Kenny v Merseyside Fire & Civil Defence Authority [1998] UKEAT 1264_98_1012

EAT
Kenny v Merseyside Fire & Civil Defence Authority
[1998] UKEAT 1264_98_1012 · 1998-12-10

JUDGE J ALTMAN :

This is an appeal from the decision of the Industrial Tribunal sitting in Liverpool on 13 and 14 July 1998. It comes before us by way of preliminary hearing to determine whether there is an arguable point of law so as to make it appropriate for this appeal to be heard in full before the Employment Appeal Tribunal.The Industrial Tribunal dismissed the Applicant's application for unfair dismissal. The dismissal had been on the ground of capability following a number of absences from work. The decision of the Tribunal is challenged first on the ground that the Tribunal failed to regard a procedural error as determinative of the unfairness of the dismissal which was alleged. Secondly, it is alleged that the Tribunal was perverse in coming to the conclusion that the Respondent employer acted reasonably in dismissing, where the evidence before the Tribunal suggested that attendance was likely to be satisfactory in the future. There was a third ground of appeal which is abandoned.The factual background upon which the decision of the Tribunal was based is very helpfully and fully set out in their decision. The Respondent employer had in place a procedure to deal with repeated absences. This was not a contractual procedure and Ms Joffe (who, if we may so, has put the case very fully and helpfully before us on behalf of the Applicant) conceded that it was in effect a published, or part published, guideline to the Respondents of the way in which they were going to approach the intractable problem of dealing with repeated absences from work. It was part published in that the procedural stages were known but the actual target of absences which triggered the procedure was not. The procedure provided that after 12 months of the target absences being reached, a verbal warning would be given, that after a further six months if the target for that period was reached a first written warning would be given, that after a further 12 months on the same ground a final written warning would be given and that two years thereafter there would be an investigation with the possibility of dismissal.In this case there was no dispute as to what actually happened. There was, before the Respondents began to follow their procedure, an informal warning in March 1993. Then there was a first verbal warning on 14 July 1993 and a first written warning on 11 November 1993. Had the procedure been followed and, indeed, had absences been such as to justify it's being followed, there would then have been a final written warning letter before November 1994 but instead what happened was that the Respondents interposed, so it appears, a second written warning, about 20 months after the first written warning in July 1995. And then a final written warning was given in June 1996 and that then led to further disciplinary proceedings which led to dismissal.In their findings of fact the Tribunal found, as to the July 1995 second written warning, as follows:
"The Tribunal say at this time that without doubt the written warning which was issued on 13 July 1995 was issued in circumstances where strictly speaking under the rules it was too late so to issue it, and this was undoubtedly a procedural mistake by the respondents."
The Applicant was dismissed after investigation and interview on 26 February 1998 because following the final written warning, he was absent for 71 days between September 1996 and 17 November 1996, a loss of 35 shifts. Indeed, the Tribunal pointed out that the procedure for a final interview with a view to dismissal could have been activated then, but it was not and the employers waited until after the period from 29 June to 3 July 1997 when there were absences for a further four shifts. That was then followed by a final medical examination; there had previously been two during the period of the absence procedures and it appears that the Applicant was found to be fit for work. The disciplinary interview took place on 4 December 1997. The Applicant was supported at that interview by his Trade Union representative. Although the Applicant did not know the figures which would have determined whether the Respondents could have given the second written warning within 12 months of 11 November 1993, they certainly knew that the second written warning was 8 months late. That point, it appears, was not taken in the final interview or argued before the employers. The approach to the final interview of the Respondents was not criticised by the Tribunal and is not criticised, save for that one matter in the appeal before us.The argument is put that the Tribunal should have found that that failure to adhere to the procedure was fatal to the fairness of the dismissal. We are told that the facts establish that during the 12 months from 11 November 1993 there were not sufficient absences to have entitled the Respondents, if they were sticking meticulously to the procedure they had set themselves, to give the second written warning within the period. Therefore, it is said on behalf of the Applicant, instead of a second written warning being given on 3 July 1995, a first formal verbal warning should have been given and the whole thing started all over again.In dealing with this aspect of the matter the Tribunal were clearly alive to the procedural failure. I have already referred to one passage in which the Tribunal adverted to it. They went on to say:
"9. The final written warning however ... is clear and unambiguous and in the Tribunal's finding, despite the procedural irregularities before, completely justified bearing in mind the total history of the matter."
The Tribunal then went on to deal with the period of a year before dismissal:
"No fire fighter receiving such a letter could be in any doubt as to what it meant and to be fair to Mr Kenny who was a witness of total honesty, he conceded that he knew exactly the position."
