RETIREMENT CARE GROUP LTD v MRS DIANE GREENER [2002] UKEAT 689_00_2205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 689_00_2205Case No Appeal No. EAT/689/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
RETIREMENT CARE GROUP LTDAPPELLANTMRS DIANE GREENERRESPONDENT
Before
Mr Justice LindsayDate 22 May 2002
[1]APPEARANCES For the Appellant MR IAN KAY (Employment Law Consultant) Balmoral Consultants 11 Balmoral Court Wembley Park Drive Wembley HA9 8JQ For the Respondent MR RICHARD HARRISON (of Counsel) Instructed by: Messrs Dettlaff & Co Solicitors 27 Widmore Road Bromley Kent BR1 1RW MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a full hearing the appeal of Retirement Care Group Ltd in the matter Mrs Diane Greener -v- Retirement Care Group Ltd . Today Mr Ian Kay has represented the Appellant, Retirement Care Group Ltd, and Mr Richard Harrison has appeared for the Respondent, Mrs Greener. I think I am right in saying that Mr Harrison did not appear below but that Mr Kay did.[2]Mrs Diane Greener was Resident Manager of some retirement properties at Tudor Court, Sidcup in Kent. She was the residential caretaker of the properties. The properties, it seemed, were owned by the elderly residents, but actually managed by the Retirement Care Group company. She had been previously warned about drinking or being drunk whilst on duty and the Tribunal, which was the Tribunal in Ashford in Kent, sitting under the Chairmanship of Mr M Zuke, said in their paragraph 4:
"4. There were complaints from about 1996 onwards that the Applicant had been drunk or under the influence of alcohol while on duty or on call. The Respondent received complaints about her behaviour from one resident in particular. There were also complaints from contractors who called to carry out works on residences. 5. The Respondent dealt with those complaints by sending the Applicant three written warnings on 8 May 1996, 13 December 1996 and 1 July 1999. The Applicant did not challenge or otherwise respond to any of those warnings."
[3]The Employment Tribunal does not spell out why Mrs Greener's drunkenness on duty was a matter of potential seriousness but they do actually find that it was a matter of potential seriousness. It could be, and we cannot put it higher than that, that they were accepting the the Appellant Company's allegation in its IT3 where, in paragraph 4 of the IT3, the company had said this:
"The position of Resident Manager demands an alert and capable person whether on duty or on call. When on call the Resident Manager must be available to respond to and deal with emergency calls through the alarm system. Elderly residents rely on the Manager in the case of medical difficulty."
[4]On 8 April 1999, the company's Estates Director, Mr Devonald, as the Employment Tribunal held, found yet another worrying occasion. The Tribunal said this, in paragraph 7:
"On 8 October 1999, a meeting had been arranged for a Housing Ombudsman to visit to consider a complaint that had been made against the Applicant by one of the residents of Tudor Court. Mr Devonald arrived at Tudor Court at about 2.20 pm and found the Applicant to be unsteady on her feet. She was swaying and leaning against the wall for support. Her speech was slurred, she had difficulty performing everyday manual tasks, and her breath smelt of alcohol. He formed the opinion that she was drunk. He told her that this was a serious matter, but because of the imminent meeting at 2.30 pm, he was not going to discuss it with her straight away, but would discuss the matter later that afternoon."
The company's Area Manager, Mrs Bugg, also saw the Applicant and the Tribunal said:
"Mrs Bugg, who had also seen the Applicant that afternoon and confirmed Mr Devonald's opinion that she was drunk."
[5]Just over three hours later, after, presumably the intervening appointment with the Ombudsman, Mr Devonald asked Mrs Greener if she had any explanation for her conduct. She said that she had not been drinking, but was under stress. One has to remember that the Tribunal accepted as fact from Mr Devonald that her breath had smelt of alcohol, as far as he could tell, so the reason that she gave by way of explanation to Mr Devonald was, in his eyes, untruthful, at least untruthful in part. He :
"summarily dismissed her" said the Tribunal "at the end of the meeting"
. So there was something, apparently, that could be described as a meeting.[6]On 6 January 2000, she lodged an IT1 for unfair dismissal. On 28 March 2000, there was a hearing at the Tribunal at Ashford, as I mentioned. On 27 April 2000, the Decision was sent to the parties and it said this:
"The unanimous decision of the Tribunal is that - (1) The Applicant was unfairly dismissed. (2) It is just and equitable to reduce the basic and compensatory awards by 50%."
