United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N JOFFE (of Counsel) Bar Pro Bono Unit
For the Respondent	MR C T DUKHAM-HALL (of Counsel) Instructed by: Lyons Davidson Solicitors 51 Victoria Street Bristol BS1 6AD


 


SUMMARY

UNFAIR DISMISSAL

Reason for dismissal including substantial other reason

Reasonableness of dismissal

An Employment Tribunal judgment dismissing a "conduct" unfair dismissal claim, which was notably sparse and succinct was criticised on appeal for being too brief and not dealing with a number of the Claimant's points. These criticisms were rejected, on the facts and in the particular circumstances of the case. Enough was said to tell the Claimant why she had lost her claim.


 


THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

1. This is an appeal against a decision of Employment Judge Vinecombe at Manchester, Reasons for which were delivered on 20 December 2012 by which he dismissed a complaint of unfair dismissal. The appeal was originally rejected by Judge Burke QC and then permitted to proceed by HHJ McMullen QC. The striking point about the observations of both, however, was that they drew attention to the sparseness and brevity of the judgment.
2. The facts were these. The Claimant was a carer at a home at which resided a number of vulnerable adults. She had worked there for some five years. In early December 2011 it was alleged by a colleague that she had been both verbally and physically abusive to a resident. That was immediately investigated by the manager, a Miss Bates, who spoke to a number of other members of staff. They volunteered that they had had concerns about other incidents in the past in which the Claimant had been aggressive, verbally or physically or both, to the residents. The consequence was that she was suspended the next day. She argued that she was not suspended, but dismissed. The Tribunal did not make an express conclusion about that issue, but it is plain from the tenor of the judgment that it accepted the Respondent's case. The disciplinary hearing, at which the charge that she had been verbally and physically abusive to "service users from Friday 25 November 2011 until Thursday 8 December 2011" was due for hearing on 14 December. The Claimant did not turn up. It was re-arranged for 19 December. It was said she could see the statements that had been taken from the various colleagues among the staff an hour before the hearing. She was told that she might be dismissed if she did not turn up. She did not turn up. Miss Bates, who was to hear the matter, concluded, on the evidence before her, that the Claimant had behaved as alleged; that was gross misconduct and she should be dismissed.
3. She appealed. The appeal was heard on 13 January 2012 by a Mr Odell. The Tribunal noted that the minutes of that appeal meeting which were before it established "that the Claimant had the opportunity to deal with the allegations against her". However, she raised a number of matters, which Mr Odell considered merited further inquiry. The Tribunal then said this:

"Accordingly following the appeal meeting Mr Odell carried out a full investigation himself and interviewed relevant staff. Having carried out his further enquiries, which amounted to a reinvestigation of the allegations Mr Odell found that there were a number of witnesses who corroborated the allegations, the witnesses were credible, were aware of the seriousness of the allegations and had no ulterior motive to make false allegations. Accordingly Mr Odell concluded that the claimant had been guilty of misconduct and dismissed the appeal."

4. In its conclusions the Tribunal relied upon section 98 of the Employment Rights Act, which so far as relevant, it set out in full. It examined each of the well-known criteria which first arose out of BHS v Burchell [1979] IRLR 379 and concluded that the employer dismissed, and established the reason for dismissal (that was conduct) but that it had a genuine belief in misconduct and that there were reasonable grounds for that belief. It made no specific finding about reasonable investigation. The passage in which it dealt with both grounds and investigation begins at paragraph 14:

"14. The Tribunal considered whether there were reasonable grounds for that belief and whether there has been a reasonable investigation.

15. Although the Claimant did not attend either of the disciplinary hearings on the 14 and 19 December 2011 she did attend the appeal hearing. At the appeal hearing she had every opportunity to answer the allegations. Following the appeal hearing Mr Odell reinvestigated the allegations and interviewed the relevant employees. The appeal effectively amounted to a rehearing. Consequently following the appeal the Tribunal was satisfied that the respondent did have reasonable grounds for its belief that the claimant had been guilty of misconduct."

It went on to conclude, for obvious reasons, that dismissal for that conduct, in the context of this home, was within the range of reasonable responses.

