SUMMARY
STATUTORY DISCIPLINE AND
GRIEVANCE PROCEDURES – Impact on compensation
UNFAIR DISMISSAL - Compensation
Unfair
dismissal. Misconduct dismissal: excessive personal use of internet and email
and failure to carry out work allocated, employee having, three months earlier,
been disciplined for like conduct and received a written warning. Employee
admitted “charges” of misconduct and put forward in mitigation that he had had
previous problems with depression and that his health problems had increased at
the time his prohibited use of the internet had resumed.
Employers conceded that dismissal automatically unfair due to
their failure to communicate via their Step 1 letter that they were
contemplating dismissing the Claimant but sought both a Polkey
reduction and a reduction on account of the Claimant’s contribution to
his own dismissal. Employment Tribunal found that the dismissal would have
been unfair in any event because the third strand of the Burchell
test had not been complied with; the employers had failed to properly
investigate the import of an “internet usage” report and had failed to
investigate the employee’s health further – they had failed to investigate whether
his conduct could have been linked to his medical condition. As to
contribution, Tribunal found that Claimant had contributed to his own
dismissal by failing to carry out the work he was employed to do, by using the
internet excessively, by failing to take steps himself to obtain medical
assistance and by failing to alert his managers to the fact that he was in
difficulty; they fixed contribution at 15%. On appeal, Employment
Tribunal held to have misdirected itself. This being a case of admitted misconduct,
there was little scope for further investigation and in all the circumstances,
dismissal was plainly within the range of reasonable responses open to the Respondents.
It was not open to them to find that the third strand of Burchell
had not been met. Dismissal would, clearly, without the procedural failure,
have been on the agenda. There should, plainly, have been a substantial Polkey
reduction. Employers do not, in general, have a duty to investigate matters
advanced in mitigation. As to contribution, 15% was, in all the
circumstances, so low as to be perverse. Case remitted to Employment Tribunal
for a rehearing.
THE HONOURABLE LADY SMITH
Introduction
1.
This is an appeal from a judgment of the Employment Tribunal sitting at Dundee, Employment Judge Mr I McFatridge, registered on 25 May 2010, finding that the Claimant was automatically unfairly dismissed and awarding compensation
of Ł38,068.55.
2.
We will continue referring to parties as Claimant and Respondent.
3.
The Claimant represented himself before the Employment Tribunal and was
represented by Mr K Gibson, advocate, before us. The Respondent was
represented by Mr S Allison, solicitor, before the Tribunal and by
Mr D Cameron, advocate, before us.
4.
It was accepted by Mr Cameron, for the Respondent, that the
dismissal was automatically unfair on account of the fact that the
“Step 1” dismissal letter did not indicate that they were contemplating
dismissing the Claimant. The issues in the appeal were:
(a) Whether or not the Employment Tribunal erred in failing to make
a “Polkey” deduction on the ground that the Claimant would have
been dismissed fairly in any event?
(b)
Whether or not the Employment Tribunal erred in making a deduction of
only 15% in respect of contributory conduct?
Background
5.
The Claimant is a chartered accountant and was employed by the Respondent,
an energy company, between June 1998 and 25 February 2009, when he was dismissed. The Claimant worked in the Group Audit department prior to
October 2007. It was a highly pressured environment that involved working
to deadlines. He had a period of sickness absence of about seven months
between March and October 2007, due to depression, and when he returned to
work on 18 October it was felt that it would not be appropriate to return
to Group Audit, given the nature of the work. Instead, he was given business
review audit work, namely short concise pieces of work which involved the
auditing of specific business units. Each piece of work ought to have taken
about 20 working days to complete. His move to business review audit was
in the context of the Respondent’s Occupational Health Service having advised,
in October 2007, that the Claimant was fit to return to work on a “staged
return” basis.
6.
The Claimant completed his first business review audit but not within
20 days; he completed it in January 2008. He was given two further
such pieces of work, one for completion by the end of February 2008 and
one for completion by the end of June 2008. Neither of those pieces of
work were completed prior to his dismissal in February 2009.
7.
During 2008, the Claimant continued to have contact with medical
services. He attended his General Practitioner, received medication for
depression and attended cognitive behaviour therapy for about nine months. He
contacted Dr Snape of the Respondent’s Occupational Health Department on a
number of occasions. He met with him on 17 December 2008. Dr Snape’s report of that meeting indicated that he had requested a report from
the Claimant’s GP and that:
“In the meantime I can report that David has found the more
structured nature of his work helpful and the supervision he receives
beneficial. He admits that there have been a couple of learning points along
the way particularly with regard to ways of working and methodology but
nonetheless he believes he has coped with his workload recently.”
