Williams v Guardian Care Homes Ltd & Ors (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) [2011] UKEAT 0551_10_0905

EAT
Williams v Guardian Care Homes Ltd & Ors (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke)
[2011] UKEAT 0551_10_0905 · 2011-05-09
[1]This is an appeal by Mrs Karen Williams (“the Claimant”) against part of a judgment of the Employment Tribunal sitting in Newcastle (Employment Judge Shepherd presiding) dated 2 July 2010.[2]It is convenient first to say a word about the claims and the parties who were involved in the proceedings. In addition to the Claimant’s claims the Tribunal heard and determined at the same time claims brought by Mrs Elaine Reay. Both made the following principal claims:(1) unfair dismissal;(2) automatic unfair dismissal by reason of making a protected disclosure;(3) detriment by reason of making a protected disclosure. The Tribunal dismissed these claims. Mrs Reay has not appealed. The Claimant appeals only in respect of the unfair dismissal claim.[3]The Claimant originally named Guardian Care Homes Ltd as her employer. However, there was some controversy as to the identity of her employer, so other companies within the same group were added as respondents. The Tribunal said that any judgment ought to be against the various respondent companies on a joint and several basis. There is a cross appeal on this question. However, except for the purpose of dealing with the cross appeal it will simplify this judgment to refer to the Claimant’s employer or employers simply as “the Respondents”; and we will take this course. The background facts[4]The Respondents run care homes and have property interests. Ultimately they are owned on trusts for a Mr Gary Hartland and his brother. Mr Hartland was overall in charge on a day to day basis.[5]The Claimant was employed as a regional manager with effect from 4 July 2005. Her close friend Mrs Reay was employed as the operations manager with effect from 5 May 2005. They had been colleagues before. The Claimant’s salary was £51,500 per annum; Mrs Reay’s was £100,000 per annum. Both had provisions of their contracts entitling them to a bonus if the company operating the care homes was sold. In the Claimant’s case the bonus would be £100,000; in the case of Mrs Reay even more. There were other bonus arrangements at the discretion of the directors.[6]It is plain from the Tribunal’s findings that during 2007 there were significant disagreements between Mr Hartland and Mrs Reay. By February 2008 both Mrs Reay and the Claimant were making complaints about Mr Hartland. Both presented grievances alleging bullying and harassment, unfair treatment, the setting of unfair and unachievable targets and a breakdown in trust. In early March both went off sick suffering from stress.[7]The Respondents investigated the grievances during March. Grievance meetings took place on 11 March. The grievances were rejected on 31 March. Mrs Reay and the Claimant appealed. An outside consultant, Mr O’Rourke, was appointed to handle the appeal. He eventually held a hearing in June and dismissed the grievances in July.[8]In the meantime however, the Respondents had commenced disciplinary proceedings against both Mrs Reay and the Claimant. In part those disciplinary proceedings were based upon allegations of harassment and bullying. In part they were based on a specific allegation of misconduct concerning a care home manager, Mr David Robinson. This allegation became in due course the only one upon which the Respondent sought to justify the Claimant’s dismissal. So we will set out the circumstances in some detail. The facts about Mr Robinson[9]Mr Robinson was the manager of a care home near Berwick. The Claimant was his line manager until she went off sick. He was suspended and made subject to disciplinary proceedings alleging, in brief, that he had left the building at a time when he was the only nurse on duty and that he allowed his wife, not an employee, to remain overnight during a shift when he was in charge. A disciplinary hearing took place on 9 April 2008 taken by the Respondents’ Mrs Fyfe. On 10 April 2008 she wrote to inform him that he was summarily dismissed.[10]On 11 April Mr Robinson sent a lengthy email of complaint to Mrs Reay – with a copy to Mrs Fyfe. In the course of doing so he said that his letter of dismissal did not include a copy of the disciplinary procedure neither did it include the procedure for lodging an appeal against the decision. Mrs Reay forwarded a copy of the email to the Claimant. Mr Robinson spoke to the Claimant on the telephone.[11]On 15 April the Claimant sent to Mr Robinson the following email. “Hi David Please find attached your original email and hopefully the disciplinary procedure also. Don’t forget that you haven’t been sent a copy of the procedure from Guardian so don’t let on that you have a copy or it will kind of defeat the object of challenging the fact. Also they should have told you in your letter who to appeal to and not over the phone (you were far too distressed to remember what was said!!!!!) so remember to state in your letter that you weren’t sent this info and once provided you will send full details of appeal. I’m pleased that I was some help and look forward to seeing you soon.”