5. The appeal grounds have been honed down to three, following the hearing in front of HHJ McMullen. They have been advanced with care in a skilful argument by Ms Joffe. She submits that the reasons are so brief that the Tribunal was in error of law. In particular, the Tribunal did not deal at all with the issue raised by the Claimant in her ET1 that she was told, she said, at the initial investigatory meeting on 9 December 2011 that she was being dismissed rather than being suspended. Secondly, the Tribunal said nothing about a criticism the Claimant specifically made that the Respondent had refused to call the witnesses to the behaviour which was said to be misconduct to the appeal hearing so that the Claimant could ask them questions. She had asked that they attend. Thirdly, the Tribunal did not set out when and how, precisely, it was alleged by the Respondent that the Claimant had been verbally and physically abusive towards service users and what conclusions the Respondent formed about those incidents. Fourthly, that Mr Odell had not reverted to the Claimant after the appeal hearing. And finally, so far as reasons were concerned, that the Tribunal had not analysed whether the investigation satisfied the standards set out in the case of A v B [2003] IRLR 405.
6. That last point, though here expressed in relation to ground 1 relating to reasons, was itself set out as a separate and third ground, "failure to apply A v B". Attention was drawn to what Elias J said in that case, between paragraphs 60-61, when he pointed out that serious allegations of criminal misbehaviour must always be the subject of the most careful investigation. Though it was quite unrealistic and quite inappropriate to require the safeguards of a criminal trial, a careful and conscientious investigation of the facts was necessary. The consequences of a serious allegation might not be simply that an employee would lose a job, but also their reputation and possibly the prospect of securing future employment in their chosen field. I accept that, in a case such as this, dealing with vulnerable adults, a finding that a worker has physically mistreated such a person may give rise to regulatory actions, procedures, criminal records certificates of an enhanced sort and the like, which may make it very difficult for the chosen career to be pursued. On that basis, Ms Joffe invites me to say that the Tribunal here should have considered whether the investigation satisfied that test.
7. The second ground is the generalised ground of perversity. It is said that the finding in respect of reasonable investigation, a finding which, as I pointed out, the Tribunal did not expressly make, but which here appears to be accepted implicitly, was perverse.

Discussion

8. It is often and rightly said that an appeal court should not be too demanding of a Tribunal judgment. It may not, and frequently judgments do not, meet the standards that one might expect of a Chancery draftsman or a High Court judgment. Thus it has been observed since as long ago as Khanum v Mid Glamorgan Area Health Authority [1978] IRLR 215 that the judgment of a Tribunal should not be exposed to over-rigorous and nit-picking criticism. It must, however, do enough to indicate to the loser why they have lost. There are three reasons for this. The first is that it is elementary justice that the losing party should know why their arguments have been rejected. Secondly, it is necessary to say enough that a court of appeal on review may be satisfied that the judgment has been properly reached. Thirdly, it acts as an assurance to the public that the matters has been properly considered and, for that matter, operates as an aide-memoire to the Judge to ensure that he has dealt adequately with the matters for decision.
9. I have reservations about the judgment, just as did Judge Burke and Judge McMullen. It is rightly said that Tribunal judgments generally are too long. The essence of a judgment is that it sets out sufficient of the facts and the law for its conclusion to be expressed. This Tribunal did focus on the essential question in section 98. It did answer the way in which that section has been analysed by case-law, which has become so familiar as almost to be the equivalent of statute, though it is not. It therefore, in that broad sense, gave reasons for its decision. The focus here is on whether those reasons were sufficient in dealing with the question of the investigation.
10. Of the specific matters which Ms Joffe argues should have been dealt with by the Judge, the first was undoubtedly a matter which she raised in her ET1 and in her witness statement before the Tribunal. That was what happened at the meeting on 9 December. The argument is that the Claimant needed to be told what the decision of the Tribunal was and why it had reached it in respect of that matter. As to that, the events of the meeting in December were of no material relevance to the decision to dismiss unless they cast some light upon the bona fides of the employer. The tenor of the judgment was that the Claimant's account was mistaken. The Claimant herself, though flirting with the suggestion that she had been dismissed on 9 December and therefore, in effect, everything that followed afterwards was pre-ordained, put the date of dismissal as the 19 December in her ET1. The Tribunal, in concluding that there was a genuine belief, and on reasonable grounds, disposed of the argument that there might have been a pre-determination. Moreover it would not fit with the facts, objectively viewed, of Mr Odell, having heard the appeal, then taking the time and trouble to go and speak to each of the witnesses to investigate matters for himself. There was, in my view, no need for the Tribunal to refer to that dispute. It might have been better if it had said something, if briefly, but in my view it did not need to do so in order to explain its decision, which was not about the suspension meeting, but about whether the dismissal, taken overall, was or was not unfair.
11. The criticism that the Claimant made about not being able to cross-examine witnesses demonstrated a misconception by her of what she might expect. I do not have, nor did the Tribunal, any copy of the disciplinary appeals procedure. These propositions can, however, be generally stated. An employer's disciplinary hearing is not a trial in the courts. The decision which has to be made is whether the employer considers that a charge is made out such that it is fair that consequences should follow. It is well-settled that it would be rare, though it is possible, for fairness to require cross-examination just as it is established, now, that there is no right to representation either at common law or arising from the European obligations of the state.
12. The position was made clear in Santamera v Express Cargo Forwarding [2003] IRLR 273, which specifically was convened to consider how far, if at all, an ability to see and hear one's accusers is ordinarily to be regarded as an essential part of a fair disciplinary hearing. The Appeal Tribunal, presided over by Wall J, as he then was, said (paragraph 42):

