Rogers v Gothard L & LR Ltd [1994] UKEAT 604_92_0812

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1994] UKEAT 604_92_0812

Case No Appeal No. EAT/604/92

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Rogers

Gothard L & LR Ltd

Date 8 December 1994

[1]BAILII case number: [1994] UKEAT 604_92_0812 Appeal No.

EAT/604/92

EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 8 December 1994 Before HIS HONOUR JUDGE H J BYRT, QC MR K M HACK, JP MRS P TURNER, OBE MR P ROGERS APPELLANT GOTHARD L & LR LTD RESPONDENTS Transcript of Proceedings JUDGMENT Revised APPEARANCES For the Appellant MR J GALBRAITH-MARTEN (FRU REP) Cloisters 1 Pump Court Temple London EC4Y 7AA For the Respondents MR MARTYN WEST (Personnel Consultant) Peninsula Business Services Stamford House 361-365 Chapel Street Manchester M3 5JY JUDGE JOHN BYRT, QC : This is an Appeal from the decision of the Industrial Tribunal sitting at London North on 21 May 1992. The decision was unanimous to the effect that the employee, Mr Rogers, had been unfairly dismissed for misconduct. Mr Rogers was an HGV Tipper Driver, employed by the Appellants for something like 3 1/2 years before he was summarily dismissed on 30 September of 1991. In January of 1990, as the Tribunal found, all the Appellants' lorry drivers had been warned that a carriage of unauthorised passengers in company vehicles would be rated as a sackable offence. In September of 1990, as the Tribunal found, Mr Rogers had received a verbal warning. On 12 July 1991, he had been suspended for two weeks for the same offence of carrying passengers in his lorry. On 9 September, he received another verbal warning because, again, it was said that he had transgressed company policy and on that occasion the verbal warning was confirmed in writing. On 30 September, Mr Rogers was out with his lorry and it was reported in to the Managing Director, Mr Gothard by a Mr Clifford Lee, who was the Foreman Driver, that Mr Rogers had a woman in the cab of his lorry. I should say that Mr Lee, who reported this critical information to Mr Gothard, did not give evidence before the Tribunal. That same day, Mr Rogers' lorry broke down somewhere out on the road, I believe some five or six miles from the depot; and Mr Frosdick, a Foreman Fitter, went out to inspect the lorry to see what the problem was. He decided that the lorry had to be towed back to the depot. He said in evidence before the Tribunal that there had been a woman in Mr Rogers' cab at the time when he went out, but in evidence he denied that he ever had told Mr Gothard that that was the case. In any event, Mr Rogers' lorry was towed back to the depot and arrived there at about 6.30 in evening of 30 September and as I understand it, Mr Rogers came back with it, essentially to collect his car which was in the yard. When he went to his car, he found a note on the windscreen telling him that he was dismissed. The note was exhibited as, I think (R8?):

"...Take your things out of lorry you don't work hear no more. Your money will be at office Tuesday after 1pm. I am in the office if you want me... Tony"

Whether or not Mr Rogers saw that notice before he met up with Mr Gothard is immaterial because Mr Gothard did see him that evening at the time of Mr Rogers' return or very shortly after. According to Mr Gothard's own evidence to the Tribunal, when he met up with him, he told Mr Rogers that he was dismissed and Mr Rogers' response was to be abusive and swear back at him. It was a finding of particular importance that on meeting up with Mr Rogers and telling him he was dismissed, Mr Gothard afforded Mr Rogers no opportunity to explain what was alleged against him or indeed to give his account of events. The Tribunal summed up Mr Rogers's case as follows: He admitted carrying a girlfriend in the cab of his lorry, but only before the change in company policy which banned the carrying of such people;

[2]Mr Rogers had stated he carried no passengers in the company's lorry after the change of company policy.

[3]He described the employer's case against him as a complete fabrication.

[4]He denied receiving any warnings. He denied the two week suspension. This he claimed, had, in fact, been a two week holiday. He claimed that all evidence about warnings and the documentation, produced to the Tribunal containing warnings, was lies;

[5]He said that the reason for his dismissal was because he had made complaints about the way the employers ran their business;

[6]The breakdown of his lorry on the 30 September had been used as an excuse for his dismissal. The Tribunal made findings as follows: They found that none of the allegations of impropriety made against the employers was proved. Most significantly, they found that where there was a conflict between the evidence of the employers' witnesses and Mr Rogers', they preferred the evidence of the former. They found that the employers did, in fact, believe that Mr Rogers had been carrying a woman in the cab of his lorry and that therefore he was guilty of misconduct. They found that such a belief was reasonable. However they also found that Mr Gothard had failed to carry out a proper investigation or any consultation before dismissing Mr Rogers but they concluded that the investigation would have made no difference to the outcome. They would have dismissed Mr Rogers in any event. In consequence, they made a finding that the dismissal was fair. Mr Galbraith-Marten, who has argued the case on behalf of Mr Rogers, submitted that the employers' failure to investigate the case at all, or to consult with Mr Rogers before dismissing him, was a serious flaw in their dismissal procedure. He contended that the Tribunal approached the matter the wrong way because it misdirected itself on the appropriate law. The Tribunal asked itself whether an investigation or consultation with Mr Rogers would have affected the outcome. This was a question approved of in British Labour Pump Co. Ltd. v. Byrne

[1979] ICR, pp 347

, but disapproved of in the House of Lords decision in Polkey v. A.E. Dayton Services Limited

[1988] ICR 142

. I quote from a passage the opinion of Lord Bridge where, in the latter case, he says:

"...If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of the dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied..."

