ARRIVA SCOTLAND WEST LTD v MR RICHARD PORTER [2008] UKEAT 0039_07_1001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0039_07_1001Case No Appeal No. UKEAT/0039/07Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
ARRIVA SCOTLAND WEST LTDAPPELLANTMR RICHARD PORTERRESPONDENT
Before
Lady Smith Mr M Sibbald Mrs G SmithDate 10 January 2008
[1]APPEARANCES For the Appellants MR STEVE MAGUIRE, (Employment Consultant) For the Respondent MR R PORTER (The Respondent in Person) SUMMARY Unfair Dismissal: Reasonableness of dismissal Claimant dismissed for misconduct, having admittedly assaulted a fellow employee who had provoked him. Dismissal found by Tribunal to have been unfair as having not been within the band of reasonable responses because of "superficiality in the appeals process" and a failure to provide an explanation for a difference in treatment between the two employees. Appeal upheld, Tribunal's conclusions apparently conflicting with their findings in fact. Remit to a freshly constituted Tribunal for a rehearing. THE HONOURABLE LADY SMITH Introduction The Claimant, who is the Respondent to this appeal, was employed by the Appellants, a bus company, as one of their bus drivers. The Appellants are a substantial undertaking, their business in the Renfrewshire and Greater Glasgow area involving the running of some 180 buses and the employment of some 450 employees. The Claimant was dismissed on 31 October 2006 after having been in their employment for about 22 months and was found to have been unfairly dismissed by an Employment Tribunal sitting at Glasgow, Chairman Ms L J Crone, in a judgment registered on 29 May 2007. He was awarded a sum which, after a 50% deduction had been made for contribution, amounted to £2,990.[2]Representation before the Tribunal was the same as before us. Like the Tribunal, we propose to refer to parties as Claimant and Respondents. Background[3]The Claimant became involved in an altercation with a fellow employee, Mr McNamara, who raised with him the issue of whether or not he had bullied a fellow employee who was a female. The Tribunal's findings in fact at paragraphs 5 and 6 included: - Mr McNamara poked the claimant in the chest several times and the claimant pushed him away. - Mr McNamara lunged forward whereupon the claimant grabbed him. - The two men 'birled round' the canteen hitting off the traffic shutters, a pillar and shutters, and Mr McNamara fell to the ground. - A Mr Finch came in and separated them. - Mr McNamara challenged the claimant to take the matter outside after that but he did not do so.[4]It is also evident from the findings that there were no eye witnesses to the entirety of the incident. In particular, there were no eye witnesses to its start. Mr Finch did not arrive until towards the end. The Claimant received a call about a bus after the incident and in the course of that call he asked that the Respondents' Mr Derek Stewart attend the depot and "deal with" the incident between him and Mr McNamara. The Claimant was disciplined and at his disciplinary hearing on 31 October 2006, he gave an account of events which largely correlated with the above. He was dismissed for gross misconduct.[5]At paragraph 12, the Tribunal found that Mr McNamara was also called to a disciplinary hearing. He denied having provoked the Claimant verbally and denied having poked him in the chest. He was exonerated.[6]The Claimant appealed and his appeal was heard by a Mr Rogers. The Tribunal found (paragraph 17) that Mr Rogers understood that the Claimant accepted that he had assaulted Mr McNamara but sought to argue that the penalty was too harsh in light of the fact that he had been honest about what happened. He also argued there was "bias" in that Mr McNamara had been exonerated. The Tribunal found (paragraph 18) that Mr Rogers did not investigate any of the points raised by the Claimant. He upheld the decision to dismiss.[7]Matters did not end there though because the Claimant had a further right of appeal which he exercised. That appeal was heard by Mr Wilson Clark and the Tribunal's findings about it are at paragraphs 22–24. At paragraph 22, they record the arguments advanced (provocation, the Claimant had reported the incident and it was not right that the Claimant was being dismissed but McNamara was being exonerated) and then, at paragraph 23-4, they found:
"23. Mr Clark adjourned the hearing to investigate the points raised. He concluded there had been aggression and physical contact and that the claimant had been the aggressor: Mr Clark reached this conclusion based on the fact the claimant was of a much bigger build than Mr McNamara and the expression 'rag doll' had been used to describe the scuffle. He concluded the claimant had taken offence at what Mr McNamara had said and that there had been something more than pushing and shoving. Mr Clark understood the claimant did not deny this. Mr Clark upheld the decision to dismiss on this basis. 24. Mr Clark believed Mr McNamara had played a more significant role in the incident, and he directed the Depot Manager to revisit the matter. Mr Clark also believed Mr McNamara had provoked the claimant, although there had been no physical violence on his part. The fact the case of Mr McNamara was revisited did not, in Mr Clark's opinion, exonerate the claimant."