We do not exclude the possibility that there will be cases in which it would be impossible for an employer to act fairly or reasonably unless cross-examination of a particular witness is permitted. The question, however, in each case is whether or not the employer fulfils the test laid down in British Homes Stores -v- Burchell and it will be for the Tribunal to decide whether or not the employer has acted reasonably, and whether or not the process has been fair."

13. The Appeal Tribunal went on to say that the fact in that case that there had been no cross-examination of witnesses did not mean that the Tribunal had to find that the procedure was unfair. A Tribunal might decide that, but it might not.
14. Ms Joffe points to the repeated reference by the Claimant in her ET1 and in her witness statement to her complaint that she was not able to question the witnesses openly. The Tribunal did not specifically deal with this complaint. What it did say, at paragraph 11, was that she had the opportunity to deal with the allegations against her at the appeal hearing. I have seen the minutes of the appeal meeting, which were before the Tribunal. They show that she was able to respond to at least two of the incidents, though vaguely expressed as they might originally have been, by appearing to recognise the matters to which they related, although in another respect she was less certain and in another she challenged the timing.
15. The Tribunal could have said something about why it thought, if it did, that the procedure was fair without this occurring. But three matters have persuaded me that this does not amount, on its own, to a failure to give sufficient reasons. First, the context is important. The Claimant had been dismissed on legitimate grounds after what could not be said to be anything other than a reasonable investigation at that stage by Miss Bates. The significance of questions to witnesses, therefore, arose only at the appeal hearing. The fairness of a dismissal has to be viewed in the round, taking, in my view therefore, the appeal hearing together with the disciplinary hearing, and perhaps especially so where there has been no hearing in which the employee participated until the appeal. But it nonetheless puts the matter in context, as also does the fact that after the hearing Mr Odell went to speak to witnesses before he finally reached his conclusion. Given the position recognised in Santamera, correctly, that it will be rare, in effect, for an employee to act unfairly by not permitting cross-examination (that is the effect of the wording "there will be cases in which it will be impossible for an employer to act fairly or reasonably unless cross-examination...") as a possibility which "must not be excluded", it is plainly the exception rather than the rule. The issue is whether there was such a compelling case that it should occur here as to require the Tribunal to say so, for its reasons to be understood. The Tribunal did deal with the question of the fairness of the procedure. It dealt with the opportunity to answer the allegations. That is shorthand, but it covers the question of an ability to ask questions. Once again, I think it would have been better if the Tribunal here had said something more specific about it, but I do not think its failure to do so amounted to an error of law.
16. The third matter, as to which the Tribunal was said to have failed to give an account is, in my view, to ask a Tribunal to set out that which was strictly unnecessary. It had to ask whether there was a belief in the employer that acts of a particular description had been committed. It was not itself concerned with whether they had been or not, but with the employer's view. It reached a conclusion as to that, which is clear.
17. The fifth matter – I shall come back to the fourth – was the question of whether the Tribunal was required to analyse whether the investigation satisfied the standards set out in A v B. A v B was a case in which a Tribunal held that employers had carried out a reasonable investigation. It was investigating criminal misbehaviour. The investigation, in the view of the Appeal Tribunal, fell short of that which the law required. Statements which would have exculpated the claimant had been obtained but were not provided to him (see paragraph 83). In such a case, it was demonstrably not even-handed that that failure and others should occur. The general propositions set out by Elias J deserve re-emphasis. But it is not the case that, in every matter where alleged misconduct has resulted in dismissal, a Tribunal has specifically to mention A v B and, if it does not do, will be in error of law. The issue is whether the statute has been satisfied or not. A failure to give a specific analysis by reference to one case, though significant, does not convey an explanation or fail to convey an explanation to the Claimant why she has lost.
18. The matter which gave me the greatest concern was the fourth specific matter under the heading of reasons. It was that Mr Odell had promised at the conclusion of the disciplinary hearing that he would carry out an investigation of "each of [the Claimant's] points and that he would write to her with the outcome." In one sense, he did because the outcome was that she remained dismissed. But he did not set out the material which he had received. The question is whether the Tribunal should have dealt with this matter. At one stage in the argument, the view appealed to me that justice requires a party to know what the case against them is. Unless they do so, they are in no position to meet it. In the course of his investigation, statements were taken, which were in the bundle before the Tribunal. Those statements, when compared to the statements initially prepared for the disciplinary hearing, show greater detail and some allege further material which goes to the discredit of the Claimant. Because, as a matter of procedure, Mr Odell did not go back to her with those statements, it might have been thought unfair such that the Tribunal should have held it unfair on that ground.
