YORKSHIRE RIDER LTD v MR F T NECKLES [2001] UKEAT 893_99_1107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 893_99_1107Case No Appeal No. EAT/893/99 & EAT/1062/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
YORKSHIRE RIDER LTDAPPELLANTMR F T NECKLESRESPONDENT
Before
His Honour Judge Peter Clark Mr D A C Lambert Mrs R A VickersDate 11 July 2001
[1]APPEARANCES For the Appellant MR CHRISTOPHER GRAHAM (Solicitor) Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds LS1 2AX For the Respondent MR SEAN PETTIT (of Counsel) Messrs Hanne & Co Solicitors St John's Chambers 1C St John's Hill London SW11 1TN HIS HONOUR JUDGE PETER CLARK We have before us two appeals by Yorkshire Rider Ltd, the Respondent before the Leeds Employment Tribunal, against: 1 The Tribunal's decision, promulgated with Extended Reasons on 14 June 1999, upholding the Applicant, Mr Neckles', complaint of unfair dismissal (the liability decision), EAT/0893/99 and 2 That Tribunal's further decision, promulgated with Extended Reasons on 19 August 1999, ordering the Applicant's reinstatement (the remedies decision), EAT/1062/99. We shall use the same description of the parties as below.[2]Background At the relevant times the Respondent operated bus routes in Huddersfield. The Applicant was employed as a driver from 6 April 1994 until his summary dismissal on 11 June 1998. During his employment he was Acting Regional Officer of the PTSC union, a union not recognised by the Respondent. The events leading to his dismissal concern five separate incidents. They were: 1 Early running of his bus on 12 November 1997 2 Lost mileage (that is taking a vehicle into service which he knew to be defective, thereby having to transfer passengers to another service) on 10 December 1997 3 Lost mileage on 20 December 1997 4 Travelling on an unauthorised route on 8 January 1998 5 Absenting himself from work without authority on 17 February 1998 Following each incident the Appellant was interviewed by a Level 1 Manager but formal disciplinary proceedings at Stage 2 of the Respondent's agreed disciplinary procedure did not commence until a hearing was convened by Mr Riley, the Operations Director, by letter to the Applicant dated 5 June 1998, setting out each of the above charges. That hearing took place on 10/11 June. Mr Riley found all five charges proved and decided to dismiss the Applicant on the grounds of gross misconduct. Against that decision the Applicant appealed to Mr Herdman, the Managing Director, who allowed the appeal against the third charge, but upheld Mr Riley's decision to summarily dismiss the Applicant.[3]The Complaints The Applicant presented four Originating Applications to the Employment Tribunal. They were: 1 A complaint under Section 44 of the Employment Rights Act (ERA) 1996 , that he had suffered a detriment relating to health and safety. That complaint was presented whilst he was still in employment on 3 March 1998. The Tribunal found that complaint to be time-barred. 2 A complaint presented on 9 March 1998, again under Section 44 of the Act 3 A third complaint under Section 44 dated 14 April 1998. That complaint was also ruled to be time-barred by the Tribunal. 4 The complaint of unfair dismissal, alleging automatically unfair dismissal under Section 100 ERA (dismissal on health and safety grounds) alternatively ordinary unfair dismissal and wrongful dismissal at common law. That complaint was presented on 10 September 1998. The Tribunal found that the second complaint failed on the ground that the Applicant had, on his own case, suffered no detriment for the purposes of Section 44, leaving only the fourth complaint for determination.[4]The Employment Tribunal Decision 1 Liability The Tribunal rejected the Applicant's contention that he was dismissed for a health and safety reason. Accordingly the claim of automatically unfair dismissal under Section 100 ERA failed. As to ordinary unfair dismissal, they found that the Applicant was dismissed for a potentially fair reason relating to his conduct, but went on to conclude that that dismissal was unfair under Section 98(4) ERA. Their reasons for reaching that conclusion appear to have related to:(i) The delay between the incidents with which the Applicant was charged and the disciplinary hearing before Mr Riley held on 10/11 June 1998(ii) The Respondent's failure to investigate whether an inspector, Mr McNae, who had been involved in all the incidents, had a vendetta against the Applicant(iii) Treating the accumulated offences as amounting to gross misconduct justifying dismissal. The Tribunal found that a prompt disciplinary procedure leading to an appropriate sanction for the first offence might have led to an improvement in the Applicant's conduct which may have meant that he would not have