SUMMARY
CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Wrongful dismissal – whether Employment Judge applied correct
test and reached permissible conclusion. Held: he did.
Unfair dismissal – whether Employment Judge applied correct test
and gave sufficient reasons for his conclusions. Held: he applied the correct
test but gave no sufficient reasons for his conclusions. In effect he did no
more than state a conclusion without informing the parties why they lost or won
on the key issues in dispute.
HIS HONOUR JUDGE DAVID
RICHARDSON
Introduction
1.
On 11 June 2010 Mr Duncan Cossington (“the Claimant”) was
summarily dismissed by c2c Rail Ltd (“the Respondent”) from his employment as a
train driver. His claims of wrongful and unfair dismissal were heard by
Employment Judge Burgher at the East London Employment Tribunal on
3 and 4 October 2012. By a Judgment dated
24 October 2012 the Employment Judge rejected his claim of unfair
dismissal. The Claimant appeals against that decision. At the same time the
Employment Judge upheld his claim of wrongful dismissal. The Respondent cross‑appeals
against that decision.
2.
There is nothing inherently contradictory in upholding a claim of
wrongful dismissal while rejecting a claim of unfair dismissal. They are
separate types of claim subject to different legal rules.
3.
The wrongful dismissal claim is a claim for breach of contract by
failing to give notice - in this case three months’ notice. The task of the
Employment Judge in such a case is to decide whether the Claimant has committed
a repudiatory breach of contract, often in employment terms called gross
misconduct. For this purpose he reaches his own findings and applies the law
of contract to them. But the remedy is limited to an award of compensation
for loss by reason of the failure to give notice.
4.
The unfair dismissal claim is a statutory claim. The task of the
Employment Tribunal, once the employer has established the reason for
dismissal, is to decide whether the employer acted reasonably, keeping
carefully in mind that there may be more than one reasonable way for an
employer to deal with a situation. Essentially, the statute requires the
Employment Tribunal to review the reasons and actions of the employer rather
than to reach primary findings on the underlying facts. However, if the
dismissal is unfair, the Employment Tribunal is not restricted to awarding
compensation for the notice period; there may be an order for reinstatement, re‑engagement
or substantial compensation.
5.
In this case the Employment Judge recognised the difference between the
two kinds of claim. He reached different decisions, applying the different
rules applicable. On this appeal I have heard submissions that he adopted
incorrect legal approaches and in respect of the unfair dismissal claim a
submission that he did not give adequate reasons for his conclusion.
The factual background
6.
The Respondent is the train operator for a line that runs to London from Shoeburyness on the Essex coast. The line goes through Southend Central and
Barking to Fenchurch Street station in the heart of the City. By and large it
is a discrete part of the national railway system. But the Respondent operates
a relatively small number of trains that run on line also used by another train
operator. This is called the GE line, short for Great Eastern. The Respondent
used GE line for some trains that it operated in and out of Liverpool Street
station. It also used GE line for a distance near Barking for a small number
of trains that were going to and from Fenchurch Street station.
7.
The Claimant has been a train driver since 2001. He joined the
Respondent with effect from 28 April 2008. By 2 July 2009
he was authorised as competent to drive all the Respondent’s rail routes,
including the GE line. He signed a route knowledge card certifying his
knowledge and also promising to inform his supervisor if at any time he
considered himself no longer competent to drive over any section for which he
had signed.
8.
On 2 September 2009 the Claimant was taken ill while driving
his train. He stopped in West Ham station. He complained of sickness and
stomach pains. These were investigated, and nothing physically wrong was
found. He was signed off work with anxiety, depression and stress. On
24 January 2010 he returned to work part‑time. On
3 March 2010 an occupational health assessment concluded that he was
fully fit to resume normal duties and drive trains. The Claimant, however,
disclosed that he had a problem using the GE line. He said to the Respondent
that he had “flashbacks” from driving towards GE line. A supervisor noted that
he had anxiety and stress every time he went over that route.
9.
