First Choice Homes (Oldham) Ltd v Capon & Anor (Unfair Dismissal : Reasonableness of dismissal) May 2011) [2011] UKEAT 0049_11_1905

EAT
First Choice Homes (Oldham) Ltd v Capon & Anor (Unfair Dismissal : Reasonableness of dismissal) May 2011)
[2011] UKEAT 0049_11_1905 · 2011-05-19
[1]Before the Employment Tribunal at Manchester the Claimant’s succeeded in their claims that they had been unfairly dismissed and wrongly dismissed by their employer. Reasons for that decision were given on 19 November 2010.[2]The employer appeals against that decision. The appeal is based firmly, fairly and squarely upon perversity. It is said that no reasonable tribunal, having regard to the facts before it, could have come to the conclusion that the employer was not entitled, in the circumstances, to regard what the men had done as gross misconduct justifying summary dismissal. The Facts[3]The facts taken from the Tribunal decision are these. Mr Capon, the First Respondent to this appeal, was an electrician; Mr Chadwick, the Second Respondent, was a joiner. Both had been in the service of Oldham Council and remained in the same work when that work became the responsibility of First Choice Homes (Oldham) in succession to the council.[4]Part of the background to their employment with the council is that each of them worked for a very substantial period of time: in the case of Mr Chadwick, some 29 years. They had worked on terms and conditions which were not precise about many of the standards and behaviours expected of them. Thus, there appears to have been very little definition, if any, as to what might constitute a lunch break or lunch hour, or when it was to be taken, and what, if any, restrictions applied to what an employee might do during that break, in the middle of what would otherwise be his working day.[5]Similarly, the company policy, derived no doubt from the practice over many years by the council, was that there was no precision as to precisely what could or could not be done with the property of the company, namely the vehicle used to transport each of the Respondents to their work and carry their tools, during breaks. At paragraph 35 the Tribunal set out what was the permitted private use of such vehicles. It was said by the employer to be forbidden, but there were then exceptions to that general prohibition which were specified by giving examples rather than setting out definitive principles, therefore leaving open the possibility that there might be other exceptions to the general rule. The statement of policy ended with the words that the company “did not expect people to travel several miles in the vehicle on personal business”, thereby appearing to condone a distance which was less than “several miles” as being within a discretion plainly given to the employee to make sensible personal use of the vehicle, whilst not offending against the general expectation set out. It is right to say this created a measure of flexibility and gave rise to uncertainty.[6]There was a disciplinary code which identified a number of matters as being misconduct, and gross misconduct, which did not include any reference to damaging the reputation of the company as necessarily being misconduct. The company said that it expected its employees to record their time on timesheets but this expectation was, by long practice, so it appeared in the evidence before the Tribunal, honoured in the breach rather than in the observance. In summary, the Tribunal had evidence that suggested that timesheets were rarely filled in and even when they were very rarely accurately and comprehensively so.[7]Against that background what happened on 31 March 2009 was this. A housing officer, Mr Martin Bell, was alerted by telephone to the possibility that some FCHO employees had broken into property which the caller, Mrs Murphy, owned jointly with her ex‑husband, against whom she said she had an injunction preventing him from entering the premises. She claimed they were changing the locks.[8]When Mr Bell went to the property he saw Mr Capon and Mr Chadwick there together with another man who was probably the ex‑husband. One of the men, whom it was accepted would have been Mr Chadwick, was kneeling down doing something to a lock on the inside of the door; a toolbox beside him. He said that he, Mr Bell, was concerned as to why two FCHO workmen were inside. He told them that the police had been called by the owner of the property as she was concerned as to what was going on. Mr Bell then left, but as he did so Mr Capon followed him and asked if he, Mr Bell, was going to tell anyone. He indicated that if he did he, Mr Capon, would just say they were having a brew with the owner.[9]When the matter was reported to the Claimants’ manager the Claimants’ were suspended. The suspicion at that stage was, as Mr Grundy submits and we accept, that they had broken into and entered property belonging to another; that they had done so in order to work in that property in the company’s time, and that they had misused the company’s property and uniform to do so. It was never suggested that use of the company’s property extended beyond the use of the company van and uniform. No suggestion appears to have been made that it extended to any replacement part for the locks, nor did it extend to the use of the tools.