committed further offences leading to his eventual dismissal(iv) A suspicion held by the Tribunal that the delays would not have occurred had the Applicant belonged to the recognised union, the Transport and General Workers Union. They found that there was some conflict between the PTSC and both the Respondent and the recognised union, TGWU. The Tribunal further found that the appeal before Mr Herdman did not cure the earlier defects in procedure. Overall, they found, dismissal fell outside the range of responses open to a reasonable employer. As to the claim of wrongful dismissal, the Tribunal did not accept that the Respondent was entitled to aggregate the various incidents so as to treat the Applicant as being guilty of gross misconduct justifying summary dismissal. They paid particular attention to what they found to be the contractual disciplinary procedure. This claim was also upheld. The Applicant was entitled to his statutory pay in lieu of notice. 2 Remedy The Tribunal rejected the Respondent's case that it was not practicable to reinstate the Applicant. They rejected the argument that trust and confidence had broken down, such that it was impracticable to order reinstatement. There was a vacancy for a driver which the Applicant could fill immediately. Mr Riley indicated in evidence that if a reinstatement order was made he would do his best to comply with it. In these circumstances the Tribunal ordered that reinstatement should take place on 6 September 1999. They further ordered the Respondent to pay £13,177.92 to the Applicant in respect of pay lost between dismissal and the ordered date of reinstatement.[5]The Appeals We begin with two preliminary points, now of historical interest only. First, by his answer to the liability appeal, the Applicant raised a cross-appeal, challenging the Tribunal's findings dismissing the 'live' Section 44 complaint (the second complaint) and rejecting the Applicant's case that his dismissal was for a health and safety reason and thus automatically unfair under Section 100 ERA. In due course that cross-appeal was withdrawn and formally dismissed on withdrawal by a division of the Employment Appeal Tribunal, presided over by Mr Justice Lindsay sitting on 18 January 2000. Then, by letter dated 27 June 2001, the Applicant's current solicitors applied to reinstate the cross-appeal. This morning, Mr Pettit has withdrawn that application. Accordingly the cross-appeal stands dismissed by the order of Mr Justice Lindsay. Secondly, it is said that at a Preliminary Hearing held in both these appeals before a division presided over by Mr Commissioner Howell QC on 18 October 2000, the learned Judge suggested to Mr Graham, then representing the Respondent, that he may wish to add to his grounds of appeal a contention that the Tribunal, in deciding whether or not to order the applicant's reinstatement, ought to have considered whether the Applicant contributed to his dismissal by his own conduct – see Section 116(1)(c) ERA. There is no finding by the Tribunal in either of their decisions as to contributory fault, although the issue was plainly raised in Mr Graham's closing written submission at the remedy hearing. An Amended Notice of Appeal was duly lodged, taking that point, dated 20 October 2000. Mr Neckles complained that Mr Commissioner Howell and his colleagues had exceeded their powers in making that suggestion, a complaint since withdrawn following the President's letter to him dated 6 June 2001. We merely observe that the point had been taken by Mr Graham in his skeleton argument in the Employment Appeal Tribunal dated 14 January 2000: it simply had not been articulated in the grounds of appeal. In these circumstances it was open to the Employment Appeal Tribunal to make the suggestion which it did for the sake of good order.[6]The Liability Appeal Unfair Dismissal Mr Graham attacks the Tribunal's finding of unfair dismissal under the general head of perversity. That may in turn be sub-divided in this way: 1 The Tribunal made material findings of fact which were wholly unsupported by, and indeed contrary to, the evidence before them - BT plc v Sheridan [1990] IRLR 27 , Piggot Brothers v Jackson [1991] IRLR 309 (both Court of Appeal) 2 The decision was one which no reasonable Tribunal properly directing itself could reach. Their conclusion was plainly wrong, an impermissible option, offend reason or any of the other descriptions helpfully collected by Mr Justice Mummery in Stuart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 ,443 No Evidence Mr Graham draws attention to the following findings, in particular, in the Tribunal's liability decision reasons: 1 At paragraph 3:
"Before the earlier matters reached Mr Riley there was an Application presented to the Tribunal on 3 March….."
