Tesco Stores Ltd v Abery [1998] UKEAT 556_98_1512

EAT
Tesco Stores Ltd v Abery
[1998] UKEAT 556_98_1512 · 1998-12-15

JUDGE J ALTMAN :

This is an appeal from the majority decision of the Industrial Tribunal held at Ashford in Kent on 17 and 18 February 1998. I refer to the parties in their capacity before the Tribunal. The decision of the Tribunal was that the Applicant was unfairly dismissed and in advance of any hearing in relation to remedy, the majority of the Tribunal determined that there would be no contributory deduction from compensation. The Respondents appeal.The Notice of Appeal alleges a number of matters in relation to the decision; first of all, that the Tribunal substituted its own view as to witnesses for that of the employer; secondly, that the decision that the employer should not have believed statements was a perverse decision; thirdly that the majority's decision as to the investigation procedure being insufficient and flawed was perverse in that there was no material upon which a Tribunal, properly directing itself, could come to that conclusion and fourthly that there was an error of law in that the question of what the Tribunal described as "the range of reasonable responses" was answered by reference to whether the employer should have believed complaints made to them.This case concerned the Applicant who began employment as long ago as 1983 for the Respondents. The decision of the Tribunal sets out a full statement of the findings of fact which we have regarded as essentially unanimous findings of fact by the Tribunal, and then the decision of the minority and majority members is set out in the decision, following upon a brief statement of the way in which each side put its case.It is unnecessary for me to repeat all those findings of fact in detail, but it is helpful to have a framework derived from that at this stage of our judgment. In August 1995 the Applicant became a Customer Service Manager. It appears that that job was the focal point between staff and the public. There was a strategy set out by the Respondents in documents relating to the need for good interpersonal relations, and the Respondents' opposition to any form of bullying or harassment. That was introduced so as to show that the Applicant knew how seriously these matters were taken by the Respondents. Anyone who felt that they were victims of such behaviour had a grievance procedure specially set out to have that matter remedied by the Respondents.Soon after the Applicant's appointment it appears that her Branch Manager, Mr West, received some complaints about her behaviour. When communicated to the Applicant, she herself raised a grievance against Mr West but whilst she threatened to proceed with it, it appears that it was not pursued and no further steps appear to have been taken in relation to that whole episode at that time.A year later, in October 1996, Mr Collins replaced Mr West as the Applicant's line Manager and then it was in December 1996 that he received some seven anonymous complaints about the Applicant. He met three days later with the Applicant, and said that they needed to take steps to investigate. At that point the Applicant agreed to stay away from work. Mr Collins made further enquiries with the Manager. Then on 13 December, four days later, the Applicant was suspended, pending investigation, and was asked to come back on 18 December. She was refused details of the complaints at that stage which was early on in the investigation.On 18 December there was a formal meeting where allegations were denied but Mr Collins still needed further time to investigate the matter. The Applicant complained to him that she felt she was being made to feel guilty, but he postponed the matter until over the Christmas break, which seems to have been unavoidable, and arranged a meeting for 7 January. In the meantime he interviewed a further 29 members of staff.At the meeting in January, this matter was again not yet at the stage of initiating the disciplinary procedure, it was still at the investigatory stage. Mr Collins wanted the Applicant to be represented but, in the absence of her representative, the Applicant elected to proceed with the meeting, the upshot of which was that further investigation was required and a meeting a week later was arranged.Twelve more interviews took place during that period and on 14 January, only just over a month after the very first anonymous complaints were made, specific allegations were put to the Applicant. They were denied. There was no discussion about union representation and after that initial meeting there then took place a formal disciplinary meeting on 17 January. The Applicant was represented by her union representative and although it lasted for four and a half hours it was not concluded.The adjourned hearing could not take place because the Applicant was then away from work through ill-health from 21 January until at least 12 May, when the next disciplinary hearing took place. At that meeting the Applicant produced a statement of a witness in her favour. Due to that and the need for possible further investigation again, there was a further postponement just for four days. But during that four day period, according to the finding of the Tribunal, and in order to be fair to the Applicant, the management decided not simply to respond to those who initiated complaints, but to interview people as neutrally as possible at random, from those who had not complained, to see what they said. There were some five people interviewed during that period of whom some four made adverse criticisms of the Applicant.On 16 May that disciplinary hearing reconvened and the way the matter was put in the findings of fact of the Tribunal is this:
"The Applicant did not change her denial, nor did she have any particular excuses to offer. At the conclusion of the meeting ... Mr Collins decided to believe the evidence of the members of staff whom he had seen, and he reached the conclusion that the Applicant had been guilty of behaviour towards numerous members of staff, which behaviour constituted harassment and bullying. Mr Collins was concerned that the Applicant had not admitted such behaviour, nor had she provided any excuses for her behaviour, or shown any remorse. It was his belief that his staff had told him the truth and that the Applicant's own behaviour had undermined his confidence in her ability as a Manager. Mr Collins was concerned that some members of staff might have wanted to jump on the bandwagon that appeared to be rolling against the Applicant, but he himself was impressed by the strength of emotion that had been shown to him by some of the members of staff he had interviewed. He was concerned to protect his staff and act in their best interests. In the circumstances, at the conclusion of the meeting on 16 May, he decided to dismiss the Applicant summarily for gross misconduct."
