Ministry Of Defence v Irvine [1992] UKEAT 432_90_1106

EAT
Ministry Of Defence v Irvine
[1992] UKEAT 432_90_1106 · 1992-06-11
HIS HONOUR JUDGE HAGUE QC This is an appeal from a decision of an Industrial Tribunal sitting at Shrewsbury entered on the Register on 13th July 1990. By their decision, the Tribunal by a majority held that Mr Irvine, the Respondent in this appeal, had been unfairly dismissed by his employers, the Ministry of Defence, the present Appellants. The principal ground of appeal is that the majority of the Tribunal failed to apply the general principles set out in British Homes Stores Ltd v. Burchell [1980] ICR 303 and other cases. A further ground of appeal is that the decision of the majority was perverse.It is necessary for us to state the material facts in a little detail. At the relevant time, Mr Irvine had been in the Army Fire Service for over 7 years, having previously had 7 years exemplary service in HM Forces. He had been promoted to a Sub-Officer in June 1988. In early 1989, he was the Sub-Officer in charge of one of two groups of firemen, each group having 6 in number, which joined some forces on manoeuvres in Norway conducted between 2nd January and 27th February 1989. The other group arrived first, and the Sub-Officer in charge of that group agreed a duty roster with the camp Commandant. Under that roster, there were 2 men on duty at all times, the agreed rota being that there should be 2 men on duty for 24 hours who would then be off duty for 2 days.Mr Irvine and his group arrived on 6th February 1989. Mr Irvine made it clear to his group that he was not prepared to accept or to work the duty roster previously agreed, but he did not take the matter up with the camp Commandant. His group therefore followed the different duty roster prepared by Mr Irvine of working one day alone and then having 4 days off.On 10th February, which was Mr Irvine's birthday, he went with the 4 members of his group who were off duty (including Mr Martin) to the Park Hotel in Voss. What occurred there is described in paragraphs 3 to 6 of the Tribunal's full and lucid Reasons as follows:-
"3. ... Mr Irvine spent his time with some soldiers at the bar. His four colleagues sat at a table. The other firemen were somewhat discomforted by Mr Irvine's attitude towards the roster which he had found. They however preferred the roster set by the previous Sub-Officer. It may be that they enjoyed the company of another colleague on duty (as Mr Irvine alleged); it may be that they considered it safer and that some duties required two men. Mr Irvine rejected it because in his view it contravened standing orders. In addition it required him to work overtime without payment. It clearly also affected the amount of time which he had off.
4. While he was at the bar of the Park Hotel Mr Martin, another fireman approached him. He wanted to complain about the roster. There was an incident, following which Mr Martin was asked to leave by the doorman. There was some sort of scuffle. At the very least there was some pushing between the two men. Mr Irvine then approached the other members of the party, namely Mr Hale and Mr Day. Mr Watson was also present but he preferred to maintain his distance. Mr Irvine said he wanted to know whether they were also aggrieved, and to make it clear that he did not want to discuss the matter in his leisure time; if they wished to take it up with him they could do so the following morning. The statements which the three officers have made claim that he offered to sort out their differences outside immediately, or in camp the following morning.5. Following his departure from the Park Hotel Mr Martin walked part of the way back to camp before having a lift. Mr Irvine left some 40 minutes later. He arrived back at the barracks at 2.15 a.m. He went in through the front door and saw Mr Martin in the ablutions to his left. He was intending to use the toilets in any event. He said that he approached Mr