8.
By 22 January 2009, Dr Snape had received a report from the Claimant’s
GP together with copies of “relevant specialists’ letters” and he provided a
further report to the Respondent in the following terms:
“The report concludes that David has had a recurring depression
since 2006 and currently requires to take appropriate medication. The
letter from his specialists note that that they ‘have exhausted the options as regards
helping Mr Innes’ and they ‘could not justify referring him to the
Psychotherapy Service’. This is due to a lack of response on behalf of David
to his therapy which reflects his response to his work situation despite the
company’s efforts to assist him in this area.
I am therefore unable to offer further advice other than to
confirm that David should be capable of carrying out his role albeit with
certain allowances being made for his condition such that he achieves a
reasonable standard of work on a consistent basis. Unfortunately despite the
best efforts of all concerned to help him achieve this he hasn’t responded and
continues to avoid the issues despite the obvious resultant problems.”
9.
The other medical report that was available to the Respondent at the
time of the Claimant’s dismissal was a report from his GP, Dr Foster,
dated 18 February 2009. It advised:
“David Innes has asked me to compile a report summarizing his
recent medical problems.
He has been attending the surgery intermittently since being
diagnosed with depression in April 2006. There have been multiple
significant life events which have been discussed over the last 12 months
or so including the birth of a new child in April 2008. I understand
there have been behavioural and health issues affecting his teenage daughter.
In March he informed that his father in Glasgow had cancer in his liver and he
subsequently died over the Christmas period. This obviously unsettled
Mr Innes. There are other compounding issues which are of a sensitive
nature. Mr Innes was the victim of previous abuse as a boy, the alleged
perpetrator of this abuse being an associate of Mr Innes’ father.
Memories of this abuse during Mr Innes’ father’s illness were
unfortunately rekindled and have had an unsettling effect. Mr Innes has
at times mentioned to me some stress related to the work situation.
After the death of his father when I saw him on 8 January
he reported that he did not require further time off work and was keen to try
and proceed with work and address his problems.
He has received regular prescriptions for Sertraline
150mg daily, an antidepressant medication, in addition to Diazepam 5mg as
required.
Mr Innes has had his final psychology assessment in
October 2008 with “very little if any success”. I believe Mr Innes
has contacted Mindspace in Perth regarding ongoing counselling/support.
I last saw Mr Innes on 18 February when he appeared
quite unsettled regarding his work situation. A letter was requested by him as
confirmation of recent discussions with me as his General Practitioner.”
10.
The background to the Claimant requesting that letter from his GP was
that he had been called to a disciplinary hearing fixed for 20 February 2009. The “charges” he was facing were set out in a letter dated 2 February 2009:
“….
It is alleged that
·
On timesheets for weeks commencing 5,12 and 19 January 2009 there are a large number of hours allocated to unproductive work,
you failed to allocate time correctly on your timesheets
·
There are unexplained absences from your desk during week
commencing 26 January 2009
·
That you have been accessing the company internet facilities for
personal use (examples cover 5-30 January 2009).
·
Using the company’s email system for personal mail (example,
25 November to 29 January 2009).
·
You failed to display your company ID badge and failed to follow
the company procedures for PAC access on 29 January 2009.”
11.
That was not the first time that the Claimant had been disciplined in
relation to both his failure to carry out his work and his internet use. By
October 2008, there were concerns that he was not carrying out work that
had been allocated to him, about there being a substantial number of occasions
when he was absent from his desk and about him using the internet excessively. Ms Upperton,
of HR, investigated matters. She obtained a written report of his web usage.
She met with the Claimant and he confirmed he had not submitted any work since
August 2008. He also acknowledged that his use of the internet was in
breach of the Respondent’s IT policy. She discussed the web usage report with
Mr Sergeant of the IT department. He explained that the number of ‘hits’
shown did not relate directly to user activity since allowance had to be made
for sites with multiple components and those with “pop-ups” etc. However, the
variety and number of accesses and range of categories in the usage report
were, in his view, higher than was usual or to be expected. On 11 November 2008, the Claimant attended a disciplinary hearing at which he admitted
the following charges:
·
“You have failed to perform duties as directed by your manager
that you could reasonably be asked to perform. The duties had been assigned
and explained in an unambiguous way which you had the capabilities to perform.
