London Borough Of Harrow v Cunningham [1995] UKEAT 1098_94_0211

EAT
London Borough Of Harrow v Cunningham
[1995] UKEAT 1098_94_0211 · 1995-11-02

JUDGE CLARK :

This is an appeal by the employer against the unanimous decision of the London North Industrial Tribunal dated 6 October 1994 that the Respondent, Mr Cunningham, was unfair dismissed.The facts fall within a narrow compass, and were undisputed. The Respondent had been employed by the Appellant Council in its Cleansing Department. He and a colleague, Mr Weatherly undertook a private job of refuse disposal. That was a breach of the Council's disciplinary code, and amounted to gross misconduct. A proper investigation was carried out, so the Industrial Tribunal found, and a disciplinary hearing was convened before Mr Hickman, the DSO Manager. Both men were represented by a trade union official. Both had committed the same offence.Having heard representations on behalf of both men Mr Hickman concluded that different penalties were appropriate. He started, in both cases, from the premise that doing a private job for financial gain normally warrants summary dismissal, however in the case of Mr Weatherly he took into account his length of service, seven years, and his satisfactory work performance and disciplinary record, and felt able to stop short of dismissal and instead issued a final written warning.Had Mr Cunningham enjoyed a similarly satisfactory work and disciplinary record it is clear that he too would have received a final written warning. However, he was at the time already subject to a final written warning relating to his conduct. Mr Hickman felt he could not overlook that warning, and drawing that distinction between the Respondent's case and that of Mr Weatherly he imposed the normal sanction as he described it, of dismissal.On these agreed facts, the Respondent argued that the decision to dismiss him was unfair, in that there was disparity of treatment between himself and Mr Weatherly. The Appellant argued that it was entitled to distinguish between the two cases, provided it did so on a rational basis, and that dismissal was within the range of reasonable responses open to the employer. We take that submission to have been based on the Court of Appeal's judgment in Securicor Ltd v Smith [1989] IRLR 356.The Industrial Tribunal considered those rival contentions, and expressed its conclusion in paragraph 4 and 5 of its written reasons. Paragraph 4 reads:
"4. We referred ourselves to various cases and in particular to the phrase `substantial equity' in Section 57(3) of the Employment Protection (Consolidation) Act 1978 and the leading case of Post Office v Fennell [1981] IRLR 221 . We were however influenced by the case of AEI Cables Ltd v McLay [1980] IRLR 84 which states that `in cases of gross misconduct it will not be a factor of any or any significant weight where gross misconduct is concerned' and it was clear that this was a case of gross misconduct. The Applicant was therefore justified in complaining that either the employer should have dismissed them both or he should have taken some lesser action against them both but he could not be equitable between them if he treated them differently. In those circumstances although the Applicant's conduct merited dismissal it was unfair to dismiss him whilst not dismissing his colleague.
5. We therefore found the dismissal to be unfair."In seeking to support the Industrial Tribunal decision, Mr Clayton on behalf of the Respondent, argues that this is really a perversity appeal, raising no self-misdirection on the part of the Industrial Tribunal. He says that the Industrial Tribunal has correctly recorded the proper test, as submitted by the employer; it has directed itself to the relevant statutory provision, Section 57(3), and it is implicit in paragraph 4 of the decision that it asked itself the right question and was entitled to answer it in favour of the Respondent employee. He accepts that there was a rational basis for the distinction drawn between the two men, namely Mr Cunningham's final written warning, but that in the light of the offence here, and the misconduct which led to that final warning, the Industrial Tribunal was entitled to hold that dismissal fell outside the band of reasonable responses. The Industrial Tribunal's reference to the McLay case was by way of contrast to this case; there the dismissal followed, despite long service, for the deceptive conduct of the employee; here it was not so. We cannot agree with his submissions.It seems to us that this Industrial Tribunal was deflected from properly considering the question raised by Section 57(3) of the 1978 Act by the self-confessed influence of AEI Cables Ltd v McLay [1980] IRLR 84, (C.S.) The facts in that case were that the Applicant had presented a false expenses claim to his employer. On his complaint of unfair dismissal the Industrial Tribunal found that the employer had not established a reason for dismissal; that even if a reason was shown the dismissal was unfair; and that the employee had contributed to his dismissal to the extent of 50 per cent.On appeal the Employment Appeal Tribunal found that a reason for dismissal had been shown by the employer, but declined to interfere with the Industrial Tribunal's finding of unfairness. On a further appeal to the Court of Session it was held that a reason for dismissal had been established, but that the Industrial Tribunal's finding of unfairness should be set aside. The Court of Session considered that five out of the six reasons given by the Industrial Tribunal for finding unfairness were irrelevant and the sixth, that is the employee's length of service, was a relevant consideration in many cases, but (and I quote from the headnote):
