Quaker Oats Ltd v Siraj [1999] UKEAT 280_98_1504

EAT
Quaker Oats Ltd v Siraj
[1999] UKEAT 280_98_1504 · 1999-04-15
The background of fact as found by the Employment Tribunal is as follows. Mr Siraj, a man now of 40 or 41 years of age, began to work for Quaker Oats Limited on 1st July 1977. From 1985 on he had been a Team Leader, having reporting to him some 6 members of the permanent staff and 2-15 temporary employees. He worked in the packaging area of the Quaker Oats site at Southall. In a normal working day - and this is a point of some importance - he would drive a fork lift truck and come into contact with dangerous machinery. It had been noticed from about early 1985 that he was sometimes coming to work smelling of alcohol. Mood swings were noticed which his Team Manager felt might have been caused by alcohol. Whether they were, in fact, so caused is not a matter of any finding. That Team Manager, Mr Brophy, believed that Mr Siraj might have a drink problem. Quite what Mr Brophy had in mind as being a "drink problem" does not come out from the decision. On 4 or 5 occasions in the period from early 1995 Mr Brophy had encouraged Mr Siraj to seek professional help although, as he did so, he emphasised that if Mr Siraj came to work under the influence of alcohol he might be dismissed. That was a well-founded comment because the Terms of Employment of Mr Siraj, which were put before the Employment Tribunal, had this provision:
"Gross misconduct. Some offences are so serious that the first violation will normally result in summary dismissal ie dismissal without notice or money in lieu of notice. Such action will only be taken after a full investigation of the incident and the Employee has had the opportunity to explain his/her conduct. Examples of offences that would result in summary dismissal are: (There are letters (a) - (m) (c) drinking or incapacity through drink or drugs whilst on duty."
Indeed, à propos, in particular, the Work's Christmas Party in 1994 but not limited to that, a notice had been put up at the site a copy of which was handed to the Employment Tribunal and included in it is this passage:
"Employees should not enter the Southall site at any time under the influence of alcohol. This is a dismissible offence."
That was relative to the 1994 Christmas season. In 1995, the notice that was put up was referred to before the Employment Tribunal and said:
"Once again, you are reminded that being found consuming or in possession of alcohol on site or under the influence of drink constitutes gross misconduct and will lead to the termination of your Contract of Employment. Please do not jeopardise your livelihood by contravening these rules."
Of the 4 or 5 occasions from early 1995 at which Mr Brophy had encouraged Mr Siraj to seek professional help, the last two were only some 6 months and 2 months respectively before the incident which caused the dismissal. On the occasion only 2 months before Mr Siraj was eventually dismissed he had been rude to a colleague. At that time it had been detected that he had been smelling of alcohol and Mr Brophy had warned him that if he ever came to work under the influence of alcohol he would be dismissed; he was warned that that was the Company's policy. The Employment Tribunal held that there had been conversations with managers at which Mr Siraj had denied that he had a drink problem.Coming forward to the most material events, on 7th July 1997 Mr Siraj arrived at the site at about 5.30 pm or so to begin a 6.00 pm shift. The security guard who noticed him coming in put the time at 5.40 (although we do not think that this is a case where one needs to descend to minutes and the reference to 5.40 does not actually appear in the Decision of the Industrial Tribunal) What does appear is that Mr Siraj was staggering, his breath smelt of alcohol. His speech was slurred. His eyes bloodshot and glazed. He was severely affected by alcohol. When taken to task he admitted only having "2 cans", albeit that those 2 cans were after "a very good weekend". Mr Brophy told him he could not work in such a condition. Mr Brophy brought in another person, a Mr Badh, in order to stay with Mr Siraj. Yet another person was brought in, Mr Munn, to give a second opinion, so to speak, on Mr Siraj's condition. Both that second and third person concluded that Mr Siraj was heavily under the influence of alcohol. Mr Brophy reminded Mr Siraj that he had been spoken to before and had been advised to seek help. Mr Siraj said that he had been through