·
You made excessive of the work internet access for non-business
purposes with consequence that your attendance hours were spent on non-business
related activities.”
12.
In light of those admissions, the Claimant received a formal warning;
Ms Reeves, Head of Corporate Relations, wrote to him by letter of
14 November 2008 advising:
“In view of this, and as I advised you at the end of the
interview, I confirm my decision to give you a formal warning that any further
misconduct on your part during the currency of this warning will result in
further formal disciplinary action being taken against you which may result in
your dismissal. A copy of this letter will be placed on our personal file but
unless you receive any further written warning during this period it will be
disregarded for disciplinary purposes after a period of 12 months.”
13.
Thereafter, according to the Tribunal’s findings at paragraph 32,
the Claimant “changed his practice and used the internet less than he had been
using it before.” Following a request for a note of evidence, the Employment
Judge provided further detail of the Claimant’s evidence on that matter (the
accuracy of which was not disputed). It showed that he stopped using the
internet for non-business matters after 14 November 2008 but that only lasted until the middle of December. He then began using it for non-
business purposes again.
14.
After the disciplinary hearing in November 2008, the Respondent
appointed Richard Nailor to provide specific support to the Claimant. He
carried on having difficulties in carrying out his work and advised
Mr Nailor of that, indicating that he appreciated that he was behind
schedule.
15.
For the weeks beginning 5, 12 and 19 January 2009, he allocated a substantial number of hours to “unproductive time”. Mr Nailor was
very concerned that the Claimant was not attaining “the simplest of tasks in
the most reasonable of time scales.”, as reported by him on 13 January 2009. At that time, there was also renewed concern about his internet
usage. The Respondent’s Audrey Robertson investigated. She met with the Claimant
on 30 January 2009 when he admitted having submitted timesheets showing
“unproductive time”. His explanation was that he had gone into a type of
“shutdown” (not attributed by him to any particular causal factor) when he
could not do anything. Audrey Robertson also obtained an internet usage
report. When interviewed by Audrey Robertson, the Claimant’s position was
that he still accessed the internet but he did so via his own mobile phone
during his lunch break. The internet usage report indicated otherwise,
however. Her report was prefaced:
“Internet Usage – SSE Internet Account
I received a usage report of David’s Company internet account
from IT following the fact finding interview. The report covers period
5 Jan – 30 Jan 09. There were numerous non- business related sites
on the report ranging from shipping, holidays, travel, personal banking,
sporting and leisure activities plus various health-related sites.”
16.
A list of some 20 sites then follows and the report continues:
“The full report of internet usage by David using the Company
internet account is available as a separate document as there are over 25,000
lines on the Excel spreadsheet, making it impractical to paste into this
document. However, as an example of two days’ internet activity for
non-business related sites on David’s Company internet access, see report below
for 19 & 29 Jan 09.”
17.
There then follows a list of some 29 sites that were accessed
between 11.26 and 16.19 on 19 January and some 15 sites
that were accessed between 10.32 and 19.03 on 29 January.
Mr Gibson, for the Claimant, confirmed to us that the Claimant accepted
that he had accessed these sites as shown in Ms Robertson’s report. The
sites accessed include shopping websites (eg. Tesco, Amazon), the Scottish
Athletics website, the “justgiving” website, and the Ryanair website. The
Tribunal heard evidence from the Respondent’s Mr Bremner (Head of IT) who
explained (as had Mr Sergeant when advising Ms Cupperton) that not
every entry on the spreadsheet represented a separate click of the mouse. What
does, however, appear to be clear is that, whatever his initial position when
interviewed by Ms Robertson, the Claimant did access the internet via the Respondent’s
system during working time and did so to a degree that was of some substance.
Indeed, in the course of the disciplinary hearing on 20 February, he
accepted that he should not have been acting as he did so far as his use of the
internet at work was concerned.
18.
The disciplinary hearing was chaired by Mr Pratt, to whom
Audrey Robertson’s report was provided. He did not appreciate that each
line of the spreadsheet showing the Claimant’s internet usage was not
representative of a separate click of the mouse. He made no investigations in
that regard. He found three of the allegations to have been established and
decided that the Claimant should be dismissed. By letter dated 25 February 2009, the Claimant was advised:
“(1) On timesheets for weeks commencing 5,12 and 19 January 2009 there were a large number of hours allocated to unproductive work;
you failed to allocate time correctly on your timesheets.