There then followed unsuccessful appeals, one on 3 June and a second one on 23 July, which were criticised by the majority of the Tribunal because Mr Collins was not present at them and he had an opportunity of briefing those who conducted the appeal in advance of them.Against that background the majority of the Tribunal came to judgments which were set out, beginning on page 17 of the decision of the Industrial Tribunal. The first matter that is asserted by the Tribunal is that:
"... Mr Collins did have a reasonable belief in the misconduct, but they [the Tribunal] find that his belief was not based on reasonable grounds because he should not have believed the statements made by the staff as against the statement made by the Applicant. The majority also find that the investigation was not sufficient and flawed, and the majority find that dismissal was outside the range of reasonable responses. ..."
And they made a finding of no contribution and those were really the headings of their findings.We are not altogether sure what the Tribunal meant when it said that "Mr Collins did have a reasonable belief in the misconduct, but found that his belief was not based on reasonable grounds". It may be that they made a mistake when wishing to reiterate the well known test from the case of British Home Stores Ltd v Burchell [1980] ICR 303 , and meant to say that they found that Mr Collins had an honest belief in the misconduct, for otherwise that statement is, in real terms, contradictory although there may be some philosophical refinements that could make it intelligible.But Mr Thompson, for the Respondents, says that the Tribunal clearly there appeared to be expressing their own view, as to the belief of the truthfulness of the evidence that was before Mr Collins. It seems to us that there is substantial support for that. That is based not only on a simple literal reliance on the words themselves, which generally speaking would perhaps be an over pedantic approach and contrary to the approach of the Employment Appeal Tribunal, which does not look with too great care at the minutiae of particular words in a Tribunal's decision, but the submission also seems to us to find reflection in the other matters that the Tribunal then went on to pursue.We were referred to the case of Linfood Cash & Carry Ltd v Thomson [1989] IRLR 235 and the headnote which states that:
"Where the credibility of a witness is at issue, it is an error of law for the Industrial Tribunal to substitute their own view for that of the employer. The relevant question is whether the employer acting reasonably and fairly in the circumstances could properly accept the facts and opinions which they did. The evidence is that given during the disciplinary procedures and not that given before the Tribunal. ..."
It seems to us that probably the Tribunal were not asking themselves the question, as to whether Mr Collins was reasonable in accepting that evidence, not only because of those words, but also because the Tribunal go on then to spend a considerable amount of time concentrating on what are clearly criticisms of the procedure. They say:
"The approach which Mr Collins took in carrying out the investigation and the way in which he had applied the company's procedure on harassment and bullying had been fundamentally flawed and had been in breach of the rules of natural justice."
Whilst it may be that it would be unduly harsh to visit upon the Tribunal, and regard as an expression of their personal view, the literal meaning of the words that I have quoted above, that the belief was not based on reasonable grounds because Mr Collins should not have believed the statement, it must nonetheless be right to say that the process which the members set themselves in embarking on what was really a critique, as they saw it, of the procedure that was taken, was little more than a "frolic of their own" in relation to the issues that had been put before the Tribunal. On page 15, in the minority decision to which our attention was drawn, the minority member of the panel observed that neither the Applicant nor her Union, nor her representative today, had made any complaint about the procedure. We have not dwelt at any length, on the view of the minority member, as that did not prevail. However we then went on to look at page 4 of the Tribunal decision in which, setting out the parameters of the case in the very early stages of their Extended Reasons, the Tribunal said:
"Mr Alemoru [the representative for the Applicant] confirmed that no issue was taken as to the fairness of the Respondent's procedure and the essential questions for the Tribunal were (a) whether the dismissal was within the range of reasonable responses, and (b) whether there had been any inconsistent treatment rendering the dismissal unfair."
