United Kingdom Employment Appeal Tribunal

Factual background

Arriva Trains Wales v Miss F Conant

Yellow Pages Sales Ltd v Mr R Walsh

Mrs S Harber v Kelly Residential Limited

The relevant law

“(1)  In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a)  the reason (or, if more than one, the principal reason) for the dismissal, and

(b)  that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)  A reason falls within this subsection if it—

(b)  relates to the conduct of the employee,

(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 reasons 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.”

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.” 

“… The Tribunal was obliged to avoid ‘substitution’ – that is, to ask not whether it would itself have been content with the account given by Mr Kottler and Ms Gadd but whether it was reasonable for Mr Mulholland [the disciplinary officer] to be.  But we likewise must avoid substituting our own view of what it was reasonable for Mr Mulholland to do as long as the Tribunal’s view was a tenable one on the evidence before it.  We are, however, entitled to look behind the fact that the Tribunal ostensibly directed itself directly, as this Tribunal did: as Mummery LJ observes in Fuller, at para. 30, it is not unknown for tribunals to state the correct approach but then overlook or misapply it at the point of decision.”

At paragraph 26 the judgment continued:

“… In para. 15 of the Reasons, where the Tribunal discusses the evidence of Mr Kottler and Ms Gadd, it uses the tell-tale phrases ‘unconvincing in our view’ and ‘in our view unconvincing’.  We accept that those phrases are not necessarily evidence of substitution: even a tribunal doing its proper job has to form views about the evidence.  But in this case we believe that they betray a lapse from the proper approach.  It was for Mr Mulholland, who had the advantage of hearing Ms Gadd’s evidence live, to decide whether it was suspiciously evasive.  He did not think that it was, and for the reasons already given (see para. 22 above) we believe that that conclusion was (to put it no higher) reasonable.”

i)                the Claimant had told them that she had correctly sealed the cash bag;

ii)              witnesses had told them that the cash bag was sealed on their handling of the bag;

iii)            they had received no indication from Loomis that the cash bag had been tampered with in any way;

iv)            the cash bag had some £20 notes wrapped in an elastic band; if the cash bag had been tampered with only some of the £20 notes had been removed and not all of those notes, and the elastic band had been replaced.  Further the coins remained the same as recorded by the Claimant when the bag was opened which did not suggest that the £20 notes had inadvertently gone missing;

v)              the discrepancies in the statements taken from witnesses were not of significance when considering whether the bag had been tampered with;

vi)            the CCTV evidence does nothing to establish that the cash bag was tampered with. 

“The majority consider that a reasonable employer would have conducted further interviews with both Julie Sanderson and Sarah Pritchard, confronting Julie Sanderson with her own earlier account and that of Sarah Pritchard, and confronting Sarah Pritchard with both accounts of Julie Sanderson, in order to test the version of events that they had given.”

“…explained to Julie that she was not being suspended primarily because of evidence from Loomis which was not disclosed to her.  This is due to Loomis destroying Fran Conant’s revenue bag which could have been viewed to see if anything untoward had happened to it.”

At the end of the interview Mr Howe “thanked [Julie Sanderson] for her honesty”. 

“I booked on at 06.00 a.m.  Sarah Pritchard arrived next and then Fran Connant about 20 minutes later.  I emptied the first three TVM’s then the safe.  I got the accounts bags out of the safe.  I put the data bags in a plastic bag for Maureen Mills ready for her to collect and take over to St. Mary’s House.  I put the bag ready by window 1 and 2 for her to collect at approximately 07.30 a.m. 

There were three cash bags left.  Mine, FC and Ceri Goode’s from the Sunday Shift.  I took the bags to the Supervisor’s office with a Loomis outer bag.  I was on my own in the office.  All the cash bags were sealed.  I checked that the amount of the yellow copy of the shift sheet matched the amount on the ladder list on the computer.  Nothing was untoward.  I put the bags in the outer Loomis bag.  Sarah Pritchard took them all out again and double checked in front of me that they were all there.  She put them all back in the bag and sealed it.  [Emphasis added].  I cannot recall whether I stayed in the office while SP sealed the outer bag.  …”

At the earlier interview Julie Sanderson had said:

“I …placed the revenue bags in the Loomis collection bag and sealed it using the rip-off seal.” (Emphasis added).

