MISS MARY WHITEHEAD v THE ROBERTSON PARTNERSHIP [2003] UKEAT 0378_03_2306

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0378_03_2306

Case No Appeal No. EAT/0378/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS MARY WHITEHEADAPPELLANT

THE ROBERTSON PARTNERSHIPRESPONDENT

Before

Mr Justice Burton

Date 23 June 2003

[1]APPEARANCES For the Appellant MR H CAMERON-BLACKIE Instructed By: Messrs Barlows Solicitors 55/56 Quarry Street Guildford Surrey GU1 3UE For the Respondent MR M WEST (Representative) MR JUSTICE BURTON (PRESIDENT) : This is the preliminary hearing of an appeal by Miss Whitehead, in respect of what is now the second conclusion by the same Employment Tribunal sitting at Reading, that she was, in the circumstances of admitted unfair dismissal, only entitled to a limited award on the basis that the employers would have, or could have, fairly dismissed in any event.

[2]The brief facts are that the Applicant resigned, in circumstances which the Tribunal found to be constructive dismissal, but that there were, inter alia, as a result of apparent complaints against her by fellow employees, substantial matters which led the employer to be in a position to justify the dismissal and, indeed, as we have indicated, to assert that, but for the unfair constructive dismissal, there would subsequently have been a fair procedure which would have, as they assert, led to her dismissal in any event.

[3]The first hearing of the Tribunal led to an appeal to His Honour Judge Peter Clark and a panel differently constituted, on 22 July 2002, and Judge Peter Clark allowed the appeal, but remitted the matter back to the same Tribunal which heard the original facts and found the evidence, in these terms: "22 ... In answering what we have earlier described as the explicit question [that was, as summarised by them, in paragraph 18: 'what are the chances that, following a reasonable investigation and a fair disciplinary procedure, the employer would have fairly dismissed the Applicant'] , it is, we think, incumbent upon the Employment Tribunal to demonstrate their analysis of the hypothetical question by explaining their conclusions on the following sub-questions:(a) what potentially fair reason for dismissal, if any, might emerge as a result of a proper investigation and disciplinary process. Was it conduct? Was it some other substantial reason, that is a loss of trust and confidence in the employee? Was it capability?

(b) depending on the principal reason for any hypothetical future dismissal would dismissal for that reason be fair or unfair? Thus, if conduct is the reason, would or might the Respondent have reasonable grounds for their belief in such misconduct even although the Employment Tribunal found as a fact that misconduct was not made out for the purposes of the contribution argument; alternatively, if for some other substantial reason, was that a sufficient reason for dismissal: similarly, capability.

(c) even if a potentially fair dismissal was available to the Respondent, would he in fact have dismissed the Appellant as opposed to imposing some lesser penalty, and if so, would that have ensured the Appellant's continued employment?

[4]When the matter went back to the same Tribunal it set out, in paragraph 5 of its Decision, correctly, the questions which Judge Peter Clark had left it to decide. The Tribunal had decided that, in relation to the two most serious of the allegations against the Applicant, they were satisfied that they were not made out, but as Judge Peter Clark had pointed out on the appeal before this Tribunal, that did not foreclose a conclusion by the Tribunal that, nevertheless, the employer was entitled to have had a reasonable belief in the guilt of the Applicant, both in respect of those two serious allegations and, indeed, in respect of any other of the matters which were the subject-matter of the list, or lists, of allegations before them at the time, or shortly after the time when the Applicant resigned.

[5]The Tribunal effectively came to the same conclusion that it had come to at the first hearing, in the following terms, in paragraph 10 of its decision:

"10 In the light of those various permutations we see no reason to depart from our basic premise that the applicant's prospect of retaining her employment would have been 50%. We think that if the applicant had been dismissed after a fair disciplinary hearing, the probability is that she would have been dismissed for a reason relating to conduct rather than capability or some other substantial reason involving loss of confidence. We do not find it possible to go into any more detail as to the precise nature of her conduct in view of the very large number of allegations and the permutations that might be drawn from them."