Martin to ask whether the argument had subsided. Hearing a mumble which he thought not to be aggressive he went to use the urinal. When he turned his back Mr Martin attacked him; he managed to get a head lock on Mr Martin; and they fell to the floor. When they stood up Mr Martin had a gash on his forehead. Mr Irvine remonstrated with him. During the course of that he used the words "I am a hard man". At that point two staff sergeants Messrs Levett and Sanson were roused. They came into the ablutions area and asked what had happened. Neither man would make a statement to them.6. Mr Martin's account was that he had been cleaning his teeth. Mr Irvine had arrived and had sought to revive the earlier disagreement. Mr Martin had chosen to ignore him. Thereupon Mr Irvine said words to the effect "I am a hard man". He struck him from behind, repeatedly forcing his head into the basin, and gashing his forehead on the tap. While this went on the two staff sergeant were alerted and then intervened."The staff sergeants reported the incident to the camp Commandant who sent Mr Irvine and Mr Martin home. In due course they each made a statement. The matter was then considered by Mr K J Jenner, the District Secretary, HQ, Western District, who decided to bring the following charges again Mr Irvine on 22nd March 1989:-
"(a)Assaulting a junior colleague causing him physical injury in contravention of DC1 CIV 185/88. (b)By fighting in a public on 10 February 1989 whilst on detached duty in Norway, that you have brought the name of the Ministry of Defence into disrepute, contrary to 0502 of MOD Manual 9 - Industrial Staff Regulations. (c)By fighting in camp on 11 February 1989 you did bring the name of the Army Fire Service into disrepute in contravention of para.0502 of MOD Manual 9 - Industrial Staff Regulations. (d)Failing to carry out your duties properly by abandoning an established shift working pattern contrary to local orders."
The most serious of these charges was under (a), because it was the only matter on which the penalty of dismissal was appropriate. As it was intended to bring this charge, Mr Irvine had in the meantime (by a letter dated 10th March) been suspended. In consequence of the suspension, his pay had been reduced under the relevant regulations to 62% of his normal pay.Mr Jenner also decided to charge Mr Martin with the like offence as under charge (b), but not with any other offence. As that offence would not carry a penalty of dismissal, Mr Martin was not suspended. In due course, he pleaded guilty to this charge.The charges against Mr Irvine were considered on 8th May 1989 at a hearing before a 3-man disciplinary tribunal held in accordance with the relevant Regulations relating to disciplinary matters. The Chairman of the disciplinary tribunal was Mr J Cockrell, a Senior Fire Service Officer, the other members being Mr Atkin, a Unit Civilian Staff Manager, and Mr Gibson, a retired Army Major. They heard evidence from Mr Irvine, Mr Martin and other witnesses. They prepared a summary of the proceedings, which was not a verbatim summary, although (said the Industrial Tribunal) "... it appears to be a detailed summary". This was provided to Mr Irvine for his comments, which Mr Irvine then made in writing, and the disciplinary tribunal then reconvened to consider the matter in the light of his comments. The disciplinary tribunal acquitted Mr Irvine of charge (b) but found him guilty on the other charges. As a result of their finding on charge (a), they recommended that he should be dismissed. The decision to dismiss could only be taken by an officer with the seniority of at least a two-star General. The tribunal's recommendation, together with some observations of Mr Jenner and other papers, were sent to the GOC. He accepted the tribunal's recommendation of dismissal, and appended the following note:-
"1.Thank you. This has been most comprehensively handled and presented to me. I have been through it carefully.
