MR A L HACK v FERNLEY AIRPORT SERVICES LTD [2004] UKEAT 0940_03_2906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0940_03_2906Case No Appeal No. UKEAT/0940/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A L HACKAPPELLANTFERNLEY AIRPORT SERVICES LTDRESPONDENT
Before
Mr Justice Nelson Dr K MohantyDate 29 June 2004
[1]APPEARANCES For the Appellant MR A L HACK (the Appellant in Person) For the Respondent MR DALE MARTIN (of Counsel) Instructed by: Messrs Croner Consulting Croner House Wheatfield Way Hinckley Leicestershire LE10 1YG SUMMARY Unfair Dismissal Employer's genuine and reasonable belief. Whether dismissal was fair. Relationship between two clauses in contract of employment - one re gross misconduct, the other re bringing the employer into serious disrepute – the latter only giving an express right – to dismiss. Duress at disciplinary hearing. Relevance of ACAS code. Perversity. Appeal dismissed. THE HONOURABLE MR JUSTICE NELSON This is an appeal by Mr A L Hack against the decision of the Employment Tribunal at Watford of 7 August 2003. The unanimous decision of the Tribunal was that the Applicant was unfairly dismissed by the Respondent but that there was a 100% chance that the Applicant would still have been dismissed if appropriate procedures had been followed. If those procedures had been followed the Applicant would have been employed for another 4 weeks and they therefore made an award of compensation to him in the sum of £1,060 representing 4 week's pay. They also dismissed the Appellant's claim for wrongful dismissal for breach of contract. The appeal is against those decisions.[2]Initially after he had made his appeal the Appellant was informed that the decision of the Registrar was that no error of law arose on the face of his grounds of appeal and that there was therefore no jurisdiction. That information was sent to him by letter of 5 September 2003. As he was entitled to do, the Appellant requested an oral hearing in relation to that and that took place in front of Judge Peter Clark on 26 November 2003. The judge raised questions of whether there were in fact errors of law and directed that a preliminary hearing take place.[3]That preliminary hearing took place on 20 February 2004 after grounds of appeal had been prepared on behalf of the Appellant by Mr Murray Shanks on behalf of ELAAS. The two grounds there set out in the document prepared by Mr Shanks were the grounds, and indeed the only grounds, upon which the matter was sent to the full hearing which has taken place today.[4]The facts of the matter are set out in the decision of the Employment Tribunal. Mr Hack was employed by the Respondent and its Transfer of Undertaking (Protection of Employment) Regulations 1981 ( TUPE ) transfer predecessors from 26 June 1991 to 13 January 2003, some 11 years. He had latterly been employed since 1999 as a hi-lift truck driver. Hi-lift vehicles are heavy goods vehicles that park alongside the doors of aircraft on the tarmac at Heathrow in order to re-provision aircraft to enable supplies such as headsets, blankets and other matters to be removed and replacements put upon the plane. The vehicles are operated by a driver and a guide person whose job is to assist and guide the driver when positioning the hi-lift truck alongside the aircraft before raising the lift and bridging with the relevant door of the aircraft.[5]The Tribunal said that they were satisfied that Mr Hack knew that he had to position the truck so as not to damage any aircraft and that his guide on this occasion, Mr Kumar, had been appropriately trained by the Respondent.[6]The Tribunal found that on the morning of 8 January 2003 Mr Hack was driving his hi-lift truck with Mr Kumar as guide and went to park the vehicle alongside a Virgin Atlantic aircraft on stand in M30. The job that both of them were carrying out involved teamwork, the Employment Tribunal found, with an equal share of responsibility.[7]The Tribunal stated in their findings that they were satisfied that Mr Hack had difficulty in his approach and positioned the hi-lift truck to the aircraft at an angle. He went to and fro in the truck at least twice and ended up at an angle to the aircraft when he should have been at right angles, and too far forward. The former problem was, the Tribunal stated, conceded during Mr Hack's disciplinary interview which took place on 13 January 2003. The matter can also be seen from the photograph taken after the accident which shows the vehicle too far forward on the yellow line running parallel with the aircraft fuselage. We have those photographs before us today and it is pointed out that although one of the photographs taken of the aircraft on the day in question is somewhat indistinct, namely photograph 82, it appears that the plane is slightly to the right of the yellow line. One cannot see precisely the position of the truck in relation to it.[8]It was conceded by Mr Hack in evidence that it would have been immediately apparent to him that he had parked incorrectly if he had made a visual check after parking alongside. The Tribunal recorded that: "In evidence he said that the reason for not making this check was that he was in too much of a hurry".[9]What happened next was that Mr Kumar raised the lift and it inevitably came into contact with the aircraft fuselage causing damage to the front of the lift bridge and to the outside skin of the aircraft itself. We note that it is said in the Appellant's particulars of his claim that there was in fact a small hole caused in the fuselage of the aircraft. The Employment Tribunal continued that:
"The cost of repair to the aircraft was approximately £20,000 and there was also a loss of revenue for Virgin Atlantic while the aircraft was out of service."
