MR C LANKEY v BRITISH AIRWAYS PLC [2002] UKEAT 901_01_3008

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 901_01_3008Case No Appeal No. EAT/901/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C LANKEYAPPELLANTBRITISH AIRWAYS PLCRESPONDENT
Before
His Honour Judge J R ReidLord Davies of CoityDate 30 August 2002
[1]APPEARANCES For the Appellant MISS HEAL (of Counsel) Instructed by: Messrs A J Hows & Associates Solicitors 81 New Road Harlington Hayes For the Respondent MR N RANDALL (of Counsel) Instructed by: British Airways PLC Waterside HBA3 PO Box 365 Harmondsworth UB7 OGB JUDGE J R REID QC This is an appeal by Mr Lankey against a Decision of an Employment Tribunal held at Watford. The hearing took place on 7 - 9 February 2001 and 23 - 24 April 2001. The Decision was sent to the parties and entered in the register on 15 June 2001.[2]By the Decision the Tribunal held that Mr Lankey was not unfairly dismissed and was not wrongfully dismissed by British Airways. The grounds of appeal are that the Employment Tribunal failed adequately, or at all, to give reasons for its Decision, in that it stated only that it "preferred the submissions of the Respondent in their totality which dealt comprehensively with each and every point raised for and on behalf of the Applicant". The grounds of appeal went on to assert that the Tribunal:
" failed to set out its decision the submissions made by each party;" and "failed to enter into the issues canvassed before it and to explain why it preferred one case or the other."
It asserted that in the premises, Mr Lankey did not know why he had lost and was not in a position to appeal on a point of law. It concluded by saying that he had been denied his right to a fair trial, pursuant to Article 6, Schedule 1 of the Human Rights Act 1998 .[3]Mr Lankey is an airline pilot. He was dismissed by British Airways on 17 July 2000, after nearly thirty one years' service, on the grounds of gross misconduct. The dismissal followed the investigation of two complaints against Mr Lankey.[4]The first of those, in time, related to an incident which took place between Mr Lankey and various members of the cabin crew of his aircraft at a hotel in Cancun, Mexico. The incident took place, apparently, in the bar area of the hotel and in public view.[5]The second complaint, in terms of time, though the incident antedated the hotel incident, was that his conduct of the landing of the plane into Cancun was prejudicial to safety in that:
"(a) One of the passengers namely the eight year old girl was present on the flight deck and was not fully strapped into a seat using full harness for the landing. (b) There were three passengers occupying two seats on the flight deck for the landing."
It was said that this was in contravention of FCOs 2523, 2520, 1224 and 2179. FCO stands for Flying Crew Order. FCOs are the general rules under which all British Airways craft are operated. The legal position in the UK is that all aircraft must be operated in according with the Directions specified in the Air Navigation Order. Rules for commercial aircraft are more detailed than those for non-commercial operations. The Civil Aviation Authority is the regulatory authority for the UK airline industry and has prosecuting powers in respect of the Air Navigation Order.[6]So far as British Airways pilots are concerned, the relevant legal requirements are transcribed for their purpose into the operating instructions comprising the FCOs. These comprise the fundamental operating rules that pilots must follow. There is a copy available on every flight deck.[7]Mr Lankey does not attack the findings of fact which the Employment Tribunal made. The Tribunal made a substantial number of findings of fact which are set out over four and a half pages of the Decision. What the Appellant attacks is the final passage of the Decision which is in these terms:
"The Applicants [Appellants] produced a document setting out in skeleton form their final submissions. It is not proposed to set out either the Applicants or the Respondents arguments in any detail. Both submissions lasted for longer than an hour and both made detailed reference to the facts and to the cases mentioned at the beginning of this decision. The Applicants submission looked at the reason for dismissal, the question of bias/the investigation, the procedure followed and what was submitted, was the changing case against the applicant, the appeals and, finally addressed the issue of whether or not dismissal was a fair sanction. The Respondents dealt with all these matters in detail in their submissions in response. The Tribunal unanimously preferred the submissions of the Respondents in their totality which dealt comprehensively with each and every point raised for and on behalf of the Applicant. On the basis of the facts found the Tribunal found unanimously that: (1) The Applicant was dismissed. (2) The reason for that dismissal was his conduct and in particular the safety issue. (3) In determining the fairness or otherwise of the dismissal having regard to the reason shown by the Respondents and having regard to the size and administrative resources of the Respondents undertaking, the Tribunal were unanimously satisfied that the Respondents acted reasonably in treating it as a sufficient reason for dismissing the Applicant and that the dismissal was in accordance with the equity and the merits of the case. (4) So far as the allegation of wrongful dismissal was concerned the Tribunal were unanimously satisfied that the Applicants conduct was such that the Respondents were entitled to dismiss him summarily."
