Nestle (UK) Ltd v Thacker [1998] UKEAT 279_98_1210

EAT
Nestle (UK) Ltd v Thacker
[1998] UKEAT 279_98_1210 · 1998-10-12

JUDGE PETER CLARK:

This is an appeal by the employer, Nestlé (UK) Ltd, against a reserved decision of the Leeds Employment Tribunal promulgated with full reasons on 15 December 1997, upholding the Respondent employee, Mrs Thacker's complaint of unfair dismissal. The Employment Tribunal went on to find that she had contributed to her dismissal by her own conduct to the extent of 60%.The Respondent was employed by Nestlé at the Albion Mills in Halifax for some eight years as a part time worker on a temporary basis and then on a permanent basis, from the 10 May 1993 until her summary dismissal on 4 August 1997.By an agreement reached between the company and the recognised trade union, The Transport and General Workers Union, permanent employees were entitled to 25 days holiday, 8 customary days and 12 rest days per annum. That amounted to what the Employment Tribunal described as a generous allowance of 9 working weeks holiday a year. However, all but two of those days were fixed holidays. The holiday period included the annual summer shutdown.Each year details of forthcoming holidays were published to the workforce well in advance. Thus the 1997 shutdown dates were published in September 1996.Prior to publication of those dates the Respondent had in August 1996, booked her family holiday for 1997. When the dates of the shutdown were published it was apparent that her holiday dates overlapped the summer shutdown by one week. She did nothing about informing the company of this arrangement until June 1997. She assumed that she would be able to work an extra week earlier in the year, but there was no basis for that assumption, so the Tribunal found. In the event she was not able to work an extra week.In June 1997 she asked her supervisor whether she could take extra holiday during the week commencing the 28 July. She was unsuccessful and then invoked the grievance procedure, taking her request to her Manager, Mr Livingstone. He turned it down. Finally, she appealed to the Deputy General Manager, Mr Billington on 20 June 1997. Again she was unsuccessful.There was a conflict of evidence as to Mr Livingstone's attitude to the Respondent taking the extra holiday after that appeal hearing before Mr Billington. It was the Respondent's pleaded case that Mr Livingstone led her to believe that if she took the extra holiday she would be disciplined short of dismissal. In evidence she said that he gave her a nod and a wink to indicate that she would not be dismissed if she took unauthorised leave of absence. The Employment Tribunal rejected that evidence, given both by the Respondent and her trade union representative, Mr Smith. What the Tribunal did find was at the end of the meeting with Mr Billington he remarked that if the Respondent did take unauthorised time off it would be an extremely serious situation and one of the options which would be considered was dismissal.Despite this, the Respondent took her holiday as arranged. On her return to work on 4 August a disciplinary investigation took place before Mr Livingstone. He indicated that her absence was viewed as gross misconduct. He summarily dismissed her for failure to attend work. In reaching that decision, the Tribunal found, no account was taken of her length of service and unblemished disciplinary record. She appealed that decision to the General Manager, Mr Oliver. On 8 August the appeal was heard. It was dismissed.The Tribunal found that the reason for dismissal related to the Respondent's conduct; and directed itself that the question for the Tribunal was whether or not dismissal fell outside the range of reasonable responses open to the employer. It also correctly directed itself that it was not for the Employment Tribunal to substitute its own view of the correct sanction for that of the employer.Its findings as to fairness are set out at paragraphs 6 and 7 of the reasons thus:
"6. Despite all those considerations the salient facts in this case are that the applicant had a connection with the Respondent which extended to 4 years permanent employment and in excess of a decade in total as a temporary and permanent worker. There was no disciplinary background whatsoever. The applicant has shown a candour that is commendable in the way in which she operated the grievance procedure to try to obtain permission for the leave of absence rather than, as she said, sign off sick and take a chance. The tribunal therefore faces a situation where a long standing employee with an impeccable record has been summarily dismissed for taking a week unauthorised absence. It is the tribunal's view that the sanction imposed was unfair, particularly given that Mr Livingstone had no regard in imposing the sanction to the applicants record prior to the dismissal. The respondents have classified the applicant's actions as gross misconduct, and that classification has led them inexorably to the conclusion that the applicant could only be dealt with by dismissal. The Tribunal does not accept that this can have resulted in a serious consideration of the fairness of the sanction imposed, in relation to the applicant's case. For that reason the Tribunal considered the sanction imposed unduly harsh.
