MR B ARMSTRONG v NEWCASTLE UPON TYNE METROPOLITAN BOROUGH COUNCIL [2003] UKEAT 0282_03_1711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0282_03_1711Case No Appeal No. UKEAT/0282/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B ARMSTRONGAPPELLANTNEWCASTLE UPON TYNE METROPOLITAN BOROUGH COUNCILRESPONDENT
Before
His Honour Judge Richardson Ms J Drake Miss S M WilsonDate 17 November 2003
[1]APPEARANCES For the Appellant MR BRUCE ARMSTRONG (The Appellant in person) For the Respondent MR PAUL CAPE (of Counsel) Newcastle upon Tyne City Council Legal Services Civic Centre Newcastle upon Tyne NE99 2BN HIS HONOUR JUDGE RICHARDSON This is an appeal by Mr Bruce Armstrong against a decision of the Employment Tribunal sitting at Newcastle upon Tyne for which extended reasons were entered in the register on 14 June 2002. Mr Armstrong complained that he had been unfairly dismissed by his employer, the Council of the City of Newcastle upon Tyne, ("the Council"). The Employment Tribunal held unanimously that his complaint was not well founded.[2]Mr Armstrong was employed by the Council from 1 April 1991 until his dismissal on 19 June 2001. The Council had a team of employees to deal with benefits. The Principal Benefits Officer was Mrs Burns. She was the line manager for Mr Armstrong. He was one of four Assistant Principal Benefits Officers. He was in charge of a section called the Benefit Audit Section. Over the whole team of employees who dealt with benefits, including Mrs Burns, was Mr Bertram, who was an Assistant Director of Housing. Put shortly, Mr Armstrong was himself in a managerial position with levels of management over him.[3]The Employment Tribunal, in its decision, found that from 1997 onwards there was a history of Mr Armstrong 'bossing' and 'bullying' members of the team. The Employment Tribunal set out a number of specific incidents. One was at Christmas 1998, an incident of threatening and abusive behaviour under the influence of alcohol. That incident had not led to disciplinary action. A number of incidents were in the year 2000. The Employment Tribunal found that Mr Bertram had met Mr Armstrong in order to address his behaviour and his attitude towards Mrs Burns. It referred to an incident in July or August 2000 relating to a visit by the Benefit Fraud Inspectorate. It referred to another occasion on which Mr Armstrong was asked to appoint an officer in accordance with instructions from management but refused to do so.[4]On 13 September 2000 Mr Armstrong was suspended. He was represented by his union. For a time it appeared that a compromise agreement would be reached making him redundant. It was not, and an investigation ensued. Mr Armstrong was interviewed twice. He was accused of bullying and harassing Mr Burns. A formal disciplinary hearing was arranged. It took place in June 2001. He was represented by the full time Regional Officer of his union.[5]We have seen the record of that meeting. It was chaired by Mr Lee, a senior member of the Council's management. Mr Bertram set out the Council's case. There were statements from witnesses, including Mrs Burns herself. Mr Armstrong's case was presented by his union. He too provided a witness statement and answered questions. Part of Mr Armstrong's case was that he was under stress. Mr Lee adjourned overnight to consider the result and the following day dismissed Mr Armstrong. In a letter dated 20 June 2001, confirming the result, he said that the allegation which he found proved was:
"That your conduct has fallen substantially below that which the Authority expects of a Principal Officer in that you adopted a negative attitude in particular in relation to your Line Manager, undermining her management of the team and causing her to feel distressed, apprehensive and bullied."
He stated his conclusions in relation to that allegation:
"… on the basis of information presented to me, I consider that your conduct has fallen substantially below that which the Authority expects of Principal Officer, in that you adopted a negative attitude in relation to your line manager, undermining her management of the team and causing her to feel distressed, apprehensive and bullied. As outlined to you at the commencement of the hearing I consider such actions to constitute gross misconduct. I have therefore decided to dismiss you from the employment of the Authority with immediate effect."