[12]The Claimant later explained that on the telephone Mr Robinson told her that he had deleted his email (of 11 April) accidentally and needed it; hence she sent it to him again with the disciplinary procedure which he also requested.[13]Mr Robinson had, in the meantime, put in an appeal to the Respondents. On 21 April he emailed the Claimant and Mrs Reay asking them if they would write a supporting statement for him. Neither of them did so. His appeal was heard on 1 May and dismissed.[14]It was common ground before the Tribunal that the Claimant and Mrs Reay met Mr Robinson on one occasion while they were on sick leave. The date was in dispute. The Respondents considered that the visit took place on 30 April, prior to Mr Robinson’s appeal hearing. The Claimant and Mrs Reay placed it on 15 May, after that hearing. Disciplinary proceedings against the Claimant[15]On 6 May the Respondents wrote to the Claimant informing her that disciplinary proceedings were being taken against her. The first charge was as follows. “That you acted in concert with Elaine Reay while both on sick leave to communicate with and assist the home manager of Lennel House, David Robinson, (to resist the company’s action) who was being disciplined for gross misconduct for gross dereliction of duty and leaving the home whilst being the responsible individual in charge for no good reason. This may have undermined the company position on such a serious matter, the Scottish Care Commission has been informed of this situation with David Robinson and has stated that the company was correct to take this action. For you to have any contact with David Robinson during such action may in our opinion constitute gross misconduct.”[16]The second charge was a charge of bullying and harassment. Disciplinary proceedings on these and other charges were also taken against Mrs Reay.[17]On 3 June 2008 disciplinary meetings took place, chaired by Mr Spruce, the Respondents’ financial controller. As regards the second allegation against the Claimant, there was no specific detail of any act of bullying or harassment; the allegation was found not to be established. Mr Spruce, however, found the first allegation to be established and to amount to gross misconduct, stating that the Respondents believed the trust and confidence placed in her as an employee had been completely undermined.[18]In his letter to the Claimant dated 4 June, after setting out these conclusions Mr Spruce also said:
“Whilst the evidence with regards to your conduct was circumstantial it cast enough doubt on your credibility and reliability to add weight to your dismissal. You were entirely unconvincing throughout the hearing and you were unable to explain your conduct As such there is a clear inference that your conduct was not acceptable and has wholly undermined any trust and confidence in you. There is also a need to place on record your conduct during the investigation and disciplinary process: Having reached the end of the disciplinary process pending the appeal the company has found your conduct during the process to be wholly unsatisfactory and misleading. Whilst on sick 1eave you travelled long distances (whilst apparently not well enough to attend hearings) using company car and fuel to visit and speak with a witness. Clearly this behaviour is totally unacceptable and unprofessional. Given your seniority you should have known better. It is the view of the company that this calls into question your illness and whether you were deliberately avoiding the meetings. It should also be made a matter of record that on receipt of our disciplinary letter of 6th May you immediately cleared all personal belongings from your office at Bowburn taking with you your name plate from your office door. All of the above conduct has also been taken into account in the decision to dismiss.”
[19]In his “evidence review” (in which Mr Spruce contemporaneously summarised his reasons for dismissal) he said:
“Evidence Review The key evidence was the trail of e mails sent by David Robinson (it is assumed that these were sent by mistake to Elaine Reays company e mail) and in particular the reply by Karen Williams sent on 15th April 2008. At this time Karen Williams was off sick with stress but was able to involve herself in assisting David Robinson who was being dismissed by the company for leaving his post as the responsible individual at Lennel House Care Home whilst responsible for over 20 elderly residents. At the meeting on 3rd June when Karen Williams was asked the direct question if she had met David Robinson face to face whilst off sick she responded "yes" and also responded "yes' to speaking to him on the phone. The content of her e mail of 15 th April was concerning and show direct collusion and suggests to him to distort the truth. Even if Karen Williams were in work at this time she could only get involved with the situation if appointed by the company to do so. The allegation was upheld.”