a programme in "Southall Alcoholics Association". That is how the Employment Tribunal describes what was said. We suspect that there was intended some reference to Southall "Alcoholics Anonymous" but that was how it was put. Mr Brophy told Mr Siraj that if Mr Siraj stayed at work he might cause injury to himself and to others and he suspended him.Mr Siraj was called to a disciplinary hearing on 10th July 1997. He had seen written statements from Mr Brophy from Mr Bahd and Mr Munn and also from Mr Hussein, the security officer who had first observed his condition, and he admitted they were accurate. The statement from Mr Hussein mentioned the 5.40 pm time that I have described I have also described the condition of Mr Siraj at the time. At the disciplinary hearing, Mr Siraj admitted that he had drunk too much. He said that he had attended Alcoholics Anonymous, had cut down on his drinking but had not stopped it. Then what happened is described by the Employment Tribunal as follows:
"Mr Brophy, after a 20 minute adjournment, dismissed Mr Siraj saying he had no alternative. Mr Brophy took into account that Mr Siraj had been spoken to on several occasions, that Mr Siraj had been to Alcoholics Anonymous but remained uncured, that Mr Siraj refused to accept that he still had a drinking problem and that other employees' safety and the needs of the business were at risk. Mr Siraj pleaded with Mr Brophy, offering to work off his problem, and suggested that he be checked for alcohol each day. Mr Brophy was, however, adamant, although he did mention Mr Siraj had a right to appeal (which Mr Siraj did not take up)."
The Employment Tribunal concluded that the dismissal on 10th July was unfair. We should say that Mr Siraj had served Quaker Oats Limited for 20 years. Against that background, we must examine how it was that the Employment Tribunal arrived at its conclusion. So far, we have left out a factor which played a considerable, indeed the principal part, in the Employment Tribunal's reasoning.Quaker Oats Limited had a stated written policy "For people with alcohol related problems". Investigation into it was not helped by the fact that it had not been mentioned by Mr Siraj in his form IT.1 form of complaint nor in his earlier disciplinary hearing, but that, of course, did not disentitle him on from relying on it. It is not said here, nor was it said before the Employment Tribunal, to have had any contractual force. The Employment Tribunal set out large pieces of it and we, in fact, have the full text, as they have, and it plays an important part in the Appeal, just as it did in the Hearing below.First of all, one looks to see what it says:

"1.1 Introduction

Quaker Oats Limited defines problem drinking as an illness in which a person's consumption of alcohol continually interferes with that person's health and/or job performance. This policy is not concerned with social drinking. Random incidents of excessive indulgence in alcoholic drink will be dealt with in accordance with the normal disciplinary procedures."So one notices there that "problem drinking" involves the case where alcohol "continually interferes with that person's health and/or job performance". Literally, that would mean that before there was "problem drinking" every time an employee attended work he or she would need to be so influenced by alcohol as to have alcohol interfering with his or her health or job performance, whereas common-sense suggests that that is not truly required for the case to be one of "problem drinking". However, it is quite plain that the influence of alcohol must be frequent and sustained beyond mere occasional incidents of excess. Random incidents of excess were left to the normal disciplinary procedure which, of course, as we have seen, recognises incapacity through drink on duty to be gross misconduct justifying summary dismissal.Moving on through the written stated alcohol policy, to call it that for short, it continued:
"Problem drinking is recognised primarily as a health problem and problem drinkers will therefore be treated in the same way as those employees who are ill and in need of treatment and help. The policy is applicable to all employees, regardless of position and does not discriminate at any level. The Company regards this policy as part of a general policy for promoting a safe and healthy working environment. (Please refer to the Employee Handbook - Conditions of Employment for details of the Company policy on alcoholic beverages on Company premises.)"
