United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0053_11_0905.html
Cite as: [2012] UKEAT 0053_11_0905, [2012] UKEAT 53_11_905

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Appeal No. UKEATS/0053/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 9 May 2012

Before

THE HONOURABLE LADY SMITH

MR M R SIBBALD

MR P M HUNTER

MR GEORGE SLEVIN APPELLANT

PREMIER FOODS GROUP LTD T.A HOVIS RESPONDENT

JUDGMENT

APPEARANCES

For the Appellant

MR M CAMERON

(Solicitor)

Cameron Macaulay Solicitors

Suite 144, 1^st Floor

Baltic Chambers

50 Wellington Street

Glasgow

G2 6HJ

For the Respondent

MR M FOSTER

(Solicitor)

Jacksons Law Firm

Innovation House

Yarm Road

Stockton on Tees

Cleveland

TS18 3TN

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

Unfair dismissal. Misconduct. Claimant found to have committed gross misconduct by admittedly having jammed fuel pump nozzle open when refuelling, knowing that he was “100% wrong” to have done so. Appeal on bias and perversity grounds. Bias grounds departed from and assertions in Notice of Appeal that Tribunal had failed to take account of evidence and reached findings which had no basis in the evidence not followed up with a timeous application for a note from the Tribunal. Notice of Appeal shown to be characterised by unsupported assertions and hyperbole. Perversity not shown. Tribunal had not erred in any respect.

THE HONOURABLE LADY SMITH

Introduction

1. This is an employee’s appeal from a judgment of an Employment Tribunal sitting at Glasgow, Employment Judge Shona MacLean sitting with members, registered on 6 September 2011, dismissing the Claimant’s claim that his dismissal for gross misconduct was unfair.

2. We will, for convenience, continue to refer to parties as Claimant and Respondents.

3. The Claimant was represented by Mr M Cameron, solicitor, before the Tribunal and before us. The Respondents were represented by Ms J Dalzell, solicitor, before the Tribunal and by Mr M Foster, solicitor, before us.

Background

4. The Claimant was employed by the respondents as an HGV driver. His job title was “distribution operative”. When he started working for the Respondents, in 2002, he was issued with terms and conditions which included the following:

“Health and Safety

Whilst at work you must take reasonable care for the health and safety of both yourself and others who may be affected by your actions. You must comply with the health and safety rules and procedures relating to the company in general and your own job in particular. Further details are given in the Health and Safety Handbook and the site arrangements.”

5. On or about 16 October 2007, the Claimant was specifically advised in writing of health and safety responsibilities which included not interfering with or misusing anything provided to protect his health, safety or welfare, which was required by legislation, and using any machinery, equipment or safety device in accordance with training or instruction. Any failure to follow the rules would constitute gross misconduct.

6. The Claimant also signed a “Personal Safety Standard” which was a list of undertakings by him and included:

“I will work safely

…

I will not use operational short cuts which compromise safety …”.

7. Further, on 16 October 2007, he signed a document headed:

“BRITISH BAKERIES LTD – MOSSEND RDC

INDIVIDUAL HEALTH AND SAFETY RESPONSIBILITIES”

and included:

“Responsible for:

…

7. Not interfering with or misusing anything provided to protect their health safety or welfare, which is required by legislation, and using any machinery equipment, or safety device in accordance with any training and instruction.

I have read and understood the above procedures. I understand that failure to follow these rules constitutes serious misconduct and will be considered as a disciplinary matter.”

8. Prior to late 2008, there was a pin on the fuel pump nozzles used by employees including the Claimant which could be put in place to achieve continuous flow whilst refuelling vehicles without manual pressure having to be applied. However, at that time, a number of incidents occurred in the course of which fuel pumps were damaged, fuel pump nozzles were damaged and fuel spillage occurred when operatives forgot to remove the fuel nozzles from vehicles prior to driving away. The Respondents, accordingly, as a safety measure, had the pins removed so as to ensure manual refuelling and put notices up on notice boards explaining the reason why the pins had been taken away.

9. In or about January 2009, another employee, Alan Brown, was disciplined and dismissed for gross misconduct when he was found to have inserted a glove into the handle of the fuel pump nozzle to ensure continuous flow of fuel thereby avoiding having to refuel manually. The fact of and reason for his dismissal was known to the other drivers, including the Claimant.

10. In or about January 2009, the Respondents put up another notice on the notice boards specifically instructing distribution operatives not to jam the fuel pump nozzle handles to achieve continuous flow, under threat of disciplinary action if they did so.

