Ellis v Hammond & Anor (t/a Hammond & Sons) [1996] UKEAT 1257_95_2006

EAT
Ellis v Hammond & Anor (t/a Hammond & Sons)
[1996] UKEAT 1257_95_2006 · 1996-06-20

JUDGE HULL Q.C. :

This is an appeal to us by Mrs Pamela Ellis. She made a complaint to the Industrial Tribunal sitting at Nottingham under the Chairmanship of Mr Sneath, with his two industrial members, that she had been unfairly dismissed by her employers the respondents T Hammond & Sons, a family firm, who have a large farm at Redhill near Nottingham, where on 750 acres they grow vegetable produce. If it were not so large one might call it a "market garden". That of course is a labour intensive activity. They have something like 20 permanent employees and another dozen who are part-timers, but regular employees, of whom Mrs Ellis was one.The facts are set out in the Industrial Tribunal's decision which they promulgated on 10th October 1995 and from which the appeal is brought by a Notice of Appeal dated 16th November 1995.I will refer to the decision and the facts presently.There was a preliminary hearing before this Employment Appeal Tribunal under our practice direction, the result of that was to confine the appeal to two paragraphs of the Notice of Appeal which both essentially dealt with the same matter.Paragraph 3 of the Notice of Appeal says:
"3. Whether the Tribunal erred in failing to address the question of the procedural fairness in the dismissal namely that there was no final disciplinary hearing before a letter of dismissal was delivered to the Appellant."
Paragraph 8:
"8. The Tribunal found as a fact that there was no final disciplinary hearing before dismissal. The Tribunal erred in law and/or reached a perverse decision in finding that such a hearing would have been futile and that such a hearing was legitimately dispensed with."
The appellant was undoubtedly dismissed, dismissed for alleged misconduct. On her complaint of unfair dismissal the tribunal is of course required under Section 57 of the Act to make a statutory enquiry. First of all under Section 57(1) it is for the employer to show what the reason was for the dismissal. If the employer does that, where the employer has fulfilled the requirements of subsection (1), then in subsection (3):
" (3) ... 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."
That is very general language, but it is to that that the Industrial Tribunal must in every case address itself, and we have no doubt (and our attention has been invited to the relevant parts of the decision) that this Industrial Tribunal did indeed find that the reason was misconduct and then directed their minds to the statutory language. Courts right up to the House of Lords have given guidance to Industrial Tribunals in carrying out their duty under Section 57(3) of the 1978 Act. That has been possible because Industrial Tribunals have two industrial members, and so does this Employment Appeal Tribunal. Thus it is possible for the courts to inform themselves of ordinary industrial concepts of fairness that prevail in various departments of commerce and industry and other places and activities to which the Act applies.I think almost everybody would say one should start now with Polkey v Dayton Ltd [1988] ICR 142 a case in the House of Lords to which we have been directed ourselves as on many previous occasions. We note, as has been pointed out to us today, that that was dealing with a different type of case - redundancy. We also note that of course each of these cases to which we have been referred has been decided by the Industrial Tribunal on its facts, and it is not possible to consider the language of judges, however eminent, as being universally applicable throughout the range of possible facts. Judges do not speak as statutes do in general terms, but directing themselves to the particular facts of the case. But in spite of that, of course a decision of the House of Lords, particularly when unanimous as this one was, particularly when the House of Lords was presided over by the Lord Chancellor with whose judgment all the four other lords agreed, is of course of the greatest authority and we must pay careful attention to everything that they said, in so far as it is material to our present task.We refer first to Lord Mackay's judgment, not only as being the first but as being the one with which, as I say, all the other lords agreed, although Lord Bridge thought it right to add some words himself by way of further exposition of his understanding of the law. Lord Mackay said at page 153E-F:
" If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."
That is part of the judgment which the other lords expressly agreed.Lord Mackay turned later in his judgment to what had been said by Browne-Wilkinson J (as he then was) in the case of Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 , where he set out the view, which then was not accepted of course, that the British Labour Pump case was not or should not be regarded as good law, but he said, what is much more to the point in our present case, at page 156B:
"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). The weight to be attached to such procedural failure should depend upon the circumstances known to the employer at the time of dismissal, not on the actual consequence of such failure. Thus in the case of a failure to give an opportunity to explain, except in the rare case where a reasonable employer could properly take the view on the facts known to him at the time of dismissal that no explanation or mitigation could alter his decision to dismiss, an industrial tribunal would be likely to hold that the lack of `equity' inherent in the failure would render the dismissal unfair. But there may be cases where the offence is so heinous and the facts so manifestly clear that a reasonable employer could, on the facts known to him at the time of dismissal, take the view that whatever explanation the employee advanced it would make no difference."
