United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2016/0283_15_0302.html
Cite as: [2016] UKEAT 283_15_302, [2016] UKEAT 0283_15_0302
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
JURYS INNS GROUP LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Bar Pro Bono Scheme
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(of Counsel) Instructed by: Squire Patton Boggs (UK) LLP Rutland House 148 Edmund Street Birmingham B3 2JR
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SUMMARY
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES - Whether applicable
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES - Whether infringed
UNFAIR DISMISSAL - Procedural fairness/automatically unfair dismissal
The employee appealed against a decision that his dismissal was not unfair. The employee argued that the Employment Tribunal erred in law in substituting its view for that of the employer, and in not holding that the dismissal was unfair because the employer had refused to permit him to appeal against his dismissal. The Employment Appeal Tribunal rejected these arguments on the facts.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
Introduction
1. This is an appeal from the Employment Tribunal (“the ET”) sitting at Reading. The ET dismissed the Claimant’s claims for unfair dismissal, direct discrimination on the grounds of race and victimisation on grounds of race. The ET’s Reasons were sent to the parties on 11 February 2015. The ET consisted of an Employment Judge and two lay members. I shall refer to the parties as they were below. In the appeal today the Claimant has been represented by Miss Zeitler and the Respondent by Ms Misra. I am grateful to both counsel for their clear and helpful submissions.
2. The grounds of appeal were amended after a Rule 3(10) Hearing at which the Claimant was helped by a representative from the Employment Law Appeal Advice Scheme, Ms Wolstenholme. Those grounds of appeal, as broadly described by HHJ Eady QC, who gave permission for the appeal and for the amendment, are: first, whether the ET substituted its view of the conduct of the Claimant for that of the employer and allowed its own view of his conduct to affect its view of the reasons for the dismissal so that it did not scrutinise properly the Respondent’s case about the reason for the dismissal or whether the Respondent acted reasonably in dismissing for that reason; and secondly, whether the ET erred in its approach to the Respondent’s refusal to allow the Claimant to appeal against his dismissal. The grounds of appeal contend that the ET was wrong to rely on two points that were relied on by the Respondent. That is: first, that the ACAS Code of Practice does not apply to a dismissal for some other substantial reason; and secondly, that there was little point in an appeal because there was virtually no manager left who had not previously been involved with the Claimant or against whom the Claimant had not made a complaint.
3. The grounds of appeal also assert that the Tribunal erred in relying on reasons not advanced by the Respondent, those being: first, that the appeal was late and not a genuine attempt to challenge the dismissal; and secondly, that it could not have succeeded, because the sole question for the ET was whether the Respondent had acted reasonably at the time. In any event, the grounds of appeal go on, the Claimant’s grounds of appeal were never sought or considered by the Respondent, and so there was no evidence in support of that finding.
The Facts
4. The ET considered the facts carefully and recorded them over more than 70 paragraphs of its Reasons. The Claimant was employed as a Night Manager at the Heathrow branch of the Respondent. He is of Pakistani origin. He has held dual Pakistani/British nationality since 2012. I shall refer in some detail to the ET’s Reasons. What I shall seek to do is to summarise them in a way that is relevant to the grounds of appeal.
5. The Claimant started to work for the Respondent on 6 October 2008. He was dismissed for some other substantial reason on 26 February 2014. The Respondent has a broad ethnic mix in its workforce. At the Heathrow hotel, Mr Bellamy - that is, the Manager who dismissed the Claimant - said that the racial mix was about 30 per cent Asian and about 30 per cent Eastern European. The ET referred to the fact that when a new General Manager, Mr Stafford, arrived at the hotel with a new Deputy Manager, Mr Andrew, problems resulted. Mr Andrew was of Caribbean origin. One of the bases of the first claim that was brought by the Claimant in the Employment Tribunal was that the Claimant said that the manner in which Mr Andrew had dealt with him and others showed that he was a racist. The ET, in a Judgment promulgated on 18 June 2013, had exonerated Mr Andrew of that accusation.
6. The ET noted that in the course of the current proceedings the Claimant had sought to go back to the earlier claim. The ET had said that those matters had already been the subject of a Judgment and were found not to be done on the basis of race, and the ET was not prepared to go over that ground again in the current hearing. The ET said that there had been a Preliminary Hearing in 2013 when further claims by the Claimant had been considered. Three of the four bases of claim were struck out. One claim was allowed to proceed, but a deposit was ordered, and that deposit was never paid. The ET referred to the fact that although the Claimant had made allegations of race discrimination in the Tribunal, he had made no allegations of discrimination in any internal proceedings within the Respondent company.
