HIS HONOUR JUDGE DAVID RICHARDSON
Introduction
1.
This is an appeal by Norland Managed Services Ltd (“Norland”) against a
judgment of the Employment Tribunal sitting in Watford (Employment Judge Manley
presiding) dated 15 September 2011.
2.
The Tribunal upheld a claim of unfair dismissal brought by Mr Hastick
subject to a 20% reduction for contributory conduct and a 10% uplift pursuant
to section 207A of the Trade Union and Labour Relations Consolidation Act
1992. It declined to reduce the award under the principal Polkey v
A.E Dayton Services Ltd [1987] IRLR 503.
3.
The appeal is brought principally on three grounds. It is argued that
the Tribunal, (1) erred in law in holding that the dismissal was procedurally
unfair, (2) substituted its own view of the facts for that which Norland held
and (3) impermissibly found that dismissal was not a reasonable sanction.
Consequential arguments are raised concerning contributory conduct, the uplift
and Polkey.
The background facts
4.
Norland provides maintenance and associated services on a large number
of sites including Chiswick Park and the National Institute of Medical Research
in Mill Hill. It employs some 2,000 people.
5.
Mr Hastick is an electrical engineer. He started work for Norland at Chiswick Park in November 2009. There was no evidence of any complaints about his work
while he was there. On 13 December 2010 he moved to the Mill Hill site where
his manager was Mr Nicoletti. It was Mr Nicoletti’s evidence that he had
concerns almost immediately about Mr Hastick’s work. He said there were two
incidents in December which caused him to have an informal talk to Mr Hastick
telling him to be more careful. He took the view that Mr Hastick’s
qualifications were “pretty basic” and thought that he would not have offered
Mr Hastick a job because he could recruit someone better qualified at the same
rate. He had decided that he might ask Mr Hastick to take a competency test
but by 7 January he had not mentioned this to Mr Hastick or put it into
practice.
6.
On 7 January an incident took place. It was reported to Mr Nicoletti by
another employee, Mr Mean, that Mr Hastick had touched an allegedly faulty
electrical switch with his finger and had received an electric shock. Mr
Nicoletti suspended Mr Hastick pending investigation. A letter was sent
confirming the suspension - but the address was not correct and it seems the
letter did not arrive. Mr Nicoletti asked another manager, Mr Lewis, to
investigate. Mr Lewis interviewed relevant people including Mr Mean and Mr
Hastick himself.
7.
Mr Mean’s account was as follows. He accompanied Mr Hastick to the job
because a security pass was needed. There was a warning notice concerning the switch.
Mr Hastick asked how the switch could be live given that the conduit and the
switch were plastic. He used an insulating screwdriver to operate the switch
and check that the light was working. Then, without isolating the circuit at
the nearby circuit board, he touched the light switch to turn the light off and
received a shock.
8.
When Mr Hastick was interviewed he agreed, according to Mr Lewis, that
there was a handwritten notice saying, “Do not switch on, possible live wire”;
agreed that he used an insulated screwdriver to switch the light on; agreed
that he used his finger to switch the light off and said that he felt what he
called, “A tingling sensation, not a full shock, not enough to send him across
the garage”.
9.
In his investigation report, Mr Lewis said that Mr Hastick did not take
into account that the switch was labelled as potentially live and should have
used test equipment to confirm the problem. He recommended that Norland
electrical engineers should receive regular theoretical and practical
competency training where there was a concern. He did not recommend any form
of disciplinary action.
10.
Mr Nicoletti, however, was concerned that Mr Hastick’s case might amount
to gross misconduct. He sought advice from two colleagues. One colleague
thought the matter might amount to gross misconduct, but he does not appear to
have had technical expertise. The other was Mr Ames, a technical manager with
expertise in electrical engineering. He was critical of Mr Hastick for failing
to follow Norland’s rules for safe maintenance. He thought the non-compliance
was gross misconduct and disciplinary action should be taken, although he said
if it was the only incident, it could possibly result in a written warning and
retraining. He was also critical of both Mr Hastick and Mr Mean for leaving
the situation unsafe: he said Mr Mean should be given a written warning and
retraining.
11.
On 17 January at 5.30 pm, Mr Nicoletti called Mr Hastick and asked him
if he could attend a disciplinary hearing on 19 January, less than 48 hours in
advance. Mr Hastick did not know it at the time but Norland’s disciplinary
policy stated that 48 hours notice should be given, so the notice was six hours
shorter than Norland’s disciplinary policy stipulated. Mr Hastick had to pick
up the documents for the hearing, which he did at midday on 18 January. These
included the report by Mr Lewis but not the emails of the two colleagues. No
form of disciplinary proceeding was taken against Mr Mean.