On 16 April 2010 a meeting took place between the Claimant and
Mr Andrew Gee, the Respondent’s driver manager. The Claimant continued to
say that he was uncomfortable about going on the GE line. In effect a decision
was taken that he would not be rostered on such a route for six months. As the
Employment Judge put it, he had “full knowledge and competence of the GE
route”, but the decision was made not to roster him because of the concerns he
had outlined. The Respondent’s case is that he was no longer permitted to work
on GE line from that point onwards without a pilot.
10.
On 14 May 2010 the Claimant attended at 4.00pm to work an
evening shift. He looked at two documents with which he was provided: a driver
diagram and schedule card. These made it clear that he would be driving the
20.48 from Grays to Liverpool Street over GE line. He was concerned. He told
his depot manager he would need a pilot for that part of the journey. He was
told in response that one would be waiting for him at Barking station at
21.11. What the Claimant did not notice was that an earlier train would also
be going over some GE line. This train, which had no passengers, was routed
from Barking to Fenchurch Street via a loop of GE line through Woodgrange Park and Stratford before it regained the main line to Fenchurch Street.
11.
Why did this happen, and why did the Claimant not notice it? It
happened because a duty manager had forgotten to inform Network Rail that the
train should not be routed via GE line. The Claimant did not notice it because
the route was not shown on the driver diagram and schedule card that drivers
usually consulted. It was shown on a working timetable, but this was, as the
Employment Judge found, not a document usually checked by drivers.
12.
However, signals indicated as the Claimant approached Barking station
that the train would go away from the main route and down the GE line. The
signal, of course, was not a red signal – it allowed the Claimant to proceed –
but he should have noticed it earlier than he did. He was already three‑quarters
of the way down the platform at Barking when he realised there had been a
mistake. The Employment Judge summarised the position as follows
(paragraph 29):
“The Claimant accepts that he made a mistake by not being ready
for the route, but he felt that it was a lack of communication and he should
never have been put in that position.”
13.
The Claimant did not stop immediately as he should have done. He took
his train carefully into Fenchurch Street without incident. He then spoke to a
manager with a view to ensuring that it did not happen again. That manager,
realising what had occurred, took him off duty and instigated an investigation.
The first investigation was a safety investigation to identify the causes of
the incident rather than to assign blame for it. This investigation concluded
that the route had been set up wrongly but also that the Claimant was not
paying attention to the signals and should have challenged the route when he
realised that it was incorrectly set. Following this report, the matter was
referred by Mr Mullen, a senior driver manager, for a disciplinary
hearing. The Claimant was charged as follows:
“1. On the 14th May 2010, you contravened the Rule
Book Module S2 Section 5 by knowingly accepting a route that you were aware you
are not permitted to take.
2. By knowingly taking the action that you did, you directly
contravened Rule Book Module TW1 Section 1.1, by placing yourself in a position
of danger.”
14.
The safety rulebook of the Respondent states that if a person has been
signal‑cleared to a wrong route, the driver must stop the train at the
signal if it is possible to do so safely and tell the engineer.
15.
A disciplinary hearing took place on 11 June 2010.
Mr Lennox, who took the hearing, announced the result that day. He said
the following:
“I have considered carefully what we have discussed this
morning. I note that despite some comments re specific details of the
investigation you have not disputed the charges that
1. On the 14th May 2010, you
contravened Rule Book Module 52 Section 5 by knowingly accepting a route that
you were aware you are not permitted to take.
2. By knowingly taking the action that
you did, you directly contravened Rule Book Module TW1 Section 1.1, by placing
yourself in a position of danger.
The charges are therefore proven.
What remains is for me to determine whether these actions
constitute Gross Negligence under Clause 9 of the Company Disciplinary
Procedure.
I have taken into account the mitigating aspects you have
raised, including those identified in A. Gee's report, especially that you feel
this was not all your fault.
Despite this, you have indicated that you know what you should
have done, and that in your own words "no harm was done".
I cannot accept this. You were not authorised to drive trains
over the GE route and were aware of this. You also know what you should have
done and have admitted you would have done it elsewhere.
Your actions could have had severe consequences indeed and put
at risk the safety not just of yourself but also the travelling public.