[8]It should be noted that although the submissions made on behalf of Mr Lankey were reduced to writing, the submissions made on behalf of British Airways were made orally and there was no document setting out what those submissions were.[9]On behalf of Mr Lankey, it was submitted that an Employment Tribunal must give its reasons for its decision (see Employment Tribunals (Constitution Etc) Regulations 1993, Schedule 1, Rule 10(3) (now replaced by Schedule 1, Rule 12(3) of the 2001 Regulations), that Article 6.1 of the European Convention on Human Rights provides for a right to a fair trial and that this obliges a Court to give reasons for its judgment, and that from the English authorities the following principles can be distilled:(i) although a Tribunal decision need not be elaborate or refined, it must contain a statement of the reasons which have led the Tribunal to reach the conclusion which they do on the basic facts;(ii) the parties are entitled to be told why they have won or lost;(iii) there should be sufficient account of the facts and the reasoning to enable an appellate Court to see whether any question of law arises;(iv) it is always unacceptable for a Tribunal to asserts its conclusion in a decision without giving reasons;(v) where the dispute involves something of an intellectual exchange, with reasons and analysis advanced on either side, a Court should enter into the issues canvassed before it and explain why it prefers one case over the other.[10]It was submitted on Mr Lankey's behalf that the Skeleton Argument which was produced to the Tribunal raised a number of issues which were not explored by the Tribunal or made the subject of its reasoning. They were, in particular:(i) Did British Airways' case against Mr Lankey change? If not, why did the Tribunal think that it did not. If it did, but that was not unfair, why not?(ii) Was the reasoning of the dismissing manager passed on to the appeals manager? If not, why did they think that it was not? If it was, but they thought that it did not make the dismissal unfair, why did they think that?(iii) Were those documents which disclosed the dismissing manager's reasoning disclosed to Mr Lankey? If not, did that affect fairness?(iv) Did British Airways change the reason for dismissal at the appeal stage? Can it do so?(v) Was the investigation biased against the Appellant, or unreasonable? If not, why not? If it was, did that render the dismissal unfair?(vi) If the principal reason for the dismissal was the safety incident, was the Respondent reasonable in concluding that what the Appellant did was unsafe and if so, why?(vii) Given that Mr Lankey had thirty years' service with no previous safety offence, were the British Airways disciplinary rules sufficiently clear to warn him of the risk of dismissal for gross misconduct if he committed this offence? If they were sufficiently clear, why were they?(viii) Was there inconsistency in relation to another case, that of Mr Higton? If not, why not?[11]In each area it was submitted that Mr Lankey did not know why he had lost. It was said that if there were an error of law in any of the matters set out above, he was deprived of his right of appeal and that it was unreasoned and implausible to suggest that British Airways' submissions were preferred in every respect to those of Mr Lankey. The Tribunal, it was submitted, had not entered into any of the issues or engaged in any analysis. It was submitted that the appeal should be allowed and the case remitted to a new Tribunal for re-hearing.[12]On behalf of British Airways it was submitted that sufficient reasons were provided by the Employment Tribunal for its Decision and that it was clear that there was no error of law. It was said that on any view, Mr Lankey's admitted conduct was sufficiently serious to merit dismissal.[13]The parties referred us to a substantial number of authorities: Martin -v- Glynwed Distribution [1983] ICR 511 , especially at page 520, Meek -v- Birmingham District Council [1987] IRLR 250 especially at page 251, Marks and Spencer -v- Martin [1998] ICR 1005 , especially at page 1011, Tchoula -v-Netto Foodstores Ltd Unreported EAT/1378/96 , Flannery -v Halifax Estate Agencies Ltd [2000] 1 WLR 377 , especially at 381 - 382, Anya -v University of Oxford [2001] ICR 847 especially at 860 - 861, Kearney & Trecker Marwin Ltd -v- Varndell [1983] IRLR 335 , UCATT -v- Brain [1981] ICR 542 , especially at 551 - 552 and Derby Specialist Fabrication Ltd -v- Burton [2001] ICR 833 , especially