[8]Thus, in summary, the Claimant had admittedly been involved in a violent incident in the course of which he had assaulted a fellow employee. He had been disciplined and had gone through two stages of appeal. Whilst the first appeal did not give rise to any investigation at all on the Tribunal's findings in fact the second one did and resulted in the conclusions being drawn that are set out in paragraph23. Further, it resulted in Mr Clark issuing a direction that notwithstanding Mr McNamara's earlier exoneration, his case was to be revisited, as explained in paragraph24. The Tribunal's Judgment[9]There were two particular features of the Tribunal's reasoning to which attention was drawn by Mr Maguire. The first was that they refer to Mr Rogers and Mr Clark accepting the note of the Claimant's disciplinary hearing as being an accurate account as though that meant that they accepted the Claimant's version of events as being correct (see: paragraphs 47,53,55 and 61). Secondly they reached the conclusion that the dismissal was not within the band of reasonable responses because the appeal process was superficial and the Respondents had not provided any explanation for the Claimant being dismissed but Mr McNamara being exonerated (paragraphs 51, 52, 53, 54, 55, 60, and 64).[10]The problem with the disciplinary and appeals process, on the Tribunal's reasoning, was that there had been a failure to investigate. At paragraph 46, by way of evident criticism they state:
"There was certainly no suggestion that written statements had been gathered and shown to the claimant during the disciplinary hearing, and no suggestion he had been told what others had said about the incident and given the opportunity to comment. We also had no evidence regarding the factors taken into account by Mr Smyth in reaching his decision to dismiss. The disciplinary hearing appeared to this Tribunal to be superficial."
At paragraph 51 they are critical of Mr Rogers' failure to investigate the points raised by the Claimant, and at paragraph 52 they are critical of Mr Clark for having 'erred in the same way as Mr Rogers.'[11]In these circumstances, they say that they had difficulty in being satisfied that the third leg of the Burchell test was met ( British Home Stores v Burchell [1980] ICR 303) and they appear to have reached the view that that, combined with the failure to explain why the Claimant was dismissed and McNamara exonerated, showed that the dismissal was not within the range of reasonable responses (paragraph 64). The Appeal[12]Mr Maguire submitted that the Tribunal's conclusion conflicted with their findings of fact. In particular, they failed to take account of the fact that there were no eye witnesses and therefore no statements to take from witnesses, that the Claimant had made admissions to the effect that he had assaulted McNamara, and that Mr Clark not only adjourned the appeal hearing before him and carried out investigations but ordered that Mr McNamara's case be revisited. They had also erred in treating the Respondents' acceptance of the note of the disciplinary hearing being an accurate record of what the Claimant said as though it amounted to an acceptance that his account was entirely accurate.[13]In support of his submissions, Mr Maguire referred to the following authorities: Burchell regarding the three stage test for unfair dismissal in a conduct case, Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235 at 252 -3 for the submission that it is not for a Tribunal to substitute its view for the view of the reasonable employer , Grattan v Kamran Hussain EAT/0802/02, Sainsbury's Supermarkets, v Hitt [2003] IRLR 23, and First Scotrail v Griffen EATS/0027/05 in support of the submission that there is a range of reasonable responses open to an employer regarding how much investigation he requires to carry out, Securicor v Smith [1989] IRLR 356, London Borough of Harrow v Cunningham [1996] IRL 256, and Walpole v Vauxhall Motors Ltd [1998] EWCA Civ 706 regarding the right of an employer to differentiate between the treatment of employees involved in the same incident, CA Parsons v McLoughlin [1978] IRLR 65 as an example of another case involving a dismissal for fighting where it was said that the decision whether or not to dismiss for such conduct is essentially one for the employer, Taylor v OCS Group Ltd [2006] EWCA Civ 702 in support of the submission that the task for a Tribunal is to look at the fairness of the entirety of a disciplinary and appeal process, not just part of it, and Iceland Frozen Foods v Jones [1982] IRLR 439 and Post Office v Foley [2000] IRLR 827 for the passages which caution against a Tribunal failing to consider the reasonableness of the employers' conduct not simply whether they would have thought it fair to dismiss the employee, bearing in mind that there is band of reasonable responses open to an employer in most circumstances.[14]Mr Porter put his case clearly and carefully. The way he saw it was that he was dismissed before Mr McNamara's disciplinary hearing had even taken place. He had volunteered matters to the depot manager because he thought he had been assaulted. The Respondents did not have sufficient evidence to justify dismissal. They should have investigated matters further. They should have seen "all the statements" (he did not specify whose statements he meant and he did later indicate that he accepted that the only witness was Mr Finch who came upon the scene only towards the end). Mr Finch's written statement was not taken until after he was dismissed. Mr Rogers did not investigate anything and where was the evidence of Mr Clark having done so? He did not consider that he was the aggressor. Mr McNamara had provoked him. If McNamara had also been dismissed, then "we would not have been here". Discussion and Decision[15]Having given careful consideration to the arguments advanced we have reached the conclusion that the Respondents' criticisms of the Tribunal's judgment are justified. Our first concern is that they appear to have approached