United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme)


 


SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

The decision of a single judge of the Claimant's unfair dismissal claim was set aside and remitted to a three-person Employment Tribunal which dismissed the claim. This second appeal was misconceived. The task of the Employment Tribunal was not to decide who was driving the van, and whether dangerously or carefully, but whether the Respondent carried out as much investigation as was reasonable. On authority, the EAT would not readily intervene in a dismissal for conduct case, whether for the Claimant or the Respondent.


 


HIS HONOUR JUDGE McMULLEN QC

1. The case begins for my purposes on 16 June 2010 when the Claimant Mr Harding was represented by counsel before this court, presided over by Slade J. The Claimant had contended that he was unfairly dismissed. The Tribunal upheld his case. The Respondent Cancer Research appealed and the appeal was allowed by consent. What the EAT division said was this:

"2. The brief facts are these. The Claimant was one of a team of van driver stock collectors who was responsible for leafleting streets and then returning to collect bags of items for the charity left out by residents. He worked out of the Harold Wood depot. Five other drivers operated out of the Harold Wood depot and two other drivers worked out of another local depot.

3. On 19 December 2006 the Claimant was given a final written warning for gross misconduct in respect of his driving. The warning remained in force for 12 months. On 17 August 2007 a member of the public contacted the Respondent and complained that one of the Respondent's van drivers had been driving in such a way that "he nearly killed me". The caller outlined the matters of which he complained in the driving of the driver. An investigation was carried out. We do not propose to set out the details of such an investigation and the subsequent steps for reasons which will become apparent.

4. The Claimant was called to a disciplinary hearing which was held on 15 and 19 February 2008. The outcome of the hearing was that he was dismissed on 19 February 2008. An appeal from the dismissal was itself dismissed on 30 May 2008. The Employment Tribunal held that the Claimant was unfairly dismissed. The basis for that finding was the subject of one of the grounds of appeal. Since we do not propose to give a full judgment in the light of the non-opposition to the appeal, we merely set out the main features of the grounds of appeal which we find well-founded."

2. The EAT did not need to go further since the appeal was being allowed but the point is that the case then remitted for a full hearing having previously been before an Employment Judge was now before Regional Employment Judge Lamb and members. It took place on three days in October and Reasons were sent to the parties on 3 November 2011. The outcome could not have been more different for Mr Harding; he lost his case of unfair dismissal. He had been represented by counsel, a Notice of Appeal was lodged, it took three points.

Introduction

3. Since Mr Harding today has the advantage to be represented by Mr Thomas Kibling giving his services under the ELAA Scheme, I can be clinical for only one ground is now pursued of the Notice of Appeal and as to this HH Jeffrey Burke QC formed the relevant opinion:

"1. As to ground of appeal 1, the Employment Tribunal considered the disciplinary process as a whole and in some detail. The Appellant doesn't identify what part of the disciplinary rules was not followed, but failure to follow one part does not amount to a reason why the Employment Tribunal should not treat the process as a whole as reasonable. The Employment Tribunal made detailed findings as to the process, including specific defects alleged at paragraph 26 and concluded at paragraph 5.2 that the process was thorough and reasonable. That was a finding of fact which they were entitled to reach.

2. As to ground 2, the Employment Tribunal were not obliged to decide on the facts of what happened; whether it was reasonable for the employers to believe in the misconduct was considered at length."

4. I have included ground 2 because the Tribunal was at pains to direct itself that the point of the case was not whether the Claimant was guilty to a civil or a criminal standard of bad driving but whether there was material upon which the Respondent could reasonably come to that view.
5. Dissatisfied with the opinion of Judge Burke, Mr Harding now representing himself applied under rule 3(8) which was to have the matter considered again as it was, this time by HHJ David Richardson who said the following:

"I am considering a letter dated 23 March 2012 which the Appeal Tribunal has treated as a fresh notice of appeal under rule 3(8). I do not think this letter discloses any reasonable grounds for appealing. The Employment Tribunal's task was to apply section 98(4) of the Employment Rights Act 1996. This it did, considering the investigation, disciplinary proceedings and appeal with considerable care. It was for the Tribunal to decide whether the Respondent acted reasonably. The Appeal Tribunal has a limited role. It does not consider again the arguments as to whether the Respondent acted reasonably. It intervenes only if the Tribunal made an error of law. In this case the Tribunal (unlike its predecessor) applied section 98(4) correctly, making no error of law as to the burden of proof or in any other respect. So an appeal does not have any real prospect of success."

