THE ROYAL VETERINARY COLLEGE v MISS J YERBURY [2005] UKEAT 0202_05_2906

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0202_05_2906

Case No Appeal No. UKEAT/0202/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE ROYAL VETERINARY COLLEGEAPPELLANT

MISS J YERBURYRESPONDENT

Before

His Honour Judge Reid

Date 29 June 2005

[1]APPEARANCES For the Appellant MR STUART ENGLAND (Representative) Abbey Legal Protection Ltd 17 Lansdowne Road Croydon Surrey CR0 2BX For the Respondents MR MICHAEL CONNOCK (Representative) Elm House Bentley Heath Lane Barnet Herts EN5 4RZ SUMMARY Unfair Dismissal; Reason for Dismissal; Reasonableness of Dismissal Dismissal for performance which was a combination of unsatisfactory conduct and capability. The Employment Tribunal was in error in having regard only to the capability aspect of the employee's performance and disregarding the conduct element altogether. HIS HONOUR JUDGE REID QC This is an appeal from a Decision of an Employment Tribunal held at London (North West). The hearing took place on 26-28 October of last year and there was a discussion day on 19 November and the Decision was sent to the parties on 20 January of this year.

[2]By its Decision, the Employment Tribunal determined that the Claimant before them, Miss Yerbury, had been unfairly dismissed by the Royal Veterinary College ("the Respondent") but they assessed that she had contributed to her dismissal and they assessed the contribution as being one-third. A remedy hearing has since been held and that reduced compensation has resulted in a reward in the region of £13,900.

[3]The background facts to the case can be stated pretty shortly. Miss Yerbury was employed at the Royal Veterinary College from September 1989 until her dismissal on 12 March 2004 but that dismissal arose from disciplinary proceedings which had taken place in the previous December and an appeal by way of review rather than rehearing following on from that. Her role was as an office assistant receptionist. That title covered a multitude of tasks; she was primarily concerned with the ordering of stationery and similar supplies for the various departments of the college. Her relationship with her employers was not always an easy one and there were occasions when she was the subject of disciplinary proceedings. She had, for example, a written warning on 18 September 2001, a final written warning on 27 May 2002, and in June 2002 there was an informal meeting out with the formal disciplinary procedures, as a result of which she was effectively suspended for a month. She was sent on what might be described as "gardening leave".

[4]On 17 July 2002, she was given a new job description and the letter, (see page 51 of the bundle), pointed out that although these were new working arrangements and were being viewed as a clean slate, "you do currently have a final written warning on file and therefore if your work and conduct is not to a satisfactory standard, disciplinary action may be taken against you which could result in your dismissal". There was then a further disciplinary hearing on 10 September at which she was informed that the final written warning was to be extended by a period of three months and that a failure to meet any of her objectives could result in further disciplinary action being taken against her, which could result in her dismissal.

[5]Almost immediately after that, it was found that she appeared not, in the view of the college, to have been up to date with her work, as she had apparently suggested to the disciplinary tribunal and, as a result of that, further disciplinary proceedings were taken. She was on holiday or off sick for essentially the whole of the autumn. She had been on holiday in September, the first hearing of the disciplinary process following the most recent complaint was to have been on 6 October, but that was postponed because of her ill-health and she was not apparently well enough to attend the hearing until it eventually took place in December.

[6]The Tribunal took the view that she was dismissed on the grounds of capability. That was the answer that they had elicited from the Respondent in the course of the hearing. They said at paragraph 3 of the Decision:

"The Respondent equivocated during the hearing as to the principal reason but settled on one related to capability"

. They then went on and dealt with the remainder of the matter as being related entirely to capability. Having gone through the history of the matter, they took the view that Mr Solomon, who was Miss Yerbury's immediate superior, had not conducted a sufficient investigation prior to the disciplinary hearing on 10 September (that was the one, I reiterate, at which her final warning had been extended) into the state of affairs involving her work and they then went on and said this:

"52. We considered whether the Respondent's decision to dismiss the Claimant fell within the range of reasonable responses as described in Iceland Frozen Foods Ltd v Jones. The Respondent is a large organisation with appreciable administrative resources. The Claimant had been an employee of it for 14 years. In regard to these matters, the facts found, the failure by the Respondent to provide any formal warnings to the Claimant, there being an absence of any formal appraisal system for the Claimant (in itself we would not find that to be a fundamental consideration) but in the absence of any form of formal mechanism to be material, we find that the Respondent's decision to dismiss the Claimant fell outside the range of reasonable responses open to it. We therefore find the Respondent's decision to dismiss the Claimant was unreasonable and unfair. 53. We invited submissions on the issue of contribution. The Claimant considered that she had possibly contributed by up to 20% and the Respondent considered by 100%. Because of the facts found we are satisfied that the Claimant did contribute to her own dismissal."

They then went on and fixed that contribution, as I have said, at one-third.

