“[t]here has been a catalogue of significant errors relating to this case and I would like to take this opportunity to apologise for any upset and distress caused by these failings.”
“if there is a further offence or if the offence is sufficiently serious to warrant only one written warning, in effect both first and final warning, or if there is a further recurrence of a lesser offence, a final written warning will be issued by either the employee’s line manager, senior manager, or director.”
“if there is a further offence or if exceptionally the offence is serious enough to justify dismissal without prior warnings, an employee will be dismissed without prior warnings. Such actions may be taken by a senior manager or a director. The procedure states that as, as an alternative to dismissal, the Respondent may, at its discretion, impose a disciplinary measure such as demotion or transfer to another job, with or without a reduction in pay, all suspension without pay for up to 5 working days, in addition to the imposition of a final written warning.”
“58. … The Respondent wanted to ensure that productivity at its sites continued right up to the end of the shift to avoid ‘down time’ … And required employees to stay in their production areas until the end of their shift. By April 2019 the policy and (systems to monitor its application) and employees adhered to it. In those circumstances the Respondent gave a reasonable instruction to the Claimant to adhere to the requirement to stay in the production area.”
“6[2]. …There is no evidence of bad faith or manifest impropriety for that the final written warning was issued without prima facie grounds. What is required under the ACAS Code is that the manager hearing the appeal had not previously been involved in the case. There was no evidence that Mr Preston had been so involved in this disciplinary matter. He was the appropriate manager to hear the appeal under the Respondent’s disciplinary procedure and there was no evidence before me from which I could conclude that he did not approach his decision making in relation to the appeal against the imposition [of] the final written warning in an impartial way. If I am wrong about that Mr Preston should have considered apparent bias in the circumstances and not have decided the Claimant’s appeal against the final written warning in my Judgement his failure to do so would not be sufficient in and of itself to render the dismissal unfair.”
“I conclude that [Ms Heitzman] failed to come to her decision-making at the disciplinary hearings with an open mind; she came with her mind already made up that it was the Claimant who was in the wrong and had to change his ways.”
“39. Following the appeal hearing Ms Doyle carried out further investigations with Ms Heitzman and the member of the Respondent’s administrative department responsible for the notice dated3 March 2016 . She concluded the notice had been taken down in April 2019 as a result of the introduction of the SynergyTrack performance analysis and Clocking system as a notice subsequently put up by Ms Heitzman in June 2019 and that the earlier notice had been put up to highlight to staff that if they clocked out earlier than the end of their shift this would be identified as an exception requiring a review and approval in order to avoid the deductions being made. She compared clocking out records for the Claimant and other staff on the 9th,11th and16th April 2019 and found he had clocked out at 16.59 on each occasion meaning he had left the production area sometime before that. She also recalled the inquiry undertaken in October 2015. There is no evidence that the outcome of these further investigations were provided to the claimant to enable him to comment on them before she made her decision on the appeal. There is no evidence she spoke to any other staff about why they stayed in the production area until the end of their hours of work before clocking out and for how long they have done so. She concluded that it was the Respondent’s custom and practice to ensure that staff were in the production area at the start and end time of their contracted hours and that this predated the Claimant’s dismissal 2018 and subsequent absence, the evidential basis for which was the email to her and others from the Operations director in October 2015.”
“60. … It would have been preferable for Ms Doyle to inform the Claimant about the outcome of the further investigations she undertook and give him the opportunity to comment before reaching her decision and she failed to speak to other employees … but these matters (either individually or taken together) were not such that I could conclude that the investigation which was carried out fell outside the range of reasonable responses. 61. I turn now to the specific allegations made by the claimant about the fairness of the procedure adopted by the respondent. He complains he should not have been disciplined before his appeal was concluded. He was not disciplined before his appeal was concluded as Mr Ennis accepted in his submissions. If I understood him correctly the point he sought to make was that the further non-compliance by the claimant had taken place at a time when there was still a dispute about whether or not the respondent was entitled to impose the instruction in question and I therefore should have regard to the fact that the dismissal invitation letter was only 24 hours after the appeal hearing given the claimant no time to modify his behaviour in the meantime. If so, I do not agree. … 63 … Notwithstanding the lack of an open mind on [Ms Heitzman’s] part Ms Doyle did approach the appeal and her decision-making with an open mind and overall (notwithstanding any earlier deficiencies) the procedure adopted by the Respondent fell within the range of reasonable responses.”