(2) That you have been accessing the company internet
facilities for personal use (examples cover 5 to 30 January 2009).
(3) Using the company email system for personal emails
(examples cover 25 November to 29 January 2009).
I considered your points in mitigation in terms of your current
health issues however I am satisfied that you have demonstrated to me that you
can function normally on non-related work activity during your working day and
that you have made a conscious decision to use the company internet and email
system for personal use during the working day even after receiving a formal
disciplinary in November 2008 for the same.”
19.
The Claimant appealed. He accepted that the three allegations were made
out (as was confirmed by Mr Gibson before us) but submitted that the
penalty imposed was harsh because of the “prevailing circumstances” which were
said to be that the period of unproductive work commenced four days after his
father’s funeral, that he had had problems with depression over the last couple
of years, that Dr Snape’s letter of 22 January did not cover a period
during which his health problems had increased and the medical information in
his GP’s report of 18 February 2009 showed that a lesser penalty was
called for (see: notes of appeal hearing at p.84 of the Appeal bundle).
His appeal, which was heard by Mr Mathieson (whose understanding of the
limitations of the internet usage report was somewhat better than
Mr Pratt’s and was that there was a significant amount of excessive use –
it was not suggested by Mr Gibson that that was not a view that he was
entitled to hold) was not successful. Mr Mathieson’s approach was that
the Claimant had deliberately chosen to act as he did, that if he was capable
of using the internet and emails then he was capable of working, that the Respondent
had done all that they could reasonably be required to do so far as accommodating
him was concerned, that nothing in the GP’s letter of 18 February was
relevant and he had had regard to Dr Snape’s opinion.
20.
The Employment Tribunal made no findings in fact regarding what would
have been concluded if Mr Pratt and/or Mr Mathieson had made
enquiries into the detail of what was shown by the internet usage report. That
said, there seems no doubt that at the very least, the conclusion would have
been that there had been non- business internet usage by the Claimant of some
substance and certainly not merely de minimis. The record for 19
and 29 January 2009 alone is indicative that that was the case.
21.
Nor does the Employment Tribunal make any findings as to what, if
anything, might have been found if further investigation had been made of
Dr Snape and/or the Claimant’s GP and/or any of the other specialists
involved in his care.
The Tribunal’s reasons
22.
The Tribunal found that even if the dismissal had not been automatically
unfair, they could not have concluded that there was any chance of the Claimant
being fairly dismissed in any event. That was, they said, because the third
stage of the requisite Burchell steps had not been complied with:
“93. In the view of the Tribunal there was a clear failure by
the respondents to meet the third strand of the Burchell test. There
had in the view of the Tribunal been a failure by the employers to properly
investigate the matter.”
23.
Also, at the end of paragraph 101, they state:
“The obligation the law places on them … is to properly
investigate.”
24.
In that regard, they found that there was a twofold failure to
investigate. On the one hand, Mr Pratt and Mr Mathieson should have
obtained advice as to the meaning of the internet usage report. On the other
hand, they should have investigated the Claimant’s state of health,
particularly whether the Claimant’s actions “could in any way be linked to his
medical condition or to the fact that his father had just died.” (paragraph 101).
At paragraph 98, in the course of explaining why they found that the third
strand of Burchell had not been complied with, they state:
“98. The more important failure so far as the Tribunal was
concerned related to the complete failure by either Mr Pratt or
Mr Mathieson to engage in any way with the claimant’s primary defence
which was based on his state of health at the time. The situation was that the
claimant had been off sick with depression for a period of eight months
in 2007. He had undergone a phased return to work and certain adjustments
had been made to the work he had been doing. There were clearly still major
problems in this regard. The claimant was suffering from a depressive illness
and had been taking strong drugs for a considerable period of time. The
primary event which led up to him coming to a disciplinary hearing had started
on his return to work a few days after his father died.”
25.
We would observe that the only medical basis the Tribunal had for
drawing any conclusions about the Claimant’s state of health as at
20 February 2009 was his GP’s report of 18 February 2009, to which we
have already made reference. Contrary to what is suggested by the Tribunal in
paragraph 98 above, the Claimant was not diagnosed as suffering from
depression at that time, nothing is said about the strength of the drugs which
he had been prescribed (or indeed about whether he was taking any drugs as at
18 February 2009), it is not stated that the Claimant was suffering “major
problems” at that time and the GP refers only to the Claimant being “unsettled”
and “quite unsettled”, which were manifestly not diagnoses of specific illness.
