HIS HONOUR JUDGE HAND QC
1.
This is an appeal against the judgment of an Employment Tribunal
comprising Employment Judge McLaren and Messrs Ross and Tomey sitting at East London over three days in September and December 2011.
2.
The Employment Tribunal concluded that the Appellant, the Claimant
below, when his 20-year career in the Post Office ended on 26 February 2010,
had been fairly dismissed. The Employment Tribunal identified three issues at
paragraph 6.1 of the Judgment at page 24:
i.
was the reason for dismissal a potentially fairly one in that the
Respondent had a genuine belief in the Claimant’s guilt, based on reasonable grounds
and arrived at following a proper investigation?
ii.
was the dismissal procedurally fair?
iii.
was the dismissal within the range of reasonable responses?
3.
The Employment Tribunal then went on to direct itself, in terms of the
well known authorities of British Home Stores v Burchell [1978] IRLR 379, Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 and Hajianou
v Coral Casinos Ltd [1981] IRLR 352 on the approach to be adopted where
the reason relied on was conduct.
4.
Having given itself those directions as to law, the Employment Tribunal
went onto consider the facts, which were that on 30 December 2009 a regular at
Houndsditch Post Office, known only as “George”, arrived there in the morning
and started to drink beer, something he was wont to do. He left but returned
after 1.00 pm and settled down to drink some more cans of beer. He was sitting
opposite the counter where the Claimant was working and was both talking and
shouting; this too was a regular occurrence. Not surprisingly there was, in
effect, a standing instruction that when he attended with alcohol staff would
use their judgment as to whether he should be ejected.
5.
On this afternoon, George started to make a nuisance of himself with a
customer and something said by the Claimant about George to Mrs Jethwa, the
Assistant Branch Manager, who was in charge that afternoon, appears to have
upset that customer. The Claimant had in fact used the word, “Okay” and the
customer said, “You think that’s okay do you mate?” This appears to have
caused the Claimant to lose his composure; he slapped his hand on the counter
and said, “Why does everyone keep fucking asking me?” he then left his position
saying, “I’ve had enough of this shit, I am going home.” Not long afterwards
he returned and apologised to the customer who, be it noted, returned the
apology. He then spoke to the Assistant Branch Manager and said he was feeling
stressed and was leaving. She apparently replied, “Okay”.
6.
Although the Claimant telephoned the Assistant Branch Manager later to
say that he did not have a personal issue with her and that he would be back at
work the following day, in fact he did not come in. Instead he telephoned to
say he was still feeling unable to attend work. He spoke to Mr Lawrence, the
Branch Manager who was present the following day. Mr Lawrence told him he was
suspended because of the incident with the customer. There followed, during
that suspension, two investigations by different managers. The Claimant, in
the course of the investigations, said that his reaction had been due to stress,
which in turn had been caused by the fact that the branch was short staffed.
7.
During these investigations a previous incident was disclosed.
Apparently the Claimant had kicked a trolley and hurt his foot. It was also
alleged on behalf of, but apparently not by, Mrs Jethwa, the Assistant Branch
Manager, that she was petrified of the Claimant. The Claimant was charged with
serious abusiveness, allegedly swearing and exhibiting aggressive and
threatening behaviour towards customers and colleagues and leaving work in the
middle of a shift without permission. The next event is succinctly summarised
at paragraph 28 of the Judgment as follows:
“28. The Claimant was then sent an invitation to attend a formal
disciplinary interview and this invitation is at page 95 of the bundle. He was
told that the charge was serious abusiveness, allegedly swearing and exhibiting
aggressive and threatening behaviour towards customers and colleagues and
leaving work in the middle of a shift without permission.”
8.
There was a disciplinary hearing on 10th February 2010. As a
result of which, the Claimant was dismissed for:
“[…] behaviour demonstrated on Wednesday 30 December and the
fact that the Claimant had left his place of work without permission.”
(see paragraph
29)
9.