The Tribunal then, in their consideration of this argument, rehearsed the submissions made by Mr Sheldon for the Respondents as the submission:"... that the matter had to be looked at in the round and that such procedural errors were not necessarily fatal to the case, and he went on to stress that the decision to dismiss was well within the range of reasonable responses".The Tribunal then considered the relevant authorities that had been drawn to their attention. They identified the reason for dismissal as being "capability". They directed themselves that they had to take into account the size of these employers requiring them to have higher standards than would otherwise be reasonably expected. Then they set themselves the task of deciding whether dismissal was within the "range of reasonable responses" and they underlined their being alive to the need to distinguish that from their own personal opinion by saying that one, or possibly two, of their number in that situation may not have dismissed. They then considered the approach of the employer and they said that they could not fault his reasoning as set out in his statement of the decision to dismiss and they said that they could not conclude that no reasonable employer could have come to the same conclusion. They dealt with the past record and point out that, in the words of the Tribunal:
"Mr Best looked at the facts and formed a view of them which was a reasonable view to take i.e that the applicant's past record despite his present improvement made it more than possible and in fact highly likely that there would be further problems. He was entitled to say 'enough is enough'."
And then the Tribunal went on to deal with the question of the breach of procedure:
"As previously stated the Tribunal is satisfied that the technical fault in the procedure whereby a written warning was given at a time when it could not be so given under the rules does not negate the fairness of what has happened in this case. The final warning as previously stated was unambiguous and justified."
In effect the finding of the Tribunal is that, although there was a failure in the procedure, the clarity of the final warning was such as to be sufficient when looking at all matters in the round to form the background to the reasonableness of the dismissal.It is suggested to us that this procedural error was such as to make it an error of law to fail to come to the contrary view. Ms Joffe has helpfully referred us to some established cases: Polkey v A.E. Services [1987] IRLR 503 , was the case which in the history of employment law determined the relationship between procedural flaws and the substance of whether there should be a dismissal because of the substantial matters of complaint, and it dealt with the question as to whether a Tribunal could say that a dismissal was fair, because although there was an unfair procedure, a properly pursued procedure would have made no difference. In his judgment Lord Bridge singled out the very exceptional situation, from the general tenor of that case, where the employer could, at the time of dismissal, say that the procedural steps would have been utterly futile. In only those cases the test of reasonableness may be satisfied. The sort of situation which the House of Lords clearly had in mind there, was where somebody is seen stealing money from the employer's safe and running out with it under his jacket. The complaint that they failed to set up a disciplinary meeting before dismissing such an employee is the sort of futility that was clearly being referred to.The case that we have to deal with is not a "no difference" case of that kind and does not fall within that sort of band. The case of Fuller v Lloyds Bank Plc [1991] IRLR 336, as Ms Joffe pointed out, is more central to the case for consideration. The judgment of the Employment Appeal Tribunal there postulated that the actual defect that has been complained of does have to be analysed in the context of what occurred. We pause to observe that the passages to which we have referred, in what we can only describe as a lucid and comprehensive decision, was just such an analysis of the procedural defect in its context. The Employment Appeal Tribunal in that case found that that analysis may produce the conclusion that there was a defect of such seriousness that the procedure was not fair. Clearly the use of the word "may" imports the fact that it is a question of fact for the Tribunal to consider and it may come to the conclusion that it was not fair. The corollary must be, of course, that they may also come to the opposite conclusion. The Employment Appeal Tribunal go on to point out, as a possibility, that although the procedure itself may not be a defect which renders the dismissal unfair, the overall results may be unfair. They anticipate that in those circumstances the conclusion the Tribunal would reach would be the dismissal cannot, in those circumstances, be found to be anything other than unfair. But here again that is the Employment Appeal Tribunal expressing their anticipation of the judgment on the facts of the Industrial Tribunal that would follow. They are not purporting to lay down a principal of law and that is the hurdle which this appeal fails to clear.It is quite apparent to us that the facts before the Tribunal demonstrated, on the one hand, a procedural defect which was not contractual and which was not said to be binding therefore upon the Respondents, and on the other the history of absences and particularly the history of and following the final warning. They looked at all those matters. They assessed their significance and they concluded that the procedural defect was not fatal.We are being invited to say, in effect, that it is arguable that there is a rule of law that a procedural defect which, if it had been dealt with correctly and not defectively would have meant the employee remaining in employment, leads inevitably to an unfair dismissal. There is no such arguable point of law. The case law in the Employment Tribunals is littered with propositions that a procedural defect may be, but is not necessarily, cause of a dismissal's being unfair.Accordingly, it seems to us that there was evidence and there were findings of fact upon which the Tribunal, properly directing itself, and they did properly direct themselves, could have come to the conclusion to which they came. We are driven to the conclusion therefore that there is no arguable point of law on the first proposition.The second ground of appeal is that the decision was perverse in that the Tribunal should have been driven to find, on the evidence, that there was likelihood of improvement in the future. I have already spelled out the passage which appears at paragraph 26 of the decision that Mr Best, the dismissing officer, actually addressed that fact and considered that the past record made it more than possible and in fact highly likely that there would be further problems. Again, that was a reasonable judgment of fact available to the Tribunal on the evidence and it was therefore not perverse and there can be no such argument.In those circumstances there is no arguable point of law and we dismiss the appeal at this stage.