ARGOS LTD v MR M CAMPOS DOS REIS [2010] UKEAT 0285_10_2911

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0285_10_2911

Case No Appeal No. UKEAT/0285/10

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ARGOS LTDAPPELLANT

MR M CAMPOS DOS REISRESPONDENT

Before

His Honour Judge McMullen

Date 29 November 2010

[1]APPEARANCES For the Appellant MISS S MALIK (of Counsel) Instructed by: Messrs DLA Piper UK LLP Victoria Square House Victoria Square Birmingham B2 4DL For the Respondent MS E EFFIOM (Representative) Free Representation Unit 289-293 High Holborn London WC1V 7HZ SUMMARY UNFAIR DISMISSAL – Reasonableness of dismissal The tribunal did not err when it held that the employer unfairly dismissed the Claimant, since its investigation was not such as would entitle a reasonable employer to believe in the Claimant's misconduct, or for it to say its dismissal of him was within the band of reasonable responses. HIS HONOUR JUDGE McMULLEN QC This case is about unfair dismissal for misconduct. It is the judgment of the court to which all three members, appointed by statue for their diverse specialist experience, have contributed. We will refer to the parties as the Claimant and the Respondent. Introduction

[2]It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Daniels, sitting with Mrs Campbell and Ms Bachelor on 21 January 2010, registered with reasons on 5 March 2010. The Claimant and the Respondent are represented respectively by Ms E Effiom, who gives her services under the Free Representation Unit, and Miss S Malik. We say at the outset how grateful we are to both counsel for the concise and clear arguments they have addressed to us.

[3]The Claimant claimed unfair dismissal. The Respondent contended it dismissed him fairly for gross misconduct and that it conducted the proceedings fairly. The issues

[4]The essential issues were defined by the Employment Tribunal when it introduced the parties to us in the following way. "2.2 This was a case involving alleged misconduct by the Claimant, a stock team leader at the Redhill store of Argos Ltd, a large national chain store. The essential facts were as follows. 2.3 The Claimant was employed by the Respondent as a Stock Team Leader. The Claimant's employment commenced on 9 December 2007. The Claimant had no formal or informal disciplinary warnings during his employment and had performed well. He was suspended on 12 May 2009 for alleged gross misconduct, pending an investigation by the Respondent into an allegation that he had used inappropriate and threatening language to an Area Manager, by allegedly sending an abusive email to an Area Manager called Carly (surname unclear) including the comment "fuck you". The email was sent from a computer outside the store room. Numerous people had access to the computer and could have sent the message. 2.4 The Respondent conducted an investigation into the Claimant's alleged misconduct, including a review of some documents, CCTV evidence and short interviews with relevant witnesses. At the time when the abusive email was sent to the Area Manager, there were seven members of staff working in the store at the time. CCTV footage was reviewed to locate the staff members in order to ascertain who sent the message from the computer outside the Respondent's stock room. Three members of staff on the shop floor were then eliminated from suspicion. That left the Claimant, Ali Nezam, Manny Chong Chan and Joe Dunt as the potential "suspects". The Claimant emphatically denied sending the email. He stated that he had never even used the Formbuilder system before, (that had been used to send) the email and had never met or spoken to Carly before. The other three also denied sending the email. 2.5 Following an investigation, the Respondent decided that there was a disciplinary case to answer for the Claimant. The Claimant attended a disciplinary hearing on 11 June 2009. The Claimant was summarily dismissed for gross misconduct following consideration of evidence at a disciplinary hearing." An appeal against that was rejected.

[5]Its direction on the law is unimpeachable and is accepted by the parties to be correct. We will gratefully adopt what it says:

"3. The Law 3.1 In considering the question of whether there was a fair dismissal in this case, we had to apply the provisions of Section 98 of the Employment Rights Act 1996, including Section 98(4) which provides that:- 3.2 "the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) 3.3 (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 3.4 (b) shall be determined in accordance with equity and the substantial merits of the case." 3.5 In a conduct dismissal case, the tribunal has to consider whether the employer: (1) Genuinely believed the employee to be guilty of misconduct; (2) Had reasonable grounds for believing that the employee was guilty of that misconduct; and (3) Had carried out as much investigation as was reasonable at the time it held that belief, ( British Home Stores Limited v Burchell [1978] IRLR 379 ). 3.6 In the light of the answers to those questions the tribunal then proceeds to consider overall fairness as required by s 98(4) ERA 1996. 3.7 In determining fairness, an employment tribunal will not consider whether the employee actually was guilty of the misconduct, therefore, but whether the employer believed, and had reasonable grounds for believing, that the employee was guilty of the misconduct at the time. It is not, as such, necessary for the employer to prove misconduct was committed on the balance of probabilities. 3.8 It is also very well established law that we had to consider whether dismissal fell within the band of reasonable responses (available to a reasonable employer) in all the circumstances of the case. Our exercise does not permit the Employment Tribunal to substitute its own view of whether it would have dismissed at the time, but only whether dismissal fell within that band. For example, in London Ambulance Service NHS Trust v Small , the Court of Appeal reaffirmed that in unfair dismissal claims, the function of a tribunal is to review the fairness of the employer's decision, not to substitute its own view. 3.9 We also had to follow the approach in Sainsbury's Supermarkets Limited v Hitt EWCA 2002 Civ 1588, ICR 2003, 115 and decide whether the investigation conducted as at dismissal was within the band of reasonable approaches to an investigation of this nature and consider it objectively, not substitute our own view of the investigation that perhaps should or could have been conducted."