It is also said at paragraph 29 that the dismissing manager, Mr
Middleton, reached a decision to dismiss on the basis of one incident only. The
Claimant appealed against his dismissal and on appeal it seems that Mr
Middleton wished to rely on other matters and this is how the Employment Tribunal
puts it at paragraph 29:
“Page 111 of the bundle sets out Mr Middleton’s summary of why
he reached the decision.”
10.
Under the heading, “Reasons for Dismissal” Mr Middleton makes reference
to other incidents which came to the light during the fact finding interview
which showed that the Claimant had behaved in this manner before. Further, at
page 200 in the bundle are the notes of the fact finding interview between Mr
Dunn and Mr Middleton, which Mr Dunn carried out as part of his appeal
process. Again, Mr Middleton states that the Claimant’s previous behaviour was
not taken into consideration on making his decision to dismiss. However, he
again raises these previous issues. He made a statement that the Claimant was
not the sort of person you wanted to be working in Houndsditch. He is recorded
in his notes as having considered a final warning and a compulsory move or
dismissal and that he did not feel it was right to place the Claimant somewhere
else because he fear a repetition of his conduct. The only option, he felt, to
prevent a reoccurrence was dismissal.
11.
These other incidents were the trolley incident, which we have already
mentioned, and a new matter relating to the placing of labels on the door of a
fridge. Mr Middleton agreed that the Claimant had known nothing about these
matters being under consideration. At paragraph 31 the Tribunal note:
“He accepted that neither incident had been raised with the
Claimant by his line manager. He accepted that the incident of putting the
labels on the fridge was not an explosive incident but maintained that it was
not rational. He accepted that the only evidence of intimidation of other
staff was contained in Mr Lawrence’s notes and that there was no other evidence
of this although he maintained the view that this is what had happened.”
12.
As part of the appeal process other colleagues were interviewed and new
evidence was gathered. The Claimant knew nothing about this. As a result of
the appeal process, Mr Dunn, the manager hearing the appeal, confirmed the
dismissal in relation to using abusive language to a customer, but overturned
the dismissal decision insofar as it related to the Claimant being aggressive
to other colleagues and leaving his place of work.
13.
The Employment Tribunal summarised it in this way at paragraph 38 of the
Judgment:
“His [Mr Dunn’s] evidence before the Tribunal was consistent
with the summary that he held the Claimant had sworn at a customer. He relied
on the witness statements of those also present to reach this conclusion. In
his summary Mr Dunn did refer to other incidents concluding that these were
consistent with the Claimant’s behaviour.”
14.
The Tribunal continues:
“Mr Dunn was asked a series of questions in cross examination as
to what was the reason for dismissal. He was asked for example why he
investigated the incident with the trolley and how this was relevant. Mr
Dunn’s answer was that it was relevant for him to ask about and that it showed
how the Claimant had reacted in a similar situation to the one he was suspended
for. He was asked whether he used the trolley incident as part of the
dismissal and replied that he did not feel that it had been dealt with
properly. He stated that in terms of decision making he was taking into
account the likelihood of recurrence and felt there was such a likelihood. The
decision to uphold the dismissal was because it was gross misconduct but it was
likely to happen again as it had happened previously. He did take into account
the likelihood of recurrence.”
During the course of argument both Mr Moore of counsel who
appeared on behalf of the Claimant and Mr Dickason of counsel who appeared, as
he did below on behalf of the Respondent, relied on this as being an important
passage.
15.
Mr Dickason pointed out that the Tribunal went on at paragraph 40 to say
this:
“He [again Mr Dunn] was asked about what weight he put on this
other behaviour and he replied that he included it as evidence of the
Claimant’s behaviour as it was not just the one statement he had made and he
did not believe the prior incidents had been dealt with properly but that he
was not applying punishment. He said he had dismissed for the incident but
again stated that based on the other matters he felt the behaviour would
recur. He did not, however, go so far to say that he would not have dismissed
based on one act of misconduct only, i.e. the incident of 30 December.”
16.