11. On 10 July 2009, the Claimant required to refuel his vehicle. He started to do so by inserting the fuel pump nozzle into the fuel tank of the vehicle, the opening to which was on the passenger side. He then jammed the handle with a stone, to ensure continuous flow. He went to sit in the driver’s seat of the vehicle. John Wright, the Area Vehicle Services Manager, noticed on the CCTV that there was an unattended vehicle being refuelled. He went to investigate. As he was approaching, the Claimant climbed out via the driver’s door and said:

“I know I shouldn’t have done it. You’re going to tell me off now.”

12. The incident was reported and the Claimant was called to an investigatory interview on 12 July 2009. He was asked to provide his own written statement, which he did. It included the following:

“When fueling (sic) my vehicle, I put a small stone in the fuel pump to assist fueling (sic) … Mr Wright came over … he then told me I was wrong to do this, to which I agreed, also said I had taken on board his point and that it would never happen again.”

13. The Claimant was called to a disciplinary hearing by letter dated 15 July which alleged:

“Misuse of company equipment which resulted in a breach of health and safety.”

14. At the hearing which followed, on 21 July 2009, it was noted:

“GS stated that he never had hand on pump, puts hand up to that …

GS stated … Put hands up and won’t do it again …”

15. The Claimant also provided a written statement to the disciplinary hearing which included:

“I know I was 100% wrong and yes I know that you alone have the power to dismiss me, as you see fit …

I do know the implications of health & safety measures and also the environmental damage that can be caused, not to mention the considerable cost to the company as regards a fuel spillage.

I have, without doubt, made a costly mistake. One which may cost me my job!

… I would like you to know that I have learned from my mistake …

… if anyone should feel ashamed of themselves then I am the one who is.”

16. As these extracts show, the Claimant was plainly well aware, when he jammed the fuel pump nozzle open using a stone, that he was wrong to do so, that it was a serious matter, that he had been warned, in writing, not to use operational short cuts which compromised safety and not to interfere with anything provided as a safety measure – as the “pin free” fuel pump nozzle handles clearly were. Further, the Claimant had been clearly put on notice that he was required to follow instructions in relation to such safety matters. Whether or not the Claimant had read the notices, he stated at the disciplinary hearing that he knew why the pin had been removed “through the grapevine”.

17. An issue arose before the Tribunal as to whether or not the Claimant had seen the notices explaining why the pins had been removed and specifically instructing drivers not to jam the pump handles open. During the disciplinary procedure and before the Tribunal, he denied having seen them. Mr Oliphant, who chaired the disciplinary hearing, concluded that the Claimant had in fact seen the notices and the Tribunal found that in all the circumstances, particularly that the Claimant had given ambiguous answers at the hearing, that was a genuine conclusion on his part which he was entitled to reach. The Tribunal stated that they appreciated why he had reached that conclusion and added that even if the Claimant had not seen the notices, it was inconceivable that he was unaware that the Respondents had deliberately removed the pins and that, given Mr Brown’s dismissal, of which he was aware, that it was inconceivable that he was unaware of the instruction not to jam open the fuel pump nozzle. Put shortly, they were satisfied that the employer genuinely believed, after a reasonable investigation, that the relevant employee, the Claimant, had not only jammed a stone in the fuel pump nozzle handle but also that that employee was well aware that his actions were unsafe and contrary to specific instructions that had been issued by his employer. It did not matter how he knew – whether by reading the notices or otherwise – what mattered was that he did know and he, nonetheless, failed to pay heed to the instruction.

18. The Claimant raised various points in mitigation at the disciplinary hearing – he was fatigued when refuelling on 10 July, he realised the error of his ways and undertook not to act in such a manner again, he had previously suffered from tennis elbow (for which he had received a cortisone injection), although his hand was not on the fuel pump he was only “two minutes away”, and he had learned from his mistake. The outcome was dismissal.

19. The Claimant appealed and his appeal was heard on 5 August 2009. He again referred to having been tired, to not having had “formal” notice about the pins being removed, to there not having in fact been a fuel spillage, and to having had tennis elbow a couple of years before. He sought to distinguish his case from that of Alan Brown. His appeal was refused.

The Tribunal’s Judgment and Reasons

20. The Tribunal were satisfied that the Claimant was dismissed for the potentially fair reason of gross misconduct, that the Respondents had carried out a reasonable investigation, that they followed a fair procedure and that in all the circumstances, dismissal was within the range of reasonable responses. We have already referred to the way they dealt with the issue about the notices. At paragraph 91, they noted that Mr Oliphant believed the Claimant had deliberately jammed the handle whilst refuelling and that he believed the Claimant knew there were specific instructions not to do so – they were satisfied that that was a belief that he was entitled to hold. At paragraph 92, they refer to the Respondents having, in November 2008, drawn a “line in the sand” by deliberately removing the pins, and to the Claimant being well aware that they had instructed distribution operatives not to jam the nozzle handles open.