7. The ET then asked itself how the current set of claims had come to be made. The Claimant, it said, according to the Respondent, had a history of making complaints about minor matters, pursuing them excessively and presenting frivolous grievances. Mr Bellamy, the Tribunal said, in his letter of dismissal, found that there was a general theme that the Claimant was unwilling to accept decisions that might be remotely critical of him and that did not match his expectations. Based on that and the concerns of colleagues about how the Claimant’s presence would affect them, and on the failure of the Claimant to move on from the Employment Tribunal decisions that had already been made, he had been dismissed. The Tribunal then said this at paragraph 21 of its Reasons:
“21. … In order for the tribunal to decide what was the real reason for the termination, we must consider the events which lead Mr Bellamy to reach this view. …”
They went on to say that what they were not prepared to do was to look at the matters that had already been the subject of litigation and on which findings had been made.
8. The ET said that the Claimant had gone on sick leave on 3 March 2012 and had not been certified fit to return to work until 28 November 2013. There had been meetings about a possible return to work in 2012. On 1 April 2012 the Claimant and three others had presented Tribunal claims. In February 2013, while the Claimant was still absent sick, he had been to a hotel in Islington to have a look at his personnel file. He then claimed in an email to the Chief Executive, the Chief Operations Manager and the Director of HR that his personnel file had been tampered with in that his visa that granted him indefinite leave to remain was missing. At that point the Claimant had said how stressed he was and did not trust anyone at the Respondent.
9. He presented a grievance, which was heard on 23 April by Michelle Sweet. There were delays about fixing the date, and, in the ET’s view, the Claimant complained about that delay unreasonably. There was an outcome letter dated 23 May 2013, which was over ten pages long and, in the ET’s assessment, contained a very full analysis of all of the complaints that the Claimant had made. One aspect of his complaint was partly upheld. He was told specifically that he must provide his visa documentation to the Respondent and was also told that when he returned to work from sick leave he would have to sign up to date policy documents. The outcome letter acknowledged that in the past some of the Respondent’s personnel practices had been poor and that for that reason some paperwork might be missing.
10. The Claimant then appealed. He did not say anything more than that he was appealing, and he gave no reasonable basis for the appeal. A meeting was arranged in order to allow him to give details of his proposed appeal. His response to that was to say that he would not be available for a meeting on that date. The ET then said this (paragraph 35):
“35. The tribunal noted that this was a consistent pattern with the claimant: that on each occasion he would seek additional documents and say that he was unavailable on dates that were originally proposed for meetings. This was a matter of some surprise to the tribunal given that he was an employee who was certified sick for work. As an employee, there would be an expectation that if there were issues relating to his employment, that he would be under an obligation to attend for those meetings at a time that would be reasonable given the amount of notice.”
11. The Respondent tried again to find out what the basis of the appeal was. An email was sent about that, and the Claimant replied in an email dated 12 June 2013 in unhelpful terms. Further choices of date were offered to the Claimant, and the Claimant’s response to the emails was that he found them stressful, threatening and worrying. Michelle Hickey had said that if he did not attend on the due date she would consider that he no longer wished to proceed with his grievances. There was then further correspondence in which the Claimant was offered dates, and the ET observed that it was not apparent why the Claimant should be unavailable for the long period for which he said he would not be available.
12. The next thing that happened was that a case review about his continued ill health absence was due. The person who was expected to conduct this meeting was Judy Kent. The Claimant objected to her doing this. He said, among other things, that he considered that she had lied to the Tribunal. The ET noted (paragraph 40):
“40. … For the avoidance of doubt, we are satisfied that the description of immigration document filing given by Ms Kent was factually accurate.”
13. The Respondent acceded to that objection and arranged for somebody else to conduct the review. There was further correspondence. On 9 July the Claimant asserted that documents might be forged and said that if he did not receive the documents he sought he would take the matter further. On 16 July he asserted that information he had been given about the task list was false, and on 17 July he again asserted that information was false and said he was not prepared to attend a meeting on 18 July until he had all the true facts, at which point he would advise the Respondent to arrange the meeting date. Ms Kent told him that if he did not go to the meeting on 18 July it would go ahead in his absence. The Claimant’s response was to say that he had no other choice but to take the matter to Head Office, and he did that. He asked for somebody different to hear the appeal. The HR Director for the company replied. The Claimant did not accept that she was the appropriate person to reply on behalf of the Chief Executive and the Chief Operations Manager. There was further correspondence, which it is unnecessary for me to set out.
14. The Claimant wrote on two occasions to the Chief Executive Officer. Mr Brennan replied on 12 August asking the Claimant not to respond to his letter or to contact him directly as it was not appropriate for the CEO of a busy commercial enterprise to be dealing with the individual issues of any one employee. The Claimant did not go to the appeal on 6 August, which was held in his absence. In a six-page letter Ms Hickey analysed all of the matters that had been considered by Ms Sweet and dismissed the appeal. On 25 August 2013 the Claimant wrote a somewhat intemperate letter to Mr Brennan. Ms Kent replied to that on 27 August. She said that there would be a further review meeting fixed with Laura Davidson about the offer. As part of the outcome of the grievance Ms Hickey noted that the night task issue had already been the subject of a grievance and should therefore not have been for Ms Sweet to deal with. She noted that the Claimant had rejected the idea of a short-term move to another venue as a way of easing his return to work. The Claimant had said that there were “grey areas” - meaning Mr Stafford and Mr Andrew - and that he expected them to be moved. It was also brought to his attention that human error explained any missing documents in his personnel file and that he must bring his employer up to date about his current immigration status and sign the up to date policy documents. There was a return to work interview on 23 September, when the Claimant repeated his view that the other two employees should have to move.
