Appeal Nos. UKEAT/0138/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
17 August 2011
Before
HIS
HONOUR JUDGE PUGSLEY
MRS R CHAPMAN
MR D NORMAN
MR
K ALBERT APPELLANT
VIDIONICS
SECURITY SYSTEMS LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure
UNFAIR DISMISSAL – Constructive dismissal
At the disciplinary hearing matters were raised of which the
Claimant was given no advance warning. However the matters had arisen after
the disciplinary hearing had been arranged. The Claimant resigned in protest
at the way in which the hearing was conducted and claimed constructive
dismissal. Appeal allowed and sent back to a different Tribunal. There are a
number of occasions in which it is difficult to see what findings the
Employment Tribunal made. No finding at all as to whether the resignation was
caused by the alleged breach of contract or whether the Claimant had decided to
resign rather than be dismissed. Appeal allowed and sent back to a new
Tribunal.
HIS HONOUR JUDGE PUGSLEY
Introduction
1.
I want to begin by paying tribute to the professionalism with which this
case has been conducted on both sides.
The facts
2.
The facts of this case can be simply summarised. The Claimant, Mr
Albert, brought an action for unfair dismissal and race discrimination. There
is no appeal against the dismissal of his claim for race discrimination. The
appeal is against the dismissal of the unfair constructive dismissal claim.
3.
The Tribunal defined the issues at paragraph 2 as to whether or not
the Respondent acted in fundamental breach of a term of the contract of
employment when it took or proceeded with disciplinary action against the
Claimant in April and May 2009 in connection with allegations of (a)
falsification of timesheets, (b) that the Claimant had failed to take a hoist
at two particular call‑outs, and (c) that the Claimant drove his vehicle
with defective front tyres.
4.
The ET1 was drafted, it seems, by the Claimant himself. It is no
criticism of him at all to say that it was a document that set out in various
forms his dissatisfaction with the way in which he had been treated, and in
particular he felt that unjustified or unwarranted disciplinary investigations
were taken that were aimed or designed to get rid of him. The difficulty is
that although loss of mutual trust and confidence was put as a ground, it was
not particularised as is the position now. As HHJ McMullen QC said,
the arrival of Ms Cowen had a transforming effect on the case. The
original grounds of appeal were numerous and wide‑ranging. This specific
case proceeds on just one ground of appeal, namely that the Tribunal failed to
deal with the issue that at the disciplinary proceedings two issues were dealt
with, namely the failure to take a hoist to two particular call‑outs and
that the Claimant drove his vehicle with defective front tyres, and that those
two issues have never been matters of which the Claimant had been given advance
notice.
5.
We say this with a degree of circumspection, but the decision of this
Tribunal is not one that is a shining example of judicial craftsmanship. The
Tribunal sets out and makes various findings of fact, and narrates the
account. The Claimant was given advance notice that he was being required to
attend a formal hearing on Friday, 1 May:
“The following issue will be discussed:
Your time sheets for February and March 2009
You will be given every opportunity in this hearing to respond
to the Company’s concerns in relation to the above issues. You should be
aware, however, that the hearing may result in a formal warning in accordance
with the Company’s discipline procedure.”
6.
They went on to say who would conduct the hearing, and of the right to
bring a work colleague. The hearing did not take place on 1 May because
the Claimant was unwell, but was reconvened on 11 May. During the course
of that hearing, it is the Claimant’s case that matters were introduced about
not just the issue of the timesheets but also about the failure to take a hoist
and driving a company vehicle that had bald tyres.
7.
It is very unclear what the findings of the Tribunal were about that
meeting on 11 May. At paragraph 24 the Tribunal said this:
“We have no minutes of this meeting but it obviously went on for
sometime and there was a discussion about timesheets for an hour and a half.
We wonder what was said for all that time but also brought up at the same
meeting and not identified as a matter for the disciplinary hearing, but raised
at the same time, was the question of the Claimant’s alleged failure to have a
hoist with him on or about the 8 May and the other matter to do with the
defective tyres. […]”
8.
We are unsure what that actually means. We think it probably means,
apart from the issue of timesheets, these two other matters, the hoist and the
tyre issue, but the drafting of the sentence is to say the least ambiguous.
“We wonder what was said for all that time but also brought up
at the same meeting and not identified as a matter for the disciplinary
hearing, but raised at the same time […].”
9.
We are not sure whether they are saying they are unsure that it was
raised, or that they think it probably was. I am afraid the same lack of
precision is unfortunately to be found elsewhere. The Tribunal narrates that
there was an adjournment and during the course of that adjournment the Claimant
came in (the letter at page 50), resigning in handwritten form, saying,
“This is because I don’t think that you are following your own procedures and
therefore are breaking my contract of employment,” followed by a more formal
letter on 28 May, which is the resignation letter. But at the very nub of
this case is the finding as to why the Claimant resigned. Was it because of
his belief that he was not getting a fair deal, because of bringing up other
matters at the disciplinary hearing of which he had no prior notice, but which
in fairness to the employers had only occurred in between the notification of
the hearing and the hearing itself, or was it because he had taken a view that
he wished to preserve his status as having resigned rather than having
dismissed? That finding is never made. The nub of the decision is to be found
at paragraphs 30 and 31. I read as follows:
“30. The Claimant submits that the Respondents, by bringing
disciplinary proceedings against the Claimant were in breach of the implied
term of trust entitling him to resign and confidence, and disability
discrimination against the Claimant on the grounds of his race by bringing the
proceedings.”
10.