26.
The Tribunal summarise their reasoning in paragraph 102 where,
having reiterated that they did not consider that the Claimant would have been
fairly dismissed absent the procedural failing, they state:
“If an investigation had been carried out which fell within the
band of reasonableness then the respondents would have had to investigate
exactly what the respondents’ policy on internet and email usage so far as
directed against someone in the claimant’s position actually was, the actual
amount of such internet usage and the extent if any to which it fell outwith
the policy and most importantly whether the claimant’s medical condition had
influenced his actings. Had they done so it was the view of the Tribunal that
there was no chance that the claimant would have been fairly dismissed.”
27.
We observe that, at this point, the Tribunal’s concern does not appear
to have been a failure to investigate further the meaning and import of the
internet usage report but, rather, the implications for the Claimant of the Respondent’s
internet policy. However, more importantly, the Tribunal does not explain why
more needed to be known about the Respondent’s internet policy nothwithstanding
the Claimant’s admissions of the charges against him. Further, the Tribunal
makes no findings as to what would have been concluded concerning the causal
link between the Claimant’s health and his misconduct about which they
speculate.
28.
Turning to the matter of contribution, the Employment Tribunal found
that the Claimant had contributed to his own dismissal. They concluded:
“113. The Tribunal considered that the claimant’s dismissal had
to some extent been contributed to by his actions. By his own admission the
claimant was not carrying out the work he was paid to do. He was sitting at
his desk in what he termed “shutdown mode”. He was using the internet in a
manner which he accepted was more than he should be. The Tribunal consider
that although the claimant had taken some steps to alert his managers to the
difficulties he was facing he had not followed this through or dealt with
matters properly. It must have been clear to the claimant that he was in need
of help. The respondents’ HR advisor Ms McDonald accepted that with
hindsight the fact that the claimant filled in his timesheet using the words
‘unproductive time’ could perhaps be categorised as a cry for help. This was
not the way the claimant should have done it. The claimant ought to have taken
greater steps himself to seek appropriate medical help and indeed to take
sickness/bereavement absence. Although the Tribunal considered that the
claimant had been at fault in the way he had dealt with the matter, the
Tribunal considered that the reduction for this should be relatively modest and
assessed the reduction for contribution at 15%.”
29.
Thus, although the Tribunal were critical of the Respondent for failing
to engage with the Claimant regarding his state of health as at 20 February 2009, they were also critical of the Claimant for not having done so.
They do not explain why the Respondent should bear so much more of the
responsibility in that regard than the Claimant – their assessment of his
contribution for that and his other failures as amounting to only 15% in
total are indicative of that being their approach.
The appeal
30.
Mr Cameron submitted that the Tribunal had reached a conclusion
which was not open to them on the facts found and had substituted their own
view for that of the reasonable employer. The test for perversity set out in Yeboah
v Crofton [2002] IRLR 634 was met. Further, it was plain that the
Tribunal had substituted its own views for that of the reasonable employer.
There were two aspects to the submission (a) the Tribunal was, on the
facts, bound to make a “Polkey” deduction but failed to do
so, and (b) the Tribunal’s percentage assessment of the Claimant’s
contribution to his own dismissal was so low as to be perverse.
31.
Mr Cameron submitted that it was evident that the Tribunal had
misdirected itself in its application of the Burchell test and
that was the source of their failure to make any Polkey deduction,
a course which was still open to them notwithstanding the finding of
automatically unfair dismissal: Jury’s Inn Group v Tatarova
UKEAT/0295/10. This was a misconduct dismissal. The
investigation that was required for Burchell purposes was
investigation into the question of whether or not the Claimant was guilty of
the charges brought. This being a case where the Claimant admitted the charges
of misconduct which were, on both occasions, found to have been established,
there was little scope for further investigation; the burden on the employer
was lightened - Royal Society for the Protection of Birds v Croucher
[1984] ICR 604 - but the Tribunal had failed to recognise that.