15. On 23 September a colleague of the Claimant (and a fellow Night Manager) was pursuing a grievance. He was told by a Mr Toole that the Claimant would not be welcome as a witness at the hearing. There was a further exchange, which resulted in the Claimant bringing a grievance against Mr Toole at the end of 2013.
16. On 17 October the second Tribunal case was heard, with the result that I have already described. The ET noted that the Respondent continued to arrange return to work interviews. The ET said that it was apparent from the email exchanges that the Claimant continually found reasons why he was not able to attend on dates that had been arranged. On 11 November 2013 the Claimant’s GP wrote to the Respondent saying that they should offer him a phased return to work. He was said to be physically and mentally fit to return his usual job. Ms Kent therefore sought to arrange a meeting with the Claimant on 2 December 2013. The Claimant replied saying that he would not be available for that date and asking whether it could be arranged for another date. Another date was suggested. There were continued points by the Claimant that this was not an appropriate date, eventually he asked for a meeting on 11 December, and the Respondent agreed to that.
17. The ET recorded further matters about the grievance that the Claimant raised against Mr Toole. Among other things, Jennifer Lee told the Claimant by an email that he had no status to bring a grievance against Mr Toole.
18. A return to work interview was held on 11 December. One of the issues that was discussed was a “clear the air meeting” with Mr Andrew. The Claimant refused to go to such a meeting unless this was a point of law. The Claimant was not prepared to return to work on day shifts - he had previously been working during the night - even though that would have helped him to have full health and safety training and to meet the team. The Respondent made arrangements for him to return to work in accordance with his wishes. In a letter of 13 December they set out the proposed arrangements for a return to work over a phased period of six weeks.
19. The Claimant did not accept the advice that Ms Lee had given him about his grievance against Mr Toole and insisted that it should proceed to a formal stage of the grievance procedure. In order to find a member of staff who had not hitherto been involved with the Claimant’s problems, Peter Stack, who was based in Glasgow but was Mr Bellamy’s Line Manager, was appointed to hear the grievance.
20. After the return to work meeting on 8 January Ms Kent wrote to the Claimant again about his indefinite leave to remain document. The Claimant had refused to provide it to Ms Kent. She said to him that it was his responsibility to ensure that the company had the most up to date information and he would not be permitted to return to work until he had provided the copy of it. The ET noted that it accepted that that was an accurate statement of law, because the Respondent had a duty to ensure that a person had the legal right to remain and work in the country and it was the employee’s responsibility to have the appropriate paperwork and to provide that to the employer. The Claimant’s response to that was to complain to the Information Commissioner and to the Employment Tribunal about the fact that the papers had been lost.
21. Around the same time, the ET recorded, Ms Kent wrote to Sam Shepherd saying that she had concerns about how the hotel would function if the Claimant were to return. A similar letter was written by Mr Andrew and by Joe Maguire, who was another HR Manager.
22. On 15 January Mr Stack heard the Claimant’s grievance about Mr Toole. The ET referred to the notes of that meeting and said that it had read all the notes and that it was clear that Mr Stack had used “every endeavour to find out exactly what the claimant’s concerns were” (paragraph 74). The ET then referred to the outcome letter that Mr Stack sent on 3 February. They summarised it, and I need do no more than to quote short extracts from it (quoted from at paragraph 76):
“For the reasons set out above I do not uphold your grievance. What is more I have significant concerns about the nature of this grievance and the fact you have decided to pursue it at all.
…
In the circumstances you raised a grievance against Mr Toole without any basis to support your serious allegation that he had deliberately attempted to damage your reputation. Following your exchange of emails with Mrs Lee the company decided to give you the benefit of doubt by listening to your grievance but in our meeting you again provided no evidence upon which to base your assertion. As set out above, Mr Toole’s actions were entirely justified and I am left to conclude that your complaint against Mr Toole was frivolous, lacking any credible basis or evidential substance.”
23. Mr Stack sent a second letter to the Claimant on 4 February 2014, which the ET quoted from at paragraph 77 of their Reasons. I do not need to quote from it other than to say that Mr Stack said that he was concerned by the excessively frequent nature of the grievances and complaints that the Claimant had raised and the degree to which he appeared to be challenging any decision or request made by the company with which he happened to disagree. The citation finished with this passage:
“In light of these incidents and as regional operations manager responsible for the Heathrow hotel, I have shared my concerns with Andy Bellamy, the general manager. I understand Mr Bellamy is in any event meeting with you on 4 February at your request and it is likely he will wish to discuss this matter with you.”