So the alcohol policy is but part of a general policy for promoting a safe, working environment and reference is there again made to the Terms and Conditions of Employment. It might therefore be thought not unreasonable, if a situation were to arise in which the alcohol policy, if implemented, would or might not promote but might or would impede safety, for the Company to prefer the contractual provision promoting safety over the non-contractual policy which merely, upon that supposition, would hinder safety. The aims of the policy are set out and it says:

"2.1 Procedure for Employee Assistance

Employees who suspect or know that they have a drink problem are encouraged )it should say) to seek help and treatment voluntarily sources of help. (NB: It is for the Employee to seek the assistance not for the Employer to offer it.) Where it becomes evident that an Employee has a drink related problem affecting his/her conduct, performance or attendance at work, the Employee will be invited to discuss the matter with his/her manager, the Employee concerned will have the right to be accompanied by a friend or a trade union representative."The drink-related problem there referred to does not plainly refer to "random incidents of excessive indulgence" because they were expressly to be dealt with under the ordinary disciplinary process. Rather, the case must be that a drink-related problem within that paragraph refers back to "problem drinking" in the definition, namely, where it continually interferes with health or job performance. It is to be remembered that there had been discussions with Mr Brophy on the 4 or 5 occasions when Mr Brophy had encouraged Mr Siraj to seek professional help and it is to be remembered too that Mr Siraj had denied that he had a drink problem.The policy continues:
"3.1 In all circumstances, the encouragement to seek and accept treatment is on the clear understanding that:
The Employee will be granted the necessary leave to undergo treatment and such leave will be treated as sick leave. No disciplinary action will be taken unless there has been a breach of the normal Company disciplinary code. All referrals concerning problem drinking will be treated with the strictest confidence."Now it is plain from that one can have problem drinking within the policy - for example, drinking which continually interferes with health - without there being any disciplinary offence of incapacity through drink whilst on duty. One cannot, therefore, read the Alcohol policy as displacing the ordinary disciplinary code. Indeed, there is nothing in the policy that suspends or disapplies the ordinary disciplinary code and that last reference in the policy indicates that if there is a breach of the code then there can be action taken under the code. Still continuing with the policy it says:
"Employees who are diagnosed as suffering from a drink related problem but (a) decline an offer of help and/or treatment or (b) who discontinue a course of treatment before its satisfactory completion and who continue to put up an unsatisfactory level of work performance/attendance will be subject to normal disciplinary procedures."
There is no holding that Mr Siraj was ever diagnosed as suffering from a drink-related problem within the meaning of the policy, in other words, a continual interference with health or job performance. He himself had completed or had, at any rate, undergone some part of a course of treatment but, as we have mentioned, it only secured a reduction in drinking rather than a cessation of excessive drinking. Again, there is there a reference to the normal disciplinary procedures which shows that they remain applicable.Last of the necessary references to the code: it says:
"When the Employee is judged to be fit to resume working it will be in normal circumstances in his/her original post."
That reference to resuming work after treatment shows that the kind of case the policy is aimed at is not that of random or occasional excessive drinking leading to incapacity at work.So much for the terms of the policy and some comments upon it. Mr Oldham for the Appellant makes no complaint as to the directions on the law which the Employment Tribunal ostensibly gave itself but his argument is that when it came to express its conclusions, notwithstanding that it had apparently given itself correct directions, it erred seriously in law. How then did the Employment Tribunal decide as it did? It is all contained in one long paragraph under the heading of "Conclusions" - paragraph 14 - and it begins as follows:
"Although the Respondents stated that the alcohol related problems policy was not a contractual document it was, we conclude, nevertheless a pledge to Employees that this particular type of problem would be dealt with in a particular way."
It is to be remembered that the pledge is not contractual and it is not at all clear what kind of problem the Employment Tribunal had in mind when saying that it was a pledge to Employees that "this particular type of problem" would be dealt with in a particular type of way. So one begins with a certain unease as to the unclarity of the matter.Going on a little further it says:
"Mr Brophy, who was Mr Siraj's Line Manager, we believe was aware for some 2½ years that Mr Siraj had a drink problem."