The Claimant’s reference to his health was a matter of mitigation but when it
came to the application of s.98(4) of the Employment Rights Act 1996
(“the 1996 Act”), an employer did not have a duty to investigate
matters advanced by an employee in mitigation. The Respondent had had due
regard to what was put forward by the Claimant in respect of his health. So
far as the internet usage report was concerned, even if there had been further
investigation, it was clear that the conclusion would still have been fairly
drawn that the Claimant’s use had been excessive. Mr Cameron submitted
that the Tribunal had taken the two matters in respect of which they had
criticisms and shoehorned them into the third strand of the Burchell
test but they were wrong to do so. Further, the Tribunal had failed to take
account of the fact that the Claimant was dismissed not only for his misconduct
vis a vis his use of the internet and email but also for his failure to carry
out his work.
32.
As to the medical evidence, the report from the Claimant’s GP of 18 February 2009 did not suggest that he was not fit for work. Dr Snape had
found him fit for work. The Claimant appeared at the disciplinary hearing and
there was no suggestion made by him or his representative that he was not fit
to do so. In all the circumstances, it was entirely reasonable for the Respondent
to approach matters so far as the Claimant’s health was concerned, in the way
that they did namely to have regard to it but to decide that it should not be
accorded such weight as to elide dismissal. Further, there were no findings by
the Tribunal of what would have been discovered had there been more
investigation into the Claimant’s state of health. The implication of the
Tribunal’s approach was that information would have been forthcoming that would
have shown that the Claimant was ill and, in particular, that his illness was
responsible for his misconduct. There was, however, no material before them
that provided a basis for any such inference to be drawn. Mr Cameron
observed that this was not a case of dismissal for lack of capability; it was
possible that the Employment Tribunal had erroneously approached matters as
though it was.
33.
Mr Cameron submitted that there was a near certainty that without
the procedural unfairness that occurred, the Claimant would have been fairly
dismissed. A reduction by 100% or something close to that ought to have
been made.
34.
Turning to the matter of contribution, Mr Cameron referred to Ingram
v Bristol Street Parts UKEAT/0601/06 for a submission that a finding of
automatically unfair dismissal did not preclude a reduction in compensation to
allow for an employee’s contribution to his own dismissal even to the extent
of 100%. Here, there should, he submitted, have been such a reduction.
At the very least it should have been a reduction by 75%. The Claimant’s
understanding of the Respondent’s internet usage policy was that only limited
personal use and use so as not to interfere with normal work was allowed. He
had, nonetheless, admittedly engaged in excessive use. He had been warned. He
did not heed the warning. He was disciplined for the same misconduct in
February 2009 as he had been disciplined for in November i.e. internet use
interfering with his work and not carrying out work that he should have been
carrying out. This was a conscious decision on his part and a decision which
was taken in the face of the specific warning that he had received. There was
a wide base of conduct which caused his dismissal – he was not carrying out the
work he was employed to do and he was acting in breach of company rules and the
warning he had received. When it came to his appeal, he did not appeal against
the findings of misconduct; his appeal was against the sanction imposed. In
all the circumstances, for the Employment Tribunal to have assessed
contribution at only 15% was irrational.
35.
For the Claimant, Mr Gibson accepted that there were no findings
nor material on which findings could have been made about what would have been
the outcome of any further investigation into the Claimant’s state of health.
That said, his GP’s letter referred to various difficulties in the Claimant’s
life and showed that he was not healthy. The Claimant raised the issue of his
health in mitigation and since an employer has, he submitted, a duty to
investigate matters raised in mitigation, the Respondent had a duty to make
further investigations in that regard. He referred to no authority in support
of that proposition.
36.
Mr Gibson explained that the Claimant’s position was that although
he admitted deliberate and excessive use of the internet and emails (both so as
to interfere with his work), his culpability was not as high as a healthy
person. The Tribunal’s conclusion was open to them. If matters had been
properly appreciated by the Respondent, that is how his misconduct would have
been viewed. Mr Gibson went on to submit that if the Respondent had made
investigations about the internet usage report, they would have found that the
report was questionable and of very little value – he did not point to any
finding in fact in support of that submission but relied, rather, on the
findings of the lack of investigation and that not every one of the
27,000 separate entries amounted to a separate click of the mouse.
Mr Gibson did, however, ultimately seem to accept that the examples
for 19 and 29 January 2009 referred to in Audrey Robertson’s
report showed accessing of non-business websites that was of some substance and
which took place over significant periods during the working day.
37.