"... Although an employee's length of service - the remaining reason given by the Industrial Tribunal for finding the dismissal unfair - is a relevant consideration in many cases, it would be wholly unreasonable to expect an employer who had been deceived by an employee, in the way in which the respondent deceived the appellants in the present case, to have any further confidence in him and to continue him in his employ. The quality of the employee's conduct in the present case was of such gravity that the length of his prior service was of no materiality."
We have seen the report in that case and we think that that passage from the headnote accurately reflects what is said in paragraph 16 of the judgment.In our judgment the Court of Session is there saying no more than that in cases of serious misconduct length of service will not save the employee from dismissal. That is trite law.What we find curious is how that proposition came to play any part in this Industrial Tribunal's reasoning. This was not a case in which Mr Weatherly was saved by his length of service; Mr Cunningham's case was distinguished from that of Mr Weatherly on the grounds of his poor conduct record. The Industrial Tribunal appear to have lost sight of this fact. Indeed, we learn that the passage quoted by the Industrial Tribunal in paragraph 4, does not come from the case report at all. It is taken from paragraph D 1035 of volume 1 of Harvey on Industrial Relations and Employment Law.Industrial Tribunals considering a disparity of treatment argument would be well advised to remind themselves of the guidance to be found in Hadjioannov v Coral [1981] IRLR 352, particularly in paragraphs 24 and 25 of the judgment of Waterhouse J.Secondly, where two employees who have committed the same joint offence are differently treated by the employer the Tribunal should direct itself in accordance with the Court of Appeal judgment in Securicor Ltd v Smith [1989] IRLR 356. I will read just a short passage from the headnote:
"The Court of Appeal held:
...The question for the Industrial Tribunal was whether or not the employers acted reasonably and within the band of reasonable responses in acting upon the findings and conclusions of [in that case] the appeal panel. Therefore, where two employees are dismissed for the same incident and one is successful on appeal but the other is not, in determining the fairness of the latter's dismissal the question is whether the appeal panel's decision was so irrational that no employer could reasonably have accepted it."That case is saying no more than that the Industrial Tribunal should ask itself whether the distinction made by the employer rendered the dismissal within or outside the band of reasonable responses open to the employer.Failure to indicate that it is has applied the range of reasonable responses test may lead to this appeal tribunal concluding that the Industrial Tribunal has in fact failed to do so, and thus fallen into error - see Conlin v United Distillers [1994] IRLR 169, paragraph 6 in the judgment of Lord Ross.The employer, in such cases, is entitled to take into account mitigating circumstances affecting one employee, compared with the other - see Paul v East Surrey District Health Authority [1995] IRLR page 305. Similarly, in our view, an employer is entitled to take into account aggravating factors, such as one employee's poor disciplinary record when compared with another man, guilty of the same offence, who has a clear conduct record.Applying those principles we have no hesitation in concluding that this Industrial Tribunal allowed itself to fall into error in failing to consider whether dismissal fell within the range of reasonable responses; failing to ask itself whether the distinction made between the two cases by Mr Hickman was irrational; and substituting its own view of the matter for that of the employer. In these circumstances we do not think that this Industrial Tribunal decision can stand.We then turn to consider whether we should remit the matter for a rehearing, or exercise our powers to reach our own conclusion on the fairness or otherwise of the dismissal. Those powers are to be found in Schedule 11, paragraph 21(1) of the 1978 Act.Since there are no outstanding factual matters to be resolved here, we have taken the latter course. We are quite unable to say that the distinction here drawn was irrational and we conclude that dismissal was within the range of reasonable responses.Accordingly, we shall allow the appeal and substitute a finding of fair dismissal.