24. There indeed was a meeting between Mr Bellamy and the Claimant on 4 February. There was a dispute about what had happened, but the Tribunal expressly said in paragraph 78 that they accepted Mr Bellamy’s evidence that at the meeting the Claimant refused to sign the new policy documents. At the end of the meeting he had said that he would sign them. The ET said that it had read the notes, and they noted that the Claimant challenged the potential security of documents. Mr Bellamy gave him an assurance, to which the Claimant said, “I have been given assurances before”. He also said, “My trust has been shattered by this anything could happen you could leave tomorrow [sic]”. Mr Bellamy also raised concerns about frivolous grievances at the meeting. The Claimant said that it felt as though Mr Stack was being disrespectful to him in his letter.
25. On 9 February the Claimant wrote to Employment Judge Lewis about issues relating to his indefinite leave to remain. On 10 February Mr Bellamy wrote the Claimant a letter inviting him to a formal meeting. That letter set out over six pages the history of the concerns that the Respondent had. It was said that this was a state of affairs that could not continue, and the Claimant was told that the company was considering terminating his employment. A meeting would be held on 13 February to address that issue. In fact, the meeting took place on 20 February. The ET recorded at paragraph 82 of its Reasons that at that meeting the Claimant was accompanied by his trade union representative, Ms Bir. The ET noted, having read the notes of the meeting, that she had tried to persuade Mr Bellamy that the Claimant was prepared to move forward and put these matters behind him, and she suggested that there should be a three-month trial period.
26. The ET quoted from the letter of termination dated 26 February in paragraph 83 of its Decision. Mr Bellamy’s conclusion was that, despite Ms Bir’s best endeavours, he could see very little evidence that the Claimant did in fact wish to put the past behind him and to move forward. In particular, he was disappointed to note the following:
“● Incredibly, we spent large parts of the meeting treading over old ground again regarding documents on your personnel file (where you continued to assert that someone “needed to take the blame”) and the night checklist, and even your representative suggested we needed to move on from this. This again emphasised to me your reluctance to move forward which I have previously noted.
● You refused to take any responsibility for your actions and continued to deny making certain statements towards other individuals, such as insinuating Judy Kent had lied on oath, or telling Mili Barrer-Sarrion that you did not trust anyone at Jurys Inns, or stating to Laura Davidson that you would only return to the property if Giovanni Andrews [sic] and Dinal Stafford were removed despite clear evidence that you had said these things. [Your] tendency to deny making certain statements when they do not assist you is of particular [concern]. In our discussions about the confidence you have in the Company, you even claimed you had stated to me in our meeting on 4 February 2014 that you trusted me, which is simply untrue since both myself and Joe Maguire in fact witnessed you questioning the assurances I was giving you and stating that other senior people in the business had not kept their word so why should you believe me?
● In relation to the night checklist, despite this being an issue that had previously been addressed at length, you changed your position and tried to now suggest you were unable to implement this because the night workers did not speak English and you could not leave them on the desk. This was in fact the argument you had previously tried to give for allegedly not being able to take breaks and it worried me that you were [now] changing arguments to suit your purposes. This is another example of you not accepting responsibility and trying to shift the blame onto others.
● There was no evidence at all that you did in fact wish to repair relationships that had broken down. You did not once during the meeting apologise for any of your actions or the comments you had made to or about others. …
● Even in the meeting itself, you were on a number of occasions disrespectful towards Sam Shepherd, a senior manager of the business, repeatedly referring to her as “she” whilst pointing at her, despite your own representative asking you to stop doing this.
● Both you and Ms Bir asserted that you were ready to put the past behind you and return to work, ready to make a fresh start. This is not borne out by recent events. When we met on 4 February 2014, you stated the same thing, claiming you wanted to give 100% and did not wish to stay in the past, yet just four days later you wrote to the Tribunal asking them to look again into the matter of your personnel file and contending that the Company “was not honouring” the Tribunal’s judgment. You sent similar correspondence to the [Information Commissioner’s Office] challenging their decision that the Company’s data protection procedures were adequate. These are not the actions of a person who claims they are ready to focus on the future and they give me no confidence in the assurances you and Ms Bir tried to make during our meeting.
The above is in keeping with the general theme that you are unwilling to accept any decisions which may be remotely critical of you or which do not match your expectations. Since May 2013, for example, you have sent over 30 emails to the Company about various issues where on numerous occasions you state that you are “dissatisfied” or “disappointed” with the actions the Company has taken.”
27. The ET recorded that Mr Bellamy took into account that concerns been expressed about the Claimant’s comments and the way in which the Claimant reacted to any decision that he was unhappy with was to revert to the Employment Tribunal, to the Information Commissioner or to UNUM. In relation to each of these, the ET said, where the Claimant was unhappy with a decision he would not accept that that was the final word. The ET recorded that Mr Bellamy finished his letter by saying that as a relative newcomer to the business he had been able to consider the matter with a pair of fresh eyes because he had not previously been involved in any way. Having done that, he felt that the company had shown extraordinary patience towards the Claimant up until then in the extensive efforts that had been made to follow due process to deal with his many concerns and to facilitate his return to work after 20 months of sickness absence.
