FREIGHTLINER LTD v MR J M DERBY [2003] UKEAT 0588_02_1501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0588_02_1501Case No Appeal No. EAT/0588/02 & EAT/0668/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FREIGHTLINER LTDAPPELLANTMR J M DERBYRESPONDENT
Before
His Honour Judge J McMullenDate 15 January 2003
[1]APPEARANCES For the Appellant MR MICHAEL LAMONT (Employment Lawyer) The Caledonian Suite St Andrews House 141 West Nile Street Glasgow G1 2RN For the Respondent MR GOWARD LEGARD (of Counsel) Instructed by: Messrs Newbys with Thomas, Bingham & Spark Solicitors 100 Borough Road Middlesbrough Cleveland TS1 2HJ HIS HONOUR JUDGE J McMULLEN QC On 3 September 2002 two appeals came before the EAT presided over by Mr Recorder J Burke QC. For ease of reference we will describe the parties as Applicant and Respondent.[2]Mr Burke, giving the judgment of himself, Mr Clancy and Dr Grieves, said as follows: 1 "This is the preliminary hearing of two appeals by the employers, Freightliner Ltd, firstly against the decision of the Employment Tribunal sitting at Thornaby on Tees, chaired by Mr A. Fraser and sent to the parties on 3 April 2002, that the Respondent employee, Mr Derby, had been unfairly dismissed by his employers and, secondly, against the further decision at a remedies hearing of the same Tribunal which awarded compensation amounting to in excess of £9,000. We will deal first with the appeal against the finding of unfair dismissal and then turn to the appeal against the remedies decision. 2 Mr Derby was employed by the Appellants as a lorry driver from March 1997. He had a bad disciplinary record. He received a final warning in respect of his conduct on 18 August 1999 and a further final warning on 31 May 2000. He was subsequently again reprimanded. Both of those final warnings, it was not disputed, were alive when, in March 2001, three new allegations of misconduct were raised against him by his employers. Firstly, it was said that on a date in March he had left the employer's terminal to carry some goods to Doncaster (the terminal being in Cleveland) at 3:30 pm but had not arrived at his destination in Doncaster until five and a half hours had passed, when the journey time should have been much shorter. Secondly, it was alleged that he had failed to hand in his vehicle keys at the end of a shift, it having been a rule of the employers that vehicle keys, for reasons of security, should be handed in at the end of the shift. Thirdly, it was alleged that he had requested the supply of a pair of safety boots. He had permission or funding to buy such boots but had in fact bought and used for the purpose of his work non-safety boots. It should be explained that his duties included loading and unloading as well as driving. 3 Mr Derby replied to these allegations in a long letter in which he set out an explanation of the circumstances of each and in which he denied any misconduct. A manager who had not previously dealt with Mr Derby, Mr Duffy, was assigned to deal with the disciplinary process. The disciplinary procedure involved a formal hearing, if that is what the employee wished; and Mr Derby sought such a hearing. However, by the time the interview which formed part of that procedure between himself and Mr Duffy was to take place, Mr Derby was off sick suffering with depression which had previously caused him to be off sick for six weeks at the end of the previous year and the beginning of 2001. 4 On the day before the date scheduled for the interview, Mr Derby wrote to Mr Duffy asking him to proceed with the disciplinary procedure in Mr Derby's absence and that his letter should stand as his defence. Mr Duffy by return wrote to Mr Derby saying that his comments had been noted and asking Mr Derby to consider carefully what he had written and whether he still wanted to proceed on the basis which Mr Derby's letter had suggested. Mr Derby replied that he did and that he wanted the matter to be resolved as soon as possible and that delay in proceeding with the disciplinary allegations was adding to his depression and stress. 5 In these circumstances Mr Duffy went ahead with the disciplinary process and on 27 April 2002 sent a letter to Mr Derby advising him that Mr Derby's written explanation did not (to use Mr Duffy's expression) negate the charges for the reasons which Mr Duffy set out, in effect finding that the charges were proved and then saying that, in the light of the previous disciplinary record, he, Mr Duffy, was left with no option but to dismiss Mr Derby. He recommended Mr Derby to use his right of appeal which he did not in fact do. 6 The Tribunal found that Mr Derby had been unfairly dismissed. They concluded that Mr Duffy should have given Mr Derby longer to recover and should not have proceeded, as he did, in Mr Derby's absence. In the central paragraph on this issue in their decision, paragraph 24, the Tribunal said:
"Although the applicant had been quite clear in his letters that he wanted the matter to go ahead, he was signed off from work. Given that he had previously suffered a period of absence for the same reason, Mr Duffy should have given the applicant longer to recover, particularly when he was facing dismissal. Clearly at some point, Mr Duffy would have had to proceed, and then could have done so in the light of the medical evidence available to him." 7 The Tribunal then went on to decide that Mr Duffy had not fully investigated the matters raised by Mr Derby in his letter of explanation and concluded that the allegations, or at least some of them, did not appear to be misconduct or at least serious misconduct. They came to the conclusion on that basis that the dismissal was outside the band of reasonable responses. 8 Mr Lamont puts forward in his Notice of Appeal seven grounds of appeal against this decision. The first three can be summarised in this way. What in effect Mr Lamont is arguing on behalf of the employers is that, in deciding that the employers behaved unreasonably in failing to delay the process further and in failing to investigate it further, the Tribunal substituted their own view for the view of the employers, albeit they purported to say that they were considering the matter from the standpoint of the range of reasonable responses or alternatively that they came to a conclusion which no reasonable Tribunal could have reached and one which was therefore perverse." 10 "
In the remaining grounds of appeal Mr Lamont attacks the Tribunal on the express basis that it could not and should not have reached the decision that the dismissal was outside the range of reasonable responses, the arguments being broadly those which we have already canvassed."[3]In the light of those findings the EAT decided to put the appeal over to a full hearing on the first appeal.[4]On the second appeal Mr Burke said: 12 "We turn next to the attack made by Mr Lamont upon the Tribunal's decisions at the remedies hearing. The Tribunal ordered the employers to pay a total of £9,129 by way of compensation. Of that £8,463 was compensation for loss of earnings during the 12 months between the dismissal and the remedies hearing in May 2002. It is not necessary to go into detail, save to say that £2,613 of that sum was awarded in respect of loss of earnings during the period from 20 December 2001 to 8 May 2002, during which period Mr Derby was unable to work through depression. The Tribunal rejected the employer's argument that these awards should be reduced for the contributory fault on Mr Derby's part. Mr Lamont now seeks to appeal on behalf of the employers against the award in respect of the period from December 2001 to May 2002 and against the finding that there was no contributory fault. 13 The Tribunal found that there was no contributory fault on the basis that it was inappropriate to take into account previous misdemeanours for which Mr Derby had already received disciplinary sanction and on the basis that the offences which had produced the disciplinary proceedings which led to his dismissal were minor, if they were offences at all, and would scarcely have justified disciplinary action of this nature but for the previous warnings. 14 It appears to us logically that if we have allowed the employer's challenge to the decision on unfair dismissal to go forward to a full hearing, as we have, it would be right to allow this appeal against the finding of no contributory fault to go forward too. Furthermore, as Mr Lamont has pointed out, there appears to be a discrepancy between the approach to the previous misdemeanours and the previous record of Mr Derby as set out in the Tribunal's decision on unfair dismissal and that which they have adopted in relation to contributory fault."[5]The EAT there referred to another aspect of the appeal. The remedies appeal was disposed of by it dismissal but with the remainder (that is, the point above) being promoted to a full hearing today.[6]The EAT decided that both the liability point and the contributory fault point were arguable. As will become clear we have found that those points are not only arguable but are correct. We will add a little by way of background to the reasons given by the Recorder.[7]The Respondent was part of British Rail which operates on a national basis and employs about 1,300 people at various ports and railway terminals across the country. One was at Cleveland where the Applicant was based. The Applicant had started work for the Respondents as an agency worker in 1995 and commenced full time employment with them in March 1997 as a Road Motor Driver, his duties being to load, unload and drive HGVs.[8]Before the Applicant's dismissal he had been subject to a number of disciplinary procedures leading to what perhaps anomalously were described as two successive final warnings. There was a general criticism that the Applicant had persistently committed minor offences. Thus it was that the Tribunal found that the Applicant had a disciplinary record.[9]The events leading to his dismissal began with a letter known as a 'please inform' letter on 21 March 2001. He had several months earlier suffered for six weeks from a period of depression. Three matters were put to him in the following way:
"I would like you to supply me with a written explanation of the following Why after exiting the terminal at 15.30hrs on 13 th March 2001 you did not arrive at Doncaster until 20.59hrs. Why your vehicle keys were not handed in at the end of your shift on Saturday 17 th March 2001. When you requested a new pair of safety footwear you went and purchased non-safety boots whilst knowing this is against company policy."