Such an act constitutes in my opinion Gross Negligence. I
therefore have decided to dismiss you from the employment of c2c with immediate
effect.”
16.
The definition of “gross negligence” that Mr Lennox was applying is
to be found in the Respondent’s investigation manual:
“Where a train driver demonstrates a deliberate disregard for
rules and regulations and/or a complete disregard for the safety of others.”
17.
The Claimant appealed. His appeal was heard by Mr Fraser; it was
dismissed. Mr Fraser said that the last line in defence to prevent a major
accident is the driver. That is why it was drummed into drivers to report
immediately and not take a wrong route.
The Employment Judge’s reasons
18.
In his reasons the Employment Judge, after stating the issues and
identifying the evidence that he heard, set out findings of fact in
paragraphs 7‑49. These findings of fact contain within them what
are or may be criticisms of the Respondent. I shall say a little more about
them in a moment.
19.
The Employment Judge then dealt with the unfair dismissal claim in
paragraphs 50‑55 of his reasons. He first cited from section 98 of the
Employment Rights Act 1996 (ERA) and from British Home Stores Ltd
v Burchell [1978] IRLR 379 and Iceland Frozen Food
v Jones [1982] IRLR 439.
20.
He then continued as follows:
“53. I am satisfied that the Respondent has established a
potentially fair reason for dismissal, namely conduct. The Respondent
dismissed the Claimant on the basis that it believed that the Claimant
deliberately failed to follow its safety policies and that this amounted to
gross negligence.
54. When considering whether the dismissal was fair and
reasonable in all the circumstances I remind myself that it would be an error
to substitute my view for that of a reasonable employer, and that this applies
to the investigation and disciplinary sanction.
55. I do not believe that the Respondent was reasonable in
disciplining the Claimant given that driving on the GE line was caused in part
by the failures of others and the Claimant undertook a judgement as to his own
safety and the service delivery. The Claimant concluded that his health would
not be at risk by driving slowly, that there was no medical evidence to say
otherwise and the Respondent had no evidence to the contrary to come to this
conclusion. Further, I do not believe that Respondent [sic] had a proper
appreciation of the relevant background circumstances by those conducting the
disciplinary process. However, despite my views I cannot conclude that the
Respondent has acted outside the band of reasonable responses, in its safety
critical environment, in the investigation it adopted or in its decision to
dismiss the Claimant in breach of its rules. The Respondent had limited
evidence from its investigation to infer this. This is a difficult case and
although on the very edge of the band of reasonable responses in the investigation
and the conclusion of gross negligence I cannot conclude that it was outside of
that band. Therefore the Claimant’s claim of unfair dismissal fails.”
21.
The Employment Judge then turned to the question of wrongful dismissal.
He said the following:
“56. Different considerations apply when considering the
Claimant’s claim for wrongful dismissal. Unlike unfair dismissal, where I am
required to consider whether the Respondent had reasonable grounds to believe
in misconduct following an investigation within the band of reasonable
responses, for wrongful dismissal I am required to consider whether, on the
balance of probabilities, the Claimant did in fact act in repudiation of his
contract of employment.
57. The Respondent asserts that the Claimant acted in a grossly
negligent way by deliberately failing to comply with the Respondent’s rule book
and putting his own safety at risk. On the evidence, the most that I am able
to conclude is that the Claimant made a bad judgement in dealing with the
circumstances he was placed in. I do not conclude that this was deliberate nor
do I conclude that it was repudiatory in the sense of being sufficiently
serious to entitle the Respondent to dismiss the Claimant without notice. This
was not a matter of the Claimant undertaking a balancing exercise of accepting
and deliberately disregarding the Respondent’s rules. It was a matter of the
Claimant undertaking a judgement to deal with the circumstances he was placed
in due to the fault of others.
58. Whilst the Claimant may have exercised in his judgement in a
way not to the Respondent’s satisfaction I do not conclude that he deliberately
disregard [sic] the rules. On the evidence before me, the Claimant was placed
in a difficult position, the circumstances of which were more fully explored
before me than during the disciplinary process.
