Bury Health Authority v Halloran & Anor [1994] UKEAT 675_92_1807

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1994] UKEAT 675_92_1807

Case No Appeal No. EAT/675/92

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Bury Health Authority

Halloran & Anor

Date 18 July 1994

[1]BAILII case number: [1994] UKEAT 675_92_1807 Appeal No.

EAT/675/92

EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 18 July 1994 Before THE HONOURABLE MR JUSTICE MORISON MRS R CHAPMAN MRS T MARSLAND BURY HEALTH AUTHORITY APPELLANTS(1) MR M J HALLORAN

(2) MR S C FARRINGTON RESPONDENTS Transcript of Proceedings JUDGMENT Revised APPEARANCES For the Appellant MR D C JESS (OF COUNSEL) Mr C R A Howorth Head of Legal Services North West Health Legal Services Gateway House Piccadilly South MANCHESTER M60 7LP For the Respondents MR H DAVIES (OF COUNSEL) Messrs Gibsons Solicitors 74-78 Rochdale Road Royton OLDHAM OL2 6QJ MR JUSTICE MORISON: This is an appeal against the unanimous Decision of an Industrial Tribunal held at Manchester on the two consolidated complaints by Mr Halloran and Mr Farrington ["the employees"] that the employees had been unfairly dismissed by their employers, the Bury Health Authority ["the employers"] but had not been dismissed for trade union activities. By a majority, the Industrial Tribunal decided that the employees had been predominantly to blame for their dismissal, and they assessed that blame at 60%. That Decision was entered in the Register on 13 August 1992. By a notice of appeal dated September 21 1992 the employers appealed from the Decision. The events which gave rise to the dismissals occurred in March 1991. This is, therefore, a very stale appeal. The hearing before the Industrial Tribunal took three days; in all 12 persons gave oral evidence and the Industrial Tribunal was provided with what they referred to as a voluminous bundle of documentation relating to the case. The essential findings of the Industrial Tribunal may be summarised thus: .The employees were employed in the Greater Manchester Ambulance Service, active trade unionists in what was then called NUPE, shop stewards and the Secretary and Chairman respectively of the Branch of the Union.

[2].The events which gave rise to their dismissal related to the introduction into the ambulance service of a Renault Vehicle which was a converted commercial van designed to be used by paramedics. The Trade Union had difficulty over the use of this vehicle and representations were made, but such difficulties as were perceived were not fully resolved. The dispute came to a head after a shop steward at the ambulance station at Whitefield was sent home for refusing to run the vehicle. Shortly thereafter, there was a meeting at that Station on 13 March 1991 which was addressed by Mr Halloran, following which a decision was taken to "black" the vehicle.

[3].The following day, there was a delay in attending an emergency which the shop steward at Whitefield was also involved in. The two employees were called in by that shop steward to help and attended at the Whitefield Station. There were a number of confrontations between them and the Divisional and Assistant Divisional Officers; and both employees had also gone into the control room and purported to instruct the controllers there to bring vehicles back off the road.

[4].Subsequently the dispute over the vehicle was resolved. We were told that it was brought to an end about a week after the March 14th incident and its resolution involved the two employees, and, of course, others as well.

[5].About a month later "it was decided that disciplinary proceedings would be started in relation to the events of 14 March" and four and seven months later Mr Halloran and Mr Farrington, respectively, were dismissed, such dismissals leading to the complaints to the Industrial Tribunal.

[6].In paragraph 5 of the Decision the Industrial Tribunal considered whether the dismissal was for Trade Union activities and thus, automatically, unfair. In a careful analysis, which has not been criticised in this Appeal Tribunal, the Industrial Tribunal concluded that when the employees went into the control room they were no longer acting as shop stewards and that their conduct at that time was a wholly unreasonable act which effectively amounted to industrial action, and therefore, on the basis of Drew v St Edmundsbury Council

[1980] ICR 513

, was not then a trade union activity. Thus, they concluded that the reason for the dismissal was the conduct of the employees. It is to be noted that the attempt by the two employees to procure the controllers to recall vehicles was unsuccessful and thus, they did not damage the public by their action even though it might have been thought that that is what they had attempted to do. Further, it is to be noted that the employees were not dismissed for their part, if any, in the decision to "black" the Renault vehicle. Two of the three other people dismissed were dismissed for following the "blacking" policy; if that policy had been procured by the two employees one can understand how an employer might be led into thinking that consistency required them to be dismissed as well. But, they were not being dismissed for what they said or did at that meeting, only for what they unsuccessfully tried to do in the control room, namely to organise the Ambulance Controllers to recall the vehicles.

[7].In paragraph 6 of the Decision the Industrial Tribunal turn to the questions which arise when a dismissal is by reason of misconduct. They do so in a way which is a model of its kind. They find as a fact that the employees had been given no indication for a month that the events in March were going to lead to disciplinary action against them. They noted that the dismissal letter to Mr Halloran referred to a complete loss of confidence and that the writer of the letter believed "that the relationship between you and the Service has totally broken down and that you are no longer an asset to the Service." in the case of Mr Farrington the letter of dismissal was not so "sweeping", as the Industrial Tribunal put it. One of the officers in the Service said that the decision to dismiss Mr Farrington was largely taken on the basis that other employees had been dismissed and therefore dismissal was the appropriate punishment for him. They also noted that in an extensive resume of the events of 14 March a reporting officer characterised the behaviour of the employees as serious misconduct, whereas he described the conduct of others who were dismissed as "gross misconduct" or "gross neglect of duty" .