Now that fails to distinguish between a drink problem consisting of occasional attendance after excessive drinking and the kind of drinking which continually interferes with a person's health and/or job performance. There was no finding of fact, nor, on the evidence, could there have been, that Mr Brophy was aware for 2½ years that Mr Siraj had a "drink problem" within the language of the policy, in other words, one which continually interfered with his health and/or job performance. The policy did not apply simply because Mr Brophy thought it should apply. His evidence may have been that he thought it did apply but that would be no more conclusive than his evidence, if it had been such, that it did not apply. The question of whether the policy applied is principally one of construction of the policy itself and one has to bear in mind that reference to "continual interference" with the person's health and/or job performance.Going on through para 14, the Employment Tribunal said:
"There is no evidence that Mr Siraj ever before attended at work drunk, but he did attend when his breath smelt of alcohol on one occasion and on one occasion was rude to a colleague.
Mr Brophy noted that Mr Siraj was subject to mood swings which he thought might have been caused by drinking. Accordingly, albeit to a limited extent Mr Siraj's drinking had interfered with his job performance. That, in effect confirms that there was no basis for a finding of " continual interference with job performance". Once one finds there is no basis for a finding of continual interference with job performance then one can see that it is at the very lowest arguable, perhaps conclusive, that the alcohol policy, in point of construction did not apply.Going on further:"We therefore conclude that the Alcohol Related Problems Policy was applicable to Mr Siraj's situation".It seems to us that that conclusion was without any sound basis of fact available to the Employment Tribunal on the evidence. It was, in that sense, a perverse conclusion in that there was no evidence to support it and there was evidence to rebut it. That, in our judgment, amounts to an error of law. But the matter doesn't stop there.Having concluded, without good reason, that the policy did apply, the Employment Tribunal next considered whether it had been duly implemented and on that it made a number of findings. It said:
"What therefore, did the Respondents do? In short, Mr Siraj's line manager encouraged him to seek professional help on 4 or 5 occasions and that was really it. Mr Brophy appeared to be put off by the fact that Mr Siraj did not recognise that he had a drink problem. In our view, as a man of his age and position, Mr Brophy should have known that this is a typical response by an alcoholic regularly depicted in films, plays and literature."
Going on, the Tribunal said:
"When interviewed, he explained that he had been to Alcoholics Anonymous in Southall since when he had cut down on drinking but had not stopped. The Respondents did not investigate whether or not Mr Siraj had finished his course, whether his target was to reduce his drinking to an acceptable level or cut it out altogether and whether he had come to terms with the underlying cause of the problem."
They then went on:
"Mr Siraj's plea to be retained fell on deaf ears and he certainly was treated differently, we believe, to the way he would have been treated if he had turned up ill."
And they said also,
"If employers decided to have a policy that applies to all their employees (as here) they should apply that policy in a reasonable and sensible way to try and achieve its aims. We believe that Mr Brophy representing the Respondents totally failed to apply the Alcohol Related Problems Policy to Mr Siraj."
Now, leaving aside for the moment that there was no basis of fact for a conclusion that the policy applied, let it be assumed that the policy did apply. Was the Quaker response an application of it or was it, as the Employment Tribunal held, something that was not reasonable and sensible? It has to be remembered Quaker could not oblige Mr Siraj to seek treatment. They had already encouraged him to do so 4 or 5 times, including occasions 6 and two months before. They had been told on 7th July that he had been through a programme with Southall Alcoholics Anonymous. They had been told on 10th July that that had led only to a reduction not a cessation of drinking. They had observed the undisputed fact that he was heavily under the influence of alcohol on 7th July such that his manager told him that if he stayed on site he might cause injury to himself and others. They could see that the alcohol policy did not supersede but rather referred to the Company's normal disciplinary code which was directed, inter alia, to incapacity through drink. They knew that he was a fork lift truck driver coming into contact with dangerous machinery and they knew that the policy, even if applicable, was part of a general