At paragraph 49 the Employment Tribunal recorded this in the last
sentence:
“[…] we find the reason for dismissal was conduct which is of
course a potentially fair reason.”
and then reached this conclusion at paragraph 50, which was
another part of the Judgment well travelled by counsel during the argument. It
reads as follows:
“However, we also find that the conduct to which the Claimant
was dismissed was not limited to the events of 30 December. In our view Mr
Dunn in reaching a decision also took into account the other instance of the
Claimant’s apparent behaviour. These included the trolley incident and the
fridge label incident. We make this finding based on two points. Firstly, in
cross-examination Mr Dunn confirmed that he took into account the Claimant’s
behaviour certainly as to the likelihood of recurrence. On the evidence given
to this Tribunal this behaviour was part of the decision making process and
this is further confirmed by the documentary evidence, in particular in the
summary of its findings at page 211. Secondly, we find that his investigation
was significantly wider than that carried out by the investigation prior to the
disciplinary hearing. We find that Mr Dunn asked three witnesses who had not
previously been asked to give an account of the Claimant’s apparent other
behaviour to give him details of that. We can find no reason to do so unless
that formed part of his decision making process which we consider he confirmed
to us in answer to cross-examination questions.”
17.
The Employment Tribunal then went on to apply the Burchell
test and to conclude that the Respondent had a genuine and reasonable belief in
the Claimant’s guilt as to the incident of 30 December. At paragraph 53 the
Employment Tribunal says this:
“However, as noted, we found the dismissal decision was actually
based on two grounds. We find that in relation to the second ground the
Respondent does not meet this test. We find the Respondent could not have had
a genuine belief in the Claimant’s guilt in relation to other conduct for a
number of reasons. This includes the fact the account of these matters are
very inconsistent. The Claimant was given no proper opportunity to dispute
these facts and perhaps most importantly of all, these matters were not
discussed with the Claimant at any point in his career. His line managers, who
apparently witnessed his behaviour, did not institute disciplinary procedures
against him. We find that dismissal based on these particular prior acts of
conduct is unfair and that the Respondent could not have reached a reasonable
belief in the Claimant’s guilt and had not followed a proper investigation.”
18.
The Tribunal goes on to say at paragraphs 54 and 56:
“54. The Respondent cannot therefore properly rely on the second
ground in order to dismiss the Claimant. However, while we have found that Mr
Dunn did consider both grounds when reaching his view, we have not found any
evidence that Mr Dunn would not have dismissed had he considered the first
ground alone.
[…]
56. We would say that in accordance even with the Respondent’s
own view of its procedure those interview notes should have been shared with
the Claimant prior to the appeal decision being confirmed to him. We are also
concerned as to the presence of Mr Lawrence who after all was a witness to this
matter being a companion at the investigatory meeting with others. However as
we have found the dismissal was fair on the first allegation in relation to 30
December these flaws in the process relate only to the second strange and
therefore would not have affected the outcome of the dismissal itself. We do
not therefore find them fatal to the fairness of the dismissal.”
The double negative in the last sentence of paragraph 54 echoes
the double negative in the last sentence of paragraph 40 to which we have
already referred.
19.
It seems to us that on analysis two matters arise. Firstly, what
conduct was being considered by the Respondent when it dismissed the Appellant?
Secondly, did the dismissal process take account of all of the conduct that was
being considered? Mr Moore of counsel of behalf of the Claimant submitted that
the Employment Tribunal had found that the reason for dismissal was conduct;
see paragraph 49. But that that conduct was not limited to the events of the
afternoon of 30 December 2009, it included at least the earlier trolley
incident and the fridge label incident.
20.
Mr Moore pointed out that in the ET3 form the employer had put forward
only the events of 30 December 2009 but, clearly, as the Tribunal had
discovered in the course of investigating the evidence, both Mr Middleton and
Mr Dunn had taken into account other matters. Mr Moore’s submissions went so
far as to suggest that the Employment Tribunal had come to the conclusion that
it should reject Mr Dunn’s evidence and that in effect it had found him not to
be a credible witness. Mr Dickason submitted, on this issue, that a fair
reading of the judgment of the Employment Tribunal led to precisely opposite
result; that the Employment Tribunal had in fact accepted Mr Dunn’s evidence.
21.