“In deciding whether to dismiss an employee for failing to comply with a management instruction a reasonable employer should consider if the employee in question was or could be acting reasonably. The Claimant’s explanation for not complying with the instruction was that he believed the Respondent was unilaterally changing his terms and conditions of employment without notice and requiring him to work beyond the end of his shift without being paid for it because he had to leave the production area and then change out of his specialist protective clothing and into his own clothes before leaving the premises which he considered tantamount to extortion and the deprivation of his liberty. The effect of the management instruction so far as the Claimant was concerned was that he was on the Respondent’s premises for a number of minutes without being paid for that time.”
“64. The lawfulness of the instruction given by the respondent is a relevant but not decisive question when considering the reasonableness of the dismissal for refusing to obey such an instruction. In deciding whether to dismiss an employee for failing to comply with a management instruction a reasonable employer should consider whether the employee in question was or could be acting reasonably. The claimant’s explanation for not complying with the instruction was that he believed the respondent was unilaterally changing his terms and conditions of employment without notice and requiring him to work beyond the end of his shift without being paid for it because he had to leave the production area and then change out of his specialist protective clothing and into his own clothes before leaving the premises which he considered tantamount to extortion and the deprivation of his liberty. The effect of the management instruction so far as the claimant was concerned was that he was on the respondent’s premises for a number of minutes without being paid for that time. It is implicit in Ms Doyle’s appeal decision … That she considered whether the claimant was or could have been acting reasonably in refusing the instruction in question and decided he was not because having given the claimant the opportunity to state his case and provide any material in support of it she reasonably concluded that the respondent had not unilaterally changed the term of the claimant’s contract of employment without notice but had imposed a policy which was adhered to by other employees. 65. Although it was finally balanced, I have concluded that the Respondent acted within the range of reasonable responses in dismissing the Claimant for his failure to obey the instruction that he stay in the production area until the end of his shift. The Claimant was already subject to a final written warning, which clearly warned him of the effect of further misconduct during its currency. Refusal to follow instructions is within the Respondent’s definition of gross misconduct…”
“In accordance with the equity and the substantial merits of the case the Respondent acted reasonably in treating the Claimant’s conduct as sufficient reason to dismiss him. The claim of unfair dismissal therefore fails and is dismissed.”
“52. Given that difference between the two tribunals below there was some discussion before us during the argument as to what this court’s role is in such a case. In this context, it is to be noted first, that, just as the ET wing members will have experience from both sides of industry, so likewise will the EAT wing members, so that each tribunal will bring to bear the like industrial experience. It is perhaps an unusual feature of the EAT, to which appeals ordinarily rely only on questions of law, that its appeals will normally be heard by panels of three, of which two members will usually have no experience as lawyers. Having noted that, there is no doubt that the so-called lay members of the EAT make an invaluable contribution to the decision-making process, as I found from my own experience of sitting in the EAT. 53. In my Judgement, the answer to the question referred to at the beginning of the preceding paragraph is this. The ET is the tribunal to which fell the responsibility of finding the facts in the case and of applying the applicable law to the facts so found. Amongst the findings it had to make was whether or not the dismissal [of the Claimant, for misconduct, fell within the ‘band of reasonable responses’]. That was either a finding of fact pure and simple, or else was a finding in the nature of a value Judgement akin to such a finding. Whichever it was, once the ET had made its finding, that would normally mark the end of the matter. That is because there is no appeal to the EAT against an ET’s findings of fact. Appeals to the EAT against the ET’s judgment lie only on questions of law … This principle is applied by the EAT strictly. It will for example, not be enough for a would-be appellant to the EAT, to assert that the ET’s finding on a particular factual issue was against the weight of the evidence. If there was evidence justifying the ET’s finding that will usually be fatal to the bringing of an appellate challenge and the EAT will refuse to permit an appeal to proceed. Generally speaking, the only bases on which the appellate challenges to an ET’s findings of fact will be permitted by the EAT will be if they are said to have been supported by no evidence at all, or if they are findings that no reasonable tribunal could have reached. In either case, if such challenges are made good, they would demonstrate an error of law. At least the latter way of putting the case is dependent on an assertion of perversity, although that requires nothing less than ‘an overwhelming case’ … 54. So the decision of the ET in a case such as the present is, and will be, normally the end of the road for both parties -just as it should be- unless, however, it can be shown to be arguably vitiated by an error of law. Only then will an appeal to the EAT be permitted. In the present case, an appeal was permitted because BHL had what the EAT recognised was a properly arguable point that the ET’s Judgement as to the dismissal falling outside the band of reasonable responses was vitiated by errors of law.”
“19. It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of a charge of perversity, substitute its own judgment for that of the ET.”