“Did you see [Julie Sanderson] seal the outer bag?”

She replied:

“No.  I did not see her put the bag in the transfer box.”

This, Mr Smith suggests, and we agree, was a strange question as only a few minutes earlier Ms Sanderson had told Mr Cresswell that Sarah Pritchard had sealed the outer Loomis bag. 

“[Arriva Trains] could not properly conclude, on the basis of probabilities, that no other person, who had been involved in dealing with the cash bag, had removed monies rather than the Claimant.” (Para 31.2); and

“there were sufficient important discrepancies in the accounts given by Julie Sanderson, in comparison with, both other accounts given by herself, and those given by Sarah Pritchard, as to the start of the Monday morning’s work, so as to put a reasonable employer on notice that further investigation was necessary.”  (Para 32.3, and see paras 32.4-32.7). 

Yellow Pages Sales Ltd v Mr R Walsh

“In summary, I found that you have failed in your capacity as a Telesales Manager to exercise appropriate judgment, act responsibly and take all appropriate and reasonable steps to ensure compliance to the credit check policy and high risk policy. 

Specifically, you have failed to

·        Take appropriate action, based on information available to you, with regards to 21 accounts, passed to you via e-mail either from credit assessment or customer services teams. 

·        Take appropriate action with your consultants, specifically

*  In the creation of either low risk classifications and booked into high risk classifications or

*  Where consultants have booked customers into low risk classifications when advert copy dictated high risk classifications. 

It is my belief that, on the balance of probability, you could not have failed to see an emerging pattern and that you chose not to have the necessary meetings with your consultants nor act upon the findings presented to you.  As a result of this, you and your team would have or did gain both performance recognition and bonus payments against these accounts. 

Your actions have meant that you have failed to protect the best interests of Yell, which is a serious breach of the Code of Practice and that you have been wilfully negligent in carrying out your work responsibilities which is a breach of the Code of Conduct. 

It was therefore my decision that you were summarily dismissed for gross misconduct.”

“Certain acts of misconduct may be so serious that they destroy the employment contract between Yell and the individual and make any further working relationship and trust impossible.  When, at the end of the disciplinary process, the working relationship and trust has been adversely affected, the normal consequence will be Summary Dismissal (i.e. dismissal without notice) unless there are mitigating circumstances.  The following are types of gross misconduct that Yell will not tolerate and which will result in summary dismissal (this list is not exhaustive): 

·        Gross negligence in carrying out work responsibilities”

“One of the members of the Tribunal asked Michelle Johnson whether she had considered alternative sanctions rather than dismissal for the Claimant?  She said that she had considered the possibility of demoting him to a sales role but in her opinion he was knowingly and willingly negligent so this was not a retraining issue.  He had ignored breaches of company policy.”

The Code of Conduct makes no reference to “wilful negligence”. 

i)                the Claimant had been grossly negligent in carrying out his work responsibilities; and

ii)              if he had, whether his dismissal was fair in all the circumstances. 

“79.  The dismissal letter finds the Claimant to have been ‘wilfully’ negligent in carrying out his work responsibilities.  On the basis that ‘wilful’ requires an intention to act in a particular way, we take the view that the Claimant was not wilful and we do not find that there was any dishonest intention on his part. 

80.  The examples of gross misconduct in the Respondent’s disciplinary procedure include ‘gross negligence in carrying out work responsibilities’.  The wing members of the Tribunal take the view that the Claimant was negligent but that he was not grossly negligent.  Given the lack of a job description for the Claimant, the lack of any management training of the Claimant, the fact that matters were under investigation for 12 months with no opportunity given to the Claimant to rectify matters, taking into account the previous good record of the Claimant and the fact he was doing extra work in the interests of the company at the time in question lead the wing members to the conclusion that the employer could not have reached a reasonable belief that the Claimant was guilty of gross negligence in carrying out his work responsibilities.  They therefore conclude that the dismissal was unfair on this basis.  They would also conclude that even if the Claimant had been grossly negligent then for the reasons set out above the decision to dismiss was not within the band of reasonable responses.  Dismissal was too severe given the surrounding circumstances and the Claimant’s previous clean disciplinary record.