[10]The Employment Tribunal posed the question to themselves "What caused the accident?" and they answered it in this fashion:
"We are satisfied that it was Mr Hack's responsibility to correctly position the vehicle and he cannot therefore shift the burden onto Mr Kumar, although Mr Kumar obviously also has a share of responsibility."
They noted that Mr Kumar was himself also summarily dismissed and had not made any claim of unfair dismissal. They also noted that during the course of the hearing before them Mr Hack had alleged that he was under duress during the disciplinary investigation carried out by his employers. The Employment Tribunal made a specific finding that they could not find any evidence to substantiate that allegation.[11]In their conclusions the Employment Tribunal stated that they were satisfied that the Respondent (that is, the employer) had a genuine belief in relation to the alleged misconduct. There had been an accident, an investigation revealed, but the substantial measure of responsibility was that of the Applicant by positioning his vehicle at the wrong angle and too far forward whereby once the lift was raised it was bound to come into contact with the skin of the aircraft fuselage.[12]Whilst the Respondent believed that it acted appropriately and reasonably, the Employment Tribunal found that there were a number of procedural failings. Firstly there was a failure to identify how the Respondent had been brought into disrepute. Secondly, that the inspection of a similar hi-lift truck, which took place in the absence of the Applicant, denied him the opportunity to demonstrate himself what had happened. Thirdly, there was a failure to explain to the Applicant what allegations were being pursued. Fourthly, at the disciplinary hearing the Applicant was not given sight of the statement made to the investigator by Mr Kumar.[13]The Tribunal nevertheless concluded that they were satisfied that the investigation was carried out properly and thoroughly by the taking of statements and the producing of photographs. They were also satisfied that it was appropriate for Mrs Woodland at the disciplinary hearing to invite the Applicant to draw a diagram of how he had passed the truck. He did so and we have copies of the diagrams drawn by both Mr Hack and indeed Mr Kumar showing two positions. Firstly, where and at what angle the truck should have been placed in relation to the aircraft and, secondly, what was the actual position in which it was placed.[14]The Tribunal went onto state that they were satisfied that this was an unfair dismissal on the procedural grounds identified above. However, they were also satisfied that if proper procedures had been followed there was a 100% chance that the Applicant would have been dismissed on the grounds of gross misconduct and hence they made their conclusion that he was entitled to the four weeks he would have remained in employment had that been so and awarded him £1,060. They also dismissed his claim for wrongful dismissal stating that they did not consider, either singularly or cumulatively, that on the balance of probabilities the Applicant had proved that they amounted to a breach of the contract of employment with the Respondent.[15]It is necessary to consider the code of conduct which was applicable and which the Tribunal considered, so as to put the matter and the submissions made before us in proper context.[16]The codes of conduct set out various rules. It is stated in the code of conduct that:
"Breaches of the rules or any other inappropriate or unreasonable behaviour may result in disciplinary action. Breaches of the rules highlighted in bold text will be regarded as Gross Misconduct and my result in summary dismissal."
[17]Under paragraph 5 (b) of the code of conduct, it is stated:
"Employees must take reasonable care to protect company and customer property and prevent loss or damage."
That is not in bold.