21. At paragraph 93, the Tribunal explain:

“93. … The Tribunal was satisfied that the claimant deliberately used a stone to jam the handle of the fuel pump nozzle. He knew that this was contrary to the respondent’s instructions. The Tribunal did not accept inserting a stone in the place of the pin was not inherently hazardous. The stone was not part of the equipment and was not made for that purpose. While the claimant remained in the vicinity of the fuel pump he was sitting in the vehicle cab undertaking paperwork. The Tribunal concluded that the claimant’s conduct was misuse of the respondent’s equipment and was gross misconduct.”

22. At paragraph 96, the Tribunal stated that they were satisfied that Mr Oliphant had taken into consideration the mitigating factors put forward by the Claimant before he reached his decision and that the decision to dismiss was a reasonable one in all the circumstances. Similarly, Mr Wilson, who heard the appeal, had taken account of all the mitigating factors that were put forward and had been entitled to reject the appeal.

23. The Tribunal noted that this occasion of misconduct was, for the Claimant, a “first offence” and observed that dismissal may be justified in such a case if the misconduct is so serious that dismissal is a reasonable sanction. They considered that the removal of the pins made it clear to drivers that they required to refuel manually, that that message was reinforced when Mr Brown was dismissed and a further notice put up. When, despite all that, the Claimant acted as he did and the Respondents were entitled to dismiss.

Relevant Law

24. The provisions of section 98(1) and (4) of the Employment Rights Act 1996 were relevant and the Tribunal plainly had proper regard to them.

25. Otherwise, this being a perversity appeal, regard may be had to the various authorities which have stressed that an appeal on such grounds will only succeed where the Tribunal’s decision was plainly wrong – provoking a response such as “my goodness, that was certainly wrong” – or where there are overwhelming grounds that the Tribunal reached a decision that no reasonable Tribunal on a proper appreciation of the facts of the case and the relevant law, would have reached (see e.g. Hereford and Worcester County Council v Neale [1986] IRLR 168, Stewart v Cleveland (Engineering) Limited [1994] IRLR 440, Yeboah v Crofton [2002] EWCA Civ 794).

The Appeal

26. The Notice of Appeal originally contained 14 grounds. Ground 11 was solely concerned with an allegation of bias. Ground 12 was partly concerned with an allegation of bias and criticism of the Employment Judge, as were grounds 1 and 2.

27. By letter dated 28 December 2011 Mr Cameron withdrew the allegations of bias in grounds 11 and 12. At the start of the appeal hearing, he withdrew those parts of grounds 1 and 2 which involved any criticism of the Employment Judge and/or bias.

28. Grounds 3, 4, 6, 7, 8 and 9 all involved assertions that there was evidence to which the Tribunal had failed to have regard or that there was no evidence on which various significant findings were based.

29. By order seal date 29 November 2011, directing that the appeal be set down for a full hearing, parties were directed that if either of them considered that a point of law could not be argued without reference to evidence given or not given at the Tribunal hearing, they required to give notice to the other party of that matter within 14 days of that order, and seek to agree a statement in that regard within 21 days thereafter, failing which they had a further 7 days within which to make an application to this Tribunal for, for instance, a note from the Employment Judge in relation to the evidential issues raised. Accordingly, the deadline for making any such application was 11 January 2012. No application for a note from the Employment Judge was timeously made. Mr Cameron did, by letter dated 3 April 2012 make an application without any explanation for its lateness other than it was something which “had occurred to him” when preparing for the appeal but given that lateness and the imminence of the date of the appeal hearing, it was refused. We were not provided with any agreed statement relating to the evidential matters raised in the Notice of Appeal.

Submissions for the Claimant

30. As stated, the first ground of appeal was that the Tribunal had not judged the reasonableness of the decision to dismiss according to the set of facts known, believed and expressed by the employer at the time. No notices were produced in evidence and Mr Oliphant’s evidence was incredible. In relation to that ground, Mr Cameron submitted that the Tribunal had indulged in an atypical form of substitution. They had, he submitted, bolstered the employer’s case and reached findings of fact which differed from it. He thought that the inference from the Tribunal’s findings was that the Claimant knew it was wrong to place the stone in the handle but the Tribunal failed to state the extent of the wrongdoing. They did not say whether or not the Claimant saw the notices. He believed it was quite clear that the Tribunal had held that the Claimant knew it was wrong to use the stone but had shied away from finding that he had received any instruction to that effect. That being so, how did he know it was wrong?