Our conclusion is that Mr Dickason is correct. An examination of
paragraphs 39 and 40 and 55 and 56 demonstrates, we think, that the Employment
Tribunal indeed did accept that Mr Dunn was focusing to an extent on the
incident of 30 December but, in upholding the dismissal, he also took account
of the earlier material. Not referred to by either counsel but part of the
bundle of authorities placed before us was the judgment of the Court of Appeal
in Taylor v OCS Group Ltd [2006] ICR 1602; that it was not referred
to is perhaps unsurprising because in many respects it was an entirely
different matter under consideration by the Court of Appeal in that case. The
Court of Appeal does however as part of its analysis of the issue in that case
refer to West Midlands Cooperative Society Ltd v Tipton [1986] ICR
192. At paragraph 30 of the judgment of Smith LJ in the Taylor
v OCS Group case she quotes from Lord Bridge’s speech at page 202 where
he says:
“Both the original and the Appellate decision by the employer in
any case where the contract of employment provides for an appeal and the right
of appeal is invoked by the employee are necessarily elements in the overall
process of terminating the contracts of employment. To separate them and
consider only one half of the process is to introduce an unnecessary
artificiality.”
22.
Neither Counsel has submitted that we should concentrate only on Mr
Middleton and, consistent with the approach identified by Lord Bridge, the
Employment Tribunal was clearly looking at this matter both in terms of the
original dismissal and the appeal and was ultimately considering whether the
dismissal, looked at as a whole, was fair or unfair within the statutory
parameters set out in section 98(4).
23.
Mr Moore submitted that the Employment Tribunal had found the Respondent
could not have a reasonable or genuine belief as to the truth of anything
except the incident on 30 December. The additional matters had not been the
subject of a proper investigation and therefore could not reasonably have been
regarded by the Respondent as part of the analysis that led to the conclusion
that firstly there was a sufficient reason for dismissing the Appellant and
secondly, that the dismissal on those grounds would have been a reasonable
sanction to apply under section 98(4). It could not be reasonable because the
Appellant had never had any opportunity to consider, answer or challenge those
additional allegations, something which plainly was required by section 98(4)
if the dismissal was not be characterised as an old fashioned failure to accord
him natural justice.
24.
Mr Moore accepted that the Employment Tribunal had appeared to have
considered all of this, but at paragraph 54 and 55 had in effect concluded that
these matters could be disregarded and that what should be considered was the
conduct on 30 December by itself. If that was considered then it would have
been reasonable to have treated that conduct as a sufficient reason to dismiss
the Claimant, so any flaws in the process related to additional factors. Mr
Moore submitted this was a flawed analysis. There was at its heart a
misdirection and Mr Moore submitted that the misdirection was of the variety
identified by the House of Lords in the case of Smith v City of Glasgow District Council [1987] IRLR 326.
25.
The case of Smith was a case where the employer had set
out a series of reasons for the dismissal. They are to be found at paragraph 3
of the speech of Lord Mackay. Paragraph 1 of the letter of dismissal was
sub-divided into three lettered sub-paragraphs, all of which might be regarded
as inter-connected to some extent and paragraph 2 related to an entirely
different matter.
26.
Mr Moore’s submission was that when one looked paragraphs 15 and 16 of
the speech of Lord Mackay, one could see that what had been identified as an
error of law in that case was being repeated by the Employment Tribunal in the
instant case. At paragraph 15 Lord Mackay this:
“As a matter of law, a reason could not reasonably be treated as
sufficient reason for dismissing Mr Smith when it had not been established as
true, nor had it been established that there were reasonable grounds upon which
the special committee could have concluded that it was true.”
27.
And at paragraph 16 he went on to say:
“This seems to me clearly to imply that the whole conclusion of
the special committee on the merit including their decision that 1(b) had been
established was regarded by the Industrial Tribunal as reasonably justifying
the dismissal. I cannot agree with the view that the Industrial Tribunal
properly considered this question without mentioning it all as is suggested by
the Employment Appeal Tribunal.”
28.