19. I have ultimately concluded, however, that the failure of the Tribunal specifically to deal separately with that matter is not a sufficient criticism of the judgment for it to be in error of law.
20. My reasons are these. A Tribunal has to deal with the arguments that are before it. It cannot, unless the argument is obvious, be expected to deal with one which is not raised by either party. In neither the ET1 nor in her witness statement for the Tribunal did the Claimant raise as an objection to the reasonableness of the procedure that Mr Odell had not come back to her with the results of his enquiry. It was this particular failing which led to Judge McMullen granting permission for a full hearing. He did not, I apprehend, appreciate that the matter had not been argued below.
21. Secondly, the Tribunal, though tersely, did consider the point. In paragraph 12, the first paragraph 12 in the judgment, it found as a fact that Mr Odell had found a number of witnesses who – and these words are of potential importance in this context – "corroborated the allegations". It might have been, though the Tribunal do not find, that Mr Odell conducted the investigation because he was minded to allow the appeal but thought he had better check the evidence first. If so, the matters additionally raised by the witnesses would have been matters which it would have been unfair not to put to the Claimant. But that paragraph shows that he was looking to see whether the material upon which, by inference, he would have determined the appeal against the Claimant was supported. As it happens, it was more than supported. But the fact that there was more than the Claimant had answered, which he had already considered and which satisfied him that dismissal was not wrong, when there was sufficient without it did not then make it wrong for there to be a dismissal because he had not told the Claimant there was yet more material to condemn her.
22. Although the Tribunal does not say, in paragraph 15, that there was a reasonable investigation, taking the judgment as a whole, it has set out to answer the Burchell tests. It had recognised the need to find that the investigation was reasonable. The lack of a specific finding, thus, is accidental. Plainly it thought the procedure was a fair one.
23. Finally this was a case in which, viewed broadly, the position was not simply reached at the appeal hearing as it might have been by Mr Odell, who could have made a decision there and then. That could not be as fair as one reached after he had taken the time and trouble to satisfy himself of the quality of the evidence which would be provided by witnesses. There was here no suggestion that the witnesses had any ulterior motive to make false allegations. It was not one of those cases in which there may very well have been some reason for them to show particular hostility against the Claimant.
24. Those matters persuade me that simply to answer the question of fairness in the way in which the Tribunal did, having set out the facts of the investigation and considered it was not unreasonable, was sufficient. Ms Joffe, in her reply to Mr Dukham-Hall's submissions, argued that a court had not just to look at the failures, as she said they were, in isolation but in the round. A court would have to go too far to uphold this decision. The collective effect of the various respects in which the Tribunal could have, but did not say more was such that the judgment should not stand.
25. I have considered the matter in that light. It invites a broad view: it requires a broad response by reference to what the judgment said. Viewed broadly, the judgment set out that an allegation had been made, that there was considerable supporting material, that there was no credible reason to controvert it. The matter had been investigated conscientiously by the manager on appeal, taking time and trouble to do so. The consequence was that the allegations, though broadly expressed, were thought correct. In the light of that dismissal was fair. That dealt with the essence of the Claimant's case. The Claimant here knew, in my view, sufficient despite the terseness of the language to tell her why she had lost the case.
26. As to the other two grounds of appeal, I need say little. Perversity is a very high hurdle. A court on appeal must be able to say that the decision reached was wholly impermissible. On these facts, given the findings of fact, no court could say that. As to there being a reasonable investigation, the failure to allow cross-examination, as I have pointed out, was not a failure save only in the sense that it could have been something the employer chose to do and did not. But it would be rare to find it, particularly in a small employer, as I am told this is. Mr Odell's not reverting to the Claimant I have dealt with separately. The Claimant did know the nature of the accusation made. The Tribunal found so. And there was no clear breach of the rules of natural justice. As to the failure to apply A v B I have considered that, albeit under the heading of reasons, and what I have said there is sufficient for me to reject it as a separate head of appeal.
27. It follows that, despite the care with which the matter has been advanced, and the reservations which I have expressed, the appeal is dismissed.