[10]In a 9-page letter the Applicant replied in detail to each of these charges. Taking them in turn, he indicated that he had spent some time asleep when he should have been on the road and that he had spent time buying tea and also going to shops and the bank. As to the keys, he apologised. As to the boots, he acknowledged he had not bought safety boots and had charged the company for safety boots but indicated that there may have been some indication from another employee that he was entitled so to do. He apologised for that.[11]He indicated that he had been under stress and that he wanted an interview. The relevant manager Mr Duffy undertook it. The Applicant made it clear that it would be in the interests of all parties if the interview scheduled for 25 April went ahead in his absence. Notwithstanding that clear disavowal, Mr Duffy probed as to whether the Applicant wanted to be in attendance or whether a nominated trade union representative would conduct the proceedings. The Applicant was invited carefully to consider his previous comments.[12]Having read that letter the Applicant said that his account was true. He wanted the matter resolved as soon as possible as it had been dragging on for a month. He said:
"I feel you are adding to it with the delay in dealing with this matter. I can't say when I will be returning to work due to my illness and this is making me more depressed and stressed so please deal with me as you will."
[13]The Applicant had indicated in his original response that he was going to be leaving the company to become a driving instructor. He alleged that the company was continually pounding him to do more hours.[14]The hearing did not take place. Mr Duffy decided to uphold the charges and wrote to the Applicant. In respect of the Doncaster trip, Mr Duffy appears not to have taken issue with the circumstances put forward by the Applicant but found against him on the grounds that in those circumstances of personal tiredness or personal need, the Applicant should have notified the Traffic Office and he chose not to do so.[15]Secondly, as to the vehicle keys, Mr Duffy said:
"There is no defence based on another driver not handing in keys."
He indicated that the reasons the Applicant gave were irrelevant. It obviously is important in transport business that as soon as a vehicle ceases to be used by a driver the keys must be made available.[16]Thirdly, Mr Duffy did not accept the Applicant's account about the footwear. The company provided footwear and paid for it.[17]The Applicant was offered an appeal but his solicitors wrote indicating that he had lost confidence in the company and would not appeal. He instituted his proceedings in the Employment Tribunal immediately thereafter. His principal allegation was that he had been required to work excessive hours and been victimised in respect of small matters. The Tribunal found that there was no ulterior motive and that the reason for the dismissal was the Applicant's conduct, which was an admissible reason within Employment Rights Act 1996 section 98 (2).[18]Mr Duffy, in making his substantive decisions, had paid particular attention to the Applicant's disciplinary record and the Tribunal appears to have accepted that in its decision on section 98 (2). It therefore turned to consider the approach under section 98 (4) which, as it recognised, is informed by British Home Stores Ltd v Burchell [1978] IRLR 379 , as explained by Mummery LJ in Post Office v Foley , HSBC Bank Plc v Madden [2000] IRLR 827 , as follows:
"The employer, not the Tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the Tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss in the light of the results of that investigation is a reasonable response."
Further reference was made to Iceland Frozen Foods Ltd v Jones [1982] IRLR 489; the band of reasonable responses.[19]The Tribunal appears to have accepted that Mr Duffy dismissed the Applicant for the reason he gave and that his belief was genuine that the Applicant had been guilty of the offences. It therefore turned to consider whether the dismissal had occurred following as much investigation as was reasonable in all the circumstances of the case.[20]This is where the Tribunal condemned the Respondent. It held that Mr Duffy should have given the Applicant longer to recover, particularly when he was facing dismissal. Clearly at some point Mr Duffy would have had to proceed and then could have done so in the light of the medical advice available to him. What was wanting in the investigation was as follows:
"Mr Duffy should not have rejected the Applicant's explanation without giving him a further opportunity to be present and himself making further enquiries."