What Lord Mackay had to say about that and other statements by Browne-Wilkinson J, at page 157A, was:

" I gratefully adopt that analysis."

As I say, Lord Bridge added some words, he did not doubt of course a word that had fallen from Lord Mackay, and he and the other lords all agreed with what Lord Mackay said.So it follows that not every failure to follow the code, in particular to carry out all necessary enquiries, or to give the employee a proper opportunity to be heard, which is what is said here, will of itself necessarily make the employers' behaviour unreasonable and unfair. It will in every case be for the Industrial Tribunal to say whether that is so or not. It is clear on the authority of the House of Lords that it will be the exceptional case, the rare or the unusual case where a tribunal concludes that such an omission does not lead to unfairness. In this case the tribunal did reach just such a conclusion. It also follows that the enquiry which the tribunal must make in this part of the case is an enquiry as to the facts. They alone are the judges of fact, and they alone have the responsibility of saying if they find that the employer has established the reason, and whether the employer acted reasonably and justly and fairly in treating that as a reason for dismissing the employee.I think I must refer next to what the Industrial Tribunal actually said here. Not all of it, but I must cite from it to show what the tribunal said. They say:
"6. The first recorded warning against the applicant is dated 4 August 1993. The applicant had been picking rhubarb. She was on piecework rates. She had strayed from her allocated area to pick the best plants. She was challenged and responded with abuse to the supervisor and other workers present.
7. There followed four occasions in November 1993 and January, March and April 1994 when Mr Bill Hammond [ he being of the family who owned the farm ] orally warned the applicant about her conduct. On three of those occasions, the complaint was that she was only using one hand which impaired her work rate. When challenged she either resorted to abuse or some other display of bad temper.8. Matters came to a head on 24 May 1994 when the applicant received her second written warning. [ That is at page 35 of our bundle ] The respondents had received complaints about the applicant's behaviour from other members of their work force, from Mr Moss the crop manager and from a contractor whose gang members the applicant had abused. The particular incidents are set out in the letter of warning which was signed by the applicant. It concluded thus:-
"We therefore have no alternative but to issue a formal written warning to Mrs Ellis for these continued outbursts of abusive and disruptive behaviour. Any further misconduct will result in dismissal."
9. The applicant received her third formal written warning on 6 February 1995."That is at page 36 of our bundle, and it is worth looking at this, to see the extent of the warnings. That warning, the third written warning, contains a reference to a large number of matters:
"abusive language ... damaging the vegetable products ... by throwing them, ... [ when not supervised ] Mrs Ellis' work rate deteriorates rapidly ...
Harassment of and snide remarks to fellow workers during working hours and lunch breaks, has led to complaints of "continual innuendoes and evil mindedness" culminating in the recent resignation of an employee with over 25 years service [ that was a Mrs Dawson ].Mrs Ellis must cease the disruption and improve her work rate. We expect to see sustained effort long-term but the situation will be monitored over the next two weeks; if sufficient improvement is not achieved, a further warning will follow."That was signed among others by the complainant Mrs Ellis. The tribunal went on:
"9. ... Other members of the respondents' workforce had worked hard and complained. That caused the applicant to lose her temper and to start throwing things. Further particulars of the applicant's conduct are set out in the letter of warning dated 6 February. The employee to resign was a Mrs Dawson who was very upset by the applicant's behaviour. She has since returned to work for the respondents following the applicant's dismissal.
