Appeal No. UKEAT/0320/12/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
12 February 2013
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MRS R CHAPMAN
MR D NORMAN
JJ
FOOD SERVICE LTD APPELLANT
MR
M KEFIL RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
An argument that it was perverse (or substitution) for an
Employment Tribunal to hold that a dismissal of a manager for behaving in an
over-authoritarian manner towards junior staff was unfair was rejected. It was
open to this ET to come to that conclusion.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
This is an appeal against the decision of an Employment Tribunal sitting
at Watford, chaired by Judge Hyams which for reasons delivered on 13 February
2011 upheld the complaint of the Claimant that he had been both unfairly and
wrongfully dismissed. The employer appeals against those conclusions.
2.
Before us it is only the finding in respect of unfair dismissal which is
challenged; the appeal in respect of wrongful dismissal was regarded by HHJ Peter
Clark on the sift as unarguable.
The facts
3.
The underlying facts were these; the Claimant had been 14 years an
employee of the Respondent employer which was a major distributor in the food
industry. He had twice been promoted, first to Warehouse Manager and then in
what was described as a promotion, though the Tribunal thought it a sideways
move, to Stock Control Manager. There had been only one complaint of which
there was evidence in respect of his conduct; that occurred in July 2010. It
came by letter but the letter described the warning as informal. It reminded
the Claimant of the deficiencies of his management style.
4.
The following April 2011, a letter of complaint was written by three
members of staff and signed by ten others. The complaint was made in
particular about a Mr Sitki who was the then Warehouse Manager, but it also
raised concerns about the behaviour of the Claimant of whom it was said that he
was acting together with Mr Sitki in some respects.
5.
The ten signatories were interviewed by management in May 2011. Most of
the complaints relating to the Claimant were general in nature. They alleged
mistreatment of the employees beneath him. The allegations were not generally tied
to any specific date or time although there were some specific dates in respect
of unfair treatment; see paragraph 15. The Claimant was called to a disciplinary
hearing in respect of these allegations.
6.
The Employment Tribunal concluded in an important paragraph, for present
purposes, that the employer had found the case against the Claimant proved in
part. The Tribunal accepted that its reason for dismissal was expressed in the
first paragraph of the letter which it wrote on 23 May to the Claimant. It is
in these terms:
“Having listened to your explanations I consider them to be
unsatisfactory because you have evidently abused your position of Stock Control
Manager to threaten employees’ job security which has created an intimidating
environment for your subordinates. Furthermore, communicating in Turkish with
employees who understand the language puts employees who cannot understand at a
disadvantage as they are unaware of the context of the discussion. As manager
you are expected to set an example and must treat all employees equally and
fairly at all times.”
7.
It went on to say that the employer regarded the actions as gross
misconduct so he would normally be summarily dismissed, but in the light of his
service demotion on a substantially reduced salary and in a substantially
reduced capacity was offered. The appeal by the Claimant against that decision
was dismissed.
The Tribunal decision
8.
In approaching what was a dismissal purportedly for misconduct, the
Tribunal took the familiar four stage analysis. Thus it asked whether the
employer had a genuine belief in the misconduct, secondly whether it had
reached that belief on reasonable grounds, thirdly whether that was following a
reasonable investigation and, fourthly whether the dismissal of the Claimant
fell within the range of reasonable responses in the light of that misconduct.
9.
It accepted the genuineness of the belief, though the Tribunal accepted hesitantly
that there were reasonable grounds for that belief and that the investigation
had, taken as a whole, been reasonable. Accordingly, its decision as to
fairness rested entirely upon its decision as to whether or not dismissal in
those circumstances was within the range of reasonable responses.
10.
It expressed its conclusion at paragraph 37 in these terms:
“37. However, the Tribunal came to the clear conclusion that the
Claimant’s dismissal for the misconduct of which the Respondent had found to be
guilty was outside the range of reasonable responses of a reasonable employer.
This was for the following reasons.
37.1 The sole reason for dismissing
the Claimant was the manner in which he had acted as a manager of the staff of
the warehouse.
37.2 The letter of 1 July 2010 was at
most an informal warning to the Claimant about his management style. It did
not say that if he continued to manage in the way about which complaint had
been made then he might be dismissed.
37.3 The Claimant was given no management
training at that time to remedy his perceived (and probably actual)
deficiencies.
37.4 The main focus of the letter of
complaint at pages 78-83 was Mr Sitki and not the Claimant.
37.5 The complaints about the
Claimant coincided with those about Mr Sitki. It appeared to the Tribunal (but
in fact no concrete evidence was put before the Tribunal in this regard) that
the Claimant had been Stock Control Manager for some time before Mr Sitki was
appointed the Warehouse Manager. In any event, the Claimant was the Warehouse
Manager himself from 2001 onwards, and there had not been complaints made about
his management before 2010.
