Forster & Hales v Anderson [1992] UKEAT 544_90_1811

EAT
Forster & Hales v Anderson
[1992] UKEAT 544_90_1811 · 1992-11-18
MR JUSTICE TUCKER: This is an employer's appeal against a decision of the Industrial Tribunal held at London (North) which was sent to the parties on the 9th September 1990 whereby the Tribunal decided that the Respondent was unfairly dismissed and that he had not contributed to his dismissal.The Appellants are a small Company employing about 40 people who produce components for the motor industry. The Respondent worked for them from April 1962 until they terminated his employment by summary dismissal on the 14th August 1989. The reasons for that dismissal were set out in a letter to the Respondent's Solicitors, and were said to be because of sabotage to the Appellants' property. The incidents of sabotage relied upon were as follows.First, on the 12th April 1988, wires were found disconnected at the rear of a control panel of a forklift truck.Second, in August 1988, nuts holding pistons to rams on a spot welder had been tampered with.Third, on the 17th July 1989, wires were detached from the rear control panel of a forklift truck. That was similar to the first incident.Fourth, during the week commencing 24th July 1989, the main current cables had been reversed on a connector plug of the forklift truck.There is no doubt that the Appellants were entitled to regard such sabotage as gross misconduct, and that is how they treated it, as they said in the letter. The Tribunal said that they were fully satisfied that the Appellants had shown a reason for dismissal coming within the provisions of Section 57(2)(b) of the Employment Protection (Consolidation) Act 1978. But the Tribunal went on to consider, as they had to under Section 57(3), whether the Appellants had acted reasonably in all the circumstances in treating that reason as a sufficient cause for dismissing the Respondent. That subsection provides as follows, so far as is material:
"the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) 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 equity and the substantial merits of the case.]"
Save as to the second of the incidents referred to, the Tribunal appear to have found that the acts did amount to sabotage and it has not been contended otherwise before us. The Tribunal found that there was no convincing evidence of sabotage on that second occasion. The Appellants submit that there is no support for that conclusion and that it was perverse to make that finding in the absence of any finding that the Appellants' witness Mr Dunn was not telling the truth. According to the Chairman's Notes Mr Dunn gave evidence that the nuts must have been removed and the cylinder replaced, but this was not an act of wanton vandalism and that it was deliberate and malicious.In the face of this evidence we find it impossible to understand how the Tribunal could have reached the conclusion which they did and we are bound to say that we do regard this particular finding as perverse. Accordingly, we approach the case upon the basis that sabotage was established on each occasion. The question is whether the Appellants acted reasonably in the manner in which they investigated the matter and in reaching the decision that the Respondent was responsible. If, after a proper investigation and hearing, the Appellants decided that the Respondent was responsible then, subject to the question of an appeal, they could not be criticised for dismissing him on the grounds of gross misconduct.In paragraph 7 of the decision the Tribunal set out a number of important findings many of which are attacked by the Appellants. They submit that the Tribunal misdirected itself in three main respects. That is in their approach to the investigation process, to the alleged procedural deficiencies, and in the alternative to the failure to reduce compensation for contributory fault.The Appellants identify and criticise the following grounds of unfairness as found by the Tribunal in paragraph 7:(a)That there was no reference [at the meeting to which the Respondent was summoned] to the dates when these acts occurred. (b)Nothing was said to Mr Anderson to indicate why he was regarded as responsible. (c)That he was not told why other potential suspects had been eliminated. The Appellants submit that there was no reason to do so. What was required was to tell the Respondent the grounds upon which he was suspected. The Respondent does not make any complaint about this or suggest what use he would have made of the information had it been given to him. (d)That a decision was already taken to dismiss Mr Anderson. Mr Dunn denied this. As we have said there is no express finding that he was disbelieved on this point but it seems that he must have been. (e)That the investigation carried out was inadequate because: (i) There was no convincing evidence that there was necessarily sabotage on the spot welder. This we have already dealt with. We think that this was a perverse finding and the Tribunal misdirected itself in taking this matter into account.(ii) The Police should have been called in. In our opinion this was not an appropriate matter for Police investigation or involvement and there is nothing in this point. It too amounted to a misdirection and Counsel for the Respondent did not suggest otherwise.(iii) People should not have been eliminated so readily merely on the basis of attendance. The fact is that the Respondent was considered to be the most likely culprit for a number of reasons which the Tribunal set out in paragraph 5 of the decision, which also sets out the reasons for elimination of other workers. We think that the Tribunal are here stepping into the shoes of the domestic disciplinary tribunal and are seeking to usurp and assume their functions.(iv) The subjective views on the Respondent were not sufficient. As against all this the Tribunal appear to have accepted at paragraph 3 of their decision that the Appellants did carry out an investigation into the four incidents relied upon. The evidence before the Tribunal showed that the Appellants had been monitoring the situation, that they had consulted outside and internal experts, that the Appellants' Managing Director, Mr Price, could not think of any further investigations, and that it was not practicable to have the Respondent watched.(f)That an appeal should have been available to a person or persons not involved in the decision to dismiss. In our opinion this is an unrealistic suggestion having regard to the size and administrative resources of the Appellants' undertaking. (Section 57(3).) They only had three directors all of whom were involved in a long-standing investigation which affected the whole Company. In this context we bear in mind the observations of Sir Hugh Griffiths in Tiptools Ltd v. Curtis [1973] IRLR 276 as to the impracticability of having any appeal in small companies. In any event the Respondent did not seek any appeal. (g)The Respondent had received no previous warnings. This finding cannot be sustained. The uncontested evidence was that he had been previously warned about other matters.