Mr Armstrong was told that he had a right to appeal and that any such appeal should be made in writing within ten days of receipt of the letter. There was no appeal within ten days. Much later, in August 2001, Mr Armstrong sought to appeal but the Council did not allow an appeal out of time.[6]Mr Armstrong has made, before us today, submissions on a number of points. His full submissions are recorded both in a Skeleton Argument and in a statement which he has handed in today setting out his case at considerable length. He has read that statement to us. We have had regard to the authorities which he has produced.[7]In our judgment there are two points at the heart of this case. The first relates to the finding of gross misconduct. In Mr Armstrong's Notice of Appeal he relies as a ground of his appeal on a submission that the Tribunal failed to identify what, if any, acts constituted gross misconduct or what conduct precipitated the dismissal. The second point which goes to the heart of the case is the failure of the Council to follow its own procedures.[8]The background is this. As one would expect, the Council had a disciplinary procedure. Its disciplinary procedure takes into account the requirements of the ACAS Code of Practice. There are stages. At stage one, where an employee's work, conduct or omission warrants disciplinary action, the appropriate supervisor or manager should give a written warning to the employee. The warning should specify the nature of the complaint and the improvement expected. If, despite that, the acts are repeated there may be a further warning at stage two, which may be described as final. That again will identify the nature of the complaint and the improvement expected. It is only if there is a continued failure to meet required standards within the time specified in stage two, or if there is gross misconduct, that an employee should be dismissed. That is stage three of the procedure. The Council also has a policy on harassment and bullying at work. The policy is lengthy. It contemplates that disciplinary action may be necessary if informal action does not work. It says expressly that if disciplinary action is necessary the Council's disciplinary procedures will be used. Available to the Council, in addition to a written warning and dismissal, is a compulsory transfer. It is the most serious cases that which will justify dismissal.[9]The Employment Tribunal in its decision does not expressly record any consideration of the Council's disciplinary procedure or policy on harassment and bullying at work. Nor does the Employment Tribunal expressly identify any particular act of gross misconduct which might have justified an immediate summary dismissal. Rather, it refers to a pattern of behaviour over a period of time. A pattern of behaviour over a period of time is classically one where we expect that an employer will use a disciplinary procedure in accordance with the ACAS Code of Practice, for where there is such a pattern of behaviour an employee should, generally speaking, know that his job is at risk by reason of it. He should have the opportunity afforded by the disciplinary procedure to appreciate what the complaint against him is, the improvement to be expected and the consequence if the improvement is not made.[10]In his submissions on behalf of the Council, Mr Cape has taken us to the way in which this matter was dealt with before the Employment Tribunal. The Tribunal had before it a statement by Mr Bertram. He said that during the early months of the year 2000 he found it necessary to meet with Mr Armstrong to address his behaviour and attitude towards Mrs Burns on three occasions, that is, on 9 February, 28 February and 15 May. Two meetings were arranged by him, a third was arranged as a consequence of reports by others. He says in his statement that during the course of those meetings he emphasised to Mr Armstrong the unacceptable nature of his behaviour and attitude towards Mrs Burns and made it clear to him that failure to improve his conduct would result in formal disciplinary action. Later in his statement he said that when he returned from a period of leave in September 2000 he was advised of a serious incident which had taken place on 30 August 2000 between Mrs Burns and Mr Armstrong. Mr Armstrong was suspended by Mr Bertram on 14 September 2000.[11]The incident which took place on 30 August 2000 between Mrs Burns and Mr Armstrong is detailed in a statement of Mrs Burns which was before Mr Lee when he dismissed. We anticipate that it will have been in the Employment Tribunal's papers. Mrs Burns did not give evidence at the Employment Tribunal. The incident on 30 August was, if correctly recorded by Mrs Burns, quite serious. She refers to Mr Armstrong screaming, shouting, being agitated, pointing his finger directly into her face and storming out of the office and slamming the door. She said that she was shaking and distressed as a result of that incident.[12]Although all this material was before the Employment Tribunal, there are virtually no findings concerning it. So far as the three meetings which Mr Bertram held are concerned, there is no more than a finding that in the early months of 2000 Mr Bertram had met Mr Armstrong to address his behaviour and attitude to Mrs Burns. So far as the meeting on 30 August is concerned there is no real finding at all. This may be because the way the case was put before the Employment Tribunal was an escalating series of events, as Mr Cape described it to us. The difficulty he faces in this appeal is that it is in just such a case that a proper use of a disciplinary procedure can make a difference before matters go too far.[13]We are entirely satisfied that on this important part of the case the Employment Tribunal gave inadequate reasons. Inadequate both to support its decision and inadequate to do justice to the case it had before it. The Employment Tribunal said:
"The sanction of dismissal had been reasonable in all the circumstances. The Tribunal accepted that the respondent had adopted a very sympathetic attitude towards the applicant during his employment particularly when he had had personal difficulties. It had tried to resolve matters by referring the applicant to an occupational physician. It had made allowances for his domestic and personal problems and had counselled him. All of these measures had been unproductive."