at 841, Alidair Ltd -v- Taylor [1978] ICR 445 and English -v- Emery Reinbold & Strick Ltd Unreported 30 April 2002, CA, especially paragraphs 17 - 22. Alexander Machinery (Dudley) Ltd -v- Crabtree [1974] ICR 120 Hiro Balani -v- Spain (1994) EHRR 565 (paragraphs 28) and Hadjianastassiou -v- Greece (1992) 16 EHRR (especially paragraph 33)[14]There was little, if any, difference between Counsel as to the applicable law. Where they differed was in the application of the law to the Decision of the Employment Tribunal. We take the law, derived from the authorities cited to us, to be as follows: an Employment Tribunal is obliged to give reasons for its decision. This involves the making of findings of fact. It may also involve answering questions of law. The decision is not required to be elaborate or formalistic, but it has to contain an outline of the story which gives rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which had led to that conclusion. The reasons should show expressly or by implication what were the questions of law which the Tribunal addressed and why it reached the conclusions which it did. As complaint against an appeal lies only on a point of law, the overriding requirement is to provide sufficient reasons for an appellate court to identify whether any error of law has been committed. Whilst it is not acceptable for a party to comb through a set of reasons to see if it can find hints of error and fragments of mistake, it is equally unacceptable for a party to comb through an obviously defective decision to see if it can find missing elements and amplify these by argument into an adequate set of reasons. The two basic objectives of a set of reasons must be, first, to ensure that the party which has won is left in no doubt as to why it has won and the party that has lost in no doubt as to why it has lost, and second, so to ensure that if there is to be an appeal the Appeal Tribunal can see whether or not there has been any error. There is no requirement to deal with each and every point which is raised by a party, no matter how bad or irrelevant it may be, but it is good practice where there as been reasoned argument on each side to explain why the Tribunal prefers one argument over the other.[15]Ms Heal, on behalf of Mr Lankey concentrated on a variety of points which she said had been in issue before the Employment Tribunal and which were not dealt with. She said that it was impossible to tell from the Decision how those points had been dealt with and whether or not the Tribunal had made any errors of law. In order to appreciate her argument one had to go back to the events which led up to Mr Lankey's dismissal. Mr Lankey, together with two co-pilots and a number of cabin crew had operated a British Airways flight from London to Cancun on 17 May 2000. After arrival, they spent five nights at the Cancun Sheraton Hotel before returning to London on 22 May 2000. On their return, some of the cabin crew made a number of allegations relating to Mr Lankey's behaviour in the hotel bar on 18 May. Whilst these allegations were being investigated, a further allegation came to light relating to Mr Lankey landing with three passengers on the flight deck. The result of the complaint was a two-stage preliminary investigation. The first part was conducted by a Mr Wiggins, BA's Business and Operational Development Manager within Flight Operations. He took twelve statements, including one from Mr Lankey. He also interviewed both First Officers and obtained six statements from members of the cabin crew. The cabin crew were not BA employees, but were employed by a company called "JMC" and supplied to British Airways under a commercial agreement. Having completed the preliminary investigation he sent the documents to Captain Downey, the BA Flight Manager for its 747-400 fleet to undertake the second preliminary stage. This was to consider whether or not there was a case to answer. On 1 June, Captain Downey wrote to Mr Lankey confirming there was a case to answer in respect of the allegation arising out of the incident in the hotel bar, but Captain Downey also explained that he considered that the contents of the documents suggested there was a further disciplinary charge that should be made arising out of the landing into Cancun. He set out what the charge was and added:
"These are in direct contravention of FCOs 2523, 2520, 1224 and 2179. This additional allegation is one of gross misconduct and the appropriate sanction if substantiated is "dismissal"."
