MCMULLEN'S OF HERTFORD v MR G P SWEETMAN [2001] UKEAT 0506_00_0210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0506_00_0210Case No Appeal No. EAT/0506/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MCMULLEN'S OF HERTFORDAPPELLANTMR G P SWEETMANRESPONDENT
Before
His Honour Judge Peter Clark Mr A D TuffinDate 2 October 2001
[1]APPEARANCES For the Appellant MR NIGEL MAHONEY Solicitor Instructed by Messrs McLellans Solicitors Old Cross House Old Cross Hertford Hertfordshire SG14 1RB For the Respondent THE RESPONDENT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK This is an appeal by the Respondent employer, McMullen's of Hertford Limited, against a decision of the Stratford Employment Tribunal promulgated with Extended Reasons on 25 February 2000 (the liability decision) upholding the Applicant, Mr Sweetman's complaint of unfair dismissal, subject to a 30 per cent deduction for contributory fault. The facts[2]The following material facts were found by the Employment Tribunal preferring, where a conflict occurred, evidence given on behalf of the Respondent to that of the Applicant.[3]In June 1992 the Applicant and his wife, Mrs Karen Sweetman, became joint managers of the Respondent's Robin Hood Public House, Enfield.[4]The Employment Tribunal record, without deciding, an issue as to whether the Applicant was employed under the terms of a written contract dated 19 June 1992 or a revised contract relied on by the Respondent dated 1 July 1996.[5]Between 1996 and 1998 the couple parted, Mrs Sweetman leaving the Applicant to manage the Public House on his own. During that time he held the Justices on-licence jointly with the Respondent's area manager.[6]Following a reconciliation Mrs Sweetman returned briefly to the Public House but the relationship did not work. The marriage again broke down and the Applicant began drinking to excess. He was spoken to about his heavy drinking by Mr Scarborough-Taylor, the District Manager and Mr Ronchetti, the Human Resources Manager at a meeting on 28 April 1999, attended by Mrs Sweetman, and they suggested that the Applicant saw the Respondent's doctor. He declined to do so and no further action was then taken by the Respondent.[7]On 2 July the Applicant wrote a letter, which the Employment Tribunal found was genuine despite his claim that his signature had been forged, asking that the total remuneration paid to the couple be divided equally between them. Formerly the bulk of the salary had been paid to the Applicant.[8]Mr & Mrs Sweetman were called to a meeting at the Head Office on 14 July 1999. They were not advised that it was a disciplinary hearing or that their jobs were at risk.[9]Following that meeting Mr Scarborough-Taylor set out his understanding of the position in a letter dated 20 July. It read, so far as is material as follows:
"At previous meetings, you have made it clear to myself that you can no longer work together. You confirmed that there had been a breakdown in your marriage which you now considered to be irretrievable. You stated that you were both aware of the implications for your continued employment with the Company, and recognised that as a result of your marital breakdown, you are in breach of your contract of employment. The following actions were agreed: 1 Your joint contract is terminated from the 14 th July 1999. You are both therefore given your full entitlement notice period of 12 weeks for termination of your employment. 2 The Robin Hood is one of McMullen's premier houses. The current situation and relationship between the two of you is potentially putting the business at risk for the future, which you both recognised. However you wished to give assurance that business would not suffer as result of your personal difficulties. During this notice period, you are both welcome to apply for the Robin Hood and other pub vacancies within the Company as may be suitable for a single appointment. I would like applications for the Robin Hood by the 23 rd July 1999, should you wish to be considered. 3 In order for either of you to apply for the pub, I will require a business plan, including new staffing plans and swot analysis. The staffing plan should show how the pub can be operated as a single manager. If one of you are appointed to the pub then the other will be paid in lieu of the remainder of the notice period and will be required to vacate the living accommodation at the Robin Hood immediately, if an alternative position within the Company has not been found. I will ensure that any other pub vacancies are sent separately to each of you."