[10]On 5 April 2009 Mr Chadwick gave an explanation. He said he was having his lunch when he was asked by Mr Capon to advise a friend of Mr Capon’s on how he should change door locks. He went round to the premises. Mr Murphy, the ex‑husband, was there and found a key under the rear doormat. Mr Murphy was concerned that his ex‑wife’s family might try to break in and remove his own possessions from the house and, therefore, he, Mr Chadwick, advised Mr Murphy how to change the locks and was there for about ten minutes. In hindsight he, Mr Chadwick, accepted that it was poor judgment on his part to allow himself to become involved in that.[11]Mr Capon’s case was that he received a call from a friend on 30 March 2009 asking for advice on how to access his property because he had lost his keys. He, therefore, arranged a late lunch on 31 March 2009 in order to meet his friend at the property, but when he arrived there a spare key was found, entry gained, he chatted for five to ten minutes and then left.[12]The account, therefore, given by the men was that they had used their own time. They could not, without more, be said to have been in breach of the company policy as to the use of vehicles. They had not entered the property without authorisation so far as was known to them because implicit in their accounts was that they were authorised so to enter.[13]The matter was investigated by the employer. That led to a decision being made by the company that they should answer allegations. These were set out, in the case of both men, at paragraph 21 of the Tribunal Judgment on 21 May 2009. The allegations were firstly that they had entered a property - the address being given - secondly, that without authorisation they had entered a private property within company time; thirdly, that they had misused company time and property; and fourthly, that they had issued or entered fraudulent timesheets.[14]A Mr Yorke held a disciplinary hearing in respect of those allegations. So far as Mr Capon was concerned he concluded that it was not acceptable for an FCHO operative to carry out work during lunchtime using a van with FCHO livery and whilst wearing an FCHO uniform. That would be perceived by customers and the general public as being associated with the employer’s organisation.[15]He considered that Mr Capon had been facilitating the work done by Mr Chadwick to change the locks. That, in the circumstances, had incurred a cost to the organisation, paying for replacement locks which were provided to the wife when she returned to the country and sending her flowers in order to remedy the harm which had been done by the change of the locks in the first place. Their actions had brought the company into disrepute and were a substantial breach of the implied duty of trust and confidence. He accepted that his timesheets had not been entered by Mr Capon himself and there was no sustained allegation there.[16]So far as Mr Chadwick is concerned Mr Yorke came to the same conclusions save for the timesheets. It was his opinion that the job sheets completed by Mr Chadwick for the day in question did not even to some degree accurately reflect the time taken to complete a job or the time of day when the job was completed. He found that Mr Chadwick had falsified company documentation, and that that represented a breach of trust and confidence implicit in the employment contract in addition to the other matters, which were identical to those which he had found in respect of Mr Capon.[17]Mr Yorke decided that both employees should be dismissed.[18]Both the Claimants appealed. Their appeals were dismissed. The Tribunal set out the basis for that. The process, in summary, seems to have been one in which the employers looked to see whether there any good reason had been shown to depart from the decision as to dismissal which had been reached by Mr Yorke. The appeal was, therefore, not a rehearing, but a review: an examination as to whether there was any reason to depart from the earlier decision.[19]The Tribunal took the view that what was in issue here was misconduct. That was the reason for dismissal identified by the employer by reference to s.98 of the Employment Rights Act 1996 . It asked whether the test in British Home Stores Ltd v Burchell [1980] ICR 303 had been satisfied. That requires that an employer genuinely believes an employee to be guilty of misconduct on reasonable grounds having conducted a reasonable investigation. The Tribunal concluded that there had been no reasonable investigation. Finally, on the question whether dismissal was or was not appropriate in response to the ground identified as falling within the range of reasonable responses open to an employer in such circumstances on such grounds, the Tribunal concluded it was not.[20]Paragraph 43 of the reasons deals with what the Tribunal considered to be the inadequacies of the investigation. It identified seven separate points. We accept the submission of the Respondents that the seven reasons should be read as a whole. Aspects of those reasons are criticised before us by Mr Downey. He points, for instance, to the criticism at 43(1)(v), which might on one reading appear to suggest that the Tribunal had been looking to see whether there was “conclusive proof” that if a lock was being tampered with at the back of the house, as some evidence suggested, it was Mr Chadwick and not somebody else in the house who had been doing it. That he says (with some justification) was to apply too high a test.