[16]A disciplinary hearing was then arranged which took place on 10 July 2000. It was conducted by Captain Steeds. It was adjourned until 17 July 2000 to enable Captain Steeds to undertake a further interview to follow up points made by Mr Lankey and to consider all the evidence. Mr Lankey chose not to attend the reconvened meeting on 17 July, so Captain Steeds wrote to him on that day with the decision. The decision letter ran to nine pages. It found that the allegation of bad behaviour (i.e. the hotel bar incident was proved) and that his conduct was derogatory and offensive. He found that the allegations relating to the landing into Cancun were proved, that the conduct of the landing was prejudicial to safety and was in direct contravention of the four FCOs mentioned. Mr Steeds recorded that Mr Lankey did not dispute the facts relating to the landing into Cancun and before the Employment Tribunal Mr Lankey accepted that the facts were not in dispute. Mr Steeds decided:
"You showed a disregard for passenger safety in relation to the landing incident and your attitude towards this leaves me to conclude that you consider yourself above the law. Being a technically excellent Pilot does not give you the discretion to pick which FCOs you obey and which you do not. Regrettably I have no confidence that you will not continue to behave like this in the future. In this case therefore I find that you are not fit to be a BA Captain. My sanction for this incident alone is summary dismissal. I have considered the possibility of demotion and final written warning but my lack of confidence in your willingness to comply with regulations is coupled with the conclusion that it would be inappropriate for BA to expect less experienced Captains to fly as Captain with you as a co Pilot. Crew would be compromised, the situation would be unsafe. I will not risk safety. Given my decision on the sanction appropriate for the flight deck incident I cannot apply any further sanction for the incident in the bar. The argument at the bar did occur. The language was bad and the harassment did happen. On the other hand you offered to apologise - though I note you did not bother to do so at the time and I think you should have been aware of the effect of your actions. If this incident recurred in isolation I would have imposed a severe sanction short of dismissal."
[17]The letter concluded by informing Mr Lankey of his right of appeal. Mr Lankey exercised his right of appeal, and an appeal hearing was held on 9 August 2000. It was conducted by Captain John Leahy. On 25 August 2000 he notified Mr Lankey of the outcome of the appeal. In the course of the decision letter he said as follows:
"I have carried out a detailed investigation into the points you have raised and conclude that they are either incorrect, unsubstantiated, exaggerated or irrelevant to the outcome. There were some errors of process, which were dealt with by Captain Steeds in his summary. In my view these were minor and more importantly, were immaterial to the outcome since they did not place you at a disadvantage nor influence the decision making process. Dismissal is upheld for the following two key reasons: 1. Failure to comply with Flying Crew Orders. Your actions impacted on the safety of the crew and passengers on the flight deck, and reduced the safety of the passengers and the aircraft. 2. Offensive and inappropriate behaviour as outlined in points 1 - 4 of Time Steeds' letter dated 17 July. Captain Steeds in his letter of dismissal stated that he would have imposed a sanction "short of dismissal" for the second charge. He noted that you had offered to apologise. He also noted on page 2, (point 5) of his letter that "…..the person to whom the remarks appear to have been directed did not take offence"
. A careful examination of the witness statements leads me to believe that offence was taken by the individual concerned and therefore I would take a more serious view of this offence were it to have occurred in isolation. These are both cases of gross misconduct for which an appropriate sanction is dismissal."[18]He went on to hold that there were no mitigating factors which would render a lesser penalty appropriate and he concluded by giving Mr Lankey notice of his right to a final stage appeal. He added an appendix to his decision letter in which he dealt with various points which had been raised in detail.[19]Mr Lankey exercised his right to a further appeal and it was held on 13 September 2000. It was conducted by Captain M D Jeffery. On 19 September Captain Jeffery sent his decision letter to Mr Lankey. In it he said:
"Given what I have said above and your own statements, I conclude that both allegations of gross misconduct are found………. On the technical issue of FCOs, I agree with both Captain Steed's and Captain Leahy's decisions in that you sought to imply your own interpretation into FCOs for your own purpose in a manner that jeopardised the safety of our operations. You have now apologised for this but, as I have explained, I did not find some of what you said about this issue credible. After considerable thought, I have concluded that I agree with the previous managers that summary dismissal is the appropriate sanction for this action. Also you have failed to recognise that appropriate behaviours are required in your conversations with other employees or subcontracted staff and this is not acceptable to me or to British Airways. I consider this to be equally serious misconduct. Regrettably, although the requirement for a high standard of behaviour has been drawn to your attention before now, you showed no intent that you would make any effort to improve your behaviour and you showed no understanding of the impact it has on people. This was relevant to my considerations about whether imposing a sanction short of dismissal was appropriate in your case. In summary, therefore, there is no change to the original sanction of dismissal without notice."