[20]The Claimant appealed against her dismissal. The appeal was heard on 28 August 2008 by Mr Kevin Smith, an independent human resources consultant. He wrote to her on 8 October 2008 dismissing her appeal.[21]The letter contains two passages which we should quote. The first provides:
“You told me at the hearing that you did not realise David Robinson had been dismissed, and that your meeting with him took place after his appeal against dismissal was concluded. You said that you had only sent him a copy of the disciplinary policy because he had not been given one, and had not been advised how to appeal. You were off sick at the time and had not been involved before this. Response: You did know he had been dismissed because he told you so in his email of 11th April. It is not true that his appeal was concluded at the time you visited him in Scotland with Elaine Reay. His appeal was still pending, which I believe you were aware of, and for you to have sent him the email which you did at the outset, advising him 'don't let on that you have a copy', putting words into his mouth, 'you were far too distressed to remember what was said' falls far short of the standard of honesty and integrity the company is entitled to expect of an employee in a senior position such as yours. In so doing you were in breach of your duty to serve the employer with good faith and fidelity. You had broken the duty of trust and confidence. This is referred to in the third paragraph of the dismissal letter, and we discussed it at the appeal hearing. You were not honest with me about this at the appeal, which cast doubt on your credibility. As I said to you at the appeal, the proper response to his approach, particularly in view of the fact that he emailed you at home when you were off sick, was to have nothing to do with it, as it was being handled by one of your colleagues. Instead, you deliberately became involved in a matter of great seriousness, which could have had grave consequences for the company. It was no concern of yours, and you appeared to be interfering in a way that was contrary to the company's best interests. You must have been aware of the possible consequences of Robinson's conduct if there had been an incident involving a resident, and the Regulator had become involved. I accept that, in principle, there is nothing to prevent you communicating with a colleague when you are on sick leave. But this was very different, this was an employee who had been dismissed for gross misconduct and had an appeal against dismissal pending. Communicating with him in those circumstances in the way you did was in my view not permissible, and the company was entitled to challenge your conduct in so doing.”
[22]The second was in response to a ground of appeal to the effect that the allegation upheld did not constitute gross misconduct. Mr Smith responded:
“3. The allegation that was upheld did not constitute gross misconduct. Response: Viewed alone, that is correct, but as I mentioned at the appeal, in the context of David Robinson still being within the disciplinary process, the picture changes. You admitted at the disciplinary meeting that you had had other telephone contact with him. Again, you should have kept out of it. I wondered what possible purpose there was in you travelling to Scotland with Elaine Reay at the company's expense to visit him, when you were signed off sick such that you were unfit to attend a meeting with the company concerning your own situation later that week. Your explanation was that you were up there to see Carol, which was perfectly permissible, and you popped in to see him on the way back home. I do not believe that. A conscientious manager in those circumstances would at least have obtained approval and clearance from her manager and been open about it, but you chose not to. If you had asked for clearance it would most certainly have been refused since the appeal was pending, and I consider that the company was entitled to come to the adverse conclusion it did when all the circumstances are taken into account.”
The Tribunal’s reasons[23]The hearing before the Tribunal stretched over no less than 32 days, in several tranches. There were more than 1300 pages of documents, poorly numbered. There were 13 witnesses; some delays were by reason of illness of witnesses. The majority of the time was taken up with the claims relating to protected disclosures.[24]Many of the Tribunal’s findings and conclusions relate to issues which are not the subject of the appeal. We will concentrate on those parts of the Tribunal’s reasons which deal with(1) the correct respondents and(2) the Claimant’s unfair dismissal claim.[25]The Claimant had a letter setting out terms of employment from Guardian Care Homes (UK) Limited (not, as the Tribunal said, Guardian Care Homes Limited). However the Respondents’ Mr Hartland evidently alleged orally that management personnel were employed by a subsidiary called Care Control Limited which was said to have no assets. Pay slips referred to various companies in the group. The Tribunal, after reviewing this evidence said:
“It is quite clear that the Claimants were employed by the group of companies and that the ultimate shareholder is the same. In the circumstances it is appropriate that any judgment should be made against the various respondent companies on a joint and several basis.”