10. The warning required the applicant to improve her work rate. The situation was to be monitored over the following 2 weeks. If sufficient improvement was not achieved, a further warning would follow. In the event, matters came to a head on 17 February . On that day she was not working properly. Mrs Alvey asked her on a number of occasions to work harder. The applicant swore at her. She then provoked Mrs Smith by throwing parsnips at her legs. Mrs Smith was holding a knife at the time. She lost her temper. The applicant walked off the parsnip line making out that she had been threatened by Mrs Smith.11. The matter was reported to Mr Bill Hammond who decided to warn the applicant yet again, but this time in front of her colleagues in the mess room so that she might be shamed into improving her behaviour.12. On hearing the complaints against her, the applicant became enraged. She swore at everybody saying that they had "got a down" on her. She said that Mr Hammond had only employed Mrs Smith at the back of the farm to get at her. [ About as serious an allegation as could be made against the employer, that he was deliberately provoking her by putting a provocative employee there. ] She left saying to Mr Hammond that she would see him in the Tribunal and hoped that he had got £25,000.13. 17 February was a Friday. Over the weekend the respondents decided to dismiss the applicant because they could not put up with her conduct no longer."Before I go on to their consideration of the important matters which they had to consider, I should say that this recital of facts resulted after the tribunal had said that they had heard the applicant and her two witnesses; but the two witnesses had not supported her case. They said:
"4. ... the applicant was an unreliable witness whose allegations should only be believed where there was some other evidence to support them. In the event there was none."
The tribunal went on:
"13. ... They expected her to come into work on Monday 20 February. She did not. The following day was her day off. She had still not appeared on Wednesday 22 February. Further, she had made no contact with the respondents to explain her absence. They tried to make contact with her by telephone but the numbers they had for her were unobtainable. Thus it was that they caused to be sent by recorded delivery the letter of dismissal dated 23 February 1995, a letter which the applicant refused to collect from the Post Office for some time thereafter. She did eventually come back with Mr Whipps [ her trade union representative ] to seek reinstatement but the respondents refused.
14. Against that factual background, we have to determine two questions first, what was the reason for dismissal. We find unequivocally that it was the conduct of the applicant. That is an admissible reason for dismissing her.15. Secondly, we have to answer the question whether in the circumstances including the size and administrative resources of the respondents' undertaking, they acted reasonably or unreasonably in treating conduct as a sufficient reason for dismissing the applicant. In answering that question we have to take into account equity and the substantial merits of the case.16. Having said that the reason for dismissal was conduct, we should make it clear that we exclude the applicant's trade union membership or activity as having anything to do with her dismissal. At the end of the day, there was plenty of evidence of bad behaviour on her part and no evidence that membership of a trade union or the involvement of Mr Whipps in her complaints in any way caused or was a principal factor contributing to her dismissal.17. On the merits, we are satisfied that the respondents had ample grounds for dismissing the applicant. Over the period from first written warning in August 1993 to her dismissal, the applicant had on occasions behaved appallingly. Her final outburst on 17 February was the final straw for the respondents who were fully entitled to dismiss her for that conduct.Then they raise the matter which has been raised before us, and make it quite clear that it was a subject of anxiety to them:18. We were concerned that there was no final disciplinary hearing before dismissal. As a matter of fact, the respondents were not going to have one, if the applicant had come in on Monday 20 February. We do not, however, think that that omission renders this dismissal unfair on procedural grounds. The respondents had themselves witnessed much of the applicant's bad behaviour and particularly the final outburst on 17 February. There was nothing that the applicant could say in her defence, given the number of warnings and the persistence of her bad behaviour. We think that a disciplinary hearing would have been a futile exercise in this case and it was legitimately dispensed with."They are not saying that it is a case of being wise after the event, we think that having heard all the evidence it would not in fact have made any difference. They should not and must not say that. What they were saying was that it was legitimately dispensed with, it would have been a futile exercise. We think it a reasonable inference that they were saying "if it would have been a futile exercise it must have been so apparent to the employers", by reason of what they had set out. In other words they were applying the Polkey test to that particular matter, a test which was set out by Lord Mackay, drawing on what was said by Browne-Wilkinson J, and also by Lord Bridge. They were drawing on that and saying that this was a case in which the employers were entitled to dispense with the disciplinary enquiry.What is said to us about that is that this is a perverse decision. Miss Mountfield took us through the authorities, referring in particular to the decision of Megarry J in John v Rees [1970] Ch 345 ; she referred us to some of the passages there, and some of the quotations from eminent judges, in particular to an 18th century quotation which referred to the story in Genesis as an example of how God himself did not dispense with the need to call