And at the end of paragraph 16 he says:
“To accept as a reasonably sufficient reason for dismissal, a
reason which at least in respect of an important part was neither established
in fact nor believed to be true on reasonable grounds is, in my opinion, an
error of law. The Industrial Tribunal fell into this error in this case.”
29.
Mr Dickason submits that not all aspects of what he described as a
composite reason for dismissal need to be proved in order for an employer to
successfully resist a claim of unfair dismissal. He points to the case of Carlin
v St Cuthbert’s Cooperative Association Ltd [1974] IRLR 188 where the
National Industrial Relations Court sitting in Scotland came to the conclusion that
if two reasons for dismissal were given and one reason was not established then
the Tribunal could nevertheless still be acting properly so far as the first
reason could be said to be the main reason.
30.
At paragraph 4 of the short Judgment the court says this:
“We agree that if an employer gives two reasons for dismissing
an employee and only one is established by the evidence laid before the
Tribunal and there is no evidence as to which reason, if either, was
subordinate to the other, the employers defence may fail upon the view that
what was in fact the principle reason for dismissal has not been proved and so
the requirements of section 24(1) have not been satisfied. This would, in our
view, necessarily be the result if either of the reasons did not come within
those set out in section 24(2).”
31.
But the Judgment goes on to say that that is not the case and further
down paragraph 24 the following appears:
“But having regard to the whole history of the matter as
disclosed in the evidence, there can be no doubt that both for Mr Currie and
for the Board, the main reason for the Appellant’s dismissal on 24th
May was his failure to discharge adequately his duties and responsibilities
with regard to the introduction of the new VAT system.”
32.
Accordingly the appeal in that case was dismissed. The Employment
Tribunal had found that the principal reason for dismissal had been made out
and even though it had found that a subsidiary reason had not been made out,
that did not undermine or vitiate its conclusion.
33.
So, submitted Mr Dickason, here the Employment Tribunal were in effect
finding that the sticking of labels on the fridge and the kicking of the
trolley were subsidiary matters and were reaching the conclusion that the
principle reason for dismissal in this case were the events of 30 December.
Accordingly the case of Smith was not as fatal as Mr Moore’s
submissions had suggested.
34.
But Mr Moore’s submissions did not rest entirely on the case of Smith.
Mr Moore submitted that what the Tribunal had done was to dissect the reason
given for dismissal, amputate the bad and pronounce the residue sound. As a
matter of statutory interpretation, section 98(4) provides no warrant for what Mr
Moore described as deconstruction of the reason given for dismissal.
35.
We accept Mr Moore’s submission that what the Employment Tribunal have
done here is to take part of what was being put forward by the employer and
pronounce it a healthy and sound reason for dismissal. In our judgment, what
the Employment Tribunal had found by a combination of paragraphs 39 and 40 and,
for that matter, 49 to 56 of the Judgment is that the reason for dismissal in
this case was gross misconduct. The gross misconduct comprised the conduct on
30 December and conduct on earlier occasions which, whilst it would not of
itself necessarily have amounted to gross misconduct, indicated that a sanction
of dismissal was a reasonable and justifiable sanction in the circumstances
because there was likely to be a recurrence.
36.
What the Tribunal have done is to cut out of that reason the earlier
alleged conduct leading to the conclusion that there might be a likelihood of
recurrence and to identify as the reason for dismissal the events of 30
December. In our judgment, that was an error of law on the part of the
Employment Tribunal. In effect, the Employment Tribunal substituted its own
reason for dismissal for that of the employer. Having through a careful
sifting of the evidence arrived at a position that 30 December 2009 was not in
fact the sole basis on which the Claimant, was dismissed, the Employment
Tribunal then proceeded itself to revert to 30 December as the sole reason for
dismissal. In our judgment that was the Employment Tribunal substituting its
own analysis for that of the employer.
37.