7. In the circumstances the tribunal finds that the applicant was unfairly dismissed because the sanction imposed by the Respondent fell outside the band of reasonable responses and was taken without any consideration of the applicant's prior lengthy good employment record and personal circumstances. It appears that the Respondent moved away from an individual consideration in this case and decided on dismissal as it was necessary for the purposes of maintaining strict observance of the holiday arrangements among the other members of staff."Mr Duggan's first submission in support of this appeal is that although the Tribunal correctly directed itself that it must not substitute its view for that of the employer and should decide whether or not dismissal fell within the range of reasonable responses, it failed to apply those tests. Such failure amounts to an error of law.In response, Mr MacCarthy has reminded us of the useful formulation of the approach to be taken on appeal to be found in the judgment of Lord Justice Waite, in Jones v Mid-Glamorgan County Council [1997] ICR 815 , 826 D, where he said this:
"The guiding principle, when it comes to construing the reasons for an industrial tribunal at an appellant level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."
In our judgment Mr Duggan is correct in his submission. It seems to us that the Employment Tribunal has substituted its own view for that of the employer in finding that the employer took no account of the Respondent's length of service and good record. The question is whether the deliberate flouting of the employers instruction in this case did indeed amount to gross misconduct (compare Law Stores Ltd v Oliphant [1978] IRLR 251) such as to justify dismissal notwithstanding the employee's length of service and good record. Retarded Children's Aid Society Ltd Day [1978] ICR 437, 442 D, per Lord Denning Master of the Rolls. We are driven to conclude that in reality the only explanation for the Employment Tribunal's conclusion that the dismissal was unfair was based on what they themselves would have done had they been the employer. We are reinforced in that view by Tribunal's reference to the candour of the Respondent in operating the grievance procedure to obtain permission to take leave of absence rather than sign off and take a chance. That observation appears to overlook the Tribunal's own finding that as a result of operating that procedure she was told in no uncertain terms by Mr Billington that if she took unauthorised time off she faced the possibility of dismissal, and their rejection of the Respondent's case that Mr Livingstone had indicated that she would not, in those circumstances, face dismissal.Mr MacCarthy submits that it was open to the Employment Tribunal to find that the dismissal was unfair because the company took no account of her good service and clean record and in so doing failed to consider her individual circumstances, but decided to dismiss for the purposes of maintaining strict observance of the holiday arrangements among other members of staff. However, that finding appears to overlook the Tribunal's earlier acceptance of the Appellant's concerns as to the necessity of fixed holidays for the efficient running of the factory, a factor which was unchallenged by the Respondent.In our judgment the Tribunal fell into error by failing to apply the correct test under section 98(4) of the Employment Rights Act 1996 . They substituted their own view for that of the employer and failed properly to consider the question whether no reasonable employer would dismiss for this offence for deliberately flouting an important instruction by the employer.In these circumstances it is not strictly necessary to consider Mr Duggan's alternative submission of perversity. Had it been necessary to do so, we would each of us have taken the view that the Appellant has discharged the burden of showing perversity on the facts of this case, in accordance with the test formulated in among other cases, East Berkshire Health Authority v Matadeen [1992] IRLR 336. We bear in mind that it is not enough that we feel unease at the decision of the Employment Tribunal or that we would ourselves simply have reached a different conclusion. Piggott Bros & Co Ltd v Jackson [1991] IRLR 309. We go further, we are satisfied that on the facts as found the conclusion of unfair dismissal was an impermissible option.The only matter that remains is to decide what to do with this case. Mr Duggan submits that the Industrial Tribunal has made all necessary findings of primary facts for us to reach our own conclusion as to whether or not this dismissal was fair. He invites us to find that it was fair and to reverse the Employment Tribunal's decision. Mr McCarthy submits that the matter should be remitted to a fresh industrial tribunal for rehearing, because there may be other findings of fact, not specified by him, which could or should be made in order for the Tribunal of fact to reach a conclusion on that industrial jury question as to whether or not the dismissal was fair. On this aspect of the case, we again prefer the submission of Mr Duggan, it seems to us that all the necessary findings of fact have been made and on those findings of fact we have no hesitation in concluding that this dismissal was fair and accordingly we shall allow the appeal and substitute a finding of fair dismissal.