However, the Employment Tribunal never found whether a reasonable employer in the circumstances could have dismissed in a case where it had not used its own disciplinary procedure to warn the employee of the conduct required of him and the consequences if he did not comply. That was an important issue in the case. We consider that on those grounds this appeal must be allowed.[14]We have considered carefully whether we should substitute a decision that the dismissal was unfair, but we think that if the Employment Tribunal had addressed its mind to the Council's case, as we have described it, it is at least possible (we put it no higher than that) that the Employment Tribunal might have found that the dismissal was reasonable in all the circumstances. We say this because if the Council's case as we have summarised it is true, Mr Armstrong, a member of management himself, had received informal counselling on several occasions and still behaved in the manner on 30 August, which is set out. Given that he was a senior member of management it seems to us that we are unable to go so far as to substitute our own decision that the sanction of dismissal was unreasonable in all the circumstances. It would be open to an Employment Tribunal to conclude, in respect of such a member of management, that the informal process was sufficient. We are not suggesting one way or the other whether an Employment Tribunal should reach that conclusion in this case; we are simply saying that the issue needs to be directly addressed. Mr Armstrong, for his part can say that a reasonable employer should have given him written warnings and that and that it was unfair to dismiss him in the absence of such a proper disciplinary procedure. He can also point to paragraph 35 of Mr Bertram's statement. The reason given there for not operating the disciplinary procedure between late 1999 and July 2000 is one that the Employment Tribunal will wish carefully to review. It is questionable, to say the least, whether an employer should allow the fact that there is an impending inspection to prevent it taking formal disciplinary action which would be of advantage both to employer and employee. We have said enough to show that this appeal must be allowed and remitted to a freshly constituted Employment Tribunal to be re-heard.[15]There were other grounds on which Mr Armstrong relied. We will deal with them relatively briefly. He submitted that the Employment Tribunal erred in law in finding that the reason for dismissal was misconduct. He relied on Smith v Glasgow City Council [1987] IRLR 326. He pointed out that Mrs Burns did not give evidence at the Employment Tribunal hearing. The Employment Tribunal, however, does not conduct a re-hearing of a disciplinary case. For reasons which are well known, the Employment Tribunal reviews the employer's action in dismissing the employee to see if it was reasonable. The Employment Tribunal will generally expect to hear from the person who was responsible for the dismissal to see whether the employer had genuine and reasonable grounds for the dismissal, reached after an investigation which was reasonable in all the circumstances. It is open to an employer to call further witnesses, particularly those who deal with the question of investigation, but in order to reach its decision for the purposes of Section 98 an Employment Tribunal will not generally need or expect to hear from all the witnesses who appeared at the disciplinary hearing. Mr Armstrong complained that he was denied an appeal. He was, however, as we have recorded, told that he had ten working days in which to appeal. He did not do so. He says there was some misunderstanding by him of what his union would do for him. He relies on Section 2, paragraph 3 of the Disciplinary Procedure, but in our judgment this plainly applies only when there has been an appeal under Section 2, paragraph 2. We see no error of law in the Employment Tribunal's decision in that respect.[16]He has made other points relating to the investigation and the evidence and the decision of the Council. Suffice it to say that in respect of those complaints the Employment Tribunal's decision did not disclose an error of law. However, because the case is being remitted for re-hearing all these issues will be open to the Employment Tribunal which re-hears the case.[17]Finally, he placed reliance on Section 100 of the Employment Rights Act 1998 which applies in health and safety cases where an employee is dismissed and the principal or only reason for dismissal is of a kind set out in Section 100. While it is clear that Mr Armstrong was saying at the disciplinary hearing that there was an issue of stress that was connected to the case, it is equally plain that in this case the Council did not dismiss for a reason encompassed by Section 100. There is nothing in that point.[18]For the reasons that we have given, the appeal will be allowed. The case will be remitted for re-hearing to a fresh Employment Tribunal. It is for consideration by the Parties and the Employment Tribunal whether, given that the case is being remitted, it may be better at any subsequent Employment Tribunal for all issues to be heard together, rather than for a split hearing to take place on the question of liability and remedies.