(r) it is said, in bold:

"Employees must not at any time do anything, either by act or omission, which brings the company into disrepute."
[18]In the letter which was sent to the Appellant, after his disciplinary hearing had taken place, both 5 (b) and 5 (r) were relied upon as grounds for dismissing him, in other words, both the manner in which he dealt with the vehicle and the allegation that the manner in which he had acted and its consequences brought the company into disrepute.[19]The grounds which are set out, and those upon which leave has been given, are at pages 13 to 18 of the bundle. They are in fact repeated elsewhere as well but it is that particular pagination of the document that we shall refer to.[20]Submissions in the Skeleton Argument made on behalf of the Appellant by ELAAS through Mr Murray Shanks started by setting out the fact that the Tribunal's finding that the Respondent had dismissed the Applicant on the basis that it had a genuine and reasonable belief that he had acted negligently in relation to the positioning of the hi-lift truck and thereby caused damage to a customer's aircraft. Mr Shanks stated in paragraph 1 of the Skeleton Argument he put before the Employment Appeal Tribunal that that finding was not, and could not be, challenged. It has been submitted to us on the Appellant's behalf that that was a concession which should not have been made and was inappropriately made.[21]The grounds are set out in paragraph 6 of the Skeleton Argument prepared by Mr Shanks and they consist in essence of two grounds subdivided into various parts. The first ground is this: that in concluding that the Applicant's dismissal was unfair but nevertheless he would have been dismissed later for gross misconduct, and was therefore only entitled to four weeks' pay by way of compensation, the Tribunal omitted to consider whether such a later dismissal would have been fair or not.[22]Even if it would have been fair there was no evidence to support such a finding, which was therefore perverse. The only form of gross misconduct was under paragraph 5 (r), namely bringing the company into disrepute. There was no evidence at any stage of the proceedings or before the Tribunal that the Applicant's acts had brought the Respondent into disrepute. Next that circumstances which refer to bringing an employer into disrepute have to be serious disrepute, and anything less than that cannot amount to gross misconduct, and by comparison Mr Shanks refers to paragraph 7 (vii) of the ACAS code which refers to serious disrepute rather than just disrepute. Next that it would be wrong in principle to dismiss for acts of omissions which were directly covered by another disciplinary rule, namely paragraph 5 (b), breach of which expressly did not constitute gross misconduct and, lastly, that in any event, looking at all the circumstances the decision was outside the range of reasonable responses by an employer because the Applicant had been employed for some 11½ years, that he had a clean record, that the primary responsibility for the accident lay with the co-worker and the provisions of the Respondent's rules as set out earlier demonstrated that the decision was unreasonable. That was the first main ground, as I say, subdivided.[23]The second ground was that the Employment Tribunal wrongly rejected the Applicant's claim for wrongful dismissal when it was clear that he had been dismissed without notice. Such dismissal could only be justified if he in fact committed an act of gross misconduct and there was, repeating the grounds under Ground 1, no evidence before the Tribunal that he had ever done that or brought the company into disrepute in any way.[24]Before us today we invited Mr Hack whose submissions were put to us by his brother, and to some extent supplemented by the Appellant, Mr Ashley Hack, to deal with the submissions on the basis that they should add to and expand those put forward by Mr Murray Shanks because those were the only ones which indicated an error of law as sent for the full hearing by this Tribunal at the preliminary hearing.[25]The Appellant's submissions can be summarised as follows. Firstly, that this was not a case of gross misconduct. Gross misconduct has to be intended or premeditated. This was, on any view, only a minor incident, the type of which occurs regularly and is dealt with customarily by insurance between the parties. If indeed employers were to sack someone for such a minor offence, nobody would own up to having committed such an offence and planes would run the risk of being flown with unreported damage. We will deal with that particular branch of the submission within the context of the ELAAS points later.[26]Secondly, the Appellant was under duress when the hearing took place on 13 January 2003 with Miss Woodland. This was a disciplinary hearing but he was not told that he might be sacked. He wanted, because he thought that he was simply going to be asked what had happened, describe what had happened and then be sent back to work the next day, to be compliant and he made it sound a lot worse than it was. There was a background of friction between the Appellant and Miss Woodland who wanted an excuse to sack him.