81.  The Employment Judge takes the view that the dismissal was fair.  Whilst agreeing with the members that the Claimant was not wilfully grossly negligent in carrying out his work responsibilities, the Judge takes the view that the Claimant did not have to be wilful.  It is sufficient if he was grossly negligent.  It is for the employer to come to a conclusion on this based upon the knowledge of the employer’s disciplining managers as to what standards might reasonably be expected within the business.  The Employment Judge takes the view that Michelle Johnson did have a genuine, if over-stated, belief of gross negligence in carrying out work responsibilities and that this followed a reasonable investigation where all relevant matters had been handed over to the Claimant for his perusal and consideration prior to a disciplinary hearing at which he had every opportunity to put forward his case. 

82.  Given that gross negligence comes within the examples of gross misconduct the Employment Judge takes the view that the decision to dismiss was in the circumstances reasonable and that the dismissal was fair.”

i)                Previous good record: conduct is either grossly negligent or not, based on an evaluation of that conduct against a standard set for the reasonable employee in the Claimant’s position.  What the Claimant had or had not done in the past is not relevant.  A previous good record goes, if at all, to the question of whether dismissal is a reasonable sanction. 

ii)              Doing extra work for the employer: the fact that the Claimant was doing extra work at the time may be an explanation for why the act of gross negligence occurred, but it is not relevant for the purposes of assessing the degree of negligence.  Again, if at all, this factor is relevant to the question as to whether dismissal was too harsh a sanction. 

iii)            No opportunity given to rectify matters in a twelve-month period: the Claimant’s case was not that he was not given an opportunity to rectify matters, but that he did what he considered was necessary.  However what he did was manifestly not sufficient to solve the problem. 

iv)            and  (v)  Lack of job description and training: these factors on their own could not make a decision by an employer that a negligent employee was grossly negligent be one which was outside the bands of reasonableness.  Whilst the tribunal accepted the Claimant’s evidence that he did not undertake an intensive training course, the Claimant was employed as a Telesales Manager and the tribunal concluded “that it would be for a manager to manage which includes being aware of company policies, the work done by his team and their methods of working” (para 7); and he had considerable experience of management within the company. 

i)                The Claimant did not undergo an intensive training course (para 6).

ii)              He was not provided with any job description (para 7).

iii)            Yellow Pages “Crystal Clear” policy states, “It remains the responsibility of our First Line Management team to ensure that this is effectively communicated to all staff and incorporated into the post-induction programme”.  The Claimant was a First Line Manager for the purposes of the policy.  He had trained his team (and indeed the entire Manchester office) on the policy.  However, it is the responsibility of the sales consultant to ensure that all orders processed meet the criteria and all customers have a verified intent to pay (para 12).

iv)            The Claimant was copied into correspondence by Credit Control and where he needed to ask his consultants to get checks or contact customers he did so.  The Claimant took the action he felt necessary by speaking to consultants (paras 15, 19, 24, 25, 29, 32, 34).  For example

“The Claimant accepted that high-risk copy for [a customer] was sold into low-risk and that there was a pattern.  The Claimant says he acknowledged there was an issue here and took action appropriately with the consultant and that this is clear from the notes.  Looking at the notes the Claimant says he was aware of the activities and that he spoke to the consultant who said he had done something inadvertently.  He told the consultant not to do it again.  Had it not been the first time then the Claimant would have taken action but he did not because this had been an error.  He thought his conversation with the consultant was appropriate and did not tell anyone about it because he had no-one directly to report to at that time.”  (Para 25, see also para 28). 

v)              The orders that were irregular form less than 1% of the total orders (para 31). 

vi)            There was no investigation into what actions the Claimant did or did not take (para 37). 

vii)          The Claimant had never been trained to perform quality checks (para 48). 