That latter matter in Mr Thompson's words, "fell by the wayside during the course of the proceedings". Furthermore, when the Tribunal concluded the statement of the facts at page 12, they set out the submissions made on behalf of the Applicant, by Mr Alemoru, and that shows the approach that the Tribunal were invited to adopt and apart from one sentence in that, where it is alleged that Mr Collins should have questioned the staff in greater depth, there is no reference to any procedural flaw whatsoever. Furthermore, in relation to that matter, it says this:
"When the Chairman pointed out that Mr Collins had, in fact conducted some 70 interviews, Mr Alemoru conceded that this was not his best point."
And the substance of his remaining submissions related to whether or not dismissal was the most appropriate sanction in the circumstances.Having determined the task of looking at the procedure in the way I have described, it seems to us that the Tribunal then went on, in looking at the procedure, to base many of their judgments not upon the disciplinary procedure of the Respondents, which has not been referred to in the decision before us in any detail, but upon the grievance procedure that I mentioned at the outset of the judgment which was set up to deal with complaints of harassment and bullying. Having referred to it, they then go on to quote from the section which provides:
"To ensure fairness the member of the personnel function hearing the grievance must not have had any previous involvement in the circumstances which have led to the formal grievance being lodged."
And in the following paragraphs, which are under the heading of that quotation, they complain that Mr Collins conducted both the investigation and the disciplinary enquiry and they criticise him thereby for being both "prosecutor" and "judge", saying that that made him clearly in breach of company policy and rules of natural justice, which required objectivity and fairness.It is quite clear that the grievance procedure provided that the person who was investigating a grievance was not to have been someone that may have been involved in the substance of the grievance itself. That procedure had not anything to do with someone investigating a complaint and then sitting on the disciplinary panel.We have been referred to the case of Slater v Leicestershire Health Authority [1989] IRLR 16, in which the Court of Appeal held that the Industrial Tribunal had been entitled to hold that a dismissal was not rendered unfair by the fact that the manager, who had carried out a preliminary investigation, also conducted the disciplinary hearing and took the decision to dismiss. The inference from that is that it must be a judgment based upon the facts of each case, but the simple fact that one person does both does not appear, on the face of it, to be a matter which, as a matter of law leads to a conclusion of unfairness, although as a matter of fact it may be one of the ingredients.The Tribunal then criticised the failure to involve the personnel section. They then went on to deal with suggestions as to the unfairness of the investigations conducted by Mr Collins. They suggest that he led the interviewees by using questions such as "What do you think of the Applicant", and "is there anyone that you think does not fit with the company's management style?".Mr Brown, on behalf of the Applicant, suggested that that was a leading form of interview because it starts off by asking someone what they think of the Applicant and then gives the person an opportunity to say adverse things about the Applicant. We did not read that paragraph as linking those two questions at all, and that is clearly so now that we have had an opportunity of seeing the facts that were found by the Tribunal. Those conclusions are presumably based, on the one hand, on finding No.12 on page 5 of the Decision that it was on 9 December, when Mr Collins interviewed his Section Managers, and initiated a discussion about the way in which managers should behave towards their staff and at paragraph 15 where the other interviews were begun by Mr Collins' not referring to the Applicant by name but asking if there was anyone who, in the opinion of the interviewee, did not fit into the picture.In those circumstances, it is clear that the facts did not justify the conclusion that leading questions were being asked because, on the face of them, they were separate questions and are not questions which indicate to the listener the answer that is expected.The Tribunal then proceeded to embark upon their own analysis of the evidence which was before Mr Collins. It was only in statement form before the Tribunal. They noted the fact that certain words are repeated by different complainants. They draw the conclusion from that that there was a suggestion of possible collusion and that the descriptions became more colourful as matters went on. That is couched in terms as a failure of Mr Collins. Yet it is quite clear from the facts that were found at page 8 of the Decision that Mr Collins was concerned that some members of staff might have wanted "to jump on the bandwagon" that appeared to be rolling against the Applicant but that he, himself, was impressed by the strength and emotion that had been showed to him by some of the members of staff he had interviewed. Here again the episode that I have already referred to, namely the exercise that Mr Collins set himself to approach staff at random who had not made complaints, was clearly directed also to that very issue.The Tribunal then refer to the requirement to follow the employer's grievance procedure as another example of failure. They observe that no formal grievance had been registered, and that the matter was based on anonymous letters. That is true but the evidence and the findings of fact demonstrate that thereafter all people were interviewed by name. The Tribunal then go on to say that there was no evidence to show that Mr Collins had drawn upon the Applicant's personal service record at all, omitting the finding of fact at page 9 of the Decision, "Mr Collins was aware that the Applicant had had a good disciplinary record, and he gave credit for that."The Tribunal go on to say that Mr Collins should not have referred to unsubstantiated allegations against the Applicant, neither should he have resurrected earlier incidents which the previous manager, Mr West, had been content to accept and not take any action on. Yet again, there is reference in that same paragraph 25 to the fact that Mr Collins was aware that the Applicant had been given informal counselling, but that no formal action was taken earlier against the Applicant and that the earlier incident was not a factor in his decision to dismiss.It is interesting to jump also to part of the Tribunal's conclusion because they point to the failure to consider other options open to Mr Collins. It is clearly interesting to note the reference to earlier counselling, and that they had not formed any judgment about speaking about other options.The Tribunal reiterate that error by saying, "There is no evidence to show that Mr Collins had checked the employee's personnel file".The Tribunal go on to refer in particular, to whether there was any evidence there to support the Applicant's evidence, as they describe it, that some of the complainants had been previously warned about their performance by the Applicant which therefore could have motivated them to take up a case against her.The question of the extent to which the Applicant had in fact warned employees for whom she was responsible is referred to in the evidence. At page 10 of the Decision, in an interesting assessment of a number of matters the Tribunal said, amongst other things:
"In her written statement, she [the Applicant] stated that five of the staff who had made complaints had all been warned by her, but she admitted under cross-examination that the warnings had in fact not been given by her but by Tina Crowhurst."