2.I am satisfied that Mr Irvine assaulted a junior colleague, that he brought the name of the MOD/AFS into disrepute and that he instituted a shift system which was contrary to local orders.3.I suspect that Mr Martin assaulted his superior at the disco, but I certainly accept that his behaviour brought discredit.4.I have signed the report on Mr Irvine."The GOC was not required to consider the charge against Mr Martin, which (as it did not involve dismissal) was dealt with at a lower level.The GOC's decision was communicated to Mr Irvine, who then exercised his right of appeal under the relevant Regulations to a Civil Service Appeal Board. The Board dismissed his appeal. Mr Irvine then made his claim for unfair dismissal. Before the Industrial Tribunal, Mr Irvine's representative made some challenges to the good faith of Mr Cockrell. But Mr Irvine himself in his evidence indicated that he did not suggest that Mr Cockrell had behaved maliciously or otherwise dishonestly, and (as will be seen) the Industrial Tribunal found that Mr Cockrell had acted honestly and without bias. The majority of the Industrial Tribunal nonetheless found that the dismissal was unfair.It is clear, and was not disputed, that the employer in this case (the MOD) established that the reason for Mr Irvine's dismissal was his conduct which constituted the offence under charge (a) of which he had been found guilty by the disciplinary tribunal. The sole question for the Industrial Tribunal in deciding whether the dismissal was fair or unfair, having regard to that reason, was whether in the circumstances "the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with the equity an the substantial merits of the case": see S.57(3) Employment Protection (Consolidation) Act 1978. It is the reasonableness of the employer's conduct which has to be judged. It is not whether the members of the Industrial Tribunal consider the dismissal to be fair, and they are not entitled to substitute their own decision as to the course which the employer took. The function of the Industrial Tribunal is to determine whether in the particular circumstances of the case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted: see per Browne-Wilkinson J in Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439 para 24.The Industrial Tribunal in the present case referred to the well-known decision in British Home Stores v. Burchell surpa in which Arnold J (not Talbot J, as mistakenly stated in paragraph 17 of the Tribunal's Reasons) said:
"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters we think who must not be examined further."
We pause there to say that there is no longer any burden of proof upon the employer. The matter is one for objective enquiry by the tribunal. The learned judge went on:-
"It is not relevant, as we think, that the tribunal itself would have shared that view in those circumstances. It is not relevant for the tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities. The test and the test all the way through is reasonableness, and certainly as it seems to us a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion."
The Industrial Tribunal in paragraph 17 of their Reasons directed themselves in accordance with the foregoing and referred to the above dicta of Arnold J. The Tribunal then continued in paragraph 18 as follows:-
"18. That clearly defines the limits of our function and of our jurisdiction. The decision which we have to scrutinise is that of the persons who made the decision to dismiss, ie Mr Cockrell and his colleagues; the GOC; and the Civil Service Appeal Board. None of those actually knew Mr Irvine personally. The only contact Mr Cockrell had had with him was at a promotion panel when Ir Irvine was successful. Notwithstanding the earlier skirmishes Mr Irvine conceded that Mr Cockrell approached the matter honestly and without bias. That is the only conclusion available in the circumstances. No-one suggested that anyone further up the disciplinary ladder acted less than honestly, ie the GOC and the Appeal Board. Thus far we are all agreed. We are however divided in our other conclusions."
It was common ground before us that the Industrial Tribunal correctly directed themselves in paragraph 17 of their Reasons, and Mr McMullen on behalf of Mr Irvine rightly did not seek to challenge their above findings in paragraph 18.Before turning to the conclusions of the majority and the minority of the Industrial Tribunal, it is convenient to deal with one preliminary matter which arose in the course of the argument. Mr McMullen, after stressing that the only question was the "reasonableness" question posed by S.57(3) of the 1978 Act, submitted that it was not sufficient that the disciplinary hearing had been conducted honestly and without bias, and that an Industrial Tribunal would be in error if it stopped at that point and failed to consider the disciplinary tribunal's reasons for its decision. In support of that submission, Mr McMullen referred us to the unreported decision of this Appeal Tribunal in Nottingham Health Authority v. Keane and Hegarty , in which the Industrial Tribunal's decision that dismissals after an honest and fair disciplinary hearing were unfair was upheld. We accept Mr McMullen's submission, but we do not think it takes