[6]The Respondent appealed against the finding that the Claimant was unfairly dismissed. The Tribunal invited the parties at the conclusion of its judgment on liability to consider agreeing compensation and they did - a sum of £4,117.80 was awarded. The Facts

[7]The simple facts relate to an event on 12 March 2009 at the Redhill store. An offensive email was sent at 14:10 to an Area Manager, a female person named Carly, which read, "I've got a message for you: fuck youuuuu?". This caused an immediate response from Carly who rang the Stock Manager, Ali Nezam, and all people at the relevant site had to remain there. Carly instructed her manager, Abdus Salam, to attend the Redhill store and conduct an investigation. He did that by reviewing CCTV evidence which showed seven employees at the store at the relevant time.

[8]Three were eliminated from any suspicion and the matter goes no further, but there was material on CCTV which might have suggested four people - they are Manny, Ali, Joe and the Claimant - as having the opportunity to access the PC and send the offensive email.

[9]The Respondent held an investigation which included, among other things, a meeting called a "conduct meeting" with the Claimant, which is regarded as part of an investigation into his conduct and he was suspended forthwith. Ms Effiom points out that this was the start of the Respondent's incorrect approach, for it suspended the Claimant - although she accepts that suspension is a normal response to a serious allegation of misconduct - but did not do the same to the others, and that indicated its mindset against the Claimant. She also points out that the interview with the Claimant was conducted in the presence of Ali, who was acting as Mr Abdus Salam's notetaker, and so he was there at that very first interview with the Claimant when the point about the email was put to him.

[10]In due course, on the same day, Manny and Ali provided a joint statement which corroborated each other as being away from the PC at the relevant time and from that moment the Claimant was suspended. A disciplinary hearing was conducted with a separate manager, Mr Cronk, on 20 May 2009, who wanted to consider the CCTV footage and so adjourned and came back on 27 May 2009 with what he had discovered. On 2 June 2009, Mr Salam conducted interviews with Manny, Ali and Joe. A disciplinary meeting was reconvened on 11 June 2009 and the Claimant was dismissed on 17 June 2009. His appeal was dismissed on 18 November 2009. The findings

[11]The central findings by the Tribunal divide themselves into the taxonomy set out in paragraph 3.5 of its judgment. Genuine belief by the Respondent was proved, thus stage one of British Home Stores Ltd v Burchell

[1978] IRLR 379

was satisfied. Reasonable grounds for the belief come before the findings on reasonable investigation, again in accordance with the sequence in Burchell . During the course of the findings, the Tribunal looked at two significant matters: the motive for any of the four suspects, as we will call them, to send such an abusive email and secondly the ability of those to use the software, known as Formbuilder, to convey that message.

[12]The Tribunal went through at length the evidence before the employer, prefacing each of its findings - and there are about 20 - with phrases such as, "The evidence before the employer", and, "What a reasonable employer would have concluded". The Tribunal was critical of certain aspects of the investigation, which a fair reading of the judgment shows, affected its conclusions as to whether there were reasonable grounds. Indeed, it may be thought that sometimes a reasonable investigation has to be concluded before there can be reasonable grounds. But in any event, this is the traditional organisation of cases. The Tribunal looked at the standard of the investigation and held that a reasonable employer would have carried out further investigation. In particular it highlighted investigation into motive and Formbuilder.

[13]Its overall conclusion is that the approach to the investigation was effectively to suppose the Claimant was guilty of sending the email, and then to conduct the investigation in a way which assumed that the others were innocent. The Tribunal pointed out, see paragraph 4.36, that there was a distinctly different approach to the accounts of the other suspects, whose evidence was taken at face value and not seriously investigated. This again included the potential motives, the lack of questions used about the Formbuilder system, and the lack of a probe into the account of each suspect. The Tribunal found that, overall, the investigation and the decision to dismiss fell outside the bound of reasonable responses available to a reasonable employer and were unfair. The Respondent's case

[14]The single most forceful submission made by Miss Malik is the Tribunal substituted its own views as to the necessity for further investigation. This focussed upon the ability to use Formbuilder and actual use of Formbuilder and motive, and that the Tribunal, having directed itself correctly in law, lapsed into a mindset which substituted its own judgment. As to the motive, the Employment Tribunal itself had eliminated Manny and Joe but the focus was on Ali, who it was pointed out was not alone in being scared of Carly. It was not open to the Tribunal to go through this process of elimination and there was no suggestion at the Tribunal that Ali, being superior to Manny, had leant on him.