[21]Mr Downey submits that these findings were simply not findings from which an Employment Tribunal could properly conclude that the investigation fell outwith the range of reasonable responses or the “objective standards of the reasonable employer”, the phrase used in Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 at paragraph 34.[22]He emphasises that the investigation should be seen as whole, focussing not simply on those matters which might be said to constitute flaws in the investigation but also upon that which the employer actually did do. Here the employer had made a considerable investigation: it had sought a statement from two relatives of Mrs Murphy, her mother and her brother. It had checked aspects of the accounts given by both Mr Chadwick and Mr Capon as to the times of work which they had said they were doing around their work at lunchtime that day. From that material and the evidence of Mr Bell, which was put into statement form, the employer had in front of it material which showed that at around 1.30 pm the Claimants had been to the house identified in the charge, and that it was a private property - that is, not one managed by the FCHO; and that they had not been authorised by the employer to go to that property.[23]It showed that when they did so they were wearing clothes identifying them as employees of the employer; that they had gone to the property in vehicles owned by the employer visibly marked as such, which were left parked near the property; that it had been alleged whilst they were there that FCHO workmen were changing locks at the property of the owner; that Mr Capon had said the words we have already recounted; that Mr Hobson’s son had seen a man changing the patio door lock at the rear of the property on 31 March 2009; and the next morning Mrs Murphy’s mother said that at 9.15 am visiting the property she found that all the locks of the property had been changed. The explanation given denied the work had been done but the employer was, on that basis, entitled to conclude that work had indeed been done.[24]The inadequacies which the Tribunal had identified were, summarising, first that two further statements should have been obtained. The first was from George Murphy: he was the ex‑husband, said to have been present at the scene. The second was that of Dana Murphy - we do not understand her to have any familial link with George Murphy despite the similarity of surname - who was a council employee, also alleged to have been present at the property at the time. No reason specifically is given for this by the Tribunal but they may have had in mind that she would have been able to confirm whether or not work was being done by the men and the circumstances in which that came about. There had been inadequate investigation regarding the filling in of timesheets as to the extent of the practice of not filling them in, or of filling them in inadequately.[25]There were inconsistencies in Mr Bell’s evidence that were never probed with him. The employer had not given reasons for disbelieving the Claimants’ explanation and had been prepared to assume that the lock was changed by Mr Chadwick rather than by another who might have been at the property; there being on one account a number of people present. There had been no proper investigation of the status of the property to determine in part whether Mr Murphy had any right to access and, hence, whether the workmen had any derivative right of lawful entry. The basis of the charges had changed during the history of the investigation. The Tribunal went on to hold that the appeal had been inadequate.[26]As to whether or not dismissal would have been within the range of reasonable responses, it concluded it was not. That was because of the lack of clarity of the policy in respect of lunch breaks and working at lunchtime, in relation to the use of FCHO property, the long exemplary records which of the Respondents had, coupled with extraordinarily low sickness records; and that insofar as the employer was concerned with the way in which it looked publicly if former council employees now working for FCHO were seen to be working in private property, rather than council property, at lunchtime this was just as likely to apply to other workmen who had been invited by a senior manager to do just that. An example of this happening had been in evidence: albeit that the work was entirely properly performed in his case, nonetheless it would have appeared to any observer form amongst the general public to be no different from that done by Messrs Capon and Chadwick.[27]They further concluded as to whether the misconduct was gross that:
“In addition, whilst the policy does state that it could be gross misconduct to use FCHO property for non‑FCHO work we are mindful that the ACAS Code of Practice says “serious misuse’”, therefore the misuse on one occasion for a period of between half an hour and forty‑five minutes seems to us this would be insufficient to found a charge of gross misconduct in most circumstances and that the range of reasonable responses of a reasonable employer would not have found that this was gross misconduct justifying summary dismissal.”