on a suspect, Adam, to explain his behaviour and Eve too, in taking the forbidden fruit. Clearly this tribunal and every Industrial Tribunal and every court will be alert to insist that a normal ingredient of fairness is to call upon the person concerned for an explanation. To tell them what the suspicions or the facts held against them are. To give them a reasonable opportunity of considering the matter; and to call for their reply. That may require, in particular circumstances, adjourning the matter so that the employee has proper time to consider it, and having a representative there; perhaps telling the employee the sources of the information so that the employee can prepare a case to put before them. Making, perhaps, documents available to the employee. All those are incidents of this important duty as it generally arises. But it is not an inevitable duty. The House of Lords in Polkey , every one of the judges, recognised that first of all it is not invariably a duty, and secondly, even it were a duty, not every departure from procedural fairness is a matter which renders the conduct of the employer unreasonable, to use the words of the statute.Miss Mountfield points out, with perfect justice and correctness, that the courts have by and large construed the requirement as to reasonableness in Section 57(3) as being a requirement to do natural justice. Natural justice itself is an elastic term because it has to depend on all the circumstances. The natural justice that has to prevail in a court or a judicial hearing of any sort, may be very different from the natural justice which has to be observed by an employer on an occasion like this, or by a local authority when it is considering the question of withdrawing taxi licences or granting extra taxi licences. One can think of innumerable examples of varying circumstances. But Miss Mountfield is quite right to say that normally such conduct will be looked for on the part of the employer.But at the same time, if the employer dispenses with the enquiry, which is the normal requirement, it must in every case, by statute itself, be for the Industrial Tribunal to find as a question of fact whether that omission, contrary to the language of the code of conduct, the disciplinary code of ACAS, and certainly departing from the ordinary rule as recognised in courts high and low and in particular by the House of Lords in the case I have referred to, is something which renders the dismissal unfair because it was not reasonable on the part of the employers. And of course in doing that, they must address the right question: was it justifiable at the time , not in the light of being wise after the event, but was it justifiable at the time, was it reasonable at the time, to dispense with it. That is the question of fact which the tribunal must ask themselves. Here they have answered it by saying that it was reasonable in the circumstances to dispense with that enquiry and they set out the rather striking evidence which they accepted, as to how they came to that conclusion.Miss Mountfield says that they should have said much more to justify such an exceptional decision. She says to us that, for example, they have not covered the possibility that if she had been granted a hearing Mrs Ellis might have apologised abjectly. She might have explained that her health was very bad that day, she might have explained circumstances of the irritation and provocation which had led to her bad behaviour. She might have given guarantees about her future good behaviour. She might have done all sorts of things. She might have appealed successfully on this sort of ground:
"I have served the company for a long period, done well for a long period, and it is owing perhaps to health problems over the last few years that my behaviour from time to time I am afraid has not been what it should be"
. She might have done all these things. The tribunal, says Miss Mountfield, should have attended to all those matters.Miss Mountfield says that in the circumstances this was a perverse decision. It was one which no reasonable tribunal could have come to. To justify it as being possibly not perverse, they would have to set out much more than they have done.We have considered those submissions as carefully as we can. We have all come to the conclusion that we must respect this finding of the Industrial Tribunal, and not less because it was shortly expressed. They set out the essential matters. They spent two days on the hearing and they reached conclusions having heard (I think it was eight or ten) witnesses, rejecting certain evidence and accepting other. We cannot have any doubt that Mrs Ellis, who was in person before the tribunal, was able to tell them about a great many matters material to this, and unhappily they rejected her evidence wherever it was not corroborated or supported by that of other witnesses.They must have formed over those two days a very clear view about whether indeed the employers were or were not entitled to take the view that a disciplinary enquiry would not be necessary before dismissal; they decided that the employers were, and that it would have been futile to hold such an enquiry.We have decided that that was not a perverse decision. The circumstances were indeed exceptional. The employers had shown what many would regard as a quite exceptional degree of latitude, of tolerance to what was going on, if one accepts their version of events which the Industrial Tribunal did. Above all the tribunal had heard Mrs Ellis, and had been able to form a view as they had to, about what was reasonable at the time.We think that we would be going beyond our duty and usurping the function of the Industrial Tribunal if we were to say that they should have reached a different finding, and found the dismissal procedurally unfair. In those circumstances we are constrained to dismiss the appeal, while expressing our gratitude to both counsel for the great contribution which they have been able to make to our consideration. That is the decision of us all.The cross-appeal is dismissed.