[6]They go on to deal with the question of notice, which itself is a somewhat intricate issue, in the light of the fact that they had found that, because the conduct was not proved, no doubt that would have prevented them from doing anything other than awarding, in contract, the full amount of the notice period; even though on an unfair dismissal case, if they had found that the employer would have been entitled to dismiss on the basis of reasonable belief in guilt of those very same serious allegations, they might nevertheless have concluded that the employer would, or could, have summarily dismissed, so far as employment legislation is concerned, even though they would have ended up paying, on the basis of their conclusion in contract, the full amount of the notice period.

[7]The appeal this time round by Mr Cameron-Blackie on behalf of the Applicant, is put very shortly, and that is on the basis that the decision of the Tribunal does not comply with Meek v City of Birmingham District Council

[1987] IRLR 250

. It is not, as is often described, Meek compliant. We can see the force of that case, but we are concerned that if we simply sent this matter through for a further appeal that might end up with a remission, possibly a remission to a different Tribunal with more time wasted, and more costs incurred.

[8]We conclude that this is a perfect example of a case within the purview of the Court of Appeal in English v Emery Reimbold

[2002] 1 WLR 2409

. This case has been followed in this Appeal Tribunal on a number of occasions, in particular by a panel chaired by Judge McMullen QC, in Prebon Marshall Yamane (UK) Ltd v Rose (Unreported 3 December 2002) and a panel chaired by the President on 20 January 2003, in Adebowale v Peninsula Business Services Ltd . We are not remitting the matter to the Tribunal as one would, or could, at a final hearing of the appeal, as was foreseen in Tran v Greenwich Vietnam Community Project

[2002] IRLR 738

, we are referring the matter back with a view to the efficient disposal of the appeal to the Tribunal, exactly in accordance with English v Emery Reimbold , in which the Court of Appeal in a decision delivered seven days later than Tran and not, for obvious reasons, therefore, considered in Tran , just as Tran was not considered in English v Emery Reimbold , namely in order to avoid an appeal, if possible, where the originating Tribunal, or first instance Judge, is able to assist with its reasons.

[9]We are satisfied that, in accordance with Judge Peter Clark's directions, the conclusion by this Tribunal can only have been on the basis of a finding that, on the balance of probabilities, there was a 50% chance the employer would have had a reasonable belief in the guilt of the Applicant, on the basis of one or more of the items of misconduct alleged against her. We refer to it in those terms, because the Tribunal appear to have rejected the suggestion, which we are told was run by the employer below, that they could have found that the dismissal would have been justified, on the basis of substantial other reason, in particular, on the basis of the fact that the other staff would not have been in a position to continue to work with her in the light of the allegations they had made. But, if indeed reasonable belief in misconduct was the basis of the conclusion by the Tribunal, as it is perfectly entitled to find, notwithstanding its earlier conclusion that in fact the most serious misconduct was not made out, then it must have concluded that there was a 50% chance that the employer would, on the balance of probabilities, have had a reasonable belief that sufficient of that misconduct was made out against the employee to justify a dismissal. If they had those reasons, then they must, and can, spell them out within Meek v City of Birmingham District Council . If they had no such reasons, then it would appear difficult to justify the conclusion that the Tribunal reached, and it may be that they would want to institute, of their own motion, a review of their decision. But on the assumption that they had those reasons, we would wish them to articulate them, and we refer the matter back to the Tribunal so that that can be done.

[10]We encourage the parties to submit, if they wish, written submissions to the Tribunal for the purposes of assisting the Tribunal, without any further hearing, of course, of oral evidence, to be in a position to answer the Tribunal's questions, and any such written submissions by either party should be served on the Employment Tribunal, and there is no reason for them to be consecutive, they can be contemporaneous, within 14 days of the sealed date of this order and, consequently, we stay this appeal for 8 weeks from today, so that the Employment Tribunal will be in a position to act accordingly.

[11]We shall call for expedition of this transcript so that it may be before the Tribunal for its consideration, and we direct that, at the expiry of 8 weeks of today, the parties notify the Employment Appeal Tribunal, either as to the result of the reference to the Employment Tribunal, or as to the position, if such reference has not by then been determined.