Regarding contribution, Mr Gibson submitted that the Employment
Tribunal must have had in mind that the policy was that the Claimant could use
the internet for limited personal use so long as it did not interfere with his
work, that they must have had in mind that there was an extant warning at the
time of the disciplinary hearing in February 2009, that he had resumed his
prior use of the interest and that they must have proceeded on the basis that
his use of the internet in that way was caused by his ill health. Matters had,
he submitted, to be looked at in the round. He accepted that there was no
evidence before the Tribunal which entitled them to conclude there was a causal
connection between his ill health and his accessing the internet in breach of
the Respondent’s policies and the warning he had received. However, his
admissions had to be taken in the context of his ill health. Then, whilst it
was accepted that he did not challenge the findings of misconduct at his
appeal, the Tribunal were entitled to view that in the context of his ill
health. It was in the best position to make the findings in fact, they were
fair minded, thorough and had put weight on what they considered were the
important factors. Whilst it was accepted that the assessment of contribution
was very low, it was not outwith the band available to them.
Relevant law
38.
It was common ground that notwithstanding the occurrence of an
automatically unfair dismissal, if there was a chance that a fair dismissal
would have taken place had the correct procedure been followed, Polkey
applies and an Employment Tribunal then requires to consider whether any
percentage reduction in compensation to allow for that possibility should be
made under s.123(1) of the Employment Rights Act 1996.
39.
It was accepted by the Claimant and by the Employment Tribunal that the Respondent’s
reason for dismissing the Claimant “related to his conduct” (Employment Rights
Act s.98(2)(b)). Misconduct is a potentially fair reason which
opens the door to the possibility of a conclusion of fair dismissal and care
requires to be taken to examine the means by which the employer has reached his
conclusion that the claimant did do that which he is said to have done. It is
necessary to ask whether the employer’s belief that the employee carried out
the acts alleged was a reasonable one. As explained in Burchell,
answering that question involves three elements namely first, the employer has
to establish the fact of that belief; secondly, the Tribunal has to be
satisfied that the employer had reasonable grounds for the belief and thirdly,
at the point when the employer formed his belief, he had to have carried out a
reasonable investigation. However, where an employee admits the alleged
misconduct it is difficult to see that there will be any requirement for
further investigation. In every case, making enquiry of the employee himself
regarding an allegation of misconduct is likely to be a sensible first step in
a reasonable investigation and if that enquiry bears fruit in the form of
relevant admissions by the employee, there cannot be anything further to find
out so far as concerns the issue of whether or not it was reasonable for the
employer to believe that the employee was guilty of the misconduct alleged.
Hence the observations in the case of RSPB v Croucher at p.611 –
612:
“The Burchell case, it will be remembered, was a case
which concerned instances in which there has been a suspicion or belief of the
employee’s misconduct entertained by the employers. Here there was no question
of suspicion or of questioned belief: there (sic) the dishonest conduct
was admitted. There was very little scope, therefore, for the kind of
investigation to which this appeal tribunal was referring in Burchell’s case;
investigation, that is to say, designed to confirm suspicion or clear up doubt
as to whether or not a particular act of misconduct has occurred.”
40.
Had this been a case of dismissal for reasons relating to the Claimant’s
capability – on health grounds - for performing work of the kind for which he
was employed (s.98(2)(a) of the 1996 Act), it would have been
incumbent on the employer, before reaching any such conclusion, to take
reasonable steps to find out what was the true medical position (see: e.g. Spencer
v Paragon Wallpapers [1977] ICR 301; East Lindsey District
Council v G E Daubney [1977] IRLR 1810). That is, it would have
been incumbent on the employer to carry out a reasonable investigation into the
nature and import of whatever ill health of the Claimant was being founded on
as rendering him incapable of carrying out his work. This was not, however,
such a case. It was a case of dismissal for misconduct.
41.
As regards contribution, s.123(6) of the 1996 Act provides:
“Where the tribunal finds that the 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.”
42.
As explained in Ingram v Bristol Street Parts, reduction
for contribution is not excluded by reason of the dismissal being automatically
unfair.
Discussion and decision
43.