[7]There are two grounds of appeal taken against that decision by the college. The first is that the decision is perverse and in support of the perversity argument, what is said is that the sentence: "The failure by the Respondent to provide any formal warnings to the Claimant" is simply wrong. There had been a variety of formal warnings and, indeed, at the time of her dismissal, she was still on a formal warning. The answer to that may be that the Tribunal there were thinking only of warnings which could be regarded as being simply and solely in respect of capability, whereas the earlier warnings could be regarded, for example, one related to an altercation with a security guard as being in relation to conduct. If that is the right construction of paragraph 52, as we think it is, we take the view that the decision cannot be said to be perverse, but it does throw up and highlight the second ground of appeal, namely that the Tribunal was wrong in law in the way in which they approached the matter as simply being a dismissal of the grounds of capability. By Section 98 of the Act, an employer is required to identify the reason or, if more than one, the principal reason for dismissal. As is well known, a dismissal is for a potentially fair reason if it relates to capability or qualifications, to conduct, to redundancy or the employee being unable to lawfully continue working in his position.

[8]It is apparent from that and, indeed, I think the Tribunal itself was aware of it, that there can be more than one reason for dismissal. In this case, it seems clear to us that the reason for dismissal could properly be characterised as being a combination of capability and conduct. In so far as one is required to identify one of those two as being the principal one, it can properly be said that the principal reason was performance, but the trouble is that the Tribunal appear, when considering whether the decision to dismiss was fair or not, have looked only at the principal reason and have not taken into account any element that might be admixed to it by the conduct element. Here, there was a position where there had been a variety of warnings and it is clear law that it is very rare that warnings, for whatever cause, are irrelevant, as the Tribunal appears to have thought the earlier warnings in this case were. Obviously, an employer may take a different view of a warning entirely different in kind, but here one had a mixed basis for dismissal because the conduct and the capability were very much intertwined. There was a strong hint that the faulty or inadequate performance of her work was, to a large extent, due not to her inability to perform, but to her view that she had been doing the job for a long time and she knew better than any upstart who came in above her. So, in our view, the Tribunal made a fundamental error when they regarded only capability as being the basis for dismissal and refused to regard other reasons which may not have been the principal reason, but were nonetheless, substantial reasons, viz conduct. A result of their error, wrongly disregarded the formal warnings which had previously been given to the Claimant.

[9]It was suggested to us that because the principal reason had been identified as capability, as far back as the ET3 (see page 34 of the bundle) where reason for dismissal was given as incapability, the employer could not rely on conduct to any extent. It does not seem to us that is the position. Conduct and capability are very often closely interlinked. What matters is not the label which is attached, but the substantial facts which underlie the label. What an employer cannot do, following the dismissal, is change the factual basis upon which he seeks to justify the dismissal. He is, however, perfectly entitled to correct the name that he gives to that factual basis and, indeed, even if he does not, the Employment Tribunal can itself correct that label. The Tribunal is concerned with substance rather than with labels or names.

[10]That being the position, it seems to us that the Tribunal was wrong in law in the way in which it approached the case. The question then is: what do we do about it? The amount at issue is not a very substantial amount so far as the college is concerned though, no doubt, it is a substantial amount to a lady like Miss Yerbury who was earning around about £15,500 a year. The cost, in purely financial terms, would be substantial to re-run a case which has occupied a very considerable amount of Court time already, and quite apart from that, there is the emotional cost to Miss Yerbury who, we understand this has not been contradicted, has been suffering from ill-health, a stress-induced illness, possibly depression, as a result of what has happened to her. To have the matter re-opened and re-run in its entirety would, it seems, to us to be on the very cusp of what is proportional in the particular case.

[11]We considered seriously whether there was a basis on which we would either reverse the decision of the Tribunal or modify the decision of the Tribunal. We have come to the conclusion that we can do neither of those things. We do not think that decision can properly be characterised as perverse; we do not, in those circumstances, think that we can therefore substitute our own decision that the dismissal was fair, nor do we think that we can say that another tribunal would be bound to hold that the dismissal was unfair, tempting though that might have been since it appears that Mr Solomon conducted no investigation into the matters that led to the final disciplinary charge before he launched the charge, nor that we could find on the material that we have a different percentage contribution. The result of that is that, reluctant though we are, we take the view that the only appropriate course is to remit the case for a complete rehearing before a fresh Tribunal if that proves necessary. It is, of course, always in the hands on the parties to avoid that and we would very strongly urge both sides to consider whether there is some form of mediation either through ACAS or otherwise which would avoid the burden of a complete rehearing. It must be borne in mind that there is a very real prospect that, properly directed, a new Tribunal would come to precisely the same conclusion in relation to the unfairness of the dismissal. Equally, it must be borne in mind that the another Tribunal, properly directing itself, might come to a different conclusion in relation to the proportion of the award which is down to Miss Yerbury's conduct and I should say, in passing, that had the Tribunal properly considered this to be only a capability case, it is difficult to see how they could have justified any deduction.

[12]We would therefore, in making our order, invite the parties to consider very seriously whether there is some way at this late stage in which they can short-circuit the position at which they have now arrived and from which they are going to have to advance, by some form of mediation or conciliation which would hopefully result in a disposal of this matter without having to go back to a further full hearing. We cannot, of course, compel the parties to do that, but in the circumstances of this case, the college has got to think of the cost of rerunning all this, whatever they may think about the merits of their case. We would very strongly urge them to give the position detailed and thorough consideration. For the present, all we can do is allow the appeal and remit for a rehearing before a differently constituted Tribunal.