(j) In paragraph 8 of their decision the Tribunal state this:

"Since Polkey v. A E Dayton Services Ltd [1988] ICR 314, an industrial tribunal need look no further than procedural deficiencies in considering whether a dismissal has been unfair. We are satisfied for all the reasons given that the procedure adopted by the respondents in deciding to dismiss Mr Anderson has been wholly inadequate. We have heard no reasons which would justify the respondents' failure to adopt a fair and reasonable procedure. It is therefore our unanimous view that Mr Anderson's dismissal was unfair."
The Respondent accepts that this is wrong and that it amounts to a misdirection. The proper interpretation of the case of Polkey is to be found at page 156 B of that Report:
"The only test of the fairness of a dismissal is the reasonableness of the employer's decision to dismiss judged at the time at which the dismissal takes effect. An industrial tribunal is not bound to hold that any procedural failure by the employer renders the dismissal unfair: it is one of the factors to be weighed by the industrial tribunal in deciding whether or not the dismissal was reasonable within section 57(3)."
and at page 159 E of the Report, the Lord Chancellor, Lord Mackay quotes

Lord Justice Neill in the Court of Appeal:

"The tribunal will look at the practical effect of the failure to observe the proper procedure in order to decide whether or not the dismissal was unfair.

(k) In paragraph 9 the Tribunal suggest:

"It would have been reasonable for an employer to adopt the approach approved by the Court of Appeal in Monie v. Coral Racing Ltd [1980] IRLR 464 of dismissing more than one employee. However we find it quite impractical to use this approach, when the respondents have, in fact, failed to use it themselves."
The Appellants submit that the Tribunal erred in law in finding that the Respondent had been unfairly dismissed whereas a blanket dismissal in this situation would have been reasonable. We accept this criticism. We agree with the submission that as a matter of law it cannot be more reasonable to dismiss a whole group of individuals in a given situation than to dismiss one employee. It may be a different matter whereas in Monie v. Coral the employers believed that more than one employee committed the misconduct. Here, as Mr Dunn made plain, the Appellants reasonably believed that only one person could be responsible. It cannot be right that all those on the provisional list of suspects should be dismissed, nor would it be practicable for a company of the Appellants' size to do so. We are fortified in this approach by the decision of this Tribunal in the case of Frames Snooker Centre v. Boyce [1992] IRLR 472 where the tribunal held:
"Where any one of a group of employees could have committed a particular offence, the fact that one or more of them was not dismissed does not render dismissal of the remainder unfair, provided that the employer is able to show solid and sensible grounds (which do not have to be related to the relevant offence) for differentiating between members of the group. There is no `all or none' principle in the dismissal of a group in this situation."
This was, in our opinion, a material misdirection on the part of the Tribunal, subject to what we have to say in a moment.What should the approach of an industrial tribunal be to an examination of a decision made by a domestic disciplinary tribunal? The law is well settled and is enunciated in a number of cases - it will suffice to refer to only two of them.The first is British Home Stores v. Burchell [1980] ICR 303 where at p.304 B Mr