[27]In relation to this particular ground, we would note that the Employment Tribunal specifically deals with it in the passage which we have already referred to at page 4 of their decision when they note that Mr Hack alleged that he was under duress during this disciplinary investigation. They specifically found that they could not find any evidence to substantiate this allegation. This in itself cannot in any way be presented as an error of law and cannot form the grounds of any successful appeal.[28]The next point that was made on the Appellant's behalf by his brother was that Mr Kumar was the man who was really responsible, not the Appellant. Mr Kumar's fault was threefold in essence. Firstly, he was the man guiding into position. Secondly, he entered the platform against the rules. Thirdly, he was operating the button and it was his error in failing to stop it (that is, the hi-lift rising) by failing to release his finger after he had had a shouted warning from the Appellant who had seen that there was a risk that the hi-lift might come into contact with the fuselage of the aircraft. The way that Mr Hack put it in submissions on behalf of his brother was that this was one man, one finger on the button, one second too long. It was accepted during the course of the submissions that it is bad practice to open the door of the aircraft from the outside, but it was a practice known by the employers.[29]In relation to the argument that Mr Kumar was really responsible, the Employment Tribunal heard this argument and specifically rejected it by finding both men to blame at paragraphs 2 (e) and 5 of their decision. The Appellant accepts, as he inevitably must, and did before the disciplinary hearing, and indeed before us, that he was responsible for the vehicle. The Employment Tribunal found him substantially to blame, as we have indicated, and that cannot be reopened as an error of law. It cannot on any basis, on the evidence before the Tribunal, be so expressed.[30]Next it was submitted to us (and this, together with the first submission above, no gross misconduct, forms the heart of the submissions made on behalf of Mr Hack) that there was no evidence that the Appellant's actions had brought the company into disrepute and there could therefore be no finding of any breach under 5 (r) of the rules of conduct. Mr Hack repeated the submission to us that he had made that all this was covered by insurance and if, for example, Virgin or some other carrier were to say that they were concerned about negligence and hence the contract with the employer, the response would be that it was all down to insurance. We deal with that later in the course of this judgment.[31]Next it was submitted that the Appellant had a good record for 11½ years, that he had worked for the company for that time and that such problems that he had had, as recited in his evidence before the disciplinary Tribunal, could not be described as anything other than a clean record because they did not amount to disciplinary procedures by the employer, even though in the one instance set out and accepted, his conduct did result in a prosecution for careless driving where a vehicle that he had been driving was responsible for causing damage to an aircraft. He pleaded guilty at the Magistrate's Court to careless driving in respect of that offence. In the context of this submission and the record, Mr Hack submits that it was unreasonable in all the circumstances for the Tribunal to dismiss his brother.[32]Lastly, the submission was made to us on behalf of the Appellant that the company changed its position when it realised that it could not dismiss under 5 (b) under the code of conduct, to 5 (r), namely bringing the company into disrepute. It has to, however, be said in relation to that submission, that the letter of dismissal itself shows that the employers at the time of dismissal expressly relied on both 5 (b) and 5 (r) and it cannot therefore be contended that there had in fact been a change of position.[33]I leave, therefore, the submissions in relation to whether there was evidence before the Employment Tribunal of gross misconduct, whether in fact there was evidence that the Appellant's conduct and its consequences brought the company into disrepute, and whether, given all the circumstances, there was evidence that it was unreasonable to dismiss him, to the conclusion of this judgment when the submissions made by the Respondent have been submitted.[34]The Respondent submits that the only matters of substance before the Tribunal are those which related to the ELAAS grounds set out in the Appellant's Skeleton Argument prepared by Mr Murray Shanks; that, in those circumstances, it is appropriate to deal with the matters, the rest being either related to fact or for example in relation to the change of position or duress where the findings of the Employment Tribunal directly deal with the matters complained of and could not possibly be challenged, to the ELAAS grounds. We deal with those accordingly.