[26]On the question of unfair dismissal, the Tribunal set out the applicable law in paragraphs 11-13 of its reasons, making express reference to section 98(4) of the Employment Rights Act 1996 , and to British Home Stores v Burchell [1978] IRLR 379 , Iceland Foods Limited v Jones [1982] IRLR 439 , Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 and UCATT v Brain [1981] IRLR 225. No complaint can be or is made of the Tribunal’s summary of the law.[27]The Tribunal set out detailed findings of fact. These findings, which occupy some 31 pages of its reasons (paragraphs 5.1-95), included quotations from the documents in which the Respondents had given reasons for dismissing the Claimant and rejecting her appeal.[28]The Tribunal found that the reason for the dismissal of the Claimant and Mrs Reay was their conduct, rejecting their case that they were dismissed for making a protected disclosure: paragraph 24 of its reasons.[29]The Tribunal considered the question whether the Claimant and Mrs Reay visited Mr Robinson before or after Mr Robinson’s appeal. The Tribunal concluded (in paragraph 39):
“On the evidence it had at the time of the dismissals, it was reasonable for the respondent to conclude that the visit had occurred prior to David Robinson’s appeal which was on 1 May 2008 and there was nothing that would have led the respondent to carry out further investigations in this regard..... At that time the respondent believed that the visit had taken place on 30 April. That belief was genuine and it was on reasonable grounds following a reasonable investigation.”
[30]The Tribunal then said (paragraph 40):
“The respondent held a genuine belief in the allegation that the claimants acted in concert whilst both on sick leave to communicate with, and assist, David Robinson, who was being disciplined for gross misconduct for gross dereliction of duty. This allegation was reasonably investigated and the respondent reached the conclusion that this conduct amounted to gross misconduct leading to summary dismissal. The Tribunal is satisfied that dismissal was within the band of reasonable responses available to the respondents.”
[31]Later the Tribunal dealt specifically with the Claimant’s dismissal (paragraph 47):
“With regard to Karen Williams, the evidence in respect of communicating and assisting David Robinson was largely the same as the evidence considered in respect of Elaine Reay, although the email from Karen Williams to David Robinson showed that she had spoken to him on the phone and she admitted visiting him. Karen Williams said in the disciplinary hearing that she only knew of the nature of the allegations against David Robinson when the respondent wrote to her. This was clearly not the case, she had received a detailed email setting the allegations out. With regard to the bullying and harassment of ex-employees, the letter of dismissal says that this was not proven and therefore the dismissal was on the grounds of acting, together with Elaine Reay whilst both on sick leave, to communicate with and assist David Robinson. The respondent saw this as undermining the respondent’s position and gross misconduct. As with Elaine Reay, the decision to dismiss on this ground was within the band of reasonable responses. The investigations were within the band of reasonable responses.”
[32]In a passage dealing with both Mrs Reay and the Claimant the Tribunal said (paragraphs 48 and 49):
“48. The decision to dismiss was made by Michael Spruce, the respondent’s financial controller, and not by Peter Cooke who carried out the investigation. Michael Spruce carried out a review of the evidence. This showed that he had given consideration to the evidence and his conclusions in respect of each of the allegations were set out. The appeals were handled by an employee of an external consultancy which had no prior relationship and no continuing relationship with the respondent. He had carried out a reasonable investigation and, although, with the benefit of hindsight, there could have been further questions asked, the Tribunal finds that the investigation and procedure was within the band of reasonable responses. 49. It was entirely within the band of reasonable responses for the respondent’s dismissing officer and appeals officer to reach the conclusions they did and the claimants were not unfairly dismissed.”