Mr Dickason in his careful submissions argued that in fact the
Employment Tribunal were finding that Mr Dunn was relying only the events of 30
December. To an extent that submission depended on the charm of the double
negative as demonstrated by the last sentence of paragraph 40 and the last
sentence of paragraph 55. We do not find any positive evidence that Mr Dunn
had expressed himself in those terms and, indeed, the other findings as to the
position of Mr Dunn set out in paragraph 39, and in particular in the
penultimate sentence of paragraph 39, contradicts any such analysis. It may be
that Mr Dunn felt that what happened on 30 December was gross misconduct but he
clearly dismissed because he thought that such conduct was likely to recur. He
thought that because he was taking into account and had found that there had
been previous incidents of misconduct which he thought affected an analysis of
the Claimant’s personality and led to the conclusion that dismissal was an
appropriate sanction because such conduct was likely to recur.
38.
All of that, on the Tribunal’s own findings, was unsound. The Tribunal
had found that Mr O’Hanlon had not been offered an opportunity to deal with
these matters and say what he wanted to say about these matters. For those
reasons we would allow the appeal.
39.
It is not necessary in those circumstances to go on to consider the
second and third of Mr Moore’s grounds, but for the sake of completeness we
will do so.
40.
Mr Moore submitted that the Employment Tribunal in the way that they
approached this have in fact turned the decision of Polkey v A E Dayton Services on its head. Here the Tribunal have in effect reached the
conclusion that it would have made no difference for the Claimant to have had
an opportunity to deal with the thinking of Mr Dunn or in fact to deal with
whether or not the thinking was soundly based on the true facts relating to
either the fridge labelling incident or the trolley kicking incident. In those
circumstances, Mr Moore submits that the Employment Tribunal should have
arrived at the conclusion that the dismissal was unfair before taking into
account whether or not following a fair procedure might have made any
difference. We were attracted to that argument to a considerable extent but it
depends on whether or not the first point made by Mr Moore is accepted or not
accepted. If this is an analysis of two reasons for dismissal and the
principal reason for dismissal relates to 30 December and is a sound reason, then
it seems to us the argument does not really have any traction. If, on the
other hand, there was an error made then the issue of whether or not the
Tribunal have got it the wrong way round is scarcely determinative of the
appeal. We would not regard this point as of itself having sufficient strength
to stand on its own; as it is, because of our first finding, it does not really
take the issue further.
41.
Mr Moore’s third point related to perversity. We confess to having some
sympathy with the view that this was a harsh decision by the Employment
Tribunal. On the other hand, although we do not actually have the code that is
referred to in the Judgment it seems that the Respondent places considerable
emphasis on its relations with customers. Whether this is truly a situation of
zero tolerance is something that we cannot actually discern from the factual
findings. Were this ground to stand alone, whilst we would have some sympathy
with Mr O’Hanlon’s situation, we do not feel that we could say that this was
such a clear situation that we could express ourselves as so astonished by the
outcome that we would regard the decision as perverse. As it is, we do not
need to decide that either although we would incline to the view that the
Appellant could not clear the very high hurdle that is erected in the path of
any perversity appeal.
42.
Therefore, the question arises as to how the matter should be disposed
of. Mr Moore submitted that we should substitute our own decision for that of
the Employment Tribunal. All the facts are set out, this is a clear
misdirection by the Employment Tribunal and therefore the matter should not be
remitted as to liability to put it in that way, but it should go back only as
to remedy. Mr Dickason submitted that the matter should simply go back for a
re-hearing.
43.
This is a case getting on now for 3 years old in the sense that the
events happened almost 3 years ago. It seems to us that we do have all the
material available to us, we have all the powers of the Employment Tribunal and
we have reached the conclusion that the Tribunal should have decided that this
was an unfair dismissal on the basis that the Claimant did not have an
opportunity to deal with a number of matters that plainly formed part of the
decision making process that led to him being dismissed.
44.
We will substitute a finding of unfair dismissal for that of the
Employment Tribunal. We will remit all issues of remedy and that will include
any arguments as to whether if a fair procedure had been followed that might
have made an impact on compensation, issues as to contributory fault and issues
as to the quantum of compensation. We will remit them to the same Employment
Tribunal because we think that having heard the factual material, the Tribunal
would be most efficiently placed to continue to hear the matter in relation to
remedy. That is, of course, subject to any decision made by the Regional
Employment Judge in the event that it is impossible to reconstitute this
particular Tribunal.