Further Mr Isaacs observes there is no challenge in the appeal to the unanimous finding of the ET that the Claimant was not wilful.

Mrs S Harber v Kelly Residential Limited

“The Appellant avers that … the tribunal failed to consider, or determine the alleged failure of the Respondent to investigate the possibility of an error of understanding based on an obscured observation by the eye witness or a mistake of interpretation/recollection by Ms Edwards.”

“8. Miss Bould concluded that the Claimant had completed a PR examination and had failed to document this.  She considered both to be gross misconduct.  The evidence on which she based her conclusions was set out in the witness statement of Andrea Thomas and Pauline Edwards.  Andrea said that:

‘On Thursday 25 December I was putting X to bed when I noticed there was blood on her pad.  I rang the assistance bell to which one of the other carers came down to answer it.  I asked her to get Suzanne for me and told her why.  Suzanne came to X room to have a look.  She put on some gloves, she put her finger up back passage to check if the blood was coming from there.  When she pulled her finger out it was covered with poo.  She said the blood wasn’t from there so she put some clean gloves on and told X that she was going to examine her front passage which she then put her finger in her front passage.  X flickered when this happened.  Suzanne then took her finger out and said there were no clots and so keep an eye on it.  I can’t tell how much blood was on the pad because it was mixed with urine.  Whilst this happened X was on her right side in the foetal position and I was in the room the whole time.  I honestly didn’t know at the time that what Suzanne did was wrong as she is a nurse and I believed that she knew what she was doing.’

9.  Pauline Edwards statement read as follows:

‘I was on duty with Suzanne Harber and we were discussing any problems that had arisen with residents whilst I hadn’t been here.  She mentioned that a carer had noticed blood on X pad and was not sure where it had come from.  She then stated she had done a PR examination on X to make sure it was not a PR bleed.’

10.  Jane Styles’ statement read as follows:

‘On December 26^th 2008 I was on duty.  At handover I was informed that a resident, X, had blood in her pad, could we keep an eye on her.  Later on in the morning I was asked by a carer had I heard what the nurse Suzanne had done to X.  No, I replied.  I was then told that Suzanne had put her finger up X bottom to check for blood clots, then changed her gloves and put her finger up the front.  I asked the carer has she informed anyone of this.  No, she replied.  I felt it was my duty to X that I report this incident so told Jane Ferriday, Deputy Matron when she came on duty on Saturday 27^th December 2008.’

11.  Miss Bould also took account of the fact that she was aware of the layout of the Home including the room and the position of the carer and the Claimant would have been in when concluding that she believed the carer’s account…  Miss Bould checked the cardex records and found that even on the Claimant’s explanation for what she had done, the records were inadequate.  She could see no reason for either the carer or Miss Edwards giving false information to her about the Claimant’s behaviour and chose to believe the accounts that they had given.  …”

“17.2 …[the Respondent] clearly believed the misconduct had occurred.  Did they have reasonable grounds on which to sustain that belief?  As explained above, there was no reason for them to believe that Andrea Thomas was either mistaken or lying.  The Claimant alleges she could not remember which carer had called her to the room that day and which carer had been present during the time she was with the service user.  This does not suggest any level of animosity at all but rather indifference to each other’s presence.  The employer had the statements of the carer and Miss Edwards.  They were challenged by Miss Whitehouse and neither changed their accounts in any way.  The Respondent therefore had reasonable grounds upon which to sustain the belief that the Claimant had been guilty of misconduct. 