[28]The Tribunal then turned to the question of wrongful dismissal. It said:
“In respect of wrongful dismissal, we find that the Claimants were guilty of misusing FCHO property in taking their van further than was allowed under FCHO policy. We find this is not gross misconduct as referred to above therefore the Claimants’ claims of wrongful dismissals succeed. We do not find Mr Chadwick is guilty of falsification of his timesheets in view of the lackadaisical way in which these were filled in generally, or not filled in at all. He attempted to put true times down and was no more or less accurate than his colleagues.”
[29]Finally, and generally, the Tribunal said this, which we recite in full because it seems to us to be a necessary part of the context against which allegations of perversity must be assessed:
“In addition, we also found that the Respondents appear confused about whether the Claimants had been sacked for gross misconduct for use of FCHO property and vehicles or whether it was for bringing the Respondent into disrepute, which was not specifically mentioned as a gross misconduct or whether in fact it was not simply that they were potentially bringing them into disrepute but that at that particular time the company was anxious not to have any issues with the press. This suggests at another time they might not have viewed the Claimants’ actions so seriously. The Respondents as they themselves acknowledged at times (and indeed have done) need to revise and add to their policies on lunch breaks and matters to be regarded as gross misconduct.”
[30]The consequence, in the Tribunal’s judgment, was that the claims of unfair and wrongful dismissal were upheld and the matter listed for remedy, at which hearing issues of contributory conduct, the application for rule in Polkey , questions of mitigation, et cetera, would be decided. That hearing has been adjourned pending the result of the appeal to this Tribunal. Submissions[31]It was submitted to us by Mr Downey on behalf of the company that the facts here (which could not sensibly be disputed) contained at their core what he described as the gravamen of the allegation. This lay in the workmen carrying out unauthorised work, changing locks at a private property in the course of the working day whilst clearly identifiable as the Respondent’s employees.[32]The way in which the employer itself had addressed the reasons for the dismissal were set out at paragraph 15 of the ET1 (see page 51 of the bundle):
“[…] The Claimant conducted himself in a manner that brought the Respondent into disrepute, namely entering a private property, conducting private work in company time using company property and falsifying timesheets. The Respondent’s view is that this constituted a significant breach of the duty of mutual trust and confidence implicit in the contract of employment.”
[33]It was perverse not to conclude that, first, the investigation into the charges had been entirely within the range of reasonable responses and, secondly, perverse to come to the conclusion that in the circumstances established before Mr Yorke and the appeal hearing, dismissal was not a reasonable option.[34]In the course of his submissions Mr Downey was asked what it was that would distinguish the facts of the present case in principle from some hypothetical examples. Thus Mr Lyons asked him whether he would argue that it could be characterised as gross misconduct if during lunch hour an employee of First Choice were to go to a friend’s house, not far away from his place of work and, therefore, not involving any necessary breach of the vehicle policy, in order to lend him a hand - do some DIY work which the friend was keen to get done - without there being any suggestion that the employee would be paid for the work so as to create a conflict of interest between “employers”. Mr Downey’s response was such as to indicate that he would not wish to argue that that could properly be characterised as gross misconduct.[35]So, he was asked to identify that which might make the circumstances of this case capable of being gross misconduct when those of the hypothetical example were not. The difference might have been, he suggested, in viewing the facts in their totality and related to the work which the men were doing - this was changing the locks and being visibly seen to do so, set against a background which must implicitly have been known to them of there being matrimonial difficulty between the man who was inviting them to do the work and a woman who might, for all they knew, have had an interest in the property. He responded to questions from Sir Alistair Graham by accepting that what would distinguish work which could not be categorised as misconduct (or gross misconduct) from that which might be so categorised in such circumstances would be whether or not the judgment of the workmen concerned had been properly exercised in those circumstances: whether, in effect, the workman was involving himself in circumstances in which he should not be placed when wearing the uniform of the employer, though he might otherwise, it being his lunchtime, be entitled to be where he was and doing what he was in the absence of any clear restriction upon it.[36]These questions were relevant, as was attempting to identify the precise reason used by the employer to dismiss the two Respondents, because a reasonable investigation does not take place in a vacuum. It has to be a reasonable investigation into the conduct alleged. An employer needs to have reasonable clarity about that which is being investigated. In order to determine whether the Tribunal were perverse to conclude that here the investigation was unreasonable, it was necessary to explore the purpose to which that investigation was directed, and its general content.