was the material which should be before the employer and not the material which would convince an Employment Tribunal as to whether it was reasonable to dismiss the Claimant. Mummery LJ makes clear that there must be separation of fact-finding in relation to contributory fault, where the decision has to be made as to whether the conduct actually occurred.
20. We were also referred to Taylor v OCS Group Limited [2006] EWCA Civ 702, in which it was held that a properly constituted appeal may rectify defects in the earlier unfair procedure, if that is found to exist.

Discussion and conclusions

21. With those authorities in mind, we turn to the arguments which have been raised by the advocates and our findings. It may seem back to front, but we will start with the conclusion on contributory fault. With commendable professionalism, Mr Sharland has researched whether or not contributory fault must be put before the Tribunal. But given our finding that it does not appear to have been, he is entitled, we think, to take the point that the Tribunal ought not to have decided this without proper argument. Mr Gray does not quarrel with the finding of 20 per cent contribution, but Mr Sharland would say, if entitled to do so, that it was 100 per cent. However, the point that he makes is that the Tribunal did not have this argument in front of it. Doing the best we can with this finding, knowing that it was not driven by an argument addressed to it, it betrays the Tribunal's thinking about what occurred on the night.
22. The sole contribution to the Claimant's dismissal was entering a sports centre without authority. Yet that is not the finding of the Tribunal earlier in its judgment. The material before the Tribunal was that: (1) the Claimant accepted that there were aggressive, abusive and verbal approaches to the security officer. That was a distinction between him and his fellow partygoers when they entered the sports centre; (2) he had a warning against him (the ink being dried only two months before), which none of the others had. On any view, those matters contributed to his dismissal, and the Tribunal was bound to make a finding as to them, and in this finding, has plainly excluded them from its view. That alone would be wrong in law. But that, of course, relates to contributory conduct. We have set it at the beginning of our conclusions because it does illuminate the findings on the substantial issues.
23. In this case, the procedure of the employer is to allow for a warning to be given which may be used in a subsequent disciplinary proceeding arising out of similar or different offences. It is true, as a matter of language that at one place in the procedure there is reference to two warnings. But that point was not taken, and in any event, if it were, it might have been the subject of an appeal, because the language of the warning itself is unequivocal: the Claimant is at risk of dismissal for a further offence. That is sufficient to separate the Claimant from his fellow partygoers.
24. It is accepted by the Respondent that what occurred that night was not gross misconduct. The conduct merited a final written warning to the other three, but tipped over into a dismissal because of the previous warning and the aggressive and abusive response of the Claimant. We mentioned earlier how this aggressive conduct has loomed in this case. Both sides and the Tribunal, with respect, have not focussed clearly on what this means. Mr Gray puts the point as one of mitigation: being aggressive to someone who has put you to the ground is more understandable and venal than if you enter a building and start being aggressive. There may be some force in that, but let us look at the context. The Claimant was, on one account, drunk; entered the building he should have not done; was accosted by a group of security officers; was put to the ground by one of them; and yet came up aggressive and abusive. Far from being mitigation, we would see that as intemperate. There is no challenge to the security officers' action. It seems to us, if in that situation with a security officer you come out being aggressive and abusive, you are not helping yourself. It is a relevant factor.
25. In this case, the evidence of Mr Wakefield wavered, but he did stand by his original report, at least to the extent that the Claimant was aggressive. That was made clear to Mr Dunn, as it became reported to Mr Sloane. In the evidence Mr Wakefield gave to the Employment Tribunal, pursuant to a witness statement taken by Mr Ross Gray, he repeated the aggression which he had seen and heard from the Claimant. Thus, this was a factor which was to be considered by Mr Sloane. The point is, following London Ambulance Service, it is not what appears to be reasonable to the Employment Tribunal, testing credibility before it, but is what a reasonable Mr Sloane would make of this material. In our judgment, with the material Mr Dunn put before him and tested before Mr Sloane in his original and second stage appeal hearing, it cannot be said that the decision was outside the band of reasonable responses.
26. This Tribunal condemned the Respondent because of its failure to carry out the step, required by British Home Stores, of a reasonable investigation. It was right for the Employment Tribunal to consider what the deficiencies were and to see whether a proper procedure would have rectified them. But in our judgment, the defects identified are not such. The Wakefield material did lead in a straight line. Albeit wayward at various stages, it began with a criticism of the Claimant for being aggressive and ended with it. So, the Wakefield material required no further investigation. The failure to produce the witness statements was not, as we understand it, a sustained objection by the representative of the Claimant at the Sloane inquiry. But in any event, the gist of the material was made plain in the detailed statement of Mr Dunn in his report. So there was no defect in the investigation. That being so, the basis for the finding by the Tribunal that there was a breach of duty to conduct a reasonable investigation must fail.
27. The passage in paragraph 22 cited above indicates, in our judgment, the Tribunal seeking to apply the objective standard. Mr Sharland did not resist our point that the final sentence of paragraph 23 does reflect an objective standard. That means that it is open to us to look objectively ourselves at what would fall to be considered. The Tribunal was wrong, as a matter of analysis, to hold that the case of the three others was on all-fours with the Claimant's. He had a warning and he was aggressive; those are differences. Mr Sloane was entitled so to treat it and to dismiss him in those circumstances.
28. In our judgment, the Employment Tribunal did substitute its own judgment for that of the Respondent. For applying the reasonable objective standard, it could not have held that the case was on all-fours with the other partygoers.
29. A trace of that individual approach is found paragraph 22. Mr Sharland says, "What right does the Tribunal have to get involved in the credibility of a witness like Mr Hopkins?" This is a reflection of what Mummery LJ said in London Ambulance Service: that a person may appear credible or incredible to the Employment Tribunal does not solve the problem. It is, "How does material appear, or could it reasonably appear, to the dismissing member of management?" The Tribunal finding that Mr Hopkins was not credible does not assist in that process. In any event, certain aspects of this criticism do not hold water. Mr Hopkins was not a credible witness in its judgment because he had said the Claimant was drunk, but then so did Mr Wakefield in his almost contemporaneous email. Mr Hopkins said the Claimant had been aggressive from the start. Well, he certainly was aggressive at the end and we hold that this is just as bad. He may not have been right about running towards Mr Phillips as if to assault him. But in any event, those were matters for Mr Sloane to consider. Mr Sloane had a report from an independent officer, Mr Dunn, who conducted a detailed investigation, as the Tribunal found. The decision could have gone either way, but it cannot be said to be outside of the band of reasonable responses. The Employment Tribunal, impermissibly, entered the arena and made its own decision.

Disposal

30. The appeal is allowed. We will set aside the Judgment. We are asked by the Appellant to make the decision ourselves and to substitute a judgment that this was not an unfair dismissal, alternatively to remit to a fresh Tribunal. Mr Ross Gray submits that if we were to be against him, it ought to go back to a different Tribunal.
31. We bear in mind that this case took three days, but the facts were principally agreed. On the material which is before us and which caused the cleavage in this case, only one answer is available. Since the finding was that the Claimant and the other three had cases on all-fours, and since that is demonstrably wrong, there is no need for another hearing. We have the material upon which it could only be decided that this was not an unfair dismissal. We think it expedient and fair to do this, and see no point in remitting this case for another hearing. We will substitute a judgment that this was not an unfair dismissal. It follows that the judgments on remedies are set aside too.