[10]The Employment Tribunal found that the Applicant believed that one or other of them stood a good prospect of being manager of the Robin Hood, whilst the other would be offered a manager's position at other premises.[11]Following that meeting the Respondent received a number of complaints about the Applicant's conduct, some from Mrs Sweeetman, others from the assistant manager and a customer about the state of the premises. As a result a further meeting was held on 28 July at which the Applicant was told that his contract was treated as immediately terminated and he received pay in lieu of notice up to 6 October 1999.[12]During August the Applicant was informed of other vacancies including the Robin Hood and another Public House, the Sun, both of which he applied for.[13]However, on 5 August the Applicant was stopped by the police and charged with an offence of driving with excess alcohol. He was subsequently convicted and, having been convicted of the same offence in 1991, he was disqualified from driving for 3 years.[14]As a result the Respondent decided that it would not be appropriate to offer him a further managerial post due to the difficulty which he might face in obtaining a Justice's licence after 2 drink-driving convictions. The Employment Tribunal decision[15]We are concerned in this appeal with the Employment Tribunal's findings of unfair dismissal and contribution. As to that, they approached the matter in this way, at paragraph 8 of their reasons and paragraph 10 so far as contribution is concerned.[16]It was common ground between the parties, that the Applicant was dismissed. The first question the Employment Tribunal asked themselves was whether the Respondent had shown a potentially fair reason for dismissal; they found that they had, it was some other substantial reason, namely the breakdown of the Sweetman's marriage. That was the principal reason relied on by the Respondent. In the alternative they contended that the reason related to the Applicant's conduct.[17]The next question the Employment Tribunal asked themselves was whether the Respondent had acted reasonably in treating that reason as a sufficient reason for dismissal (Employment Rights Act 1996 S98(4)). The Employment Tribunal found that they had not, for the following reasons:(1) the whole disciplinary procedure was entirely unfair. The Respondent had treated the matter as if the Applicant was guilty of some act of gross misconduct rather than the unfortunate breakdown of his marriage.(2) there was no proper consultation with Mr & Mrs Sweetman about their future in the light of their marriage breakdown, and particularly in light of their long service. There was no prior written indication that their matrimonial dispute could lead to the loss of their jobs.(3) the meeting of 14 July was procedurally unfair in that: (a) there was no prior warning that their jobs were at risk (b) they were not advised to bring along a representative and (c) they were not told of their right of appeal.(4) the Respondent's decision to dismiss the Applicant was inconsistent with his having managed the Robin Hood alone whilst his wife was estranged in 1996-1998.(5) it was unfair to require the Applicant to vacate the Public House whilst allowing his wife to continue working there and in time to take over the managership.[18]Accordingly the dismissal was found to be unfair.[19]As to contribution, the Employment Tribunal found that the Applicant's excessive drinking and bizarre behaviour had contributed to his dismissal on 28 July to the extent of 30 per cent.[20]The question of the Applicant's remedy for unfair dismissal was adjourned to a hearing held on 3 May 2000 at which, by a decision with extended reasons promulgated on 30 May 2000, the Employment Tribunal awarded the Applicant total compensation of £7,897.46 after deducting 30 per cent from both the basic award and compensatory award calculation. The Appeal[21]The appeal was permitted to proceed to this full hearing on certain specified grounds at a Preliminary Hearing held before a division presided over by Mr Commissioner Howell QC on 26 October 2000. Mr Mahoney has advanced those grounds before us today; Mr Sweetman does not appear and is not represented.[22]Having considered Mr Mahoney's submissions we have concluded that the liability decision under appeal cannot stand, and it follows, both the liability and remedies decisions must be set aside. In order to understand our reasons for that conclusion it may be helpful if we were to set out our analysis of the issues in this case, noting how the Employment Tribunal dealt with or failed to deal with those issues.(1) It was, we are told, submitted on behalf of the Respondent below that at the meeting held on 14 July there was no dismissal of the Applicant, but a consensual termination of the joint management contract issued on 1 July 1996. That issue was not resolved by the Employment Tribunal. It ought to have been. Further, the secondary issue as to which were the relevant terms of the contract (see reasons, paragraph 2(i)) was not, but ought to have been resolved.(2) if there was a dismissal on 14 July, what was the reason for that dismissal and was the dismissal fair? It seems to us that the Employment Tribunal may have found that there was a dismissal for some other substantial reason on that date and that the dismissal was unfair for the reasons set out at paragraph 8.(3) if so, the Employment Tribunal failed to consider whether the effective dismissal in fact took place on 28 July, as appeared to be common ground on the pleadings. In our judgment that was the effective date of dismissal. See Albini v Ind Coope Retail Ltd (1998) IRLR 131.(4) if that was the effective dismissal, what was the reason for that dismissal? It may be different from the reason for dismissal, if there was a dismissal, on 14 July. The first dismissal being for some other substantial reason, the second by reason of conduct. In any event it was necessary for the Employment Tribunal to determine the principal reason for dismissal on that date. That they failed to do.(5) having determined the principal reason for dismissal on 28 July, was dismissal for that reason fair or unfair? That requires consideration of the substantive reason for dismissal and the procedure, or lack of procedure on that occasion. This question again simply has not been addressed by the Employment Tribunal. The findings of unfairness all relate to the 14 July meeting, save for one, the appointment of Mrs Sweetman to the post of manager of the Robin Hood after the 28 July. That is, in our judgment, an irrelevant factor in considering the reasonableness of the dismissal on 28 July.(6) the Employment Tribunal considered the question of contribution as at the 28 July (reasons paragraph 10) on the basis that the dismissal was unfair. They were correct to do so. Both under s122(2) (basic award) and 123(6) (compensatory award) Employment Rights Act 1996 Mr Mahoney accepted in argument that the contributory conduct must precede the effective date of termination of the contract of employment. It follows that the Applicant's subsequent drink drive conviction was not conduct contributing to the dismissal.(7) However, the Employment Tribunal did not consider, either at the liability hearing or at the remedies hearing, the question under s123(1) of the Employment Rights Act as to what compensation was just and equitable applying the principles in Polkey v AE Dayton Services Ltd [1988] ICR 142 . In particular: (a) did the fact of the Applicant's second drink-drive conviction in August 1999 render him unemployable as a pub manager, such that his loss of earnings for the purposes of calculating the compensatory award was limited to a date at which his employment could have been fairly terminated by reason of that conviction. Alternatively, what was the chance that he would have been fairly dismissed at that stage, expressed as a percentage? (b) further or alternatively, whether the employment would have ended on 6 October 1999 as a result of a mutual termination agreed on 14 July (see under (1) above).[23]The difficulty in this case, it seems to us, was the Employment Tribunal's failure to clearly identify the relevant issues, both for their own benefit and that of the parties and to make clear which issues were to be decided at the liability hearing and which were to be put over until the remedies hearing. As a result a number of material questions were left unanswered.[24]Accordingly we shall allow the appeal and remit the case to a fresh Employment Tribunal for complete reconsideration. All questions, including that of contribution if it arises, are left to the new Employment Tribunal.