59. The Claimant indicated in his initial response to
Mr Gee that an assessment of his safety concerns was made, he had been
fully acquainted with the GE line, the train was empty and he was driving
slowly. He decided that he would be fine. I conclude that that [sic] this was
a judgement he was entitled to undertake in the circumstances without being in
repudiatory breach of contract. By accepting the route, he therefore undertook
a judgement that he would in fact be safe for that journey. He was a qualified
train driver with certified route knowledge placed on the GE route that it was
agreed he would not drive. I do not conclude that by driving the route in
these circumstances he was acting in repudiation of his contract of
employment.”
22.
I said that in the course of making his findings of fact the Employment
Judge set out what were or might be criticisms of the Respondent. The
principal ones, to my mind, are the following.
23.
In paragraph 30, he noted that no action at all was taken against
the manager who failed to pass on the message that the train should be
rerouted. In paragraphs 38‑40 he expressed disagreement with the
assessment of safety by Mr Mullen, who instituted disciplinary proceedings.
He said that Mr Mullen “took a single‑minded approach to
implementing disciplinary action”.
24.
In paragraph 46 he said the following, concerning Mr Mullen and
Mr Lennox:
“46. Neither Mr Mullen nor Mr Lennox sought medical advice
about the Claimant’s position nor did they enquire into the background issues
that the Claimant had about working on the GE line. However, they were both
aware that he was signed off from driving duties for further medical enquiry.”
A possible background to paragraph 46 lies in the
Respondent’s investigation manual, which identifies health issues as ones that
should always be considered (see paragraph 9.1.5) and mandates medical
examination in certain circumstances (see paragraph 9.1.3).
25.
In paragraph 47 the Employment Judge said the following on the
question of whether the Claimant was permitted to take the route in question:
“47. I was informed that ‘wrong route’ means not permitted to
take the route. However, on the evidence I have it is clear that it was not that
the Claimant was not permitted to take the route, it was agreed that he would
not be rostered to do the route. This distinction was not considered during
the disciplinary process as no enquiries were made of Mr Gee as to why the
Claimant should not drive the GE route and no proper enquiry why the Claimant
was not rostered to take the route was made in the disciplinary context.
Further Mr Lennox did not consider that the reasons why the Claimant was
not driving the GE route nor any underlying medical reasons where relevant to
the issue of the whether the Claimant had acted grossly negligently.”
26.
At paragraph 48 he said the following concerning Mr Lennox’s
conclusion that the Claimant had acted in a grossly negligent way:
“Mr Lennox concluded that the Claimant had acted in a grossly
negligent way by deliberately failing to comply with the rule book.
Mr Lennox relied on after the event admissions relating to the appropriate
actions in different contextual circumstances. Mr Lennox believed that
the admissions indicated the Claimant’s acknowledgement of gross negligence.
However, in doing so, the Respondent did not assess the full circumstances of
the position the Claimant found himself in, with the expectation that he was
not going from GE route that in the context of his previous difficult
experiences with managers on the GE route and that he did not want to cause any
further aggravation. Mr Lennox dismissed the Claimant on
11 June 2010.”
27.
At paragraph 49 he noted that Mr Fraser, who heard the appeal,
had said that the Claimant was not competent to drive the GE line and then
noted that Mr Fraser did not have the route knowledge card signed by the
Claimant.
Submissions
28.
On the question of unfair dismissal, Ms Sally Robertson, for
the Claimant, puts her case in two main ways. Firstly, she submits that the
Employment Judge did not apply the objective standards of the reasonable
employer to the question of whether the investigation into suspected misconduct
was reasonable in all the circumstances. She argues that there was no
reference to Sainsbury’s Supermarkets Ltd v Hitt
[2003] ICR 111, which is authority for the necessity of applying this test to
all aspects of a dismissal, including investigation.
29.