[21]It seems to us that the Employment Tribunal has misdirected itself in law in condemning the Respondent for failing to present a further opportunity to the Applicant to have his say. As we perceive the legal position, informed by employment practice, an employer is required in such circumstances as these to give an opportunity to an employee to give his or her account. Usually that will be done orally at a meeting.[22]In the face of an express disavowal twice in writing by the Applicant of his wish to attend such a meeting there is no legal obligation upon an employer to wait until some ill-defined date in the future, or to present to the Applicant a further opportunity to attend. The Tribunal thus misdirected itself when it held that Mr Duffy should have given the Applicant a further opportunity since we hold that a reasonable employer is not required in these circumstances to go further than Mr Duffy did.[23]The second part of the criticism is that further enquiry should have been made by Mr Duffy. Since we have found a misdirection it is perhaps not necessary for us to go further but we do indicate that the enquiries which Mr Duffy should have conducted appear to us to be beyond those which an employer acting within the band of responses of a reasonable employer would have instigated.[24]Mr Duffy accepted the Applicant's case on the reasons for his long journey to Doncaster. No further investigation of each of those matters was required since the principal criticism was in failing to call in. A similar approach could be taken in respect of the failure to hand in the keys. As Mr Duffy said, there is no defence to this matter. No further enquiry would be necessary.[25]Thirdly, as to safety boots, it must be recalled that what was in issue was the Applicant claiming re-imbursement for shoes which were not provided by the company. With respect to the Employment Tribunal it is not a requirement in such circumstances for further investigations to be conducted. Mr Duffy had as much information as was reasonable, including the Applicant's apologies in respect of the keys and the boots.[26]In those circumstances the Tribunal has misdirected itself. It has made a further misdirection, in our judgment because it was common ground that the Respondent would not have dismissed the Applicant for these matters were it not for his record and that appears to be the finding of the Tribunal.[27]In the related appeal on remedy the Tribunal said this: 9 "It seemed to us that it was not appropriate to take into account previous misdemeanours, for which the Applicant had received some disciplinary sanction. As far as the present offences were concerned, these were minor (if indeed they were offences at all) and would scarcely have justified disciplinary action of this nature, but for the previous warnings. We do not consider that they caused or contributed to the dismissal."[28]That is in contradiction to its earlier findings. Since Mr Duffy would not have dismissed the Applicant for the three index offences without reference to the previous disciplinary history it follows that reference to that history did cause the dismissal.[29]The Tribunal substituted its own view for that of the Respondent. Both in the passage above and in the passage in the liability decision: "these hardly seemed to constitute offences" the Tribunal does not weigh the conduct of the employer against the standard of a reasonable employer but it seems to us is giving its own view of what is an offence.[30]Thus we accept the submissions made to us by Mr Lamont of an error of law by the Tribunal. As a matter of common sense, previous disciplinary sanctions are directly relevant to ongoing employment relationships. Nor in this case are they minor since the previous offences involve at least some timekeeping irregularity and resulted in not one but two final written warnings. Breach of the disciplinary code on a further occasion would render the Applicant axiomatically liable to be dismissed.[31]For those reasons the appeal against the liability decision is allowed. We turn now to the decision on remedy.[32]The Employment Tribunal had awarded the Applicant the sum of £9,129 but failed to accept the submission made that the Applicant had contributed to his dismissal, pursuant to Employment Rights Act 1996 section 122(2), the basic award, and 123(4), the compensatory award. The passage we have cited from the remedy decision is at odds with its principal finding as to the reason for dismissal. Given that the Applicant's previous disciplinary record caused the offences to be the subject of a dismissal when they would otherwise not, it is as a matter of language clear that the subject of that disciplinary record caused or contributed to the disciplinary decision.[33]Having heard submissions from Counsel and recognising that this matter may be entirely academic, we will allow the appeal on remedy and substitute a finding that there was contribution. We are not in a position to assess contribution and that would be a matter that would have to be remitted to that Employment Tribunal, or if not practicable by another, if we are wrong on our primary judgment.