6. The outcome was that a letter of 23 March 2012 is the vehicle by which this appeal is now presented in its shorter form to me and it says the following:

"I then received a letter from Kevin Smith on the 21^st August 2007 advising me that I was being investigated. At no time did Kevin Smith ask me to state my case or challenge any evidence of what I was supposed to have done. At no time was I informed of the details of the allegations to which I had been accused of until the hearing which was too late to gain witness statements due to the length of time. Also at no time did Kevin Smith have an informal meeting with me to discuss the allegations."

7. It is plain that the Smith letter is alerting Mr Harding to the prospect that he was being investigated for what is a three part breach of the disciplinary policy, but in short it is bad driving causing the prospect of injury and bringing Cancer Research into disrepute.
8. I have looked carefully at this letter. There can be no doubt that Mr Harding knew what he was facing when he went through the early stage of what has now become a very long journey for him. Attached to it was an email from a person at Transport for London indicating that grass cutting was going on on the A12 at the time, said to be supportive of the Claimant's case that he was not the driver responsible for bad driving on that day.
9. The Employment Tribunal gave itself correct directions, no criticism has been made of the Tribunal's appreciation of the relevant law and issues as set out in paragraphs 2 to 6 of the Judgment. Indeed, focus is now turned on this simple direction: did the Respondent conduct an investigation which was reasonable. The references in the remainder of this self-direction include Taylor v OCS Group Ltd [2006] IRLR 613 which is, of course, the direction that a Tribunal consider all of the material which is available to the employer in a disciplinary hearing and then on appeal. Mr Kibling accepts that this was a re-hearing on appeal.

The facts

10. The facts could not have been more simply stated:

"14 . Eight months later on 17 August 2007 there was a telephone call from a member of the public, Mr Neil Shackleton, to Margaret Oswell, the Respondent's fleet manager and the content of that phone call is set out in an email dated 17 August at 16.27 from Margaret Oswell to Kevin Smith. She stated as follows: "I received a call at around 3.45 from Neil Shackleton who wished to report one our van drivers had been driving in such a way "he nearly killed me". Apparently our driver had carved up this person plus several other vehicles and this happened at around 3.35pm on the A12 today, about six miles from the M25 Mr Shackleton did not manage to get the number plate of the van but was quite vociferous in his opinion that using such drivers did nothing for our reputation. I of course gave our apologies but he remained very disgruntled. Mr Shackleton's phone number is ----- I did not get a chance to say that someone would call him back as he suddenly had to cut off the call because there was a policeman. I do not think there is any other information I can give you but from our conversation you are fairly confident you know who the relevant van driver is". It appears from the email that Kevin Smith having discussed this with Ms Oswell in a telephone conversation had expressed confidence in knowing who the relevant van driver is and we now know that that person was who in his mind was Mr Harding."

11. The allegation by the member of the public is that the driver of the van nearly killed him. It may have been exaggerating that but nevertheless that was his allegation. A number of corrections need to be made to this Judgment but they are immaterial; occasionally the names of the people are transposed. But Mr Smith, the relevant manager, conducted an investigation. There was a disciplinary hearing before Ms Munns. She, as Slade J noted, conducted a hearing over two days. Intervening between those two days was the collection of further evidence by Mr Harding and by his trade union representative which Ms Munns considered further. The Tribunal accepted the evidence which Ms Munns gave in her witness statement for it adopts it entirely and accepts the facts which Ms Munns set out in her letter dismissing the Claimant following the meeting being resumed on 19 February.
12. Dissatisfied with that, Mr Harding appealed on 23 February 2008. The simple proposition he has throughout maintained is this, "I can prove I was not in the area of the reported incident at the given time". That was then investigated further by Mr Pearce who conducted the appeal taking the form of a full re-examination of all material which Mr Harding and his union representative wished to put. He dismissed the appeal.
13. What the Tribunal decided was as follows:

"44. Those are the relevant facts and we now turn to discuss the arguments which have been put forward on behalf of Mr Harding in support of his complaint that he was unfairly dismissed. First of all we pick up some points made in the ET1 in the original claim. These are points in which he is going back to the original findings of fact of the employers and continuing in effect to dispute them. In our judgment it was reasonable for the Respondents at both dismissal and appeal to conclude that the van seen by Mr Shackleton was one of their vans and by a process of elimination to identify Mr Harding as the driver most likely to have been in the vicinity at the time. We emphasise that what we have to consider here is whether this was a reasonable conclusion for the employer to reach and we could really do no better than hark back to that analysis of the position by Mr Peach in which he states Mr Harding's case as eloquently as it could be stated before analysing the reasons why it should be rejected.