[37]Mr Grundy pointed out that at the outset the suspicion was very different from that which eventually became the charge. We have set out the initial suspicion above. The charge before Mr Yorke was entering private property without authorisation within company time; misusing company time and property; and falsification of timesheets. Since it might be thought that it would be no obvious breach of discipline for an employee to enter into private premises (if so invited by the owner or someone authorised to issue the invitation) within his own lunchtime, and that to do so would not involve any misuse of company time and would only involve the misuse of company property if travelling to the property had been proscribed by a clear policy on behalf of the employer, it is difficult to see why he concluded as he did on those charges, but it is not for us to make a decision upon it.[38]If logically the central question, as Mr Downey accepted in answer to Sir Alistair Graham, was the question of whether the judgment of the operatives in being where they were and doing what they did showed misconduct then that would require any reasonable employer, it seems to us, to conduct an examination of what material might assist it to know the basis upon which that judgment had been exercised, and whether it could therefore be said that the employees were misconducting themselves in their employer’s business or not.[39]Accordingly, we see every good reason why the Tribunal concluded as it did that the Respondent should have made some effort to contact George Murphy. He would be someone who could, and ultimately did, tell the employer how it came about that the employees were present at the property and what their role there had been. It would have been open to the employer then to assess his evidence against the other evidence that was available. We cannot begin to think that this Tribunal was perverse to conclude that the investigation was inadequate, first, because the employer failed to make that inquiry or any inquiry at a time before a decision had been formed. Mr Grundy makes the point, which we accept, that the appeal was not such a rehearing process as meant that the evidence of Mr Murphy which was by then available would have had the same effect as it would if initially considered by Mr Yorke - he having decided to dismiss upon the basis of the material then before him, it was, as Mr Grundy submitted, open to the Tribunal to think that the die had been cast.[40]As to the other matters, we have looked at each of them. Some benefit might have been gained by evidence from Dana Murphy who was, after all, a council employee and could who have been required to give her version of events because she too might have cast some light upon why it was that the Respondents were there and behaving as they did.[41]Taken as a whole, we cannot see that the Tribunal was wrong to hold that a reasonable employer would have carried out an investigation which went beyond that conducted by the employer here - essentially, as we have indicated, because of failing to obtain the evidence of George Murphy at the outset, but not neglecting the point made by both Mr Allen and Mr Grundy that here the Tribunal’s reasoning should be seen as a whole.[42]We turn to the question of dismissal and the range of reasonable responses. What the Tribunal here relied upon was set out clearly as we have already identified. It was submitted to us by Mr Downey that the facts were such that it was clear first that the Respondents had been doing work, changing locks, on property which was private property during the course of their working day and visibly doing so. They had, moreover, he submitted, not been frank with the employer when it came to the appeal because Mr Chadwick in particular had sought to deny that he was changing the lock when the evidence suggested that he had. The employer was entitled to come to the conclusion that he had been, and, therefore, to the subsidiary conclusion that he had not been frank with them.[43]He submits that there was a potential here for the background to what had happened resulting in disrepute of the company. It was only too easy to see why the estranged wife of Mr Murphy might pursue her complaints, and serious questions be asked, as to the entitlement of FCHO Officers to change the locks of one party to a matrimonial dispute in breach of a court injunction to that effect.[44]Powerful though these points are, we ask ourselves whether the Tribunal here was substituting its own view of what had happened for the employers impermissibly.[45]We bear in mind what was said by Longmore LJ in the case of Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63 at paragraphs 18 and 19 when he commented upon a reversal by this Tribunal of a decision to which an Employment Tribunal had earlier come to in the particular circumstances of that case. He said:
“18. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal was within the range of reasonable options open to a reasonable employer. The ET made it more than plain that that was the test which they were applying […] The EAT apparently did not believe that the ET decision were being true to their word, but there is just no evidence of that. 19. It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of a charge or perversity, substitute its own judgment for that of the ET.”