him very far. In the Nottingham case (the facts of which were unusual and striking) the Industrial Tribunal appear to have found both that the evidence at the disciplinary hearing was not sufficient to enable a reasonable employer to come to the conclusion the employer in that case did, and also that there had not been a reasonable investigation. We do not think this carries the matter beyond the second and third points set out in the passage from Arnold J's judgment in the Burchell case set out above. Mr McMullen made this submission in answer to paragraph 1 of the MOD's Notice of Appeal, but we do not read that paragraph as suggesting that an honest and fair disciplinary hearing is itself decisive, and Mr Gregory on behalf of the MOD did not suggest that it was.The Chairman of the Industrial Tribunal was in the minority, but we find it convenient first to set out the reasons he gave to reaching his conclusion that Mr Irvine had not been unfairly dismissed. These are contained in paragraph 20 of the Tribunal's Reasons and read as follows:-
"20. The Chairman on the other hand, believes that the procedure laid down by the Regulations was followed faithfully. It is not disputed that those procedures are full and fair. Mr Irvine acknowledges that at all stages he was given his opportunity to put his side of the case. The thrust of his complaint is that the employers were unreasonable in disbelieving his account and in accepting Mr Martin's. Given the limitations implicit in the words of Arnold J he does not propose to scrutinise the evidence with a view to substituting his decision for that of the disciplinary panel and the others. He limits himself to the enquiry whether they had reasonable grounds for the conclusion to which they came. Mr Cockrell told us what those grounds were. They believed Mr Martin. His evidence was spontaneous and naive. He admitted responsibility for the argument and scuffle which happened in the Park Hotel. His injury seemed consistent with his head coming into contact with the tap in the ablutions. It seemed to indicate that he had indeed been struck from behind. It seemed unlikely that his injury had happened when having attacked Mr Irvine, he fell to the floor. The staff sergeants who came upon the scene soon after heard someone - admittedly Mr Irvine - say "I am a hard man". Those were the words which Mr Martin claimed accompanied the attack. The sergeants who came upon the scene believed that Mr Martin had been cleaning his teeth (as he claimed to have been) and that he had been assaulted by Mr Irvine. There were indications that Mr Irvine had behaved aggressively earlier that night. All three of the other firemen had said that he had challenged them to a fight (although he denied it). On those considerations - and others which it is not necessary to rehearse - they unanimously concluded that Mr Irvine was guilty of the assault causing injury. It would be impossible for the Chairman to say that that decision was perverse. They were in a better position to judge. They saw both men: we did not. Even if Mr Jenner was mistaken in charging Mr Irvine alone with assault, that did not affect the fairness of the proceedings which subsequently took place. The question of inconsistency can only arise in relation to the question of penalty once an employer has reached an honest and reasonable conclusion that individuals are guilty of the matters alleged. The matter never got to that stage in the case of Mr Martin."
These reasons clearly accord with the directions which the Industrial Tribunal gave itself in the light of the Burchell case. The Chairman did not stop at the point of finding that the disciplinary hearing was honest and fair, but went on to consider the disciplinary tribunal's reasons for its finding in coming to his conclusion.The approach of the majority of the Industrial Tribunal was different. Their reasons for their finding of unfair dismissal are set out in paragraph 19 of the Tribunal's Reasons and read as follows:-
"19. The majority believe that the employers failed to carry out a sufficient enquiry before suspending and also before dismissing. When Mr Jenner charged the applicant he had not seen the two men. He had only seen the statements taken from them by superior officers. No-one else had seen the incident in the barracks. There was nothing in those statements to make Martin's account probable. The inquiry was consistent with both. The other statements (if in fact available to Mr Jenner) did not corroborate either. It was unreasonable and inconsistent to charge one man and not other (especially since that other appeared to have assaulted the applicant in the disco). At the stage of dismissal no enquiry had been made in respect of Martin's conduct between the two incidents. It seems likely that he was waiting for the applicant in the ablutions: having left the disco much earlier, he would not have been up and about at that hour, unless he had a special reason, such as a desire to restart the argument. At the least this could have been investigated but it was not. The decision to suspend Irvine alone made it more likely that the panel would dismiss. The result was an unfair disparity of treatment between his case and that of Martin. They therefore feel the dismissal was unfair."