policy intended to promote safety. In such circumstances, there was in fact no evidence to support the Employment Tribunal's conclusion, even assuming that the policy was applicable, that Quaker Oats Limited "totally failed" (which was the Employment Tribunal's phrase) to apply the policy to Mr Siraj. He had, as they found, repeatedly and even recently been encouraged to seek professional help. He had sought help. It had not solved the problem. He had attended work whilst incapable through drink. The policy itself contemplated recourse to the ordinary disciplinary code and there was, finally after repeated earlier warnings, such recourse to the ordinary disciplinary code.The Employment Tribunal held that Mr Siraj, as an employee of 20 years standing, got short shrift. But what was the Company to do? Was it obliged to suffer a risk that on some other occasion Mr Siraj might, yet again, attend drunk but perhaps not quite so obviously incapable and might escape detection and might injure himself or colleagues with his fork lift truck or in relation to the dangerous machinery with which he came into contact? One can readily imagine that any colleague of his injured on such an occasion could make complaints through the courts and one can readily imagine the cross-examination of the Quaker Company on the subject where it knew that there had been repeated earlier attendances at work by a man who had been either drunk or smelling of drink or behaving in a way that was affected by drink.Miss Anthea Brown did not develop a point orally which had been taken up by the Employment Tribunal, namely that Mr Siraj was treated differently to the way he would have been treated if he had turned up ill. We think she was right not to make too much of that point, because it has to be remembered that, normally, illness is involuntary. Of course, there comes a point when drinking continually interferes with health and/or job performance where the taking of the drink might be properly regarded as involuntary. Indeed, that is quite often thought of to be the case where a man or woman is described as an alcoholic. But there is no evidence that Mr Siraj had ever got to such a stage, nor was it found by the Employment Tribunal to be the case. There were only in evidence four or five occasions over 2 years, and that would hardly be ground for any such conclusion. If one had to make a comparison between how Mr Siraj was treated with how someone would have been treated who had turned up ill, one would have to contemplate, to make the comparison "apples with apples" as people say, some case where the illness was voluntarily caused. One would have to imagine some sort of case where, for example, someone had a violent reaction to some food and yet persisted in taking such food and attended for working, incapable of working through illness so caused. It is by no means obvious, if such a person had persisted in causing his or her own illness in such a way, that they would not have been dismissed and so the comparison which the Employment Tribunal embarks upon - that Mr Siraj was treated differently to the way he would have been treated if he had turned up ill - is far from convincing. However, fortunately, we do not need to speculate in such a way because Mr Oldham founds his argument on the less speculative ground of the Employment Tribunal's failure to apply the test described in the well-known Burchell case at [1980] ICR 303 & 304 in conjunction with S.98(4) of the Act. Of course, Burchell, as Miss Brown's skeleton shows, is by no means still the "be-all and end-all" and one has to remember, in particular, S.98(4), but the case still provides a useful guide to Employment Tribunals. Going through that test, the first question would be "Did the Employer believe that there had been the misconduct which the Employer was relying upon?" The answer is that it plainly did. Next, the tests raises the question "Did the Employer have in mind reasonable grounds upon which to sustain that believe?" Again, the answer can only be that it did. Indeed, at the disciplinary hearing, Mr Siraj had admitted that he had drunk too much. Thirdly, had the Employer carried out as much investigation into the matter as was reasonable in all the circumstances. It cannot be said that it had not.The Employment Tribunal appears to be critical over a degree of failure on Quaker Oats Limited's part at the disciplinary stage. Thus, in a passage we have already cited, they said that the Respondents did not investigate whether or not Mr Siraj had finished his course, whether his target was to reduce his drinking to an acceptable level or cut it out altogether, and whether he had comes to terms with the underlying cause of the problem.They also said:
"We conclude that no reasonable employer, who had such a policy, would have dismissed an employee with 20 years service without giving more consideration to whether the problem could be solved in one way or another."