[20]Ms Heal, on behalf of Mr Lankey, after taking the Appeal Tribunal through a number of authorities, attacked the Decision of the Tribunal first by submitting that the nature of the case brought by British Airways against Mr Lankey had changed. She submitted that of the four FCOs in the letter of 1 June 2000 by which Mr Lankey was notified of the case he had to meet, none was picked out as more important than the others. She submitted that it was only in the Employment Tribunal that for the first time, it became clear that FCO 1224 was the one which the dismissing officer, Captain Steeds, regarded as most important. She said that this was unfair to Mr Lankey and that her submission to this effect had been disregarded by the Employment Tribunal. In our judgment there is nothing in this point. The four FCOs were all mentioned in the original charge and were there given equal prominence. It is, perhaps, a moot point as to which of the four should be regarded as of most importance. Captain Steeds referred in his decision letter to Mr Lankey's "disregard for passenger safety in the landing incident". The Tribunal found as a fact that British Airways had conducted a reasonable investigation and followed a fair procedure. That was sufficient to inform Mr Lankey of the fact that the Tribunal thought nothing of a point which might well be regarded as nit-picking. There is no obligation on an Employment Tribunal in giving its reasons to deal with every single point which is raised, no matter how worthless. The case against Mr Lankey did not change. That much is quite clear.[21]Ms Heal went on to suggest that there should have been findings of fact as to whether the reasoning of the dismissing manager, Captain Steeds, was passed on to those who conducted the two appeals. She suggested that if they were, then that might have affected the fairness of the appeals. She said that there was no finding of fact as to whether this had happened, nor the result of it. It is true that there is no finding of fact as to whether or not it occurred, but there was a finding of fact that the Tribunal conducted a reasonable investigation and followed a fair procedure. Whilst it would have been far preferable for the Tribunal to have made explicit its findings on this particular point, we do not think that this failure vitiates their Decision. The finding which they did make, necessarily precludes any suggestion that the Tribunal regarded the proceedings and what was done as being biased or unfair. The Tribunal had a Skeleton Argument from Ms Heal in which she made considerable play of the point. The Tribunal specifically rejected the argument in the Skeleton Argument. It was apparent that the Tribunal must have considered the point and dismissed it as being of no value.[22]Ms Heal next suggested that there was a change in the reasons for Mr Lankey's dismissal. This submission arose out of the fact that the original dismissing officer, Captain Steeds, had dismissed Mr Lankey only on the safety charge, and indicated he would have imposed a serious but lesser penalty for the hotel incident. In the present case, the specific disciplinary rules of British Airways entitle the appeal body to increase as well as decrease the penalty. She suggested that this was unfair, and that one could not tell whether the appeal bodies had sentenced globally, to use the expression she used. She suggested that the Tribunal had failed to make any finding as to this and that this failure vitiated the Tribunal's Decision. In fact it is clear that the Tribunal regarded each of the appeals as being a rehearing. It is clear that in relation to the initial hearing and the final appeal, the Tribunal were finding that dismissal was the penalty in respect of the breach of FCO charge taken by itself, irrespective of the findings in relation to the hotel charges. The question whether Captain Leahy, who conducted the intermediate appeal, sentenced globally is not explicitly dealt with, but any fair reading of the Decision, particularly taken in conjunction with the wording of Captain Leahy's decision letter, makes it plain that any suggestion that he would not have dismissed Mr Lankey but for the conjunction of the charges is hopeless.[23]The next of Ms Heal's submissions was in connection with the suggestion that the investigation into the allegations against Mr Lankey was biased or unreasonable. She accepted that there could only be force in this point if the Employment Tribunal had regarded the dismissal as having been based on global sentencing, rather than on the sentence in relation to the safety charge, taken in isolation. Since, in our view, it is clear that the Tribunal rightly held that the dismissal of Mr Lankey on the grounds of the safety charge was a free-standing decision, uninfluenced by the decision in relation to the hotel incident, this ground cannot succeed.