37.6 Thus, in the view of the
Tribunal, dismissing the Claimant without having warned him formally that his
management style had to change and that if it did not then he might be
dismissed, especially since he had not been given any management training after
being given the letter of 1 July 2010, was in the circumstances outside the
range of reasonable responses of a reasonable employer.”
The appeal
11.
Mr Grady argues that for two reasons that decision betrays an error of
law. He submits first that the Tribunal adopted a substitution mindset:
instead of asking objectively whether the decision made by the employer was
fair in accordance with section 98, it had therefore asked what it, the
Tribunal, would have done had it, the Tribunal, been the employer. That is
impermissible. Secondly, he argued that closely linked though it was to
substitution it could separately be said that the decision was perverse; that
is that no reasonable Tribunal could possibly reach such a conclusion. It
would be one which would fly in the face of reason. He reminded us of the
approach taken in British Leyland v Swift [1981] IRLR 91.
12.
As to substitution, he relied in particular upon indications within the
reasoning as a whole that the Tribunal had impermissibly made its own judgments
about the underlying facts rather than assessed the employer’s response to
those facts. Thus, he argues that in paragraphs prior to paragraph 37 the
Tribunal had downplayed the offences of which the Claimant was guilty. It had
described them in terms which did not give full colour to what had occurred. Thus
it was adopting what he described as a euphemistic approach to hold that all
that was really being complained about was “management style”.
13.
Turning to the critical paragraph 37 he argued that, to summarise at
37.1, as the sole reason for dismissing the Claimant, “the manner in which he
had acted as a manager of the staff of the warehouse” underplayed the true
gravity of what had occurred.
14.
As to perversity and the reasoning at paragraph 37, he complained that
it downplayed in paragraph 37.2 the effect of the letter of 1 July. He
accepted expressly in his argument that the paragraph was factually accurate. Thus
he submitted that it was not an error for the Tribunal to regard the letter of
1 July as at most an informal warning. But his case was essentially that a
Claimant in this position, being a manager and having managed for some years,
must have been fully well aware that if he behaved as had been found to do in
effect telling employees that they might lose their jobs if they did not do as
he, the manager, insisted, he was liable to be dismissed. He argued it was clearly
gross misconduct. For that purpose he took us to what is at our page 42, in
which rules covering gross misconduct are set out in the Employer’s
Disciplinary and Disciplinary Dismissal Procedures. Though he was inclined on
consideration to agree that deliberate acts of unlawful discrimination or
harassment was perhaps aimed at behaviour other than speaking in Turkish to
those who were Turkish to the disadvantage of those who were not Turkish and
could not, therefore, easily understand what was being said, would come within
that description. But he emphasised that physical violence or bullying was
arguably capable of covering the behaviour which the Claimant had been found
guilty of.
15.
In any event, the list was a list of examples. It was not a conclusive
list, though he accepted that on the next page in the disciplinary procedure a
careful procedure leading from formal verbal warning, to written warning, to
final written warning, to dismissal was set out. Nonetheless, in the case of McCall
v Castleton Crafts [1979] IRLR 218 the Appeal Tribunal had said that
there is no special magic about a written warning. The fact was that he had
received a shot across the bows. In short, he must have known that if he
behaved as he did he was committing an act of gross misconduct which would
justify his dismissal. The only significance of requiring a warning telling
him of that consequence was that he might not otherwise know of it since this
should have been plain to him; it was no basis upon which to conclude that he
should not have been dismissed. For those reasons, the dismissal of this man
was perverse. The matter was emphasised if one considered the position of
those employees who had been subject to his dictatorial management.
16.
If the employees bullied by the Claimant had brought a claim for
constructive dismissal it is difficult submits Mr Grady to see how those claims
could have been resisted. That demonstrates the seriousness of the conduct of
which the Claimant was found responsible.
Discussion
17.
A substitution mindset is all too easy to allege. There is a great
danger which is readily apparent to those of us who sit day by day in this
Tribunal that employers who do not like the result which a Tribunal has reached,
but cannot go so far as to say it is necessarily perverse, seek to argue that
the very fact of the result in the circumstances must indicate a substitution.
That is not, in our view, a proper approach. We bear in mind that section 98
of the Employment Rights Act 1996 in subsection 4 provides as follows:
“… the determination of the question whether the dismissal is
fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the
circumstances (including the size and administrative resources of the employers
undertaking) the employer acted reasonably or unreasonably in treating it as a
sufficient reason for dismissing the employee, and
(b) shall be determined in accordance
with equity in the substantial merits of the case.”
18.