[46]The Tribunal here is not accused of adopting a wrong test, merely in not having applied the right one. It seems to us we must pay proper respect to its decision. Here, against the background of the uncertainties we identified at the start of our Judgment, it had effectively to ask whether the reasonable employer would sack two long‑serving employees with unblemished, indeed exemplary, records for having used their own time to assist a friend by carrying out work: the vice being that they had allied themselves to one side in a matrimonial dispute in the middle of what would otherwise be the working day, wearing the uniform of the employer and having used the employer’s transport to get there.[47]We cannot say that the Tribunal was wrong to come to the evaluation that it did and we certainly cannot suggest that in those circumstances it was bound by the employer’s evaluation of that which amounted to gross misconduct. We come back in this regard to the rather nebulous nature of the gross misconduct which was identified by the employer. What might have begun with a charge of breaking and entering in circumstances which would have been entirely unjustified became, in the course of Mr Yorke’s determinations, a conclusion that the actions had brought the company into disrepute (as to which the Tribunal recorded no clear evidence) and had fundamentally breached the implied contractual duty of trust and confidence. The precise nature of the breach, other than the assertion that the circumstances amounted to such a breach, is not absolutely clear. The appeal did not itself substitute any other definition of that which was said to constitute a gross misconduct.[48]It is, to repeat, essential in a gross misconduct dismissal that the employer be clear as to the nature of the misconduct in respect of which a dismissal is made, and precisely why it is said to be a misconduct if there be any doubt about it.[49]Applying the question whether the Tribunal here were perverse to come to the conclusion that, in these circumstances, for that which the employer had identified as having been the case, it was within the range of reasonable responses to dismiss, we conclude that the Tribunal could not be said to be perverse. To establish perversity is a high hurdle. The conclusion of the Tribunal comes nowhere close to being wholly impermissible. Wrongful dismissal[50]We turn then to the question of the common law claim for wrongful dismissal. Although this is tersely expressed by the Tribunal in the paragraph that we have cited, no appeal is made on a “reasons” basis, nor is it suggested that the test applied was wrong.[51]The Tribunal found that there had been a breach of contract in “taking their van further than was allowed under FCHO policy”. In finding that that was not gross misconduct we understand the Tribunal simply to have been saying that in order to justify summary dismissal on the basis of an employee’s breach of contract it has to be shown that the breach was sufficiently serious to justify dismissal. It must be repudiatory in nature. A breach is repudiatory if it evinces an intention not to be bound by the terms of the contract: to drive a little bit too far in a company van is not obviously capable (without more) of demonstrating an intention not to be bound by the terms of the contract.[52]On the basis that the Tribunal approached the issues, therefore, it seems to us it was entitled to regard the breach as not having been repudiatory and, therefore, not to be such as would justify the employer in accepting the repudiation by the employee as the reason for it, the employer, no longer honouring its contractual obligations to the employee. In other words, there was no sufficiently substantial breach here as to entitle the employer to dismiss without notice.[53]The only further points raised before us were that the Tribunal might have substituted its own approach, or failed correctly to apply the range of reasonable responses approach in accordance with Hitt. For the reasons already given, we reject these.[54]Although we have run the employees’ cases together in the course of this Judgment, we acknowledge they have to be looked at as separate cases albeit they share many facts in common. However, it follows from what we have said that on both the grounds put before us in respect of both the Claimants, we must reject the appeal.[55]It follows that for the reasons we have given this appeal must be, and is, dismissed.