That was the liabilities hearing. The matter went forward on 5 May 2000, for a hearing as to remedy. On 19 May, the decision as to remedy was sent to the parties, and the outcome was an award in Mrs Greener's favour of £7,928.75. On 5 June 2000, there was a Notice of Appeal received at the EAT from the employer company, appealing as against both Decisions. So far we have only heard the appeal on the liabilities side.[7]As we will go on, as will later appear, to set aside both Decisions and remit to the Tribunal both liability and remedy, it would not be appropriate for us to say too much on the facts of the case. We would not want to colour any re-hearing of the facts, so we will confine ourselves to a brief statement as to what we see to be the errors of law in the liabilities decision. In paragraph 10 "In a case of dismissal for alleged misconduct, we are given helpful guidance in British Home Stores -v- Burchell [1978] IRLR 379 . Going through the limbs of that test, we find that Mr Devonald genuinely believed that the Applicant was drunk on 8 October 1999. We also find that he had reasonable grounds for that belief, namely, his own observations of the Applicant's behaviour and demeanour. However, we find that his belief was not formed after he conducted a reasonable investigation into the matter. There was no proper hearing where the Applicant was warned that she faced a formal disciplinary charge of being drunk on duty and she was not given a fair opportunity to consider and present her case. In our view, a reasonable employer in these circumstances would have suspended the Applicant and held a formal disciplinary hearing within a short time thereafter, when the Applicant had been charged with a disciplinary offence and clearly warned that a possible consequence could be her dismissal." Now the "reasonable investigation", putting that in inverted commas, as part of the Burchell test, is properly an investigation into the facts relating to the misconduct which is the subject of the employer's charge against the employee in the particular case - see Burchell [1980] ICR 303 , at 304 D - E; see also Weddel -v- Tepper [1980] ICR 286, CA 297 w here Lord Justice Stephenson treated "gathered further evidence" as within the Burchell component: "carried out as much investigation into the matter as was reasonable in all the circumstances of the case".[8]One therefore does not disprove the adequacy of the investigation by saying that Mrs Greener was not fairly warned that she faced a disciplinary charge, which seems to be the reasoning of the Tribunal. The Tribunal seems in that passage to have been confusing factual investigation with the requirements of a fair procedure.[9]Moreover, as to Mr Devonald, it has to be noted that he was held to have had reasonable grounds for his belief, namely his own observation of Mrs Greener. Mrs Bugg confirmed his view that Mrs Greener was drunk and the only explanation given by Mrs Greener was, on the face of things, as far as he could tell, an apparent lie and there was no suggestion in the Tribunal's finding of what further investigation would have been appropriate.[10]As for the view of the Tribunal that Mrs Greener had not had a fair opportunity to consider and present her case, the Tribunal found that by 5.30 she appeared to have sobered up. The Employment Tribunal held that she was asked if she had any explanation for her conduct and the explanation that she gave was that she had not been drinking, which Mr Devonald was entitled to regard as not true. It may be said that the Employment Tribunal gave too little weight to their own finding as to Mrs Greener being asked to explain her conduct, but then the Employment Tribunal said that, in their view, a reasonable employer would have suspended and later would have charged Mrs Greener. That, as it seems to us, was not the proper approach on the law as it seems to suppose that there was only one thing that any reasonable employer could properly have done in all the circumstances, namely, first to suspend then formally to charge with a disciplinary offence, then to warn that dismissal was a possible consequence, then to hold a formal disciplinary hearing, and then to act on the outcome of that formal disciplinary hearing. But that ignores that the Respondent Company, as it was below, the Appellant here, was asserting that there had been gross misconduct, namely something entitling the employer to meet the conduct with a summary dismissal. Where there is something that amounts to or is genuinely believed to amount to gross misconduct, that long sequence, which the Tribunal saw as being reasonable, need not invariably be followed.[11]Moreover, and perhaps more importantly, the Tribunal seems to show no consciousness that what they should have been looking at was the band of reasonable responses, as it is habitually referred to, in other words, there are many cases, the majority of cases perhaps, where one cannot say that a reasonable employer would have done only this, and nothing but this, but that a range of reasonable responses is open to the employer. It seems to us it was an error of law not to enquire into whether the company's action in this case was within that band. The Tribunal shows no consciousness of the existence of the band.[12]Mr Harrison rightly says that one can expect a Tribunal to have the band in mind but where there is no ground for supposing that they had it in mind and where they seem to take the line that only one course was within the band, there is good reason to doubt whether they did, indeed, have the whole band of reasonable responses in mind. If the Tribunal had intended to say that, in the particular unusual circumstances of the case, the band of reasonable responses had so shrunk that only one action or series of actions - namely the ones that they explain would have been the proper response of a reasonable employer - then they really should have said so, but they never do.[13]The Tribunal continued at their paragraph 11 as follows:
"We also find that it was unreasonable to dismiss the Applicant. The Respondent was prepared to contemplate the possibility over several years that the Applicant might have been drunk in the course of her employment, but it was only when Mr Devonald himself found the Applicant to be drunk that any action was taken, beyond the written warnings."