Secondly, she submits that the Employment Judge’s reasons were
inadequate to address the criticisms that were made on the Claimant’s behalf of
the Respondent’s investigation. In several places the Employment Judge appears
to accept such criticisms. In what she describes as the “highly compressed”
paragraph 55 of the reasons, he again appears to accept that the
Respondent “did not have a proper appreciation of the relevant background
circumstances” and that there was “limited evidence from its investigation to
infer this”. She submits that it is not possible to see why despite these
findings the Employment Judge held that the investigation was reasonable. She
has taken me through the section of the Respondent’s manual entitled “Safety
investigation of operating incidents” in order to demonstrate what were, she
argues, failings in the investigation. She emphasises in particular the
absence of any medical investigation. This, she argues, might have been
relevant to why the Claimant did not notice the signal earlier, why he reacted
as he did and whether his reaction could be described as a deliberate breach of
the rules, and as to mitigation.
30.
In reply to these submissions, Mr Benjamin Uduje, on behalf of
the Respondent, submits that the Employment Judge stated the correct legal
test, expressly applying it to investigation. On the question of reasons,
Mr Uduje submits that in truth the Tribunal’s reasoning was sufficient for
the Claimant to know why it reached the result it did. The rulebook required
the Claimant to stop at the signal if he was being sent onto a route that he
was not permitted to drive on his own. Even if he had only a few seconds to
avoid the GE route, the Claimant’s decision not to stop at the signal was
deliberate. In a safety‑critical environment, the Respondent cannot be
criticised for dismissal.
31.
On the question of wrongful dismissal Mr Uduje submits that the
Employment Judge’s summary of the law in paragraph 56 omitted an important
element of the correct legal test, namely that a repudiatory breach must be
serious and fundamental. He referred in particular to Laws v London Chronicle [1959] 2 All ER 285 at 287‑288. He submitted that
since there was an admitted failure by the Claimant to follow clear and agreed
instructions that had safety implications, the facts strongly supported a conclusion
of repudiatory breach of contract by the Claimant and that this was the
inevitable finding if the Employment Judge applied the law correctly. In
response, Ms Robertson submits that the Employment Judge applied the
correct test, plainly directed himself to consider whether the Claimant’s
conduct was serious enough to warrant summary dismissal and reached a
conclusion that he was entitled to reach.
Discussion and conclusions
32.
There are bound to be cases of wrongful and unfair dismissal that
Employment Tribunals - these days usually a Judge sitting alone - find close to
the borderline and problematic. There can also be cases that appellate courts
find difficult. In the context of unfair dismissal, a good starting point is
the guidance of Mummery LJ in London Borough of Brent v Fuller
[2011] ICR 806, an unfair dismissal case where there was, as it happens, a
divergence of view within the Court of Appeal itself:
“12. A summary of the allocation of powers and
responsibilities in unfair dismissal disputes bears repetition: it is for the
employer to take the decision whether or not to dismiss an employee; for the ET
to find the facts and decide whether, on an objective basis, the dismissal was
fair or unfair; and for the EAT (and the ordinary courts hearing employment
appeals) to decide whether a question of law arises from the proceedings in the
ET. As appellate tribunals and courts are confined to questions of law they
must not, in the absence of an error of law (including perversity), take over
the ET's role as an ‘industrial jury’ with a fund of relevant and diverse
specialist expertise. […]
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.”
33.
Some of these remarks apply also to wrongful dismissal. Here, in
contradistinction to unfair dismissal, the Employment Tribunal is the primary
fact‑finder. It is not bound to accept the employer’s conclusion on the
question of whether the employee committed gross misconduct. Even if the
employer’s conclusion was reasonable. It is entitled to reach its own
conclusion. The question then for the Appeal Tribunal is whether the
Employment Tribunal erred in law. Paragraphs 29 and 30 of
Mummery LJ’s remarks remain relevant to this question.
34.
I will first consider the finding of wrongful dismissal. It is trite
law that an employer is only entitled to dismiss without notice for a
fundamental breach of contract. In the context of dismissal for disobedience
to instructions, Lord Evershed MR in Laws summarised
the position as follows:
“If summary dismissal is claimed to be justifiable, the question
must be whether the conduct complained of is such as to show the servant to
have disregarded the essential conditions of the contract of service. It is no
doubt generally true that wilful disobedience of an order will justify summary
dismissal, since wilful disobedience of a lawful and reasonable order shows a
disregard, a complete disregard, for a condition essential to the contract of
service, namely the condition that the servant must obey the proper orders of
the master and that unless he does so the relationship is, so to speak, struck
out fundamentally.”