12.
At the disciplinary hearing Mr Hastick accepted that he had used a
finger but not that he had received any kind of shock. He said he knew there
was a sign but did not read the sign because Mr Mean had moved it. He did not
accept that he was touching anything live, he did not believe he was doing
“live working”.
13.
Mr Nicoletti dismissed him. The letter dated 21 January reads as
follows:
“Taking into account all items discussed at the meeting I have
decided that the incident constitutes gross misconduct in line with our
disciplinary policy and therefore your employment is terminated with Norland
Managed Services with immediate effect.
The points raised by you in mitigation were duly considered.
However, we arrived at our conclusion for the following reasons:
·
You were fully aware of the Norland Managed Services Code of Practice
and Rules for Low-Voltage Working and that there is no live working.
·
You failed to isolate a live circuit before working on it, even
though you were aware that the said circuit had been reported as potentially
live.
·
You attempted to work on the circuit even though you had no test
equipment to prove dead.
·
You operated a reported live switch and received an electric
shock, endangering yourself.
·
You had two previous informal discussions regarding the need to
follow due process when working on electrical equipment, with the second time necessitating
a hazard report.”
14.
An appeal was heard by Ms Tremain on 17 March 2011. It was the first
appeal with which she had ever dealt. She did not read any papers in advance.
She heard Mr Hastick’s case. He said in particular that he did not work live,
that he did not receive a shock from the switch, that he had not received the
letter of suspension and he did not have enough time to represent himself by
reason of short notice of the disciplinary hearing. He supported his argument
with a detailed written summary.
15.
After she heard the appeal, Ms Tremain concluded that she had
insufficient experience in electrical engineering issues to determine it. She
asked for help from colleagues. They explained various policies to her and she
asked them questions. This was done without any input from Mr Hastick. She
wrote a detailed letter rejecting the appeal.
The Tribunal’s reasons
16.
After making findings of fact in paragraphs 3.1 to 3.28 of its reasons,
upon which we have already drawn, the Tribunal set out the law in paragraphs
4.1 to 4.5 of its reasons. No criticism is made of that statement of the law
as such (but Mr Hignett submitted to us, as we shall see, that there was an
important omission in it).
17.
In paragraph 5 of its reasons, the Tribunal concluded that the reason
for dismissal related to conduct. The Tribunal first considered, “whether the
investigation fell within the range of reasonable responses”. It accepted that
the investigation carried out by Mr Lewis was a fair and reasonable; see
paragraph 5.2.
18.
The Tribunal next considered the disciplinary process. It found that
the dismissal was, “Unfair on procedural grounds” It gave the following
reasons:
“5.3 The things that have concerned us much more
are as follows:
5.3.1 We are concerned by the fact that the claimant did not
receive written notification of the disciplinary hearing until some 24 hours
before it was held. He was told of it slightly earlier, but still not within
the 48 hours set out within the respondent’s own procedure. While Mr Nicoletti
was aware of that procedure, he did not mention it to the claimant or ask for
his consent for time to be shortened. What is more, when we consider paragraph
11 of the ACAS we do not consider that this has allowed ‘reasonable time to
prepare their case’. There was no particular urgency in this matter, the
claimant being on suspension. The shortness of time was something that
concerned the claimant. Whilst we understand that he said he was ready to
proceed, much onus lies on the employer to ensure a fair process for employees
coming to what are, in any case, very difficult meetings.
5.3.2 We are also concerned by the fact that the claimant did
not have the same documents as Mr Nicoletti had access to at that hearing. In
particular, he did not have access to the emails, particularly that from Mr
Ames, which set out a range of opinions and a range of options for
consideration. It seems clear to us that, if the claimant had seen those at
the time, he would have been able to put his point of view and perhaps find
some things within what Mr Ames says to support his case. Whilst we do nor
believe that failure to hand over those documents falls squarely within the
ACAS code so as to render it a breach of the code, we do believe that it is not
within the spirit of the ACAS code or, indeed, in accordance with good
industrial relations practice.