[24]Ms Heal's final three points went to the question whether the dismissal was unfair because it was outside the range of reasonable responses by the employer. She pointed out that Mr Lankey was a "technically excellent pilot". She noted that he had no warnings against him in thirty one years. She submitted that whilst a pilot might be dismissed for conduct prejudicial to safety, this was not sufficiently spelt out as a reason for his dismissal and the Employment Tribunal did not address this. She submitted that the Tribunal never asked itself "Was this penalty within the range of reasonable responses?". She asked why the Employment Tribunal thought that what Mr Lankey did was unsafe and said that the Tribunal gave no reasons for its view. The Tribunal merely, she submitted, recited the words of section 98(4) of the 1996 Act. She submitted that if one merely asked "Has a breach of an FCO been committed?" one was not dealing with the issue as to whether in truth there was unsafe conduct. She went on to point out that Mr Lankey believed that he had been treated in a different and less favourable manner than a Mr Higton. She submitted it was for the Tribunal to decide whether the Higton incident was similar. In our judgment, the Tribunal made it clear that they found that the reason for Mr Lankey's dismissal was his conduct, and principally the safety issue. They expressed themselves satisfied that British Airways acted reasonably in treating the reason for dismissal as being sufficient. They further found that the dismissal was in accordance with "the equity and the merits of the case".[25]These findings show that the Tribunal accepted that British Airways acted reasonably in dismissing Mr Lankey for an offence which in the view of Mr Steeds:
"showed a disregard for passenger safety in relation to the landing incident" and where Mr Steeds found that Mr Lankey's attitude left him to conclude: "..that you consider yourself above the law. Being a technically excellent Pilot does not give you the discretion to pick which FCOs you obey and which you do not"
. This was a view reinforced by Mr Jeffery's conclusion that the breach of the FCOs was "incredibly serious". This was a case where there were specific flight safety rules in place. Mr Lankey had chosen to disregard them. The Tribunal rules did not have to consider whether those rules were good or bad rules. They were the safety rules and Mr Lankey needed to obey them. Indeed his arrogant belief that he would pick and choose which safety rules to obey reinforced the reasonableness of the employer's decision.[26]In our judgment, it is plain that the Tribunal considered that the employer's response to what Mr Lankey had admittedly done was within the band of reasonable responses. So far as the Higton incident was concerned, the Tribunal recited a passage from Mr Leahy's conclusions in which he said that he had made his own enquiries and expressed conclusions that the case, in which a preliminary investigation determined there was no case to answer, was very different. The Tribunal also recorded Mr Leahy's finding that since the start of 1997, four other pilots had been dismissed summarily for serious breaches of FCOs. In our judgment, the Tribunal, by its Decision, makes clear that in its view there was no substance in the suggestion that Mr Lankey was treated differently from Mr Higton and that this in some way rendered his dismissal unfair.[27]The Decision was unfortunately scant on detail. It could with considerable advantage have been fleshed out in the concluding paragraphs, in particular by reciting what the arguments were which appeared in Ms Heal's Skeleton Argument which was before them, and the contrary arguments which rebutted them. Whilst we deprecate the failure of the Tribunal to do this, Mr Lankey can have been in no doubt as to why it was that he was dismissed. We are satisfied that the brevity with which the Tribunal expressed its conclusions do not conceal any errors of law of which Mr Lankey might have taken advantage. The case, despite Miss Heal's ingenious efforts to dress it up as containing issues of law, was essentially one turning on the facts. In those circumstances although the decision falls far short of the ideal in its lack of detail, we do not regard it as so deficient that it should be set aside and the appeal must be dismissed.