Mr Graham points out, as is the case, that Mr Riley first became involved at what is described in the Respondent's own note as an investigatory interview with the Applicant concerning the first four incidents (the fifth occurring later) on 22 January 1998. That was followed by Mr Riley carrying out further enquiries on 12 and 17 February 1998. Thus, on a literal reading of paragraph 3 of the reasons the Tribunal had overlooked that evidence in reaching an unsustainable finding of fact, one which was material to their important conclusion that the Respondent had delayed too long in disciplining the Applicant, but instead allowed the offences to pile up. We think that that is too literal a reading. We accept Mr Pettit's submission that, without articulating the distinction, the Tribunal were there referring to the disciplinary, as opposed to investigatory hearing held by Mr Riley on 10/11 June. Indeed, it is plain that they had in mind that a meeting took place between Mr Riley and the Applicant on 22 January 1998, because that fact is adverted to in Mr Riley's letter of 5 June to the Applicant, which is set out in full at paragraph 5 of their reasons.

(f) of the reasons the Tribunal say:

"The employers do not seem to have ever asked whether indeed there was a vendetta by Mr McNae against Mr Neckles"
They describe this as a "worrying aspect" of the case. Mr Graham has taken us to passages in the documentary evidence before the Employment Tribunal which show that Mr Riley did ask Mr McNae on 13 February 1998 whether he had "a particular interest" in the Applicant and also that he spoke to Mr McNae subsequently. The specific question of a "vendetta" does not appear in those passages. We do not have the Chairman's note of evidence. Whether or not that particular question was put to Mr Riley during the seven days of evidence is therefore unclear. There is a dispute between the parties before us as to what, if anything, was said about a vendetta in evidence. It is however, sufficient for us to say that the material to which Mr Graham has referred us does not establish that this finding was unsupported by, or contrary to, the evidence, given that this was a seven day hearing, followed by the Tribunal spending two days deliberating in Chambers. More to the point, we do not regard that finding as being central to the Tribunal's overall conclusion that the Respondent acted unreasonably in dismissing the Applicant.

(i) the Tribunal say:

"We suspect in this case, that the delays which we have criticised before would not have occurred if Mr Neckles had been a member of and represented by the recognised trade union."
Mr Graham submits that it is not enough for the Tribunal to express their suspicions. Clear findings of fact are necessary. As to that, we accept Mr Pettit's submission that the Tribunal did make a clear finding of fact in the next sentence:
"There was clearly some conflict between his organisation (PTSC) and the Union (TGWU) and between his organisation and the employer."
Based on that finding we think that the Tribunal were entitled to express their suspicion, identifying this as a "small but contributory factor in the employer's failure to act reasonably." Having considered this part of the appeal we have concluded that Mr Pettit is right to invoke Lord Russell of Kilowen's strictures against searching around with a fine tooth comb for a point of law – Retarded Children's Aid Society v Day [1978] ICR 447, 444D. The first part of the perversity ground in our judgment is not made out.[7]General Perversity The Tribunal found principally that this Respondent delayed too long in disciplining the Applicant, with the result that they allowed a number of misdemeanours to build up, thus leading them to dismiss. That course could have been avoided, so the Tribunal found. It seems to us that that was a permissible conclusion leading to the result that dismissal fell outside the range of reasonable responses. It was not a perverse decision. Consequently the appeal against the finding of unfair dismissal fails.[8]Wrongful Dismissal We are unable to say that the Tribunal erred in their conclusion that, in part by design, the Respondent allowed the individual offences to accumulate instead of dealing with each swiftly and decisively. It was for the Tribunal to decide as a matter of fact whether the Applicant's conduct amounted to a repudiatory breach of contract entitling the Respondent to move to summary dismissal. They found that it was not in all the circumstances. Again, we can see no ground in law for interfering with that conclusion. Accordingly the liability appeal is dismissed.[9]Remedies Appeal It is quite clear, as we observed earlier, that the Respondent raised the question of contributory fault at the remedies hearing. That was a material issue for determination by the Tribunal. It went, first to the question of whether or not reinstatement should, as a matter of discretion, be ordered – ERA Section 116(1)(c). In our judgment, a failure to deal with that issue at all on the face of the Tribunal's reasons is an error of law – see Portsea Island Mutual Co-op Ltd v Rees [1980] ICR 260. A finding on contribution was an essential part of the Tribunal's reasoning. In these circumstances we see no alternative but to allow the remedies appeal and to remit the case to the same Tribunal, chaired by Mr P A Morris, for a finding as to whether or not the Applicant contributed to his dismissal and if so, to reconsider the reinstatement order.