5.3.3 Thirdly, we have come to the view after serious
consideration, that Mr Nicoletti was not an appropriate person to deal with
this disciplinary matter. He had clearly had considerable involvement in the
investigation at an earlier stage, and then seeking advice in the emails on 17
January. What is more, he had clearly formed a view about the claimant before
this hearing. He has told us, in no uncertain terms, that he was considering a
competency test and that he had a number of complaints brought to him. He had
not mentioned this to the claimant. The claimant was not able to challenge Mr
Nicoletti as the decision maker on those grounds, because he was unaware of
those particular concerns. In a large organisation such as this, we see no
reason why another manager could not have looked at this matter afresh. We
understand that it is often the case that those dismissing officers should know
and have some involvement, but this is one of those circumstances where, we
believe, there was an element of bias on the part of Mr Nicoletti, evidenced by
what he told us about his opinion of the claimant and his qualifications and
competencies.
5.3.4 Fourthly and lastly with respect to disciplinary process,
we have some concerns about the appeal process. In the first place, there was
somewhat of a delay before the claimant had the notes from the disciplinary
hearing before the appeal. However, apart from that, the method used, on any
account, is one which is unusual. It would not necessarily lead to unfairness,
in our view, if the claimant had been aware what Ms Tremain was taking into
account in her deliberations. The claimant, in essence, had no idea what
matters or information Ms Tremain would have in front of her as she did not
have them at the appeal hearing. He had no opportunity to comment on the
further investigations that she made after she had spoken to him.
5.3.5 Finally, with respect to the appeal, we are concerned that
it would appear to be a breach of the respondent’s own procedures, insofar as
that suggests that a full re-hearing should ideally take place where there are
procedural concerns and there is no doubt at all that the claimant himself was
raising procedural concerns. Ms Tremain, whose first appeal it was, may not
have appreciated the difference. We are asked, by Mr Hignett not to consider
the difference between reviews and re-hearings (Taylor v OCS Group
Ltd [2006] EWCA Civ 702) but we are not doing it in relation to whether any
previous defect has been overcome but in relation to the process taken as a
whole.
In our view, the fact that the claimant lacked information both
at the disciplinary and the appeal stages, taken together with the shortness of
notice for the hearing and the questionable involvement of Mr Nicoletti as the
disciplinary officer, all taken together means we have decided the dismissal
was unfair on procedural grounds.”
19.
The Tribunal then turned to consider the question whether dismissal fell
within the range of reasonable responses. It concluded that dismissal was,
“outside the range of reasonable responses”. It gave the following reasons:
“5.4 We then turned our attention as to whether the dismissal
fell within the range of reasonable responses. This is always a difficult
question. We are well aware, and we are reminded of it by Mr Hignett, that we
must not substitute our view. We must not consider this is a harsh decision
and overturn it on those grounds. We do not do so. What we have to do is look
at what is the alleged misconduct and consider, in the light of the evidence
before us and, if necessary, our knowledge of good industrial relations and
practice, whether a reasonable employer, in these set of circumstances, could
reasonably choose to dismiss this employee. The matters that we take into
account as follows.
5.5 We considered the following to be relevant: what other
people, who were asked to look at this matter by the respondent, mentioned
about any possible sanction; what happened about anybody else involved in the incident;
the claimant’s evidence about his previous experience at Chiswick Park and the
details of the incident. It is, without doubt, a one-off incident. The
respondent asked us to find that it was a serious and dangerous incident.
However, in our view they did not properly go into the question of whether the
claimant received an electric shock or not. They were told that he had. It is
disputed whether he said to them, in the early stages, that he had felt a
tingle; but certainly, from the outset of the disciplinary hearing, he denied
that he had received a shock. They did not appear to go back to Mr Mean for
further information on why he believed the claimant had suffered an electric
shock. That, therefore, might have impacted on whether they believed the
matter was, indeed, as serious as it was at first suggested to be. Clearly,
dealing with electrical equipment can be serious and can be dangerous; it is
clearly part of the work the claimant was expected to carry out.
5.6 We accept that the claimant should have isolated the
switch. He did not do so and that might have had serious consequences, mostly
for himself. That amounts to misconduct. However, it was noted by others who
looked at the report that Mr Mean may well have left the switch in a dangerous
position. Mr Nicoletti chose to take no action at all with respect to Mr
Mean. Mr Lewis’s recommendation seemed to relate mostly to training and,
although we accept that Mr Dite and Mr Ames both said that the matter could
fall into the category of gross misconduct, neither of them suggested dismissal
as a sanction. Mr Ames did consider possible sanctions and considered them in
relation to the claimant to Mr Mean and, in fact, suggested the same sanction
for both. Although we understand he might not have had the whole story, he did
have information about Mr Mean’s actions on the day. When considering whether
dismissal fell within the range of reasonable responses, we are entitled to
consider what action the respondent took with respect to Mr Mean; what notice
they took of what other people said and what further investigations they made
when the claimant disputed matters which they believed to be the case, for
instance, the question of whether or not he had received an electric shock.