45. Part of the complaint made by Mr Harding is that there was an assumption by Mr Smith that Mr Harding was the obvious suspect for the bad driving and that taken into account was his previous record. Our view about this is that it was absolutely reasonable for the employers to take into account Mr Harding's record which demonstrated a propensity for bad driving whilst driving the Respondent's van. The incident which in part gave rise to the final written warning was striking in its similarities to that which caused his dismissal in terms of the location on the A12, the timing in the afternoon, and the sort of driving that was being described, so it was certainly reasonable on the part of the employers, as we have seen from Mr Peach's reasoning, to conclude that this was part of the facts that ought to be taken into account in deciding that he was indeed the driver identified by Mr Shackleton."

14. There then follows a further acceptance throughout the remainder of the paragraphs of the position of the Respondent which was that it had sufficient material upon which to form a view that it was Mr Harding who was driving the van at the time. The Tribunal considered that a reasonable employer faced with this material could have made that decision and dismissal for such conduct was within the range of reasonable responses of an employer.

The Claimant's case

15. Dealing with the very simple proposition that there was insufficient investigation of this matter, in my judgment this case is one of those which so frequently reach the EAT and just as frequently reach the Court of Appeal. They demonstrate the proposition, so difficult for an ordinary working person to understand or to accept, which is that the issue before the Tribunal is not: did he do the act alleged? But: did the Respondent have reasonable grounds for believing he did? The matter is put into stark juxtaposition when, for example, there is a prosecution followed by an acquittal; or disciplinary proceedings taken by the regulator of a caring profession followed by the discharge of the allegations. But that does not affect the law of unfair dismissal.
16. I am bound by the Judgment of the Court of Appeal Fuller v London Borough of Brent [2011] IRLR 806, there Mummery LJ said this:

"This is not an easy case. Perhaps it would not be out of place to make a few general comments about these differences which lawyers and non-lawyers sometimes find unsatisfactory even inexplicable. Unfair dismissal appeals to this court on the ground that the Employment Tribunal has not applied correct section 98(4) can be quite unpredictable."

illustrated by that very case where the Employment Tribunal found in favour of the Claimant, the EAT reversed it and the Judgment was restored by the Court of Appeal by a majority.

17. The same is true of Bowater v North West London Hospitals NHS Trust [2010] IRLR 331 where the Court of Appeal said this:

"It is important that in cases of this kind the EAT place proper respect to the decision of the ET. It is to the ET to whom Parliament has entrusted the responsibility of making what are no doubt sometimes difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lies on a point of law and it goes without saying that the EAT is not under the guise of a charge of perversity to substitute its judgment for that of the EAT"

18. Further guidance was given by Mummery LJ in Gayle v Sandwell [2011] EWCA Civ 91. I set all these authorities in Stofor UKEAT/073 and most recently the Court of Appeal has reaffirmed these principals; see Graham v DWP [2012] EWCA Civ 903.
19. In this court an astringent approach has been taken to these authorities by Supperstone J and members in Arriva Trains v Connaught UKEAT/2011/0043 at paragraphs 23 to 34. Let me just summarise the position of the 15 binding authorities. Decisions go either way on unfair dismissal but broadly speaking the EAT and the Court of Appeal does not interfere with decisions by the Employment Tribunal when it has directed itself correctly on the law and made findings sufficient to support that. The task of the Employment Tribunal was not to decide who was driving the van, and whether dangerously or carefully, but whether the Respondent carried out as much investigation as was reasonable. On authority, the EAT would not readily intervene in a dismissal for conduct case, whether for the Claimant or the Respondent. (The appeal to Slade J was allowed by consent).
20. In my judgment, the determination of Mr Harding to prove his case is misconceived in this court because as I and the Employment Tribunal below have said that is not the test. This very long dispute between Mr Harding and his employer must now be brought to an end. I doubt if he will be satisfied. He had a short-term success following the first judge-alone judgment but the position now is that a decision of a very senior and experienced three-person Employment Tribunal in the full glare of a remission by this court to determine the matter afresh has come to a decision which is not perverse and which is correct in law.
21. Thus, for reasons which I have given I agree with the Judgments of HH Jeffrey Burke QC and HHJ David Richardson who both formed the view that there was no prospect of success in this case. I have no doubt it was the fair and likely outcome envisaged by Slade J and members. Although I have been much assisted by the additional arguments of Mr Kibling at this the fifth judicial consideration of the case, there is no error in this judgment and I will dismiss the application under rule 3 and with it the underlying appeal.