Mr Galbraith-Marten says the employers' consideration whether exceptional circumstances exist enabling them to dispense with a proper investigation has to take place at or before the moment of dismissal. If a Tribunal has to review the conclusion to which the employers have come, it has to apply the objective test and consider whether that conclusion is one to which a reasonable employer could have come: see Duffy v. Yeomans & Partners Ltd.

[1993] ICR, pp 862

. Mr Galbraith-Marten points out that, in each of the cases previously cited, the reasons for dismissal was redundancy and says, a fortiori, it is that much more important to follow the guidance given in those cases where the reason for dismissal is misconduct and, as in this case, the employer was acting primarily on the report of some third person, namely Mr Lee. In arguing the case on behalf of the employer, Mr West took a preliminary point. He observed that all the Employment Appeal Tribunal had in front of it was a summary of the Reasons of the Tribunal below. He Submitted that to lodge an Appeal, on the basis of a summary of Reasons only, was in breach of Rule 3 of the Employment Appeal Tribunal Regulations [1980] . However, we take the view that Regulation 32 is also of relevance. This says that failure to comply with the EAT Rules does not invalidate an appeal, "unless the Tribunal otherwise directs" . We considered whether the circumstances of this case required us to make such a direction but decided to leave over our decision until the end of submissions and, in particular, until the end of Mr West's argument at which point we would be in a better position to assess whether he had been prejudiced or handicapped by not having a full statement of Reasons. Now that the arguments have been properly deployed and we are of the opinion that the employers' case has in no way been prejudiced by a Summary. It so happens that it amounts to a reasonably full statement of the Reasons. This is also accompanied by the Chairman's Notes of Evidence and we are of the opinion that a full statement would have added nothing relevant to the material we have in front of us. Our decision therefore is that there be no direction under Regulation 32. The rest of Mr West's argument relies on there being exceptional circumstances which would make an investigation or discussion with Mr Rogers, futile. He referred to the evidence which was accepted by the Tribunal, to the effect that Mr Rogers had been repeatedly warned; that when told he had been dismissed, he had made no denial of the allegation that he had carried a passenger in his cab, and, indeed, just swore at and abused Mr Gothard. He reminded us that the Respondents were only a small company and that was a factor which had to be taken into account. He cited the case of DeGrasse v. Stockwell Tools Ltd.

[1992] IRLR, pp 268

where this EAT stressed that the size of the company would affect the nature and formality of the consultation process. The smaller the company, the more immediate and informal the process need be. However, the Tribunal were also at pains to emphasise that these considerations could not excuse a lack of any proper investigation or a complete lack of consultation. No matter how informal the consultation might be, it should normally take place. In our view, Mr West's principal difficulty is that, in coming to their decision that the dismissal was fair, the Tribunal in this case misdirected itself in asking whether a proper investigation would have made any difference to the outcome. As a result, they never asked themselves the right question, namely whether exceptional circumstances existed which would render such enquiry futile. In consequence we think we must accept Mr Galbraith-Marten's submission that the findings of this Tribunal stopped short of that crucial finding which would have enabled it to conclude that the dismissal was fair. We also accept the further submission that no properly directed Tribunal could have concluded on the facts of this case that exceptional circumstances existed which would have enabled it to find his dismissal was fair. At the moment of the dismissal, whether that be when Mr Rogers read his notice on the windscreen or when he was told by Mr Gothard that he was dismissed, Mr Gothard was acting on the strength of the report made to him by Mr Lee. Mr Rogers had not been present when Mr Lee had made that report and the rules of natural justice required, at the very least, that the information contained in it should, in substance, be put to Mr Rogers. Had it been so, Mr Rogers's answer would have formed an important part of Mr Gothard's investigation on the strength of which a just and fair decision whether to dismiss could have been taken. As it was, Mr Gothard's assumption of Mr Rogers's guilt, at one and the same time as he dismissed him, make Mr Rogers's response predictable and of little or no evidential value. In the circumstances, we must find the dismissal to have been unfair and allow the appeal. The question now arises how the appropriate amount of compensation should be assessed. We think that this matter should be referred back to the same Tribunal which originally considered the case so that they might assess compensation on the basis that the dismissal had been procedurally unfair. What that compensation should be is for the Industrial Tribunal to decide without interference from us.