5.7 We believe, having considered the evidence and thought about
it with considerable care, that this dismissal does fall outside the range of
reasonable responses. The claimant had a clean disciplinary record. The
respondent could show no concerns that it had bothered to raise at a formal
level at all. We are satisfied that Mr Nicoletti’s consideration of a lesser
offence was, if he considered it at all, a very cursory consideration. This
employee had only been on the site for a short time and had not been told that
there were concerns about his competence.”
20.
The Tribunal found contributory conduct to the extent of 20% and applied
an uplift under section 207A in the amount of 10%.
Statutory provisions
21.
There is no challenge on either side for the purposes of this appeal to
the Tribunal’s conclusion that the reason for the dismissal was misconduct. It
will suffice to set out section 98(4) of the Employment Rights Act 1996:
“98(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.”
Submissions
22.
On the question of procedural fairness, Mr Hignett, appearing for
Norland submits that the Tribunal has not referred to and does not appear to have
addressed its mind to the principle in Sainsbury’s Supermarket v Hitt
[2003] IRLR 23; namely that for the purposes section 98(4) the range of
reasonable responses test applies as much to matters of investigation and
procedure as to other aspects of a decision to dismiss. He further submits
that the tribunal, insofar as it identified procedural failings, failed to ask
itself what, if any, practical impact those procedural failings had. This was
an essential element of its task when considering procedural fairness: Fuller
v Lloyds Bank Plc [1991] IRLR 336. Mr Hignett took us through each
element of the Tribunal’s reasoning from paragraph 5.3, submitting that it did
not apply these tests.
23.
In dealing with the Tribunal’s reasoning in paragraph 5.3.3 concerning
bias on the part of Mr Nicoletti, Mr Hignett submits that the conclusion about
Mr Nicoletti’s bias was insupportable. It was his task as line manager to hear
the disciplinary hearing; and the fact that a line manager may have formed some
adverse views about an employee is no reason why a line manager should recuse
himself as if he were a judicial officer. Mr Hignett also makes a submission
of a rather different kind. He says that it was no part of Mr Hastick’s case
that Mr Nicoletti was biased. Norland was not on notice that the Tribunal was
considering this point and had no opportunity to lead evidence or make
submissions on it. This, he submitted, was procedurally irregular, a breach of
the rules of natural justice.
24.
Mr Hignett attacks the Tribunal’s finding on the question whether
dismissal was a reasonable sanction in two ways. Firstly he argues that the
Tribunal has substituted its own view of the facts for that which Norland held
when considering the question of sanction. Norland proceeded on the basis that
Mr Hastick received an electric shock. The Tribunal discounted this when
deciding whether it was reasonable for Norland to dismiss. There is, he
submits no indication that the Tribunal took into account the full range of
Norland’s reasoning when reviewing the question of sanction. Secondly, he
argues that the Tribunal has placed impermissible weight on the fact that Mr
Mean was not disciplined at all. He says that in applying section 98(4) the
Tribunal should only have regard to truly comparable cases; and he says Mr
Mean’s case was not truly comparable.
25.
In answer to these submissions, Mr Thompson, appearing for Mr Hastick,
submits that the Tribunal stated and applied the law correctly. As regards
procedural fairness, he submits that each of the Tribunal’s conclusions was
properly open to it and that, having stated its criticisms individually it then
reached a judgment in the round which applied the correct test. On the
question of bias, he submits that the Tribunal was entitled to conclude that Mr
Nicoletti had, “formed a view” about Mr Hastick prior to the disciplinary
hearing and should have arranged for another manager to deal with the matter.
He submits that the Tribunal acted fairly even if Mr Hastick did not raise the
point of Mr Nicoletti’s bias specifically, the Tribunal was right to make
allowance for the fact that he was a lay person representing himself.
26.
As regards sanction, he argues that the Tribunal applied the correct
legal test. He submits that the Tribunal’s discounting (in paragraph 5.5 of
its reasons) of Norland’s view that there was an electric shock did not vitiate
its reasoning taken as a whole.
Appellate approach
27.
