FLINTSHIRE COUNTY COUNCIL v MR C MICHAELIDES [2008] UKEAT 0189_08_1809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0189_08_1809Case No Appeal No. UKEAT/0189/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FLINTSHIRE COUNTY COUNCILAPPELLANTMR C MICHAELIDESRESPONDENT
Before
His Honour Judge Pugsley Ms P Tatlow Mr M WorthingtonDate 18 September 2008
[1]APPEARANCES For the Claimant MR R BRADLEY (of Counsel) Instructed by: Flintshire County Council County Hall MOLD CH7 6NR For the Respondent MR R E EATON (Lay Representative) SUMMARY UNFAIR DISMISSAL: Constructive dismissal The Claimant was found to have been unfairly dismissed. The case was remitted to a different Tribunal in the light of the decision of the Employment Tribunal concentrating their attention on the fact of the particular incident rather than whether the Respondent was in breach of the term of mutual trust and confidence. HIS HONOUR JUDGE PUGSLEY This is a case on which we are very grateful to advocates for having produced very able skeleton arguments. It would be, as we said in argument, a very unfortunate day if Tribunal members did not have a sense of justice and injustice when trying cases, but unfortunately in this case we consider that the Tribunal at Shrewsbury really did lose sight of what the fundamental issue was that they had to determine.[2]The factual background is fairly straightforward. It involves a car park. I have only to say those words to take notice of the intensity of which people feel about parking issues. The local authority employed the Applicant/Claimant as a caretaker/security attendant at its council hall site. On the night of 14 July, members of the public had parked their cars in a car park at the site while their owners attended a performance at Theatre Clwyd. There were two caretaker/security officers, the Claimant and Mr David Hughes. The public were telephoning the security lodge in order to secure their departure and get out of the car park. Mr Hughes, the other security officer was elsewhere, and Mr Michaelides was told, as part of his standard instruction, that he could not leave the lodge unattended.[3]Eventually he did attend, eventually with the right keys, and then there was something of a heated situation. Now, I do not need to go into all that which happened. There was an issue about whether Mr Hughes was doing the clock round or elsewhere. It is not a matter which affects our decision, but apparently Mr Hughes was subject to a disciplinary proceeding. It was pursued but he was not subject to any disciplinary sanction. What happened was that there was a considerable delay for various reasons and Mr Michaelides ended up by resigning the following February, having been suspended around about December.[4]Now the Tribunal had to deal with the issue as to whether or not the Respondents had been in breach of the mutual trust and confidence term as set out in Woods v W.M. Car Service [1981] ICR 666 EAT and affirmed in a number of cases, particularly by Lord Stein in Malik v Bank of Credit and Commerce International [1997] 1CR 606 at 621.[5]We think there is force in Mr Bradley's central contention that the Tribunal instead of looking at the extent to which the employers were in breach of that contractual term really became bogged down, if we may say so, in the events of 14 July. It is our view, as I have said earlier, it is quite open for the Chairman and members to feel strongly about things and it is appropriate that they should, but really we do consider that the Tribunal's focus was inaccurate. At paragraph 2.1, they said this case centred around an incident that occurred on 14 July, but it has to be said that that incident was the starting point and not the finishing point of the process upon which they had embarked.[6]The Chairman made a number of quite assertive remarks. He criticises the use in the investigating officers' report in that they use the word "admits" rather than "told". We all have a certain sympathy because admission is often construed as an acceptance of culpability. The Tribunal, instead of remembering that their prime role is to assess the reasonableness of the response of the employer and whether it was a breach of the contractual term, took it upon themselves to deliver such views as at paragraph 4.3:
"On any reasonable way of looking at what happened on 14 th July 2006, we do not accept that any reasonable investigating officer could possibly come to the conclusions to which they came. It was quite clear from the facts that they had at their fingertips that at the most it was, as one would say, six of one and half a dozen of the other!"
Then, at paragraph 4.6:
"The tribunal consider that all these 'conclusions' are outrageous and highly speculative comments by the two investigating officers, and they have hardly a shred of evidence upon which to base their conclusions. They certainly have no evidence upon which to come to their conclusion of gross misconduct in the final paragraph of their report."
[7]The two members who have long and wide experience consider that this somewhat intemperate remark is slightly out of tune with the investigation report. After all, an investigatory report is that. There may be issues as to whether an investigatory report is merely a fact-finding venture or whether it goes to making recommendations. The industrial members are both aware of that. Actually it is only an investigation; it is not a judgment that would be left to the disciplinary proceedings.[8]What has concerned all of us is, if we may say so, without the benefit of the skeleton arguments, but very much reinforced by the skeleton arguments, is there was a certain intemperance in this decision. For example, this is paragraph 4.12:
"It does seem iniquitous to this tribunal that there should be disciplinary proceedings arising out of an incident on 14 th July 2006 and that those matters are still hanging over the claimant's head at the date of his resignation on 28 th February 2007!"
[9]We accept that it is extremely unfortunate, but on the other hand, it is right to say that not all the delay is at the Respondent's behest and we do think it is a proper matter to be considered by this Tribunal, as is the calibre of the investigation. We do think this is a case where the Tribunal were substituting their views of what happened on 14 July and that coloured the perspective and distracted them from their task to ask themselves was the way in which the local authority carried out their investigation, about which there is a wide ambit of response in the appropriate way and the delay incurred, such as to be a breach of the term of mutual trust and confidence. It may be that another tribunal will reach that decision. We wish to make it quite clear it would be open to them as a matter of law.[10]Mr Eaton who has very properly told us, in fact, that the tribunal hearing started and went on for longer than the permitted two days. Mr Hughes, who was part of management, was going to give evidence as well as conduct the case. The decision was then taken that there had to be a delay and Mr Bradley was then engaged. Unfortunately Mr Hughes, not to be confused with the Claimant's colleague, died in the interim. We do accept that this made this issue more difficult for the Tribunal and we think that they failed to preserve the essential difference between making decisions themselves about what happened and making a dispassionate assessment of the fundamental breach set out and whether it had been breached.[11]I cannot end this without saying, and I speak for all of us, that this is a sad case and if there were any possibility of a mediated settlement, then we hope that that would be explored. Our decision is that the case should be remitted to a different Tribunal and they should look at the matter afresh. We reach this decision with a heavy heart. We are grateful for the help we have received from the advocates. The Tribunal's decision cannot stand, for the reasons that have been given in that they asked themselves the wrong questions.[12]Although for the best of motives, the Tribunal concentrated their energies on what happened rather then asking whether the Claimant was entitled to resign on the basis that the Respondent had without reasonable and proper cause conducted itself in such a say that the claimant was entitled to terminate the contract and claim he was unfairly dismissed.[13]We allow the appeal and remit the case to be heard by a differently constituted tribunal. That tribunal will find helpful guidance for the consideration of constructive dismissal in the context of disciplinary hearings in the case of Abbey National PLC (Appellant) v Fairbrother (Respondent) [2007] IRLR 320 and M Barratt v Accrington & Rossendale College UKEAT/0099/06/RN. That case emphasizes that employers have considerable discretion in the way in which disciplinary procedures are conducted.