The reason why the Employment Tribunal found that the dismissal would,
in the absence of the procedural failure, still have been unfair was, as they
put it, that “there was a clear failure to meet the third strand of the Burchell
test.” However, as we explain above, this was a case where the Claimant had
admitted the charges which were found to have been established. Further, he
did so in circumstances where the misconduct which he admitted was a repeat of
the misconduct in respect of which he had received a written warning only three
months or so earlier. We are satisfied that not only was there “little scope” (to
use the language of this Tribunal in the RSPB v Croucher case)
for further investigation for the purposes of the third strand of Burchell
but there was no such scope. The Respondent was plainly entitled to
conclude that the Claimant had acted as alleged and admitted by him. We accept
the submission that the Tribunal erred and were not entitled to find as they
did on this matter which was, of course, highly relevant to the issue of
whether or not there should be a Polkey reduction.
44.
We note that the mainstay of the Tribunal’s concerns was that if there
had been more inquiry into the Claimant’s state of health, it might have been
discovered that there was some causal link between it and his conduct. Whilst
an employer is likely to be in difficulty where the reason for dismissal is
capability if he has not carried out a reasonable investigation into the
employee’s state of health, as discussed above, it is not an issue which would
normally arise in the case of a misconduct dismissal. It might, we suppose, be
relevant if the employee refutes responsibility for his actions on the grounds
of, say, automatism but nothing of that sort was advanced in this case. The Claimant
accepted that he was responsible for his actions. We can see that it may be,
as was suggested by Mr Cameron, that the cause of the Tribunal’s error was
that their mindset was that which would be applicable in the case of a
capability dismissal but if that is correct, it was the wrong mindset for this
case.
45.
What the Tribunal here was required but, we are satisfied, failed to do,
so far as the Polkey issue was concerned was to approach matters
on the basis that the Respondent held a reasonable belief that the Claimant had
misconducted himself in the three respects alleged and admitted and then ask
whether, in all the circumstances, including the prior history of the Claimant’s
excessive internet use and failure to do his work, the fact of the written
warning, the conscious resumption of excessive internet use within about a
month of receipt of that warning, his persistent failure to carry out the work
required of him, Dr Snape’s assessments, his GP’s report of
18 February 2009 and the Claimant’s own “plea in mitigation”, dismissal
for the misconduct which had recurred after the written warning and which was
admitted in February 2009 would have been within the range of reasonable
responses.
46.
So far as contribution was concerned, we note that the circumstances
were that, on the findings in fact, the only work that the Claimant had been
given in 2008 was two business review audits which should each have taken
some 20 days to complete but neither of these pieces of work had been
completed at the time of his dismissal which followed a period of three weeks
in January 2009 when he had allocated a large number of hours to
“unproductive work”. As at 31 October 2008, he had admitted that he had
failed to perform duties which he “could reasonably be asked to perform” and
which he had the ability to perform. Although he attributed his “non
productive” hours in the weeks of 5, 12, and 19 January 2009 to
periods when he was going into a kind of “shutdown” following the death of his
father, he told his GP, on 8 January, that he did not need time off work,
and the list of his accessing some 29 websites on 19 January is
indicative of his being able to function normally during a substantial part of
that day at least. As the Tribunal observed, at paragraph 113, he was
“not carrying out the work he was paid to do” and they were satisfied that he
had thus contributed to his own dismissal. It is implicit in that finding that
they were satisfied that these were conscious and deliberate failings on the Claimant’s
part. The Tribunal also found that the Claimant had failed to take steps
himself to address the difficulties he said he was experiencing; again at
paragraph 113, they are critical of him in that regard. These criticisms
go to the heart of those matters which brought about the Claimant’s dismissal.
We do not accept Mr Gibson’s submission that the Tribunal must have been
regarding the Claimant’s contributory conduct as being caused by his ill health
because there was no evidence on which they could have made a finding of there
being such a causal link and, in any event, they made no such finding (it was
not even open to them, given the absence of any contemporaneous diagnosis of
illness by his GP, to find that he was suffering any specific illness at that
time). In all the circumstances, we accept Mr Cameron’s submission; the
reduction for contribution made by the Employment Tribunal was so low as to be
perverse. The facts all pointed to the appropriate reduction being a
substantial one.
Disposal
47.
The case will require to be remitted for a rehearing on the issue of
(a) whether or not the circumstances were such as justify a Polkey
reduction in the compensatory award and if so, to what extent; and
(b) what reduction ought to be made for the Claimant’s contribution to his
own dismissal. Mr Cameron submitted that the remit should be to a freshly
constituted Tribunal and we agree that that would be appropriate.
Mr Gibson did not suggest otherwise.