31. Mr Cameron sought to make much of the notice point, asserting that the Tribunal’s conclusion was wrong because they never saw the notices and could not conclude that the Claimant had seen them. He seemed, at one point, to suggest that the Respondents’ reliance on the existence and content of the notices had arisen as a surprise at the hearing – at one point he said, in terms, that the Respondents had not relied on the workplace notices at the hearing. That puzzled us, given the references to the matter in the Tribunal’s judgment and given, moreover, that the Claimant’s ET1 states that his employer had alleged that he had “defied a workplace notice” and the notice explaining why the pins had been removed is relied on by the Respondents in their ET3. If he had been concerned to see the notices and thought it would help the Claimant if the Tribunal saw them, we could not understand why no steps were taken by way of, for instance, seeking a document recovery order prior to the hearing.

32. Regarding the second ground of appeal, according to the Notice of Appeal, the point to be argued was that there was no evidence or insufficient evidence to support the Tribunal’s findings in relation to the notices (although the references in the ground of appeal are not to those paragraphs of the Tribunal’s judgment that deal with the point about notices). Mr Cameron’s oral submission was somewhat different and was that the Respondents’ concern was not the Claimant’s failure to comply with any workplace notice but with paragraph 7 of the health and safety responsibility document that the Claimant had signed on 16 October 2007. He did not explain how, if that was correct, error on the part of the Tribunal was thereby demonstrated.

33. Grounds of appeal 3 and 5 were taken together. As pled in the Notice of Appeal, they were to the effect that, on evidence led to which the Tribunal had not referred, the Respondents themselves were guilty of health and safety failings in relation to risk assessments, training, devising safe systems of work and generally maintaining a health and safety regime which complied with the Health and Safety at Work etc Act 1974 s.2 and the Management of Health and Safety at Work Regulations 1999. They were, therefore, according to the written ground of appeal, not entitled to be critical of the Claimant. In ground 3, the Notice of Appeal states:

“… a health and safety regime is the sine qua non of a reasonable employer and delinquency in the area the hallmark of an unreasonable one. Further, it is rank hypocrisy for a delinquent employer to apply a ‘zero tolerance’ policy to employees for alleged breaches of health and safety especially in the absence of training or instruction. Rank hypocrisy is not a quality of a reasonable employer acting reasonably. The tribunal converse finding was irrational, perverse and erroneous.”

34. In ground 5, the Notice of Appeal asserted that the notices referred to were not adequately intimated but intimated “by haphazard display on notice boards” and that the Tribunal’s approach was “logically flawed” because it:

“condones an employer’s failure to communicate workplace rules and train and instruct on health and safety matters. It is an extraordinary and plainly wrong stance for an employment tribunal to adopt.”

35. In oral submission in relation to these two grounds of appeal, Mr Cameron said that the Tribunal’s decision was clearly wrong. The Respondents’ decision to dismiss was objectively unreasonable. He recognised that, without any note from the Employment Judge in relation to the evidence, he could not proceed with the grounds other than in a “truncated way” but it was plain, he said, that dismissal was not within the range of reasonable responses. Flouting a workplace rule did not automatically mean that dismissal was fair. Health and safety had been seen as an aggravating factor but how could that be, when the instruction had not been conveyed to the employee? The employer had had an obligation to identify risk, produce health and safety procedures and to train employees, under reg 13 of the 1999 Regulations. He referred, in support of those submissions, to a decision of the Court of Session in a personal injuries claim, Doran v Shanks Waste Management (2010) CSOH 91, and said that the Respondents had not gone any lengths at all to fulfil their reg 13 responsibilities. Whilst he recognised that his use of the word “rank” in relation to hypocrisy, in the written ground 3 was, perhaps, too strong, he still insisted that there had been hypocrisy on the part of the Respondents. They had double standards.

36. Mr Cameron also insisted on the display of notices having been “haphazard” although he did not point to any finding in fact which supported that assertion – we noted that there were no findings in fact which could be construed as doing so.

37. No submissions were made in support of the fourth ground of appeal.

38. Ground of appeal 6 was stated, in the Notice of Appeal, to be that the Tribunal:

“…unaccountably misconstrued the claimant’s evidence by holding that he did not deny misconduct. The finding was perverse, irrational and unsupported by the evidence before it.”

and asserted that they had misconstrued his general plea for clemency.

39. Further, that ground of appeal stated that:

“Its reliance on the claimant’s alleged confession to establish the existence of a work place health and safety rule was flawed and erroneous. The existence of a disciplinary or health and safety rule cannot be established from a false, coerced confession by the employee alone.”