There the Employment Tribunal was really confusing matters. What Burchell and other cases require to be sufficiently investigated is the misconduct relied upon in a misconduct case and not some more remote underlying causes. It would be quite unreasonable to expect an Employer to have at hand, at the disciplinary stage, the means of making an adequate investigation of remote possible causes such as, for example, a broken home or a spouse's infidelity or an inability to have children (which, in fact, was mentioned by Mr Siraj). Indeed, it would perhaps be regarded as offensively intrusive were an employer at a disciplinary stage to embark on questions of any such nature. If the Employment Tribunal had asked itself only whether the misconduct relied had been sufficiently investigated it could only have answered that it had. Its regard to an alleged failure to attempt to complete an investigation of more remote causes and its reliance upon that failure by Quaker Oats Limited represented, in our view, an error of law - the second error of law we detect in the matter.Going beyond Burchell and into S.98(4), Mr Oldham complains that the Employment Tribunal never asked itself whether, on the facts found, dismissal was within the band of reasonable responses open to a reasonable employer. It is true that they never posed the question for themselves in a clear way. It could be said that when they say "We conclude that no reasonable employer who had such policy would have dismissed an employee of 20 years service without giving more consideration to whether the problem could be solved in one way or another" they were concluding on that point. But that, of course, assumes that the policy applied to Mr Siraj's case which, on the facts as found, it manifestly did not. If we are right in thinking that it was an error of law to conclude that the policy was applicable in Mr Siraj's case then this conclusion, too, which is wholly dependent upon that error, represents a third error of law.But in any event could it be beyond the band of reasonable responses to dismiss "without giving more consideration to whether the problem could be solved in one way or another" without at least the Employment Tribunal showing what those other reasonable ways open to the employer might have been? One does not demonstrate that an employer has acted unreasonably by showing that he could have acted more reasonably than he did, still less when one does that without showing what those more reasonable approaches might have been. Mr Oldham characterises the Employment Tribunal's approach as being a substitution of their views for the views of the employer as arrived at by reasonable investigation and he relies, in particular, on a passage in their para 14 where, as we have cited, there was reference to what Mr Brophy should have know about denial of alcohol problems, that being "typical response by an alcoholic regularly depicted in films, plays and literature". There was no conclusion of fact that Mr Siraj was an alcoholic in the sense that he suffered within the terms of the Alcohol policy. The four or five occasions would point more to the occasional excessive drinking which is referred to as being subject to the disciplinary code. Also, the Employment Tribunal somewhat curiously say:
"When Mr Siraj came to work on 7th July 1997, he was seriously affected by drink but the fact is that, before his shift started, he was apprehended and therefore, did not put himself and others at risk."
On those two subjects, there is no evidence whatsoever about what Mr Brophy had learned from the works of fiction to which the Employment Tribunal referred to and the fact that Mr Siraj had been apprehended before he had put himself and others at risk can hardly be prayed in his aid. It is hard to know quite why the Employment Tribunal referred to that. It would seem to be a factor that they took into account against Quaker Oats Limited or in favour of Mr Siraj. But Mr Siraj did not volunteer that he was drunk and incapable. The fact that he was, on this occasion, obviously drunk would plainly not preclude a reasonable fear that he might, if not dismissed, slip through unnoticed whilst a little less drunk, though still incapable of safely operating his machinery. The very fact that in the past he had, on occasions, got to work smelling of drink and subject to mood swings and being rude to a colleague suggested that it was possible for him to attend work affected by drink without being stopped at the threshhold.On balance, we see forcing Mr Oldham's argument that these references by the Employment Tribunal illustrate that what the Employment Tribunal was doing was indeed, that it was substituting its own view for the view of the Employer arrived at after reasonable investigation and that the Tribunal was then seeking to justify its own view by these somewhat ill-judged references. That is a classic error of law - the fourth that we detect. Instead, the Employment Tribunal should have asked whether the Employer's response, the dismissal, was within the reasonable band of responses open to the Employer in the case, the case being as the Employer believed it to be after a reasonable investigation.Taking all these errors of law, as we have described them, together in our judgment the Employment Tribunal's decision cannot stand. The question then arises "Should we remit?" We cannot see that any Employment Tribunal properly instructing itself on the uncontested facts could conclude otherwise that the dismissal was not unfair. The basic facts of the misconduct were not in any serious issue. Remission, therefore, seems to us, not merely unnecessary but futile. We therefore allow the Appeal without any remission and dismiss Mr Siraj's claim for unfair dismissal.