I doubt there is a single Judge, however eminent, who has not cringed,
and for that matter a single member of the Bar who has not cringed, at what is
written in a transcript attributed to them, but really, saying it as gently as
possible, it does show a degree of confusion. It gets no better at
paragraph 31, where it says this:
“The constructive dismissal claim - there has been no breach of
any term of the Claimant’s contract of employment, leave along [sic] a
repudiatory breach entitling the Respondent to bring disciplinary proceedings
against the Claimant.”
11.
Quite clearly there are, we imagine, typing errors, and it should be, “let
alone a repudiatory breach […].” They go on to say:
“There were ample grounds for them to do so. On the face of it,
the Claimant has made false claims on timesheets submitted by him and the
Claimant has failed to show a non‑black person would have been treated
any differently.”
The Respondent’s case
12.
Ms Lanson has conducted this case, as indeed both counsel have,
with great care and considerable skill. The essence of Ms Lanson’s case
is this. The Tribunal had a difficult task. They were called upon to decide
whether the initiation of disciplinary proceedings was in itself a breach of
the implied term of trust and confidence. Ms Lanson is far too able an
advocate to have overburdened us with authorities. Ms Lanson’s submission
is more sophisticated and subtle. That, she says, is a decision the Tribunal
had to wrestle with, and they have answered that decision. They also dealt
with a number of other matters, such as the Claimant’s entitlement to petrol on
a business card and the like, but, says Ms Lanson, you have there the
Tribunal making a finding of fact that goes to the very heart of the case and
was a centre of a point that was litigated.
The Appellant’s case
13.
Ms Cowen says, well, no. This case could have been put with
greater particularity by the Claimant at an earlier stage, but she says patent
on the Tribunal decision is they had to consider, they said in
paragraph 2, the introduction of these two disciplinary matters. What is
totally deficient in this Judgment is the answering to the following
questions. What was discussed at the disciplinary meeting? At the moment, we
only have a sort of a speculative finding of fact. Secondly, if the tyres and
hoist issues were discussed, was that fair, having regard to the fact that the
Claimant had no notice of it, but also bearing in mind as far as the employer’s
case is concerned these matters had been considered and had arisen since a
letter advising the Claimant of the disciplinary matters had been sent? So,
looking at it in the context of the real‑life situation, is an employee
who is summoned to a disciplinary meeting about issue A really being treated
unfairly if issues B and C, which have only arisen since, are raised? Is it
really right to import into the moving dynamic of an employment relationship
the somewhat palsied, sclerotic processes of a legal procedure?
Discussion
14.
What is required and what is so difficult is the exercise of judgement,
and we wish to make it quite clear that we are not saying what the Judgment
should be. We think the question should be asked as to whether it was or was
not a breach of implied trust to raise these issues, having regard to the fact
a meeting had already been convened. But, putting the matter as tactfully as
we can, paragraph 31: “There has been no breach of any term of the
Claimant’s contract of employment,” and, correcting it to read:
“[…] [let alone] a repudiatory breach entitling the Respondent
to bring disciplinary proceedings against the Claimant. There were ample
grounds for them to do so. On the face of it, the Claimant had made false
claims on timesheets submitted by him and the Claimant has failed to show a non‑black
person would have been treated any differently.”
15.
That might have sufficed, though it could be said it is a case of
conclusions becoming reasons, but for the fact that the Tribunal itself defined
the disciplinary action taken on the hoist and the defective tyres issues as
matters in relation to issues raised at the disciplinary action. The Tribunal
simply has not made a finding on those matters.
Conclusion
16.
We feel we have no alternative but to send this case back. We have
given the parties the opportunity to argue to the contrary, but they have
declined, and our very strong view is that it should go back to a differently
constituted Tribunal. We want finally to say this. At one stage, with
crusading zeal, Ms Cowen has suggested we should make a finding of unfair
dismissal. We do not think it is open to us. It is not a case where we think
there is a simple single misdirection of law, and we could alter it and make
the decision. A substantial part of our reasoning is based on the fact the
Tribunal failed to answer questions it should have asked itself; therefore it
seemed quite appropriate. But I say this at the express suggestion of the
other members of the Tribunal, with which I most emphatically agree: please let
no one be under the illusion that because we are remitting this to a different
Tribunal we are suggesting that the Claimant’s case is bound to succeed or
bound to fail. We are mindful of the enormous expense, sometimes financial but
sometimes emotional, of continued litigation, and we do urge that the parties
consider whether there is some range of discussion between them, because we do
not want our decision to be given as a hint that the Claimant is going to automatically
succeed, or that he is automatically doomed. Quite simply, we do not think
this decision can stand, but we have not reached that on the basis that
Claimant will automatically succeed, as is by no means the case, and we do urge
the Tribunal to consider the whole issue again.
17.
The final matter is that it really is very helpful when the issues are
contained and confined, as they have been in this case, to what the real issue
is, rather than a sort of machine gun, scattergun approach on the basis that if
you have enough grounds, one of them may hit. There is no appeal against the
dismissal of the race discrimination case; we think that is wholly
appropriate. The issue is one that we think was raised in such a way, given
the duties of the Tribunal, that it should have been considered, and I have to
say that we are seriously concerned at the absence of a finding of fact on
causation, because what has been not offensively put by Ms Lanson,
perfectly properly, is the speculation that maybe the Claimant decided to leave
while he was on top before he had been dismissed. That does not feature in any
way as a finding, which we consider the Tribunal should have made, as to
whether or not the perceived breach was an effective cause of his departure, or
whether he just decided he had had enough and wanted to resign for reasons that
are unconnected with any breach. We therefore allow the appeal and remit it to
a differently constituted Tribunal.