[15]Miss Malik relied upon Sainsbury's Supermarkets Ltd v Hitt

[2003] IRLR 23

to show that there was to be a fair investigation and accepted the law as set out by Elias LJ in Salford Royal NHS Foundation Trust v Roldan

[2010] IRLR 721

. That is, that where a charge or a consequence is serious, there is a high standard of investigation required within the overall standard of reasonable required by Sainsbury's v Hitt . Miss Malik also drew our attention to what is said to be a factual error in that the Tribunal found that there was no evidence of the Claimant having any warnings. The Tribunal said this:

"4.11 Finally, it was necessary to look at the Claimant's disciplinary record. This was exemplary with no warnings, and good performance throughout. There was no evidence whatsoever of any use of bad language in the employment. To send an email of this nature would therefore be extremely out of character and again, pointed to it being unlikely that he would have done so."

Miss Malik contends that the Claimant had admitted occasionally using swear words. The Claimant's case

[16]On behalf of the Claimant it is submitted that the Tribunal made a perfectly permissible judgment basing itself time and again on the correct legal direction. The Tribunal should be acquitted of substituting its own judgment. The employer had begun its imperfect investigation by the assumption against the Claimant amongst the four potential suspects, or initially seven, and had continued with that mindset. Questions were not asked of the Claimant as to whether he had used Formbuilder, although Ms Effiom accepts that the Tribunal came to a conclusion that he knew how to and does not challenge that.

[17]The Tribunal was correct in its depiction of the joint statement made by Manny and Ali as containing many errors which required further investigation by a reasonable employer. The Tribunal looked at all of the evidence and came to the conclusion that the judgment of the employer was not a reasonable one to make.

[18]As to the finding in paragraph 4.11 above, this is in the context of disciplinary proceedings as the paragraph makes clear, and is not a contradiction of the evidence which was before it. The Claimant's occasional use of swear words, as with other members on the shop floor in this case, did not result in any disciplinary matter. The legislation

[19]The legislation and the approach to the legislation are not in doubt. In addition to Roldan , it is accepted that the judgment in A v B does indicate a high standard where allegations or consequences are serious, and Miss Malik accepts for the purposes of this judgment that that is the correct test. Discussion and conclusions

[20]In our judgment the submissions of Ms Effiom are preferable to those of Miss Malik. This kind of case is one which has taxed Employment Tribunals since they were set up and began hearing them almost 40 years ago. It is precisely because they are constituted with experience of employment relations that they are set in place to decide issues such as this: was there serious misconduct for which a reasonable employer could have dismissed the Claimant? Naturally, opinions may differ about this, but the point is, as is now made clear from London Ambulance Service NHS Trust v Small

[2009] IRLR 563

, it is the material which was available to the employer which is reviewed against the standard set of a reasonable employer conducting a reasonable investigation.

[21]The purpose of the investigation is to see whether the Respondent had reasonable grounds for its genuine belief in the guilt of the employee on the matter put against him. In this case, we accept in part the submission of Miss Malik that the Tribunal was focussing in its passages dealing with investigation on the motive and Formbuilder points. These occur during the passages under the heading, "Reasonable Grounds for Belief". It is true that the Tribunal made a finding (against the Claimant's case) that he did know how to use Formbuilder, but the Tribunal has made a finding that he never did use it. As to which, it drew an inference that it would be unlikely in his first email sent through Formbuilder that he would use it to send an abusive text. That is not a matter which requires further investigation. It is the drawing of an inference and the inference is one for the Employment Tribunal to make, testing the employer's understanding against the material placed in front of it.

[22]The second matter was the motive and in this case there was a motive shared by at least two others, not the Claimant, as to abusing Carly. Both Manny and Ali were scared of her and the Claimant had never had any dealings with her. The Tribunal makes the judgment that it was implausible that the Claimant would have a motive. Again on this basis, put as one of reasonable grounds for the belief, the judgment is one which the Employment Tribunal could come to. It is not strictly a matter of investigation, for little more could be revealed by investigating the motives of the others.

[23]Thus, there is some substance in Miss Malik's criticism, but when this matter is attached to reasonable belief and whether an employer acted reasonably within the bound of responses open to it in dismissing the Claimant, these defects come to the fore. The Employment Tribunal held that a reasonable employer would not have dismissed following the formulation of a belief in the Claimant's guilt after the investigation which it conducted. The Tribunal was scrupulous to look at what other material was available, and it seems itself to have eliminated two of the four potential suspects. Although it has not found that Ali sent the email, it has found, permissibly we hold, that the Respondent did not have sufficient grounds to hold its belief that the Claimant should be dismissed for sending the email.

[24]In those circumstances we consider the Tribunal's judgment is unarguably right, notwithstanding that certain aspects of its attribution to poor investigation may have been better headed, "Reasonable Belief and Range of Reasonable Responses".

[25]As to the error of fact, this of course is not a matter which would normally trouble our jurisdiction, but since it was raised before us we accept Ms Effiom's submission that in paragraph 4.11, the Tribunal is there referring to the disciplinary context and not to the simple use of language on the shop floor. In any event this is not at the heart of the Tribunal's judgment and did not weigh strongly with it sufficiently to impugn its judgment.

[26]For those reasons we hold that this was a decision which was open to an Employment Tribunal to make and we see no error in its approach to its final conclusions. The appeal is dismissed.