28. The ET recorded in paragraph 86 of its Reasons that Mr Bellamy did not offer the Claimant a right of appeal. Mr Bellamy had said that this was for two reasons: first, this was not a disciplinary matter, it was dealt with for some other substantial reason and therefore fell outside the ACAS Code of Practice; and secondly, there was little point, as there was virtually no manager left who had not previously been involved on the subject of a complaint or grievance from the Claimant.
The ET’s Decision
29. The ET started at paragraph 2 of its Decision by identifying the main factual issue. The ET said that this was what the reason for the dismissal was and that that had been at the heart of the case and formed the basis of the unfair dismissal claim, the direct discrimination claim and the victimisation claim. In particular, the ET noted, the Claimant asserted that the matters set out in the letter from Mr Stack of 4 February 2014 and the letters from Mr Bellamy dated 10 and 26 February 2014 were false and did not justify the dismissal. I interpose to say that it was clear from the very brief material provided by the Claimant in his ET1 that he was asserting that those matters were false.
30. The ET recorded that the Respondent had accepted that the two previous discrimination claims were protected acts on which it was possible for the Claimant to base a claim of victimisation. The ET directed itself correctly about the burden of proof and the elements of victimisation. It recorded that it had heard evidence from the Claimant, from his line manager, from Mr Bellamy, who dismissed him, and from Ms Shepherd, the HR Manager. The ET noted that the Claimant had a tendency to go back over the facts on which his first Employment Tribunal case had been based. The ET had not allowed him to do this. The ET had also had to limit his cross-examination as he kept asking questions about matters that he had already been told the ET was not going to deal with. The ET recorded that he had run out of time despite being given reminders about this.
31. The ET then set out its findings of fact, beginning at paragraph 12 under the heading “Background to the claim”, along the lines that I have already summarised. It expressed its broad conclusions in paragraphs 87 to 100 of its Reasons. The ET said that it had quoted the letter of dismissal fully because the ET was satisfied it set out how the Respondent had reached a decision. There had been a fair process, because the Claimant had been given an opportunity to respond to the Respondent’s concerns. They then said this (paragraph 87):
“87. … Mr Bellamy reached a decision that a reasonable employer could reach given the history as set out above.”
32. That history, of course, is the history that I have just recited. The ET went on to say at paragraph 88 that it had been taken through the same paper trail as Mr Bellamy had and had been startled by the level of rudeness shown by the Claimant to senior managers, had been startled by the Claimant’s assumption that his employer would “dance to his tune regarding the timing, dates and venues of meetings”, and was startled by the Claimant’s assumption that he had no responsibility for ensuring that he complied with statutory obligations in relation to his immigration status. The ET said that it had noted how frequently the Claimant failed to follow reasonable instructions, including writing to the CEO when expressly told not to. Then, at paragraph 89, the ET said this:
“89. All the evidence set out above shows that the assertions made in Mr Stack’s letter and Mr Bellamy’s letter are true. The tribunal has painstakingly considered the email exchanges and the minutes of meetings. It is clear that the behaviour of the claimant manifests a total loss of trust and confidence, not to say respect, for his employer. It demonstrates on the part of the employee a complete lack of understanding of his role as an employee which is of mutual obligation, i.e. to perform work for his employer in accordance with the terms of his contract.”
33. At paragraph 90 the ET said that it was startled to see that the Claimant had failed to understand that as an employee when off absent from work through ill health he must make himself available to meetings relating to his potential return. At paragraph 91 the ET said this:
“91. There was not a scintilla of evidence to suggest that the reason for the claimant’s treatment related to his Pakistani nationality. The claimant raised no evidence to support that and just said it was his feeling. He has produced no evidence to say that a person of a different nationality or race who was so rude and so obstructive, to his employer and so unwilling to accept lawful instruction would be treated in any other way.”
34. At paragraph 93 the ET recorded its view that the Respondent had done exactly as Mr Bellamy had said in his letter. In other words, they had shown extraordinary patience towards the Claimant and:
“93. … gone further than this experienced tribunal has ever seen in trying to meet and accommodate a claimant absent from work.”
35. The Tribunal then went on to say, at paragraph 94:
“94. We therefore find that the reason for the dismissal was some other substantial reason, namely that on both sides there was a loss of mutual trust and confidence. The claimant had manifested no intention of returning to work as an employee whereas the employer had demonstrated that they were prepared to work with him should he meet certain basic requirements such as providing his indefinite leave to return [sic]. The respondents did not rise to the frequently very confrontational emails sent by the claimant; they accommodated his requests regarding timing and venues in a way that was more than generous.”