the third stage of the Burchell test, namely whether, when the Respondents formed their belief in the Claimant's misconduct, they had carried out as much investigation as was reasonable, as though there was an onus on the Respondents. That is not correct. Whilst under s98(1) of the Employment Rights Act 1996 , the onus is on the employer in a misconduct case to show that he had a genuine belief in the misconduct alleged and that it was by reason of that misconduct that the employee was dismissed, there is no onus on him thereafter (see: Madden & Post Office v Foley ; Queen Elizabeth Hospital NHS Trust v Ogunlana UKEAT/0372/06/DMI, leave to appeal to the House of Lords on the point refused in Beedell v West Ferry Printers Ltd [2001] ICR 965). The employer, by so doing, discharges the onus of establishing a potentially fair reason for dismissal and when considering whether, under s98(4) of the 1996 Act, the dismissal was fair or unfair, the burden of proof is neutral. It is certainly the case, as explained in Burchell that one of the matters to be examined at that point is that of whether or not the genuine belief that the employer held was one which he had formed after having carried out a reasonable investigation but that is in the context of looking at all the circumstances surrounding the decision to dismiss, as directed by the subsection.[16]Separately from the problems with onus, we are persuaded that the Tribunal do appear to have approached their consideration of the Respondents' investigations without having regard to the fact that for Burchell purposes there was a range of reasonable options open to them ( Sainsbury's Supermarkets v Hit ; Grattan PLC v Kamran Hussain ) and that in this case, that was in the context of the Claimant having admitted that he had assaulted Mr McNamara. It was not a case of disputed misconduct. In such a case the need for investigation will inevitably be less than where an employee denies the allegation. The Tribunal have identified ways in which the Respondents could have done more but being able to do so does not lead to the conclusion that a dismissal is unfair. They do not explain how and why the carrying out of the further investigations referred to is something that a reasonable employer required to do before he was entitled to persist in holding his belief that the Claimant had been guilty of the misconduct alleged. It is not to say that the question of what enquiries have been carried out before determining on dismissal are irrelevant when considering the s98(4) issue of fairness. They plainly often are relevant, but that is a different matter. In approaching matters as they have done the Tribunal have given the impression that they have failed to have in mind the correct test of what a reasonable employer would have done by way of carrying out enquiries to satisfy himself that the Claimant had indeed been guilty of the misconduct which he admitted.[17]Secondly, we agree that the Tribunal appears to have erred in respect that it has reached a conclusion on grounds which conflict with their findings in fact. It states that Mr Clark erred in the same way as Mr Rogers, having noted that Mr Rogers carried out no investigations yet at paragraph 23 they appear to have accepted Mr Clark's evidence that he carried out investigations after adjourning the hearing. The references thereafter to the expression "rag doll" being used in some description of the events can only have be the result of such investigation as it does not appear in the findings of what passed at the disciplinary or appeal hearings. Further, Mr Rogers is criticised for having given no consideration to the point made by the Claimant regarding the disparity between the disposal of his disciplinary case and that of Mr McNamara and Mr Clark is criticised for having erred in the same way and for having failed to consider the fairness or otherwise of the fact that the Claimant had been dismissed but Mr McNamara had been exonerated (paragraph 54). But that was not Mr Clark's approach. Far from ignoring the point, he directed that Mr McNamara's case be revisited and could not, accordingly, properly be said to have approached matters either on the basis that the final outcome of Mr McNamara's case was that he had been exonerated or that he did not require to consider the matter at all.[18]Thirdly, we agree with Mr Maguire that the Tribunal do appear, when forming their conclusions, to have proceeded on the basis that the Respondents accepted the Claimant's account of events as recorded in the note of his disciplinary hearing as being accurate. However, that again conflicts with their findings at paragraph 23 and 24 where Mr Clark's conclusions as to what happened cast the Claimant's actions in a more serious light. We can see that it could have arisen from a misunderstanding with the witnesses agreeing that the note was an accurate account of what the Claimant said but not thereby meaning to indicate that they accepted what he said as entirely correct. Be that as it may, the essence of that misunderstanding still conflicts with the findings regarding Mr Clark's view of matters.[19]We also note, in passing, that the Tribunal did not address the question of whether there should be a Polkey deduction although, this being a case, on their findings, of procedural unfairness only, that was an issue which arose. Disposal[20]In these circumstances, we will pronounce an order upholding the appeal. This being a case where there appears to be no doubt that the Respondents established a potentially fair reason for dismissal, namely the Claimant's misconduct in having assaulted a fellow employee, we have considered whether there is sufficient in the findings of fact to enable us to reach a view on the remaining issue of whether or not the dismissal was fair. On balance, however, we are not satisfied that there is and we will remit the matter. The remit will be to a freshly constituted Tribunal bearing in mind the principles discussed in Sinclair Roche & Temperley v Heard [2004] IRLR 763 .