In other words, the very business of the Employment Tribunal is
considering whether once the employer has established the reason for the
dismissal the decision to dismiss for that reason was fair or unfair. In order
to see if a Tribunal has stepped beyond the permissible and gone outside the
scope of its duty as set out in section 98(4), it is necessary to have regard
to a Tribunal’s decision as a whole, but what one is looking for is some
indication that the Tribunal has, in dealing with a complaint of unfair
dismissal, asked not whether what the employer did was fair but asked instead
what it would have done in the light of the basic and underlying facts.
19.
So approached, we can see nothing in this decision which shows that the
Tribunal substituted its own decision for that of the employer. Indeed, it is
sometimes difficult in a case in which a Tribunal considers both wrongful and
unfair dismissal for a Tribunal to clearly separate the findings of underlying
fact which it has to make in respect of the wrongful dismissal claim from its
assessment of how the employer acted in respect of the unfair dismissal claim;
but this Tribunal did so. The only basis for suggesting that there might be a
substitution (apart from the surprise of the employer at the overall conclusion)
was that it downplayed the offence in what it said in paragraph 37.1.
20.
We consider to the contrary that that is an appropriate synopsis of the
material which had gone before. The Tribunal had recognised already that the
reason for dismissal was that set out at paragraph 18 which we have quoted in
full so far as material.
21.
Substitution then put to one side, we turn to the question of
perversity. Here we must be careful of not ourselves substituting our decision
as it might well have been had we been the Tribunal for that which the Tribunal
itself reached. It is rare for an Appeal Tribunal to interfere with the
decision of an Employment Tribunal where perversity is alleged; that is because
of the height of the hurdle which the Appellant must overcome. He must show that
the decision reached is wholly impermissible. Various phrases have been used
in different cases to describe the same result, from “flying in the face of
reason” to “provoking astonished gasps from the amazed observer”.
22.
Mr Grady does not shrink from alleging perversity here. We bear in mind
that the Tribunal was particularly well constituted, being a Tribunal of three
and containing lay members appointed from both sides of industry, to assess
whether in these circumstances dismissal was or was not within the range of
reasonable responses. In effect, it focused upon the fact that the Claimant
had behaved in an over authoritarian manner but that this was a Claimant who
had not been trained how to manage, and in that light it thought it was only
fair for him to have had a warning, not that he should stop doing what he did,
but that if he did not he would be dismissed for it. The point which Mr Grady
makes in respect of a warning are proper points, but he takes too much from McCall
v Castleton Crafts; in that case the appellant, whose appeal was
dismissed by the Appeal Tribunal, Lord McDonald presiding, had been dismissed
as a salesman for persistently dealing in the goods of other manufacturers;
there was an express prohibition on doing so and he had had a number of verbal
warnings. An Employment Tribunal found that the dismissal was fair. It was
argued that the warnings had to be in writing. It was in that context that
Lord McDonald for the Tribunal said at paragraph 8:
“The position in the present case is that the Appellant who was
found by the Tribunal to be an intelligent man knew full well that he was
contravening a rigid requirement of the Respondents when he continued dealing
in other peoples’ goods. He had been warned about this conduct not once but on
several occasions. It was suggested that he had never had a written warning;
there is no special magic about a written warning. To an intelligent man a
verbal warning should be just as effective. The only advantage in a written
warning might be for evidential purposes later on. No such problem arises in
the present case.”
23.
The issue is whether the employee has sufficiently been told or should
sufficiently have realised that behaving as he did would or might lead to his
dismissal. The significant point upon which this Tribunal, in our case,
focussed was not the absence of a warning, nor was it that the Claimant had not
been told in July 2010 that what he had done on that occasion was not
appropriate. It lay in the fact that it thought that he had not been told that
a consequence of further misconduct would be his potential dismissal. It was
that, coupled with the fact that he had no training which would have indicated
the same to him, which it summed up in paragraph 37.6.
24.
We acknowledge that Mr Grady’s argument that a man in his position ought
to have known that this would be the consequence has some force, but the
Tribunal here was in the position properly to evaluate all the facts which had
been placed before it, including what it made of the Claimant, and it must be
observed that in a number of its comments it had been less than complimentary
about aspects of the Claimant’s behaviour. It plainly did not see him with
rose tinted glasses. Despite that, the Tribunal plainly felt that it was outside
the range of reasonable responses for this employer to dismiss this man, in
these circumstances, for these allegations of misconduct, summarised as they
had been in paragraph 18, without first giving him a warning which was not just
a warning about what he was doing, but indicated that he might be dismissed if
he went on doing it.
25.
We for our part, though sympathetic to much of the case which has been
put before us, simply cannot conclude that the Employment Tribunal in so
finding, went so far beyond reason as to be perverse. Indeed, it might be
said that the over authoritarian manager is not unknown in industry and the lay
members, in particular, make the point that it would be unfortunate if such
managers were not warned, if the circumstances were such that they might not clearly
have understood, that repeat of that conduct might lead to their dismissal.
26.
For those reasons and with that observation this appeal must be and is
dismissed.