Perversity[33]It is argued that the Tribunal’s conclusion that the Claimant’s conduct warranted dismissal is perverse. Ms Callan has not put this ground at the forefront of her appeal, but she submits that the email dated 15 April was central to the Respondents’ decision to dismiss and that it was perverse to regard this email as providing any kind of impermissible assistance to Mr Robinson. Rather she submits that the Claimant, by providing a copy of the disciplinary policy and advising him to ask to whom he should appeal, ensured that the proper procedure was followed, which was in the interests of the Respondents.[34]We reject this submission. If the Claimant had done no more in the email dated 15 April than send the disciplinary policy and give advice as to the proper procedure, the submission would be tenable. But the Claimant(1) advised Mr Robinson not to inform the Respondents that she had given him the disciplinary policy,(2) summarised for him how he might put his argument that he did not know to whom to appeal (“you were far too stressed to remember what was said”) and(3) provided him with a copy of an email which he required in support of his appeal. These steps were taken without informing those members of management who were involved in dealing with the appeal. An employer is entitled to expect that senior members of management will behave professionally if they are contacted by an employee who is being disciplined by another member of management. Put shortly, the Tribunal was not bound to find in favour of the Claimant. Sufficiency of reasons[35]The Claimant’s principal ground of appeal, as advanced before us today by Ms Callan, relates to the sufficiency of the Tribunal’s reasons[36]Ms Callan submits that the Tribunal has effectively given no reasons for its conclusion on this point. It should have addressed the following issues, all of which were in play:(1) what “assistance” the Respondents found was given to the Claimant, either in the email or in the visit and in what respects the Respondents found this objectionable;(2) whether the Respondents reached those findings on reasonable grounds;(3) whether the conduct was sufficiently objectionable to amount to gross misconduct;(4) whether it was reasonable to dismiss, given that this was a first offence;(5) whether a lesser penalty would have been the response of the reasonable employer;(6) whether it was objectively reasonable for the employer to conclude that its trust and confidence in the Claimant was undermined. In each of these respects the Tribunal should have given some reasoning.[37]In this last respect she relies on a dictum of Underhill P in A v B [2010] IRLR 844 at paragraph 31:
“It appears that the tribunal understood this submission simply to be that a stricter standard of reasonableness would apply in circumstances where the employee would be almost certainly unable to work in his chosen field again as a consequence of the dismissal.”
[38]In reply Mr Brockley submits that the Tribunal’s reasoning is sufficient to comply with the law. He submits that the Tribunal set out in detail in its findings of fact the reasons the Respondent gave for its conclusions; having done so, it was not necessary for the Tribunal to set out lengthy reasons for holding that the reasons were reasonable. The Tribunal, he submits, plainly found that the email was sufficiently objectionable to amount to gross misconduct; and plainly found that it was reasonable for the Respondents to conclude that its trust and confidence in the Claimant was undermined. He submits that the Tribunal’s reasons were sufficient to comply with rule 30(6)(e) of the Employment Tribunal Rules 2004 .[39]On this part of the case we prefer the submissions of the Claimant.[40]The principles of law are well established.[41]Firstly, an Employment Tribunal’s reasons must comply with rule 30(6) of the Employment Tribunal Rules. Rule 30(6)(e) is particularly apposite in this case. “30(6) Written reasons for a judgment shall including the following information – (e) how the relevant findings of fact and applicable law have been applied in order to determine the issues;”[42]Rule 30(6)(e) is consistent with and gives statutory force to the requirements of the common law. Thus, long before the enactment of the Rules in their present form, in Meek v City of Birmingham District Council [1987] IRLR 250 , Bingham LJ stated that, although tribunals are not required to create ‘an elaborate formalistic product of refined legal draftmanship’, their reasons should:
“... contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an [employment] tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted .”