And it seems that the Tribunal were in error about that matter. Furthermore, at page 11 of the Decision there was reference to an interview with Jan Day in which she said that she had been given a final warning in relation to an incident at a time when she was out of the building. It appears that this was discussed with the Applicant by Mr Collins, for the Tribunal found as a fact that in her interview with Mr Collins the Applicant denied giving the final warnings, but yet Mr Collins later found that she had. The Applicant admitted in cross-examination, the Tribunal said, that she had in fact given the warning on the instruction of David West.So the assertion by the majority of the Tribunal which leads to a complaint that not sufficient heed was given of the complainant having warned some of the interviewees, so as to give them presumably a grudge and sense of grievance, is simply not borne out by the evidence or by the findings of fact of the Tribunal.Then the Tribunal assert further in relation to the procedure, that the Applicant was given unreasonably short notice of her right to be represented or that it was not raised at all. However when the Applicant failed to obtain representation at the meeting on 7 January, the record of findings of fact clearly show that it was the Applicant who elected to proceed without representation.The Tribunal then go on to criticise the length of time that was taken. They criticised the fact that suspension was extended on three separate occasions, making it a period of more than five weeks, and they suggest that it was contrary to the company's procedure. So far as we can judge, there was no factual material before them to make that finding or to suggest that the Applicant was in an untenable position. We do not understand how a tribunal could come to that conclusion of fact in the light of the amount of material that had to be investigated.The Tribunal then criticise the failure to involve senior personnel staff, but again the failure to do that is, no doubt, a matter of judgment in individual cases. It was not a matter of complaint before the Tribunal because there was no procedural complaint raised by the parties or in evidence that is referred to in the material before us.Then, having directed themselves upon the law derived from the British Home Stores Ltd v Burchell [1980] ICR 303 the Tribunal then go on, effectively as it seems, to summarise their conclusions. They say:"Mr Collins had no formal grievances to consider nor had any members of the staff felt it necessary to resign under a claim of constructive dismissal".This appears to slide away, so far as we can see, from the substance of the complaints before them and refers rather to formal processes. They say:
"Mr Collins' investigation was seriously skewed towards the cases presented by the complainants rather than investigating and testing the explanations of the Applicant."
They go on to say:
"The fact that, having carried out the investigations himself, he then sat in judgment of the case rather than presenting it to an objective third party, made his decision invalid in the views of the majority of the Tribunal."