17.3  Having formed the belief, had the employer carried out as much investigation into the matter as was reasonable in the circumstances of the case.  This case is affected by the case of A v B referred to above.  This is a serious allegation which could potentially be career ending and at its highest is alleging the abuse of a service user, vulnerable adult.  Statements were taken from an eye witness and subsequently from a witness who came forward to explain a conversation she had had with the Claimant.  The service user was too frail to be interviewed.  Who else could the Respondents have asked?  There were no other witnesses in the room at the time the incident occurred.  The Respondent could have asked the handover nurse what the Claimant had said to her.  There was no suggestion from the Claimant or others that the Claimant had done anything other than ask the handover nurse to keep an eye on the situation.  The handover nurse had not been present when this incident occurred.  All of the witnesses were re-tested by Miss Whitehouse at the appeal stage that she spoke to each of them and none changed their account.  The tribunal has concluded that at the time that the Respondent formed the belief they had carried out as much investigation into the matter as was reasonable in all of the circumstances, allowing for the extraordinarily serious nature of these allegations.” 

i)                Andrea Thomas was found to have given the same account to Jane Styles on 26 December 2008, to Jane Ferriday on 28 December 2008, and by written statement (paras 5 and 6);

ii)              Ms Thomas’s account included what she heard the Appellant say, as well as what she saw (para 8);

iii)            Miss Edwards’ statement about her conversation with the Appellant on 26 December 2008 was given on 30 December 2008 i.e. relatively contemporaneously (para 6);

iv)            The eye-witness evidence was not just of the PR examination itself but the effect of it (faeces on the finger, flinching/flickering)(paras 8, 12 and 17.2);

v)              Miss Bould took account of the layout of the room, the relative positions of the two carers and the client, the size of the client and the view that Miss Thomas would have had (para 11);

vi)            The lack of antipathy on the part of Miss Thomas (para 11). 

i)                The Appellant complains that the Respondent failed to inform her in advance of the disciplinary hearing that a legal representative could attend on her behalf (ground 2). This ground of appeal arises from paragraph 17.4 of the Decision where it is stated that

“The Claimant at no stage asked if she could have a lawyer present and indeed both Miss Bould and Miss Whitehouse indicated that if she had asked to bring a lawyer along to either hearing that request would have been granted.”

However that evidence was given in the course of cross-examination.  There is nothing in the Decision to indicate that if the Respondent had been asked before the disciplinary hearing commenced they would have allowed a legal representative to attend. 

ii)              The Appellant complains that she did not have an opportunity to cross-examine Miss Edwards on her witness statement.  (Ground 3).  She was given the statement at the disciplinary hearing and did not ask for time to consider it or to cross-examine her.  At paragraph 17.6 of the Decision the tribunal noted that an employer’s refusal to allow an employee, at a disciplinary hearing in respect of charges of misconduct, to cross-examine the employees who had made the allegations against her did not render the employee’s subsequent dismissal unfair.  Although the employer must act fairly, fairness does not require a forensic or quasi-judicial investigation.  The Claimant appealed and raised this as an issue at the appeal stage.  However the Claimant did not attend the appeal on the advice of her solicitor.  In the circumstances this ground of appeal cannot succeed. 

iii)            Finally the Appellant contends that the Respondent was unreasonable in refusing her application for a delay in the appeal to a date after the police investigation had been completed.  The police inquiries were in fact concluded by 14 May 2009, but at the material time the Respondent could not have known that that would be the case.  In any event the police inquiries led to the Claimant being charged, and she remained on bail for a substantial period of time until her case came before the Crown Court, where subsequently it was dropped.  We agree with the ET that there was no reason for the Respondent to wait for the outcome of the criminal investigation and any trial before hearing the appeal.  As the tribunal observed “the criminal investigation is different and dealing with different issues” (para 17.6). 

“… The tribunal is satisfied that the appeal was properly held regardless of her attendance.  Miss Whitehouse undertook a thorough and detailed examination of the circumstances that had led to the Claimant’s dismissal.  She reached the same conclusion as Miss Bould and did so after undertaking a full independent review of the evidence that had been available to Miss Bould at the time, and by confirming that all of that evidence was accurate and right. 

That being the case the tribunal has concluded firstly that the Respondent did have a genuinely held belief in the Claimant’s misconduct such that justified summary dismissal and further that they reached that belief following a fair and thorough investigation.  The procedure that was followed by the Respondent met the requirements of section 98(4) of the Employment Rights Act 1996 and fell firmly within the band of reasonable responses of a reasonable employer faced with these particular circumstances.  …”