36. At paragraph 96 they said that they found that the reason for the dismissal was fair, and they said that the process had been fair as the Claimant had had the opportunity to put his side of the story. There was no obligation on the Respondent to provide an appeal given the basis of termination, but, in any event, the attempt at an appeal by the Claimant at the time he began early conciliation in May 2014:
“96. … presents as an afterthought not a genuine attempt to challenge the fact of dismissal. It was not an appeal presented in a timely fashion.”
37. At paragraph 97 they said that an appeal would have been fruitless in any event as the Claimant could not change past events “the bases of which were entirely reasonable for his dismissal”. They again repeated, at paragraph 98, their conclusion that there was a fair dismissal for a fair reason after a fair procedure, and they said this:
“98. … There is no evidence that the reason for the dismissal was in any way related to his race or nationality.”
38. At paragraph 99 they dealt with the victimisation claim, and at paragraph 100 they again dealt with the reason for the dismissal, saying this:
“100. We are satisfied that it is his behaviour not the fact of bringing claims of race discrimination that are [sic] the reason for the dismissal. That is not victimisation for having brought a claim; it is a dismissal because of the claimant’s behaviour towards an employer who had made every effort to try and get him back into work and to move on. The claimant had become unmanageable because of his behaviour.”
39. At paragraph 101 they said that for that reason they also dismissed the victimisation claim.
40. I should very briefly mention two documents that it is agreed were before the ET. The first is an email dated 20 May 2014 from the Claimant to Mr Bellamy copied to Ms Shepherd and Ms Bir. It says this:
“Dear Mr. Bellamy,
Further to your letter dated 26th February 2014, on 20th February 2014 I attended a formal meeting chaired by you; following that meeting you made a decision in your above mentioned letter to terminate my employment. You have not given me my entitled lawful right to appeal against your decision. Therefore after taking legal advice I would like to appeal against the decision.”
41. I stress that this email was sent nearly three months after the letter dismissing the Claimant. On 23 May Mr Bellamy replied. He referred to the email of 20 May, and he said this:
“I am most surprised you have waited until now, almost 3 months after the date the decision was communicated to you, before deciding that you wished to appeal. I am aware, however, that you have recently contacted ACAS to notify them that you intend to lodge a Tribunal claim and I note that in your email you have confirmed that you are appealing after taking legal advice.
Unfortunately, it therefore seems self-evident that the only reason you are now wishing to appeal is because of the Tribunal claim you are intending to bring and that you have been advised it would somehow be to your tactical advantage to do so. I am extremely disappointed by this and, if anything, it confirms to me the breakdown of trust and confidence that has taken place between you and the Company. It is clear to me that had you genuinely wished to appeal against the Company’s decision and/or had any real desire to be re-instated into your role, you would have decided to appeal much sooner or, at the very least, indicated to the Company that you intended to do so. You are more than familiar with the Company’s appeal processes having engaged in such processes previously.
In the circumstances, the Company is not therefore prepared to go through the charade of an appeal process with you. In any event, your previous role of Night Manager has already been filled as it is three months since your dismissal and there are currently no other suitable vacancies, either at the Heathrow hotel or at any other properties in the area. Consequently, even if the Company believed it would be appropriate to hear an appeal given the issues surrounding the termination of your employment, any such appeal would be futile.”
42. According to the parties’ agreed note of further evidence, the Claimant did not cross-examine Ms Shepherd or Mr Bellamy about the appeal, although he complained that his cross-examination was cut short. This is clear from the ET’s Reasons. In answer to a question from the ET about the appeal, Mr Bellamy said that the Respondent had run out of people who could hear an appeal in view of the long history. The ET also had before it, and they are in the bundle for this appeal, written witness statements from Mr Bellamy and Ms Shepherd that dealt with the issue of the appeal.
43. The Claimant applied for a review of the ET’s Decision, and, in a further Decision sent to the parties on 2 April 2015, the ET refused that application.
The Law
44. The law on three topics is relevant to the grounds of appeal:
(1) The relationship between a dismissal for some other substantial reason and the ACAS Code. In Lund v St Edmund’s School Canterbury UKEAT/0514/12 one of the grounds of appeal concerned the ET’s power to increase a Claimant’s compensation on the grounds that the Respondent had unreasonably failed to comply with a provision of the relevant Code of Practice. The EAT held, among other things, that the ACAS Code on disciplinary and grievance procedures issued in 2009 applied to a dismissal for some other substantial reason of the type that was contemplated in that case.
(2) The relevance of an appeal to the assessment required by section 98(4) of the Employment Rights Act 1996 (“ERA”). In Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602 the Court of Appeal considered the relevance of an appeal to the assessment that is required by section 98(4). The Claimant in that case had been dismissed after a hearing in which, the ET held, he could not participate properly because of his disability. There had been an appeal, but the ET held that it did not cure the unfairness of the original dismissal hearing because the appeal had been by way of review and not by way of rehearing. The EAT agreed with that analysis. The Court of Appeal allowed the employer’s appeal. It reviewed the authorities and concluded that what they showed was that the precise label attached to the appeal did not matter; what mattered, rather, for the purposes of section 98(4) was the fairness of the process as a whole. The ET should look at the substance of what happened during the disciplinary process as a whole. So, if the disciplinary hearing is defective, it can be cured by a fair appeal hearing; it all depends on the facts. This case is not authority for the proposition that a dismissal cannot be fair unless an employee is given a right of appeal. The Court of Appeal first of all referred to the trap of deciding whether a dismissal procedure was fair or unfair by reference to a view about whether the appeal hearing was a rehearing or a review, and at paragraph 47 of its Judgment the Court of Appeal said this:
“47. … This error is avoided if employment tribunals realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the earlier stage.