40. Before us, Mr Cameron said he was not insisting on that part of the sixth ground of appeal which asserted that the Respondents had relied on a false, coerced confession. However, the Tribunal had, he insisted, confused the Claimant’s “mea culpa” with a confession of guilt.

41. The seventh ground of appeal asserted that the Tribunal had heard no evidence to support a finding (at paragraph 17) regarding the knowledge of other operatives – Mr Cameron’s argument was that the Tribunal had found that ‘everybody else knew’ but they had not heard from all the other operatives and so could not draw that conclusion. He did not accept that paragraph 17, which states:

“17. Those distribution operatives who read the notices knew that the pins had been permanently removed to ensure that all vehicles were to be refuelled manually thereby avoiding damage to the fuel pump and fuel spillage. They were also aware the handle of the fuel pump nozzle was not to be jammed and to do so could result in disciplinary action.”

only indicated what anyone who had read the notice in question would, thereby, have come to know.

42. Grounds of appeal 8 and 9, as stated in the Notice of Appeal, are to the effect that Mr Oliphant and Mr Wilson failed to take account of a list of mitigatory factors. The list in ground 8 goes beyond the factors relied on by the Claimant in his oral and written statements to the disciplinary and appeal hearings. Mr Cameron accepted that that was so but submitted that his list, in ground 8, was what the Respondents should have taken into account namely that the Claimant did not see the warning notice prior to the incident, that he suffered from tennis elbow which made refuelling painful, that he had an exemplary record, that he had received no health and safety training and that the Respondents did not have a safe system of work in relation to refuelling.

43. Ground of appeal 10, as stated in the Notice of Appeal, concerned comparative justice. The Tribunal had judged consistency by reference to what happened to Mr Brown and that was erroneous. Mr Brown had actually caused a spillage. Mr Cameron made submissions to the same effect as the written ground of appeal, initially suggesting that other drivers had been treated less harshly for similar offences but then accepting that there were no findings in fact about any other driver apart from Mr Brown.

44. Ground of appeal 13, as stated in the Notice of Appeal, was to the effect that the Tribunal’s assessment of the Claimant’s credibility was unjust and unexplained and ground 14 stated that the Tribunal’s judgment was “an egregious miscarriage of justice”.

45. Mr Cameron made no submission as to what should be our course of action if his appeal were to be upheld.

Submissions for the Respondents

46. Mr Foster submitted, under reference to a clear and helpful skeleton that the Tribunal had not fallen into error. They had applied the correct tests and reached sustainable conclusions. This was now solely a perversity appeal and the Claimant’s case did not pass the high threshold for such appeals.

47. As a generality, Mr Foster referred to the extent to which the Notice of Appeal proceeded on the basis that there was evidence unaccounted for or a lack of evidence to support the Tribunal’s findings and submitted that where an appellant makes such assertions, they cannot properly be considered without, in the absence of an agreed statement, there being a note from the Employment Judge.

48. Mr Foster submitted that the findings of the Tribunal demonstrated that the Respondents had had a consistent approach to the nature of the wrongdoing, throughout. He referred to the Claimant’s admissions and the letter of dismissal. The submissions that the Claimant had received no training or instruction was contradicted by his own admissions. Further, the focus on the notices failed to address the wider issues including the fact of the Claimant’s knowledge about the refuelling rules. Regarding the sanction of dismissal, the Tribunal plainly had the correct test in mind. In applying it, they took account, appropriately, of the fact that the Respondents considered that what the Claimant had done was gross misconduct, that the only comparable case – Mr Brown’s – had resulted in dismissal, and that there was ample evidence that the Claimant knew he should not have done as he did.

49. Regarding that part of the appeal which asserted that the Respondents, as a generality, had an inadequate health and safety system, they did not have to establish anything about their general regime. The point was whether or not the Respondents had reasonably concluded that the rule in question was sufficiently clear to its employees including the Claimant. The allegation of hypocrisy was perverse and wholly unsupported on the evidence. It was not raised in the ET1, at the disciplinary hearing, on appeal, or before the Employment Tribunal. There was no reason for the Tribunal to consider the matter or form any view on the extent of the Respondents’ general compliance with their duty of care.

50. Mr Foster submitted that to suggest that the Tribunal misconstrued the evidence regarding the Claimant’s admissions was to fly in the face of rationality. What the Claimant said, repeatedly, could not be construed as other than a plain admission of wrongdoing. Nor, he added, was it ever any part of the Claimant’s case to the Tribunal that those admissions had been coerced or were false.

51. Mr Foster took issue with Mr Cameron’s interpretation of paragraph 17.