[43]In this case the Tribunal made lengthy findings of fact, reciting in particular from documents which set out the Respondents’ reasons for dismissal. Its conclusions, however, contain virtually no evaluation of the Respondents’ reasons, except in respect of the question whether the Respondent reasonably concluded that the visit was on 30 April rather than 15 May. Contrary to the submissions of Mr Brockley, we think it was essential for the Tribunal to evaluate the Respondents’ reasons.[44]The starting point for the Tribunal should have been the decision to dismiss and the reasons of Mr Spruce who took that decision. What assistance did he find was given? What did he find was objectionable about that assistance? Was it reasonable for him to reach those conclusions? Why? While the position may be reasonably straightforward as regards the email dated 15 April, it is not so straightforward as regards the visit (whichever date it was). Nor is it obvious whether Mr Spruce was reasonable in taking into account the fact that the Claimant used a company car (which she was entitled to use privately) or company fuel, or did so while on sick leave. These were matters which were not the subject of the charge.[45]The Tribunal would, as Mr Brockley submitted, also have been entitled to take into account the appeal and the conclusions on appeal, applying Taylor v OCS Group Limited [2006] ICR 1602 .[46]The Tribunal ought to have considered the principal submissions put before it. These, we think, were for the most part identified in the submissions of Ms Callan which we have already quoted. In different ways, these all address the question whether it was reasonable for the Respondents to conclude that what the Claimant did was misconduct and if so whether and why it was reasonable for them to conclude that it was sufficiently serious to justify summary dismissal.[47]We do not suggest that the Tribunal’s reasoning ought to have been of great length. Each of the matters which Ms Callan has identified could have been addressed in a relatively short compass. But in our judgment they were the essential issues for the Tribunal to resolve in order to deal with the unfair dismissal claim so that the parties will know why they won or lost. The Tribunal’s reasons do not sufficiently address them. The cross appeal[48]In our judgment the Tribunal’s decision that it would be appropriate to make an award jointly and severally against all the companies cannot stand. An employee has the right not to be unfairly dismissed by his employer: see section 94(1) of the Employment Rights Act 1996 . In a case where the identity of the employer is in issue the Tribunal must identify the employer. In this case the Tribunal did not do so.[49]It is in theory possible for an employee to be employed jointly by more than one person: this is no doubt the correct analysis where an employee is employed by a partnership. But it is in our experience most unusual for an employee to be employed jointly by a group of companies; and there is no reason to suppose that this was the position here. On the contrary, the Claimant was issued with a letter setting out terms of employment by Guardian Care Homes (UK) Limited. The Tribunal should have asked itself whether this was a genuine document, and if it was whether anything had happened to change the identity of the employer. Disposal[50]The final question is whether this appeal should be remitted to be heard by the same or by a differently constituted Tribunal. In taking this decision we have regard to the factors set out in Sinclair Heard & Temperley v Roche [2004] IRLR 763 at paragraph 46. We have heard both parties make submissions to us on this question.[51]There is no doubt that considerations of convenience and practical justice point strongly to remission to the same Tribunal. The Tribunal heard evidence over a substantial period, rejecting the Claimants’ case that they were dismissed by reason of protected disclosures. There is a substantial risk that another Tribunal, which would have to hear evidence anew, might be drawn into consideration of these matters even though they are of no particular relevance to the unfair dismissal issue. Another Tribunal would indeed have to hear evidence from the principal witnesses dealing with the dismissal as well as from the Claimant. In a case which has already taken substantial time and no doubt great cost, it is undesirable to begin again, even on the narrower unfair dismissal issue relating to a single claimant.[52]As against that, we must weight the difficulty a Tribunal may have in bringing an independent mind to the reconsideration of the unfair dismissal issue. Having given anxious consideration to the matter, we have reached the conclusion that the Tribunal may be trusted to consider the remaining issues professionally, having regard to the guidance we have given. We bear in mind that the Tribunal has decided the majority of the issues in a way which has led to no appeal and that the unfair dismissal issue – particularly the one relating to this Claimant – was not the major issue upon which it was focussing. Now it can, and we are confident will, focus upon that issue carefully and afresh with the guidance we have given.[53]We do not think that the hearing before the Tribunal should be a lengthy one. We suggest that the Tribunal uses the existing bundles, and gives a direction for written submissions to be filed and exchanged prior to any hearing. Any oral hearing will therefore be focussed. We see no need for further evidence. If either party sees the need for any such evidence an application should be made to the Tribunal and the Tribunal should hold a case management discussion.