48. In saying this, it may appear that we are suggesting that employment tribunals should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that section 98(4) of the Employment Rights Act 1996 requires the employment tribunal to approach its task broadly as an industrial jury. That means that it should consider the procedural issues together with the reason for the dismissal, as it has found it to be. The two impact upon each other and the employment tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason it has found as a sufficient reason to dismiss. …”
(3) The doctrine of substitution. This is a familiar doctrine. It was explained in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 by the Court of Appeal. In that case, the Court of Appeal allowed an appeal from a Decision of the EAT. The ET had held that the employee had been unfairly dismissed. He was an ambulance driver. He was dismissed for gross misconduct after an incident that led to a complaint from the patient’s daughter. The main ground of appeal was that the ET had substituted its view of the facts for that of the disciplinary panel that had taken the decision to dismiss the employee. That ground of appeal succeeded even though the ET had several times warned itself not to substitute its own view for that of the employer. Instead of considering whether the employer’s view of the facts was reasonable, the ET had made its own findings about the facts and had used those to support its view that at the time of the dismissal the employer had had no reasonable grounds for its belief about the employee’s conduct. The ET was “carried along the acquittal route”, in the words of the Court of Appeal, and away from the real question, which was whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal. I was also referred by the Respondent to Leeds Teaching Hospital NHS Trust v Blake UKEAT/0430/14. The facts of the case do not matter for present purposes other than I note that, as in the Small case, the substitution argument was being run by an employer who had been unsuccessful before the Employment Tribunal. HHJ Richardson said this at paragraph 59 of the Decision:
“59. It follows that the Employment Appeal Tribunal will not find that an Employment Tribunal’s reasoning is vitiated by a “substitutionary mindset” on the basis of its own assessment of the merits, still less because of the strength with which the Employment Tribunal has expressed its conclusions - for the more unreasonable a decision to dismiss, the more likely the Employment Tribunal will express its conclusions strongly. The Employment Appeal Tribunal will do so only if, on a careful reading of its reasons, it can be seen that the Employment Tribunal did not apply the law.”
In paragraph 60 of the Decision the EAT said that there were two features that might contribute to a view that the ET had not applied the section 98(4) test correctly. The first was that there might be signs that the ET had in effect made and proceeded from its own findings of fact when it should have started with the employer’s findings and asked whether those findings were reasonable. The second was that there might be signs that the ET’s criticisms of an employer applied an extremely high standard without recognising that there was a range of acceptable ways of investigating and deciding a disciplinary point. However, HHJ Richardson continued, even if those signs seem to be present, the decision must still be read in the round in order to decide whether it is really flawed by that error.
45. In ground 1, the real issue, as per the OCS case, is what section 98(4) required on the facts of this case. There is no rule of law that an employer must always give an employee an appeal. Whether an appeal is required by section 98(4) will always depend on the circumstances. In this context, I bear in mind, as the ET noted, that the appeal had been requested very late indeed - nearly three months after the date of the dismissal. It had expressly been requested on the basis of legal advice. No ground of appeal was advanced either in the letter asking for an appeal, or before the ET. Miss Zeitler argues, as per the ground of appeal, that the ET erred in law in finding that an appeal was not required by the ACAS Code of Practice when an employee is dismissed for some other substantial reason.
46. I have looked at the relevant ACAS Code. It is clear from that that an ET must take the Code into account but that a failure to follow it does not render an employer liable to proceedings. The Code is said to be designed to help with disciplinary situations, which can include misconduct and/or poor performance. It expressly says that it does not apply to redundancy or to the non-renewal of a fixed-term contract. The Code says in paragraph 4 that employers and employees should deal with issues promptly. It says that where an employee feels that disciplinary action that has been taken against him is wrong or unjust he should appeal against the decision. The Code says that appeals should be held without unreasonable delay and that employees should let employers know their grounds for appeal in writing (paragraph 25). The guide to the ACAS Code recommends that appeal procedures should include a time limit for lodging an appeal of five working days subject to extension. The guide also recommends that an appeal should be dealt with impartially and that wherever possible it should be dealt with by a manager who has not previously been involved with the case.