It needs to be remembered, though, that there had been complaints from about 1996 onwards as to Mrs Greener's drunkenness. The Respondent had dealt with those complaints by giving warnings, the written warnings, and the latest of those was on 1 July 1999. There was no finding of any complaint having been made to the company employer not having been met with a warning. There was no finding of any complaint after the last warning on 1 July 1999 and before the events of 8 October 1999. If every earlier complaint had been met with a warning then there cannot be any suggestion that drunkenness was being tolerated by the employer. Indeed, there is no finding that the company knew or suspected that Mrs Greener had been drunk on any occasions other than those that had been complained of and which had been met with warnings. Whether the evidence in fact showed some degree of toleration of drunkenness we cannot tell because we do not have Chairman's Notes; we have to limit ourselves on this subject to what the Tribunal actually says and does not say, and on the face of things, as we have indicated, there were three complaints met with three warnings and there was no finding of any other drunkenness being suspected or known of.[14]In those circumstances it is hard to see how the company could be said to have been prepared to contemplate or tolerate the possibility of drunkenness over several years. It seems unreasonable on the Tribunal's part to have borne in mind that Mrs Greener might have been drunk in the course of her employment and then to have borne that possibility in mind as a feature of the dismissal having been unreasonable.[15]The existence, as the Tribunal seemed to have regarded it as, of a possibility of her being drunk at other stages seems to have been taken into account in the finding of unreasonableness and yet, on the face of the Decision, there is no finding that supports any view of any relevant toleration, knowledge or suspicion. Accordingly, we see it as an error of law to have borne that factor in mind in the absence of any finding of toleration or knowledge or suspicion of drunkenness on any occasion other than those which were met with express written warnings.[16]Equally, in considering the degree to which the compensatory and basic awards should be reduced, the Tribunal said this, in their paragraph 17:
"In deciding to what extent it would be just and equitable to reduce the compensatory and basic awards, we have looked at the entire history of this matter and, in particular, had regard to the Respondent's attitude to the possibility of the Applicant being drunk at work over a period of several years. In our view, in all the circumstances, it is just and equitable to reduce both the compensatory and the basic awards by 50%"
. But, again, we have to note that there was no finding of any complaint of drunkenness that was not met with a written warning. There was no finding of the company's knowledge of or suspicion as to Mrs Greener's drunkenness on any occasion other than the three complained of, each of which appears to have been met with a written warning. There was no finding as to toleration of or the turning of a blind eye to drunkenness. There was, therefore, no reason why Mrs Greener should think that drinking or drunkenness was not disapproved, was not serious, or was tolerated by the employer.[17]The reductions in the awards that were being considered were falling to be considered under section 122(2) and 123(6) of the Employment Rights Act 1996 . Both of those subsections require the Tribunal to look to the conduct of the complainant, not the Respondent Employer. The conduct of the employer is not relevant to the reduction unless it has materially influenced the conduct of the complainant. But here, in the absence of knowledge, suspicion or toleration of unpunished drunkenness, or of complaints of drunkenness not acted upon, it is impossible to see how the company's conduct could be relevant in looking to see what reduction was appropriate in the light of Mrs Greener's conduct. That, as it seems to us, is another error of law.[18]Taking these three errors together, we see that the appropriate course is to set aside the liability Decision for error of law. But that is not to say that we are confident that this was a fair dismissal. There were plainly arguments open to Mrs Greener on, especially, the procedural side. We are not confident that, having set aside the Decision, the only possible proper result would be that this had to be regarded as a fair dismissal.[19]That being the case, the proper course, as it seems to us, is that we should set aside the liability Decision and remit it to be heard by a different Employment Tribunal. Of course, that being the case, the remedy Decision must also fall with the liability Decision and we set aside the remedies Decision; that, too, can be dealt with as a fresh subject by the different Tribunal to whom we have remitted the question of liability. So, in the outcome, we set aside both Decisions and remit both to be considered afresh by a new Tribunal.