35.
But he went on later:
“I do, however, think, following the passages which I have
already cited, that one act of disobedience or misconduct can justify dismissal
only if it is of a nature which goes to show, in effect, that the servant is
repudiating the contract or one of its essential conditions, and for that
reason, therefore, I think that one finds in the passages which I have read
that the disobedience must at least have the quality that it is ‘wilful’. It
does, in other words, connote a deliberate flouting of the essential
contractual conditions.”
36.
It is important to keep in mind that the Respondent’s case was that the
Claimant had committed an act of gross negligence, by which, as we have seen,
it meant “a deliberate disregard for rules and regulations and/or a deliberate
disregard for the safety of others”. Such gross negligence is capable of
amounting to a repudiatory breach of contract. It will have the wilful quality
described by Lord Evershed in Laws. It was, however, not
the Respondent’s case that the Claimant should be summarily dismissed because
he had not realised in advance that he would be routed onto the GE line or even
because he did not notice the signal earlier than he did. It was thus the
Respondent’s case of deliberate disregard for the rules and deliberate
disregard for the safety of others that the Employment Judge addressed in
paragraphs 56‑59 of his reasons, building on his earlier findings.
37.
On the Employment Judge’s findings, the Claimant did not deliberately
disregard the rules or the safety of others; he made an error of judgment when
he was faced, in circumstances that were partly the fault of another, with an
unexpected route at very short notice. He was actually competent to drive on
that route; he was not taking a risk wilfully with the safety of others. On
the Employment Judge’s findings, the behaviour of the Claimant did not have the
kind of wilful quality that lies behind the Respondent’s definition of gross
negligence.
38.
Mr Uduje submitted that on any view the Claimant’s deliberate
abrogation of the rule meant that he fell within that definition; but, in my
judgment, the Employment Judge was entitled to take into account all the
circumstances when assessing the nature and quality of the Claimant’s conduct
on the day. It seems to me that the Employment Judge’s findings were open to
him; that this is a case where his findings must be respected; and where the
Employment Appeal Tribunal is not entitled to interfere with his conclusion.
39.
I turn then to the question of unfair dismissal. It is now well
established that the range of reasonable responses test applies to all aspects
of the question of dismissal. Thus, in a conduct case, it applies to
investigation, disciplinary procedures, the employer’s findings and conclusions
and the decision to impose the sanction of dismissal. I have no doubt that the
Employment Judge had this test well in mind. I reject the submission of
Ms Robertson that the Employment Judge did not apply it to the question of
investigation; it is plain from paragraph 54 of his reasons that he did.
40.
This brings me to the sufficiency of the Employment Judge’s reasons. An
Employment Tribunal is obliged to give reasons for its Judgments; see rule
30(6) of the Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004 then applicable. Thus in Meek v City of Birmingham District Council [1987] IRLR 250 Bingham LJ stated that although
Tribunals are not required to create “an elaborate, formalistic product of refined
legal draughtsmanship” their reasons should:
“[…] contain an outline of the story which has given rise to the
complaint and a summary of the Tribunal’s basic factual conclusions and the
statement of the reasons which had led them to reach the conclusion which they
do on those basic facts. The parties are to be told why they have won or
lost. There should be sufficient account of the facts and of the reasoning to
enable the EAT or, on further appeal, this court to see whether any question of
law arises.”
41.
I have found the Employment Judge’s reasoning on the question of unfair
dismissal difficult to follow. There are, I think, three reasons for this.
42.
Firstly and most fundamentally, the Employment Judge states only the
briefest of conclusions in paragraph 55 of his reasons. This paragraph
is, as Ms Robertson delicately puts it, compressed. In truth, it does no
more than state a conclusion. The Employment Judge does not refer back to and
deal with any of the apparent criticisms that he made of the investigation
process and findings earlier in his reasons.
43.