47. Whether this Code is intended to apply to dismissals for some other substantial reason is not entirely clear from its text. There are pointers in both directions. So, I have some sympathy for the view that was expressed by the ET that it did not apply to a dismissal for some other substantial reason. If the Code is given a purposive construction, I would be inclined to hold on balance that it should apply to a dismissal for some other substantial reason. That conclusion is to an extent supported by the decision of this Tribunal in the Lund case, although I note Ms Misra’s submission that the Lund case is distinguishable because of the precise nature of the other substantial reason that was relied on in that case, but I do not have to decide this point. The ET was not bound to find that the dismissal was unfair if no appeal was given. It was no more than a factor that it had to take into account. The real question is: even assuming that the ET erred in holding that the ACAS Code did not apply to this dismissal, and I make clear that I am not holding that it did err in that way, would such an error have been a material error?
48. In my judgment, assuming that this was an error, it was not a material error. There are three broad reasons why. First of all, the ET found, and there has been no challenge to that finding, that the employer was reasonable in dismissing the Claimant for the reason for which it dismissed him and that it acted fairly on the basis of the meeting of 20 February. It held expressly in paragraph 96 of its Reasons that the reason for the dismissal was fair and that the process had been fair. The ET also found, in paragraph 97 of its Reasons that an appeal would have been fruitless in any event as the Claimant could not change past events, the bases of which were entirely reasonable for his dismissal. In other words, the appeal could have added nothing to the section 98(4) analysis. Thirdly, in any event, the ET found as was it entitled to find that the appeal had not been genuinely brought. In my judgment, those findings, individually and collectively, mean that no reasonable ET could have held on these facts that the Respondent’s refusal to give an appeal to the Claimant could have had a material impact on whether or not the Employment Tribunal was entitled to find that the dismissal was not unfair. For those reasons, I dismiss ground 1.
49. I turn then to ground 2. Miss Zeitler accepts that there is material in the Reasons of the ET to show that the ET understood that section 98(4) required it to judge whether the employer had acted reasonably in treating some other substantial reason as a sufficient reason for the dismissal having regard to equity and the substantial merits of the case. Paragraph 17 of the Claimant’s skeleton argument refers to examples of correct self-directions by the ET. So, I need to consider this ground against the background that the ET has applied the correct legal test, and it is conceded that it has applied the correct test.
50. Miss Zeitler also accepted in her submissions that the ET is entitled, if appropriate, to express itself in strong terms, and that much is clear from the Decision of HHJ Richardson to which I have already referred. In that context, Miss Zeitler made two points, really: she focused on the way in which the ET had expressed itself, for example by using the word “startled” on four separate occasions; and she submitted that the ET had made findings of fact instead of asking itself whether the employer’s assessment of the facts was reasonable. Those two matters, she submitted, showed that the ET had slipped into the trap of substitution and had failed to carry out the task appointed for it by section 98(4) ERA 1996. When I asked her what the ET should have done, she submitted that the ET should have said something like, “The Respondent’s assessment fell within the band of reasonable responses”. She submitted that if the ET had inserted sentences like this into its Reasons it would not have fallen into error.
51. In examining these submissions I remind myself of two features of the context. First is the Claimant’s assertion in his very brief ET1 that the matters set out in the employer’s letters of 4 February and 10 and 26 February 2014 were false. This allegation was at the forefront of the ET’s mind, as shown by the terms of paragraph 2 of the Reasons. Second, the ET appreciated that it was dealing not only with an unfair dismissal claim but also with a claim for discrimination on grounds of race and a claim for victimisation. In both of those two claims the ET was bound to make factual findings about what had actually happened. The context as noted by the ET in the first sentence of paragraph 2 of its Reasons that it had to decide the factual question what the employer’s reason was for the dismissal. As part of the allegations in the race claim and the victimisation claim, the Claimant was saying that he had not been dismissed for the reasons set out in the February letters but rather because he was of Pakistani origin and/or because he had previously brought Tribunal proceedings against the Respondent. In that context, it was essential for the ET to make express factual findings about whether or not the matters set out in the February letters were true, and that is precisely what the ET did in paragraphs 88 to 91 of its Reasons, which are the focus of Miss Zeitler’s criticisms.
52. It is true that the ET has not carefully distinguished between the findings that it was making in relation to the race and victimisation claims and the unfair dismissal claim, but, given the close connection between the basis of all three sets of claims, the ET cannot be criticised for the approach that it did adopt in setting out its conclusions. Against that background I reject the submission that the ET fell into the substitution trap. But, supposing for a moment I am wrong and that the ET did fall into the substitution trap, was that on the facts of this case a material misdirection? In my judgment, it was not, and the reason why it was not is that there is a close logical connection between the findings that the ET made in the paragraphs that are criticised by Miss Zeitler and its findings on the unfair dismissal claim. The problem for Miss Zeitler is that, the ET having found as a fact that all of the matters set out in the February letters were true, it is, in my judgment, impossible to say that an employer could act unreasonably in treating those matters as a sufficient reason for dismissing an employee, and that is why I have concluded that even if the Tribunal fell into the substitution trap that was not a material error of law.
53. For those reasons, I dismiss this appeal.