There is an appeal to the Employment Appeal Tribunal only on a question
of law. The role of an appellate court, where this is the question, is
therefore limited. In the context of appeals concerning section 98(4) of the Employment
Rights Act 1996 the Appeal Tribunal must itself be cautious of substituting
its own opinion for that of the Tribunal. This matter has recently been discussed
by Mummery LJ in Fuller v London Borough of Brent [2011] IRLR 414
at paragraphs 27 to 30, a passage which we keep carefully in mind.
27. Unfair dismissal appeals to this court on the ground that
the ET has not correctly applied s.98(4) can be quite unpredictable. The
application of the objective test to the dismissal reduces the scope for
divergent views, but does not eliminate the possibility of differing outcomes
at different levels of decision. Sometimes there are even divergent views
amongst EAT members and the members in the constitutions of this court.
28. The appellate body, whether the EAT or this
court, must be on its guard against making the very same legal error as the ET
stands accused of making. An error will occur if the appellate body substitutes
its own subjective response to the employee's conduct. The appellate body will
slip into a similar sort of error if it substitutes its own view of the
reasonable employer's response for the view formed by the ET without committing
error of law or reaching a perverse decision on that point.
29. Other danger zones are present in most
appeals against ET decisions. As an appeal lies only on a question of law, the
difference between legal questions and findings of fact and inferences is
crucial. Appellate bodies learn more from experience than from precept or
instruction how to spot the difference between a real question of law and a
challenge to primary findings of fact dressed up as law.
30. Another teaching of experience is that, as
with other tribunals and courts, there are occasions when a correct
self-direction of law is stated by the ET, but then overlooked or misapplied at
the point of decision. The ET judgment must be read carefully to see if it has
in fact correctly applied the law which it said was applicable. The reading of
an ET decision must not, however, be so fussy that it produces pernickety
critiques. Over-analysis of the reasoning process; being hypercritical of the
way in which the decision is written; focusing too much on particular passages
or turns of phrase to the neglect of the decision read in the round: those are
all appellate weaknesses to avoid.”
28.
We begin with the Tribunal’s approach to the question of procedure. It
is well established that section 98(4) requires the objective test of the
reasonable employer to be applied to every aspect of the decision to dismiss
including procedural aspects. Thus in Whitbread v Hall [2001] IRLR 275 Hale LJ said that there were:
“Procedural and substantive elements to the decision to both of
which the band of reasonable responses test should be applied.”
And in Sainsbury’s Supermarket v Hitt Mummery LJ
confirmed that it was:
“Necessary to apply the objective standards of the reasonable
employer to all aspects of the question whether the employee had been
dismissed.”
29.
In its reasons, the Tribunal expressly applied a “range of reasonable
responses” test to the question whether the investigation was reasonable and to
the question whether dismissal was a reasonable sanction. It did not expressly
apply that test to the procedural questions. Rather, it said:
“We have decided that the dismissal was unfair on procedural
grounds.”
30.
We have looked carefully to see whether the Tribunal applied a range of
reasonable responses test to the question of procedural fairness. The finding
which to our mind plainly demonstrates the application of an incorrect test is
the finding paragraph 5.3.3 that Mr Nicoletti was, “not an appropriate person
to deal with this disciplinary matter” because, “we believe there was an
element of bias on the part of Mr Nicoletti, evidenced by what he told us about
his opinion of the Claimant and his qualification and competencies”.
31.
It is, in our collective judgement and experience, entirely normal for a
line manager to deal with a disciplinary matter of the kind in question in this
case. It must frequently be the position that a line manager will have formed
views about the qualifications and competencies of an employee. This, however,
is not a reason why the line manager should not deal with a disciplinary matter
where the employer’s normal disciplinary procedure provides for this to be the
case. Even if the Tribunal members thought that they would have recused
themselves from hearing the disciplinary matter, they should have recognised
that many employers in these circumstances would reasonably have taken a
different view.
32.
The safeguard which the law provides for the employee in these
circumstances is built into section 98 of the Employment Rights Act 1996.
The manager’s conclusions must be honestly formed and must be judged by the
objective standard of the reasonable employer; namely they must be reached on
reasonable grounds after reasonable investigation; and any sanction imposed
must be reasonable. The mere fact that a line manager might have formed a view
about an employee’s qualifications and competence is no basis for concluding
that he ought to have recused himself from hearing a disciplinary matter. This
would be to apply a high forensic standard in place of the standard set by
section 98(4).
33.
