Heskey v Adwest Rearsby Ltd [1998] UKEAT 158_97_0302

EAT
Heskey v Adwest Rearsby Ltd
[1998] UKEAT 158_97_0302 · 1997-12-08

JUDGE HARGROVE QC :

This appeal is against a decision of the Industrial Tribunal which found on 26th November 1996 that the appellant was dismissed and that such dismissal was fair.The background is that the appellant wished to take a prolonged holiday to visit the West Indies. This was to extend from the last week of June until third week of August 1996. In December 1995 the appellant approached Mr Armitage, the manufacturing director of the respondent, and requested permission to take such a holiday. He was told to put his request in writing so that it could be processed. The appellant also approached the manufacturing manager, Mr Casey. The appellant's account was that he received assurances from Mr Casey that his application would be successful. This was denied by Mr Casey before the Industrial Tribunal.The Industrial Tribunal found that Mr Casey had not given any such assurance and relied upon a series of letters dated 16th January, 1st February, 4th April and 22nd April, all of which stated that the company would allow him take a fortnight shutdown holiday commencing on 2nd August and adding there to five floating days which would result in a three week holiday, but otherwise the request was refused.The appellant approached the managing director, Mr Vaughan, who after consulting Mr Casey and Mr Armitage, replied that the request was refused and that if he took the holiday he would be breaking his contract of employment which would adversely affect future employment at the appellant's place of work.In spite of the documentary refusals, on 16th January 1996 the appellant booked flights for himself and his family for the period of the holiday which he had demanded.On 19th June there was a meeting between the four representatives of management and the appellant, when the latter reiterated his intention to take the holiday and he was told that if he did so he would be dismissed.Pursuant to his threat, the appellant left for the West Indies and during his absence a check was made by the employers to check that the appellant had left on holiday, and that there was no other reason for the absence.On 9th July a letter of dismissal was sent. The appellant received the letter when he returned. The letter did not set out any disciplinary procedure, nor did it mention the possibility of any appeal.The Industrial Tribunal found that the appellant did not have permission to go, that he was warned of the consequences of going and that in so going on holiday he knew he was taking the risk of dismissal.The terms in which the tribunal found that the dismissal was fair are the subject of the debate between the parties.The appellant contends that the decision contravenes the rule in Polkey vAE Dayton Ltd [1988] ICR 142 . The respondents maintain that when viewed as a whole, the decision is in line with Polkey as developed in Duffy v Yoemans & Partners Ltd [1995] ICR 1 . The passages in contention are as follows:
"6. The Tribunal do have some concern about the procedure used in dismissing the applicant. A clear warning was given to the applicant on 19 June and on 9 July the dismissal letter was sent with no mention of a hearing and no mention of an appeal. In the normal course of events the Tribunal would have said that this was sufficient to justify them in concluding that the dismissal was unfair but we accept the respondent' s plea that whatever they had done could make no difference. If the respondents had summoned the applicant to a hearing during the month of July he would not have been there to attend and if he had offered an appeal then again he would not have been there to attend. The Tribunal conclude from this that the procedural defects made no difference to the eventual outcome.
7. We only add that it does seem to be a terrible shame when an applicant after 20 years of exemplary service does something that does result in his dismissal particularly when the applicant's failing seems as a result of a headstrong determination to take the holiday come what may. However, we conclude that the respondents were justified in taking the stands that they did and their decision to enforce these stands by the sanction of dismissal was reasonable under all the circumstances."The respondents maintain that what was being decided by the Industrial Tribunal was that the employer's behaviour in dismissing the appellant was fair. Accordingly, the decision fell within the area dealt with in the Polkey decision at page 153D:
"Where there is no issue raised by section 58 to 62 the subject matter for the tribunal's consideration is the employer's action in treating the reason as a sufficient reason for dismissing the employee. It is that action and that action only that the tribunal is required to characterise as reasonable or unreasonable. That leaves no scope for the tribunal considering whether, if the employer had acted differently, he might have dismissed the employee. It is what the employer did that is to be judged, not what he might have done. On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.
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 requirements 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."The respondents point out that in accordance with Duffy v Yeoman & Partners Ltd [1995] ICR 1 , 7G, the tribunal does not have to find that there was deliberate decision as that case held:
"In my judgment there is no warrant for the proposition that there must be a deliberate decision by the employers that consultation would be useless, with the corollary that, in the absence of evidence that such a decision was made, a finding by an industrial tribunal that a dismissal for redundancy was reasonable is necessarily wrong in law . There is nothing in the wording of section 57(3) of the Act of 1978, or in its exposition by Lord Mackay LC in Polkey v. A E Dayton Services Ltd [1988] ICR 142 , 153, to lead to such a result;"
The respondents also rely on the unreported case Mrs P Ellis vTW Hammond & D Hammond T/A Hammond & Sons [EAT/1257/95 - 20th June 1996] which was an appeal to the Employment Appeal Tribunal from a decision reached by the Industrial Tribunal that she had been fairly dismissed. At page 7 of the transcript His Honour

Judge Hull QC set out part of the decision of the Industrial Tribunal in the following terms:

"18. We are 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 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 employer", 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."It is further contended that it is a decision on a matter of fact for the Industrial Tribunal whether the activity of an employer in dismissing an employee was reasonable or not, and that once that decision on a point of fact has been made, an appellate tribunal should not interfere with it.We have found considerable difficulty with the approach which has been urged upon us because of the nature of the wording of paragraph 6 of the extended reasons. Unlike the Ellis case the tribunal here did not find that it was legitimate to dispense with the procedure of a disciplinary hearing and appeal. On the contrary, they held that in the normal course of events the tribunal would have said that such a failure was sufficient to justify in concluding that the dismissal was unfair. They then proceed to qualify that by saying that they accept the respondents' plea that whatever they had done could make no difference. Even if that was a legitimate approach, in our view, it is damaged by the next two phrases:
"6. ... If the respondents had summoned the applicant to a hearing during the month of July he would not have been there to attend and if he had offered an appeal then again he would not have been there to attend."
Nothing in the decision seems to justify this approach. There seems to be no reason why the disciplinary hearing and any appeal had to be carried out during the time that the appellant was away. On the contrary, the holding of such proceedings when the appellant was available seems to us to be a prerequisite for satisfying the rules of natural justice.Above all, the final sentence of paragraph 6 which reads:
"6. ... The Tribunal conclude from this that the procedural defects made no difference to the eventual outcome."
Not only is this the impermissible question according to Polkey , the word "this" can only refer to the preceding sentence which indicates that since the appellant would have been out of country disciplinary proceedings and appeals would have been pointless.We have reminded ourselves that it is wrong to go through a decision with a fine toothed comb and to construe it phrase by phrase as if it were a statute. Nevertheless, we are driven to the conclusion that paragraph 6 does indicate an error of law and for this reason the matter must be remitted for rehearing before a different tribunal.We have also been invited to admit the evidence of Mr Casey who has voluntarily provided a statement to the appellant's solicitors. Since this matter must now go back to a different tribunal we do not consider that it would be appropriate for us to offer any opinions, particularly upon questions of credibility in relation to the new evidence which the appellant wished to put forward. Suffice it to say, that we would have approached the question of such fresh evidence, bearing in mind the Ladd v Marshall principle. But also the fact that hearings before Industrial Tribunals should be speedy, informal and more important, they should be decisive. See Wileman v Minilec Engineering Ltd [1988] ICR 318 , 322.