Whilst we have already pointed out that there may be facts which give rise to a criticism of one person doing both, the mere fact of Mr Collins' doing so does not appear to us, on the findings of fact before us, to be a basis for the conclusion that is expressed. They conclude that the investigations and proceedings were managed unreasonably and led to a decision being taken on unreasonable grounds. We have already gone into some detail in analysing the approach of the majority of the Tribunal to the procedural matters. They conclude by saying:
"Due to the way in which Mr Collins chose to conduct the proceedings, he had no option open to him but to dismiss the Applicant"
We are not wholly clear of the significance of this conclusion.We have borne very much in mind the submissions of Mr Brown, that a Tribunal should not pick its way through a decision of a Tribunal and find little flaws here or little flaws there. We have gone, at some length, through parts of the decision because of the substance of the criticism which, it seems to us, Mr Thompson has fairly made of the decision of the Tribunal.Whilst Tribunal decisions are not meant to be nice pieces of legal draftsmanship, they must demonstrate that the conclusions of the Tribunal are based upon facts, which have been found, and are not based upon an erroneous view of the facts as found. We have come to the conclusion that, on the facts as found, the conclusions of the Tribunal are not conclusions to which any Tribunal, properly directing itself, could have come in the way in which this Tribunal came. We find that in coming to their conclusions they base themselves, to a large extent, on an erroneous statement of the facts and an incorrect analysis of the issues before them, particularly in relation to procedural matters which had not been canvassed or criticised, and which the Respondents had not been specifically invited to address during the hearing.In those circumstances, it seems to us that the appeal must be allowed, because those matters are clearly errors of law and the decision of the Industrial Tribunal must be set aside.We have gone on to consider, having heard helpful submissions following our setting aside of the decision of the Industrial Tribunal, the appropriate disposal of the application. On behalf of the Respondents Mr Thompson submits that there can be nothing to gain in remitting this matter for a further hearing before an Employment Tribunal because, on the facts as found by this Industrial Tribunal, no Tribunal could find, properly directing itself on those facts and in law, that there was an unfair dismissal.The one resistance to that course raised by Mr Brown relates to the evidence and the findings set out at page 10 of the decision, in paragraph 5 (28) relating to the second appeal. The thrust of the appeal was that the Applicant accepted that people were upset by her management style and she wanted her job back so that she could have the chance to show that she could learn from her "frightening experience". Mr Brown relates that to the finding of the majority of the Tribunal at page 21 of the Decision:
"We find the decision to summarily dismiss the Applicant, without considering any of the other options open to him unfair."
We are invited effectively to remit this aspect of the case to a differently constituted Tribunal to consider the second appeal and the issue whether it was reasonable or unreasonable for the employer to dismiss, bearing in mind what was said at the second appeal and the possibility therefore of a less severe penalty.We have considered this matter very carefully, but when we look at page 21 of the Decision, it is important, it seems to us, to look at the whole paragraph. It deals first of all with the statement by Mr Collins and concludes that he was incapable of being objective and that it was on those grounds that they found the decision unfair, having been reached without considering any other options.Furthermore, whilst it is true that Mr Alemoru himself submitted that there should have been a warning and an opportunity to change, there is otherwise no point in those parts of the decision which deal with the facts, the submissions or conclusions where there is reference to any failing to take account of that expression of a desire to change. The second appeal was subject to some criticism on a completely different ground.Accordingly, with that single point, it seems to us that we would be remitting this case for consideration of a novel point which has not previously been considered in this case at all, namely whether at the second appeal Mr Robins who was conducting that appeal and not Mr Collins, should have reacted by amending the type of penalty. The second appeal was not criticised on this point. Also, we note the findings of fact in relation to the second appeal. The full-time Union official, Mr Morton, represented the Applicant for the first time. At paragraph 5 (30) there is the finding that Mr Morton also agreed in evidence that, if it was believed that a manager had harassed, intimidated or bullied staff and made life miserable for staff, then dismissal was a remedy open to an employer to take. Accordingly, dealing with that point, it does not seem to us that it would be right to remit that specific issue for a fresh hearing.We have come to our conclusion on the facts as found by the Tribunal, including the extent of the complaints received by the employer, the extent of investigation to which they were subject, and the response of the Applicant when confronted during the disciplinary hearings. We find that no Tribunal, properly directing itself, on the facts as they are found and on the law applicable thereto, could conclude other than that the reason for dismissal related to the alleged bullying and harassment of which evidence had been given, that that reason related to the conduct of the Applicant and that in assessing the seriousness of that and in the way in which they investigated it, the Respondents did no other than act reasonably in treating that as the reason for dismissal, bearing in mind their size and administrative resources and in the light of equity and the substantial merits of the case. Certainly we find that such a Tribunal, properly directing itself on the facts as found and on the law, could not conclude other than that the approach, for instance as advocated in Burchell , had resulted in the employer establishing a genuine belief, on reasonable grounds, after reasonable investigation, that the Applicant's behaviour warranted dismissal.In those circumstances, it seems to us that no purpose would be served by remitting this matter to a fresh Tribunal that could only come to that result. Indeed, not only would no purpose be served, but it would simply prolong anxiety and stress for the Applicant and involve the diversion of resources for the Respondent.Accordingly, we are driven to the conclusion that we must substitute for the finding of the Industrial Tribunal, a finding that this dismissal was not unfair.It is often said in Employment Tribunal cases dealing with questions of conduct, that the finding of a Tribunal is not in itself a finding of whether or not an allegation is true or false; that, of course, applies equally to our judgment. We have simply applied the principles of law to the evidence and arguments that were before the Tribunal.