The majority thus found that there had been insufficient enquiry at two points,(i) the time of charging Mr Irvine and his suspension and(ii) his dismissal. In our view, the majority's reasoning as to (i) is clearly flawed. The reason why Mr Irvine was suspended was because he had been charged with charge (a) (assaulting a junior colleague), an offence carrying the penalty of dismissal. There was no finding of guilt at that stage, and the suggestion that "the decision to suspend Irvine alone made it more likely that the panel would dismiss" firstly overlooks the fact that Martin (as the junior colleague) could not be charged with a similar offence and so could not be suspended, and secondly in our view is not consistent with earlier unanimous finding that the disciplinary hearing was fair and honest. We agree with the Chairman that "even if Mr Jenner was mistaken in charging Mr Irvine alone with assault, that did not affect the fairness of the proceedings which subsequently took place." We note also that paragraph 11 of the ACAS Code recommends that "in serious cases consideration should be given to a brief period of suspension while the case is investigated".In relation to the suggested disparity of treatment between Mr Irvine's case and that of Mr Martin, we were referred to some passages in Procter v. British Gypsum Ltd [1992] IRLR 7 at paras 25 and 27 (in which reference is made to Hadjionnou v. Coral Casinos Ltd [1981] IRLR 352), but we agree with Mr Gregory that these are not relevant to the present case. As the Chairman rightly pointed out, "the question of inconsistency can only arise in relation to the question of penalty once an employer has reached an honest and reasonable conclusion that the individuals are guilty of the matter alleged".In our view, the majority of the Industrial Tribunal were thus wrong to take into account the matters of the enquiries before Mr Irvine was charged, his suspension and the alleged disparity of treatment of his case and that of Mr Martin. These matters formed important parts of the reasons for their conclusion, which therefore contains errors in law and cannot stand.Mr Gregory also criticised the majority's finding that there had been insufficient enquiry at the stage of dismissal, in that Mr Martin's conduct between the two incidents had not been investigated. He stressed that there had been a full opportunity at the disciplinary hearing for Mr Martin to be cross-examined about this, and for Mr Irvine to make representations on it both at the hearing and in his written representations afterwards. Mr Gregory said that the majority were in effect second-guessing the disciplinary tribunal, and attempting to substitute their own views rather than consider the question of the reasonableness of the employer's conduct. Although the majority had correctly directed themselves as to the law applicable and the Burchell guidelines, they had in fact ignored those guidelines. Mr McMullen on the other hand submitted that the question of the sufficiency of the enquiries, and thus of the reasonableness of the employer's conduct, was a matter of fact for the Industrial Tribunal to decide. So, he said, there was no error in law in the majority's finding that further investigations should have been undertaken. We feel the force of both these arguments, but as we have already determined that the majority decision must be set aside, we do not consider it necessary to come to any decision on this issue.Mr Gregory also submitted that the majority decision was perverse, and suggested that no reasonable Tribunal could determine the case otherwise then in accordance with the conclusion of the Chairman. Mr McMullen first took a technical point this submission. He said that the Notice of Appeal did not comply properly with the requirements of Rule 3(1)(a) and Form 1 of the Employment Appeal Tribunal Rules 1980 in failing to give particulars of the alleged perversity, and he referred us to para 5(b) of the Practice Direction [1981] ICR 287. We would have been reluctant to exclude an appeal on perversity on this ground, and consider that the point could have been overcome by a suitable exercise of our powers under Rule 20. Mr McMullen next submitted that we should not consider an allegation of perversity without having any notes of evidence before us, and in support he cited Hampson v. Department of Education [1988] ICR 278 at p.296 (citing Martin v. Glynwed Distributions Ltd [1983] ICR 511 per Lord Donaldson MR at p.520) and Piggott Brothers & Co Ltd v. Jackson [1991] ICR 85 at p.90 . We accept that submission, and so do not consider perversity.In the circumstances, we must set aside the decision of the Tribunal, but cannot go to the length of holding that the Chairman's conclusion was the only possible conclusion to which a Tribunal could come. Despite the further delay and expense that this entails, we can thus see no course open to us except to order a re-hearing. We therefore set aside the Tribunal's finding and order a re-hearing before a differently constituted Tribunal.