Of course a Tribunal will keep carefully in mind any opinions which a
manager had formed about an employee when it assesses the honesty of the
manager’s opinion about the alleged misconduct and the reasonableness of his
conclusions and sanction.
34.
The Tribunal also said that Mr Nicoletti had “clearly had considerable
involvement in the investigation at an earlier stage”. We see no basis for
this conclusion in the Tribunal’s findings of fact. Mr Nicoletti had suspended
Mr Hastick and commissioned an investigation by Mr Lewis. The ACAS code
(paragraph 6) provides that in misconduct cases, where practicable, different
people should carry out the investigation and disciplinary hearing. In our judgment,
Norland complied with that paragraph. The Tribunal had no basis for
criticising his earlier involvement.
35.
The Tribunal’s conclusion concerning Mr Nicoletti is an integral part of
its conclusion on the overall question of procedural fairness. It follows that
this part of its reasoning is vitiated by an error of law.
36.
We turn to the Tribunal’s reasoning on the question of sanction. When
considering the question of sanction, the starting point for the Tribunal was
the findings made by Norland. It was not entitled to discount from those
findings unless, of course, those findings were made without reasonable grounds
and without reasonable investigation. In our judgment, the Tribunal fell into
error in paragraph 5.5 of its reasons. It discounted the finding of Norland
that Mr Hastick had received an electric shock. We cannot see any proper basis
for the Tribunal to do so. Upon investigation, Mr Mean had confirmed that Mr
Hastick received an electric shock and Mr Hastick himself had said that he felt
a tingling. Norland’s conclusion that Mr Hastick had received an electric
shock was plainly a reasonable conclusion to draw from an investigation which
the Tribunal had itself said was reasonable. For the Tribunal, in paragraph
5.5 of its reasons, to discount Norland’s finding was to approach the question
of sanction from the wrong starting point - effectively from its own view of
the facts, not the view reasonably held by Norland.
37.
Once it is established, as in our judgment it established in this case,
that there are material errors in the reasoning of the Tribunal, the matter
must be remitted for consideration by a Tribunal unless the Appeal Tribunal can
say, looking at the Tribunal’s findings, that only one result was possible.
This follows from the Appeal Tribunal’s limited remit: by virtue of section
21(1) of the Employment Tribunals Act 1996 it is concerned only with
questions of law.
38.
In our judgment it is not open to us to say in this case that only one
result could have been reached by the Tribunal. There are powerful points to
be made on both sides. On the one hand Norland is entitled to point out that
it found Mr Hastick to have committed a serious breach of a safety requirement
basic to the work of an electrician. On the other hand there are procedural
criticisms made on behalf of Mr Hastick which the Tribunal will have to weigh.
The argument that Mr Ames’ email should have been disclosed is one which the
Tribunal will have to weigh. Mr Hignett submitted to us that it was no more
than effectively the opinion of an HR department which an employer would not be
bound to disclose, but an alternative view is that it is really an opinion
based on technical expertise which Mr Norland did not have and that if Mr
Norland intended to take a different view, as it appears he did, for example,
about the use of the screwdriver, he should have disclosed the view of Mr Ames
as a matter of fairness. This, however, is not a question of law. It is a
question for the Tribunal to assess as are the other procedural defects alleged
by Mr Hastick. When taking account of questions of procedural fairness, the
Tribunal will wish to keep in mind the principals in Fuller v Lloyds Bank.
There is also a significant question as to whether dismissal was a reasonable sanction,
having regard to what Mr Ames said, and having regard to the way Mr Mean was
dealt with. The question whether Mr Mean’s case was truly comparable so as to
make dismissal and unreasonable sanction in the case of Mr Hastick is again a
question for the Tribunal applying section 98(4).
39.
We consider that in the circumstances of this case the best course is to
remit the matter to a freshly constituted Tribunal.
40.
There are two final points which we should mention.
41.
Firstly, although Mr Hignett’s argument raised an issue of procedural
fairness on the part of the Tribunal, we make it clear that our judgment does
not involve any finding of procedural fairness against the Tribunal. If we had
been minded to make any such finding, we would first have invited the
Tribunal’s comments in accordance with the Appeal Tribunal’s usual practice.
42.
Secondly, we make it clear that the Tribunal’s consequential findings,
which are bound up with its principal finding under section 98(4) will fall
with the principal finding. Accordingly ancillary questions relating to relating
to contributory conduct, Polkey and uplift will be for fresh
consideration by the Tribunal.