[35]In relation to the ELAAS Ground 1 (a) which is that " the tribunal omitted to consider whether a later dismissal would have been fair or not ", it is submitted to us that it was implicit in the findings made by the Employment Tribunal that such was the case. If one looks at their findings they show firstly that there was misconduct, that a substantial measure of responsibility lay with the Appellant for what happened, that the employers had a genuine belief in the fact that there had been misconduct, that ELAAS conceded that they had both a genuine and reasonable approach to this, that the only reason that the dismissal was held to be unfair by the Employment Tribunal was on procedural grounds, that a fair investigation had taken place and that there had been no duress. In those circumstances Mr Martin submits to us that it cannot be said that there was anything other than the appropriate finding and necessary finding that the dismissal would have been fair, apart from procedural failures.[36]We are entirely satisfied that that is a correct submission. Looking at both the findings and the wording of the conclusions of the Employment Tribunal it is clear that that is so. They said that they were satisfied that this was an unfair dismissal on the procedural grounds identified above, but they were satisfied that if proper procedures had been followed there was a 100% chance that the Applicant would have been dismissed on the grounds of gross misconduct. We, as I have indicated, are satisfied that it is implicit in such a finding that a dismissal apart from procedural grounds was in their view, and on the evidence before them, fair.[37]Compendiously, Mr Martin describes all the submissions made in 1 (b) of the grounds to be what can properly be described as perversity grounds. Firstly, that there was no evidence that at any stage of the proceedings that the Applicant's acts had brought the Respondent into disrepute. That is simply not so he submits. The evidence clearly establishes that there was evidence to that effect before the Tribunal and when they refer to no evidence as to consequences they are plainly referring to information given to the Appellant, namely a procedural failure.

(d) of their decision at page 3 when they say:

"What happened then is Mr Kumar raised the lift and it inevitably came into contact with the aircraft fuselage causing damage to the front of the lift bridge and to the outside skin of the aircraft itself. The cost of repair to the aircraft was approximately £20,000 and there was also a loss of revenue for Virgin Atlantic while the aircraft was out of service."
[38]In addition, it is quite clear that there was also before the Tribunal evidence that an act of negligence, which can only be described as serious, had taken place and that in those circumstances that was also a matter which, with its consequences, could and would have been taken into account in relation to a finding that the company had been brought into disrepute. In any event, they could have relied on the general law of the implied term as to trust and confidence because misconduct of such a kind as found by the Employment Tribunal would entitle an employer to dismiss an employee in any event.[39]We for our part are satisfied that there was evidence before the Tribunal sufficient to enable them to make the finding which they did, that the company was brought into disrepute under 5 (r). Damage of £20,000 and four days out of action for the Virgin aircraft is, on its face, material which could cause the company substantial problems in its contract. There was, as we have indicated, serious negligence, as set out in the findings of the Employment Tribunal.[40]The one passage in which Mr Hack accepted that it would have been immediately apparent to him that he had parked incorrectly, was if he had made a visual check after parking alongside. His reason for not doing this check, namely that he was in too much of a hurry, indicates an approach which might well be thought to both the employers and those considering that, a concession which indicated, as the Employment Tribunal itself found, substantial responsibility. The way in which the Applicant acted with Mr Kumar, for which he carried a substantial measure of responsibility, the Employment Tribunal found, was in a manner which was bound to cause the hi-lift to come into contact with the skin of the aircraft fuselage. The Employment Tribunal could properly draw the inference that such a situation could cause serious problems between the Appellant's employer and a carrier, in this case Virgin, and in that sense the Appellant's actions caused the company to fall into disrepute.[41]It is correct that the Employment Tribunal in the passage at page 6 did not actually spell out the evidence upon which they relied and had set out earlier in their findings in support of their conclusion that there was a 100% chance that the Applicant would have been dismissed on the grounds of gross misconduct. It would have been better had they done so. But we, for our part, are entirely satisfied that such a conclusion was open to them on the evidence before them and that sensibly and properly construed that is precisely what they were referring to when they reached the conclusion that they did.