Justice Arnold said this:

"The case is one of an increasingly familiar sort in this tribunal, in which there has been a suspicion or belief of the employee's misconduct entertained by the employers; it is on that ground that dismissal has taken place; and the tribunal then goes over that to review the situation as it was at the date of dismissal. The central point of appeal is what is the nature and proper extent of that review. We have had cited to us, we believe, really all the cases over the past three or four years; and the conclusions to be drawn from the cases we think are quite plain. 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. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employers had before them, 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, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being `sure,' as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter `beyond reasonable doubt.' 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 circumstance be a reasonable conclusion."
and at p.308 D the learned

Judge said this:

"What seems to have happened here, as we read the decision, is that having, as we have already mentioned, started out by stating the function of the tribunal with accuracy, they then were in the course of their observations or considerations - perhaps very humanly with some degree of sympathy with the young employee, not professionally represented, and an anxiety to see that she got a fair crack of the whip - departing from the task which they had set themselves; and that they embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether the employers could reasonably have drawn the conclusion which the employers in fact drew, but whether that was by an objective standard a correct and justifiable conclusion."
The other case to which we would refer is that of Morgan v. Electrolux [1991] ICR 369, and we cite a passage from the judgment in that case of Lord Justice Balcombe at

p.373 B

"`The correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows: (1) the starting point should always be the words of section 57(3) themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band, it is unfair.'
A particular application of the principle above is that an industrial tribunal may not substitute its own evaluation of a witness for that of the employer. As Wood J. said in giving the judgment of the appeal tribunal in Linfood Cash & Carry Ltd v. Thomson [1989] ICR 518, 523-524:`If a tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that the decision must be based upon logical and substantial grounds - good reasons. Instances might be - that the witness was a bare-faced liar, who must have given that impression to the employer at the relevant time; that the witness was clearly biased - provided that such a bias should have been clear at the relevant time; that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer. However there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedures. For the tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view. The employers have the peculiar advantage over the tribunal of having an intimate knowledge of the geography, the nature and workings of the business, and the various members of the staff.'"It is submitted to us with some force, as we think, that in the present case the Industrial Tribunal failed to apply those general principles. Nowhere do they seem to have asked themselves whether the decision of the Appellants was within the range of reasonable responses of the reasonable employer. On the contrary, they seemed to have reviewed the case de novo and to have attempted an assessment of the quality of the evidential material available to the employers and to have considered whether that material could justify the decision to dismiss. It is in our view not open to the Tribunal to adopt that approach and in our opinion their decision is flawed by their so doing.Counsel for the Respondent makes a somewhat similar submission to us relating to our functions in reviewing a decision made by an industrial tribunal, an industrial jury, as it is sometimes described. He cautions us, perfectly properly, against elevating propositions of fact into propositions of law. He warns us, again, perfectly properly, that it is not permissible for us to apply a fine tooth-comb to the Tribunal's findings of fact and to the way in which they set out their decision. In this context we bear in mind the words of Lord Denning MR in the case of Hollister v. National Farmers' Union [1979] ICR 542 and the passage in Lord Denning's Judgment beginning at p.552 H where he says this:
"In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves. An appeal to the appeal tribunal lies only on a point of law: and from that tribunal to this court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there - to see if one can find some little cryptic sentence."
We are also conscious that the fact that the Tribunal do not mention matters does not mean that they did not consider them and that the Tribunal only needs to provide sufficient reasons in its decision to enable the parties to identify errors of law.Counsel for the Respondent's submission is that the crucial part of the Tribunal's decision is that the Respondent's dismissal was decided in advance. The Tribunal itself does not state that this was a crucial part of their decision.The evidence of Mr Dunn, to which we have already referred, is to be reverse effect, and the evidence of Mr Price was that they went into the interview with the Respondent with an open mind and that they had not decided to dismiss him on the 3rd August. That was a reference to a note made of a meeting held that day containing a passage in these words:

"Decision, suspend [crossed out] Dismiss George."

who was, of course, the Respondent.It was incumbent upon the Appellants to carry out an investigation into the causes of these incidents and to attempt to identify the person responsible. In our opinion they acted reasonably in the steps which they took to do so. It is inevitable that they should form a preliminary view about these matters, including a view as to the possible consequences for the culprit.We cannot say that the Tribunal were unjustified in reaching the conclusion that they did on this point but consider that by itself it does not render the dismissal unfair in all the circumstances of this case. As to the so called "blanket" approach to dismissal arising out of paragraph 9 of the Tribunal's decision, Counsel submits that on a true reading of the decision the Tribunal are not putting themselves into the Appellants' shoes and are not adopting a blanket approach. We do not so interpret this paragraph, indeed we find it difficult to comprehend what the Tribunal was attempting to do in this part of their decision. The words are by no means clear. It may have been in the minds of the Tribunal that it would have been reasonable for the Appellants to have adopted that approach, whereas in our opinion, as a matter of law, it would not. Since the Tribunal choose to make express mention of that approach, the possibility must exist, we put it no higher, that they did so as a matter of criticism of the Appellants. Indeed, the Tribunal refer to the Appellants' failure to use such an approach. This matter requires re-examination and clarification. The same applies to the Tribunal's reasoning in paragraph 10 relating to contributory fault. It is by no means clear what the Tribunal mean in this paragraph. It is not the Tribunal's function simply to decide whether or not the Respondent committed an act of sabotage, but to decide whether or not the Appellants acted fairly in dismissing him and if they acted unfairly then to decide whether there was anything in any conduct or action by the Respondent which, to any extent, caused or contributed to the dismissal. See Sections 73(7B) and 74(6) of the Act.We have already said that we do not regard it as necessary that the Tribunal should set out every fact or reason upon which they rely. But if they ever considered the question of the range of reasonable responses available to the Appellants, we do find it surprising that they should not have said so, despite Counsel's submissions to the contrary. We are bound to conclude that the Tribunal did not consider this aspect of the matter at all. There is no reference to the function of the Tribunal as set out in British Home Stores v. Burchell and there was a conceded misapplication of the case of Polkey . In short we conclude that the Tribunal attempted to retry the case and, in fact, did so. In these circumstances it does not seem to us to be necessary to go further or to examine whether the Tribunal's approach was correct in considering, as they seem to have attempted to do in paragraph 9, what would or might have happened if a fair procedure had been adopted. Though it seems to us that if the Tribunal themselves found it quite impossible to come to any conclusion about it, then the Respondent has failed to satisfy the onus which is upon him of showing that if a proper procedure had been adopted it would have made a difference. Nor is it necessary, as it seems to us, to consider the alternative question of failure by the Tribunal to reduce compensation for contributory fault or the extent of any such reduction. Having reached the conclusion, as we do, that the Tribunal's decision was flawed in a number of respects and that it cannot stand, we next have to consider what course to adopt. The Appellant's Counsel invites us to substitute for the decision that the Respondent was dismissed unfairly, a decision that he was dismissed fairly. He submits that in a case as old as this a remission for further consideration should be avoided, but that if the matter is remitted it should be to a differently constituted tribunal.Counsel for the Respondent, having submitted that there is sufficient material to uphold the Tribunal's decision, nevertheless, submits that if the matter is to be remitted it should be to the same tribunal, having regard to the length of time taken over the Tribunal's hearing. There is, we think, merit in this.In our opinion this is an appropriate case for remission to the Tribunal, and having regard to the details of the case and to the length which the hearing took on the last occasion, we think it better to remit it to the same Tribunal. If for any reason that is now impossible then it will be for the Regional Chairman to appoint a tribunal. We express the hope that the re-hearing will be expedited.