[8].In the light of those findings of fact the Industrial Tribunal proceeded to consider whether the dismissals were fair or unfair having regard to the wide test to be found in section 57(3) of the Act. They concluded that they were unfair for the reasons which they set out in paragraph 8:

"8. The Tribunal has concluded that in dismissing the applicant, the respondent did fall outside the band of responses of a reasonable employer. The Tribunal concludes this on the following basis:- (a) The inordinate delay in the taking of the disciplinary procedures was not an action that one would expect from a reasonable employer, particularly in a case where the grounds for dismissal are described as gross misconduct. (b) If the behaviour of the applicants was as bad as suggested, particularly in Mr Barkley's decision in Mr Halloran's case (which was substantially adopted by implication by Mr Lucas in Mr Farrington's case), the Tribunal cannot accept that a reasonable employer would have allowed them to continue in employment carrying out their normal duties without any restriction for the length of time which the respondent did. (c) Second, the view of Mr Lucas, that the punishment in Mr Farrington's case must be the same as others had received is not that which one would expect from a reasonable employer. (d) Third, the unexplained action in the case of both Mr Barclay and Mr Lucas in moving away from the view of the Prosecutor that the applicants' behaviour was serious misconduct and converting it into gross misconduct, the penalty for which under the terms of the disciplinary procedure was significantly more serious, is not in the opinion of the Tribunal the behaviour of a reasonable employer."

We would like to say at the outset that it seems to us that this Decision of the Industrial Tribunal is well reasoned, carefully set out and has addressed itself in proper terms to all the issues in the case. The criticism which has been advanced of this Decision amounts, in our view, to a challenge to the findings of fact, this challenge being dressed up in the nicest possible way, with respect to Mr Jess, as a challenge in law. It is said that a finding of inordinate delay was either without evidence or was perverse. This seems to us to be unsupportable. It is a fact that the disciplinary investigations were only commenced on 12 April, over 4 weeks after the incidents themselves. After the initial investigatory interviews, the employees first became aware that disciplinary proceedings were being taken against them in the third week of May and the first week of June 1991. As we read the Industrial Tribunal Decision they are making two points: (a) the delay itself was such as would raise a question as to the fairness of a decision to dismiss. Delay between offence and dismissal is a factor which may render a dismissal unfair; but (b) more importantly, the delay is an indication that at the time when the misconduct had occurred the employers themselves cannot have regarded it as so serious as to merit dismissal because no reasonable employer would have waited so long to commence the disciplinary procedure and allow the employees to continue on with their jobs, making use of their position in the Union to settle the dispute and thereafter using their services as skilled and qualified ambulance drivers and attendants. It is not without significance, we think, that in their challenge to the Industrial Tribunal's decision the employers themselves, in their notice of appeal, say that there was no evidence of any danger of any repetition of the misconduct. Quite so. That is the inference to be drawn from the delay between the alleged offence and the institution of an investigation. Had the conduct shown the employees as unfit to remain in the service, they would have been dealt with at once. Otherwise one could reasonably regard the incident as one-off in the context of an industrial dispute which was later resolved, where there was no real risk of repetition and that dismissal was not an appropriate response. That we think is the force of the comment about delay. Whilst the Industrial Tribunal may not have had the benefit of argument on the question of delay we think they were entitled to consider the matter for themselves and, had they thought it necessary, would no doubt have given the parties' representatives the chance to deal with the point. In this case the facts speak for themselves. As one of the members of this Appeal Tribunal has pertinently observed, the ambulance service provides, amongst other things, an emergency service where speed of decision is critical. The management delay in this case is inconsistent with a highly geared service of that kind. Managers should be able to deliver their service in a way which is consistent with that which they reasonably expect from those employees whom they manage. As to the finding that the Service had distinguished between serious misconduct and gross misconduct, the employers say on the facts that their decision to dismiss was not taken on the basis of the report by the officer concerned but on the basis of a different report and different investigation. It seems to us not to affect the substance of the point being made which is that the others who were dismissed could reasonably have been regarded as having been guilty of more serious misconduct than the two employees had been guilty of, and thus there were reasonable grounds for distinguishing between the outcome in their case; yet there was evidence that at least in the case of Mr Farrington, the principal reason for his dismissal was that others had been dismissed. Whether or not the writer of the report had the authority to make the decision to dismiss and whether or not his report formed the basis of the decision to dismiss, the Industrial Tribunal were, in our judgment, plainly entitled to take into account the fact that a senior officer in the Service drew a comparison between the culpability of the two employees against those of their colleagues. That was a piece of evidence which the Industrial Tribunal used as giving them an indication that dismissal was not within the range of reasonable responses. None of these points made by the Industrial Tribunal were decisive in themselves. The judgment as to whether dismissal was within the band of responses of a reasonable employer was, we think, supported by the material on which they relied and therefore we are of the view that the Industrial Tribunal Decision cannot be faulted in law. We should add that we express no view as to whether the employees could or should have been suspended on full pay or simply have been sent home pending investigations. We would not consider that the narrow interpretation canvassed in argument of the right to suspend "to enable investigations to be made" is necessarily correct. Nor were the Industrial Tribunal, in our judgment, seeking to draw an inference that because there was no suspension the alleged misconduct could not be regarded as serious. Save in obvious cases such an inference could not properly be drawn. In the circumstances, therefore, despite the able arguments presented on behalf of the Appellant, we have come to the conclusion that this appeal should be dismissed.