[42]It has been argued, with some force on behalf of the Appellant, that none of this can amount to gross misconduct because these are accidents which happen regularly. It is the sort of minor damage that occurs at all airports and is simply dealt with on the basis of insurance. The position of the truck can only be a matter of degrees out and in such circumstances it would be quite wrong, especially when the guiding was being done by Mr Kumar, to say that it did amount to gross misconduct.[43]We are, however, satisfied that the Employment Tribunal clearly concluded that the Appellant had a substantial measure of responsibility for the accident and its consequences and clearly concluded that there was a 100% chance that if the procedural matters had been appropriate and fair the Applicant would have been dismissed on the grounds of gross misconduct.[44]We have been referred during the course of the Respondent's submissions to the case of Alidair Ltd v Taylor [1978] ICR 445, a case involving a qualified commercial pilot in employment of an airline company. While flying the aircraft in broad daylight and reasonable weather conditions he made a faulty landing causing much damage to the aircraft. There was only that one error which occurred. Lord Denning MR in considering the submission that this was an error of judgment and not sufficient in itself to justify dismissal said this:
"They clearly had no further confidence in him [that is, the employers in relation to the employee]. He could not be trusted to fly their aircraft on their behalf. That being their honest belief on reasonable grounds, they were entitled to dismiss him. They acted reasonably in treating it as a sufficient reason for dismissing him. As the Employment Appeal Tribunal … said: "… There are activities in which the degree of professional skill which must be required is so high and the potential consequence of the smallest departure of that high standard is so serious that one failure to perform in accordance with those standards is enough to justify dismissal…"
It is not necessary that he should be given a further chance or further training or the like before he is dismissed."[45]Although those circumstances are not exactly parallel, as Mr Martin submits it is the consequences that have to be looked to. The making of a hole in an aircraft fuselage is a degree of error which could be and clearly was regarded by the Employment Tribunal as one which justified, in all the circumstances of their findings, a finding by the employer of gross misconduct and there was evidence upon which they could come to that conclusion. We see no basis upon which they can be criticised for that conclusion or any error of law which would justify setting it aside.[46]In the next ground put forward by ELAAS, it is said that it would be wrong in principle to treat disrepute as being sufficient, as opposed to serious disrepute considering paragraph 7 (7) of the ACAS code. We accept Mr Martin's submissions that here one has a contract which was accepted by both parties and it cannot be right that all terms should be struck out of clauses of an employment contract which are harsher than any ACAS code. That submission we do not consider has any merit.[47]Under the next, namely 1 (b) (iv) it is said:
"it would be wrong in principle … to dismiss for acts or omissions directly covered by another disciplinary rule … breach of which did not constitute "gross misconduct"."
That is a comparison between 5 (b) which did not constitute gross misconduct and 5 (r) which did. We accept Mr Martin's submission that it is inappropriate to say that the penalty is only available if there is a lesser breach. That too seems to us to be an unsustainable argument.[48]In relation to 1 (b) (v), namely that the dismissal clearly had been outside the range of reasonable responses by the employer, this is in effect an attempt to reopen the factual findings of the Employment Tribunal, a matter upon which leave was not given as it did not, on the face of it, appear that there had been any error of law in relation to the findings made by the Employment Tribunal.[49]These facts cannot, in our judgment, be reopened. There is neither permission nor is there any evidence to suggest that the findings were themselves perverse. We are satisfied that the material before the Employment Tribunal entitled it to come to the conclusion that it did, that the Respondent employer viewed the situation with a genuine belief and reasonably and that the actions that it took were within the range of those which could be taken by a reasonable employer. The responses themselves were reasonable.[50]Lastly, in relation to the second ground, wrongful dismissal, this is in effect a repetition of the ground that there was no proper basis and no evidence amounting to bringing of the company into disrepute and therefore that finding must fall. For the reasons that we have already given, we are satisfied that there was evidence before the Tribunal entitling them to find disrepute and in such circumstances we are of the view that the ground in relation to wrongful dismissal must also fail.[51]In those circumstances we are satisfied that none of the grounds have been made out, that none of the submissions made to us by and on behalf of the Appellant today justify a ruling that the Employment Tribunal decision was improperly made. We can, for our part, detect no error of law and accordingly the appeal must be dismissed.