Secondly, it is difficult to know what to make of the apparent
criticisms of the investigation process and findings earlier in the reasons.
To some extent, they may be intended to address the reason why the Employment
Judge himself came to a different conclusion on the question of wrongful
dismissal. On the face of it, however, the criticisms are relevant to unfair
dismissal.
44.
The fact that an industry was safety‑critical can cut both ways. On
the one hand, it is no doubt relevant to the standard that the employer was
entitled to expect of the employee and to the sanction that might be justified
in the event of misconduct. On the other hand, in such an industry the
standard of investigation might be expected to be high. Thus, for example,
Ms Robertson has argued that in some respects the Respondent’s
investigation fell short of the standard it set for itself in its manual.
45.
In London Ambulance Service NHS Trust v Small
[2009] IRLR 563, Mummery LJ pointed out that it can be a valuable discipline to
keep separate in the reasons that which is relevant to unfair dismissal and
that which is relevant to issues where the Employment Tribunal is itself the
primary fact‑finder (see paragraph 46). It would certainly have
been helpful here for the Employment Judge to have dealt with his criticisms
specifically in the context of unfair dismissal. There is no required template
for a set of reasons; it is not an error of law for the Employment Judge to interleave
findings of fact with criticisms. But is important then to return to those
points in the context of the different issues to be decided so that the parties
and the Appeal Tribunal can see how the law has been applied.
46.
Thirdly, the Employment Judge does not record, still less explicitly
deal with, any of the submissions of the parties. Again, there is no rule of
law that an Employment Judge must do so, and I am told that in this case a
hearing originally listed for three days was completed in two with oral
submissions at the end. But in a case that the Employment Judge finds close to
the borderline it is wise to keep in mind and address in reasons the principal
submissions made. This process helps to crystallise and sometimes changes the
Employment Judge’s view of the case.
47.
In the end, I have reached the conclusion that in respect of unfair
dismissal the Employment Judge has not given reasons for his conclusions that
enable the parties to understand, or the Appeal Tribunal to understand, how he dealt
with the main points in the case. There is in effect no more than a
conclusion. It is impossible to see how he evaluated a number of points made
by the Claimant, some of which he has mentioned himself in the course of his
findings of fact. This seems to me to fall short of allowing either the
Claimant or the Appeal Tribunal to understand why he found the dismissal to be
reasonable.
48.
It follows that the appeal must be allowed and the matter remitted for
further consideration. I invited submissions as to whether it should be
remitted to the same or a different Employment Judge - a question to which the
Appeal Tribunal applies the general approach set out in Sinclair Roche & Temperley v Heard
[2004] IRLR 763. Both counsel were agreed that remission should be to the same
Employment Judge; I also agree. I am confident that he will approach remission
and reconsideration professionally in accordance with the Judgment of the
Appeal Tribunal. It is inherent in remission for reconsideration that the Employment
Judge must be prepared to listen afresh and reach and state conclusions
afresh. I am sure that he will do so.
49.
In this respect the Employment Judge will be wise now that he is dealing
only with unfair dismissal to set out only those facts that are relevant to
unfair dismissal, not the conclusions that he separately reached for himself
relevant to the question of wrongful dismissal. He should then consider the
issues that he has set out himself in paragraph 2 of his reasons raised by
section 98(4) of the ERA 1996. Written submissions at the very
least from counsel are now highly desirable, and I shall order them. He would
be wise to address principal submissions made by counsel; this does not mean
that he has to do a line‑by-line analysis of counsel’s submissions.
50.
One final word: contributory conduct and Polkey v A
E Dayton Services Ltd [1987] IRLR 503 are potential
issues, depending on the Employment Judge’s finding as to unfair dismissal. It
is always good practice to agree at the outset of a hearing whether these
issues are going to be dealt with by the parties and the Employment Judge
within that hearing. I will listen to counsel as to whether submissions
prepared by them now should cover all of those issues. It goes without saying,
of course, that if the Employment Judge has to consider Polkey
and contributory conduct, he would be very wise to keep his findings separate
from the findings that he makes on unfair dismissal, for the reasons set out in
Small, to which I have already referred.
