Kingston Transport (t/a Sussex Skips) v Sanders (Unfair Dismissal : Reason for dismissal including substantial other reason) [2012] UKEAT 0035_12_2304

EAT
Kingston Transport (t/a Sussex Skips) v Sanders (Unfair Dismissal : Reason for dismissal including substantial other reason)
[2012] UKEAT 0035_12_2304 · 2012-04-23
[1]This is an appeal by the Respondent against a decision of the Employment Tribunal sitting in Brighton sent to the parties on 29 September 2011. The Employment Judge was Employment Judge Wright, who sat with lay members. In the decision appealed against the Employment Tribunal determined it was not appropriate for there to be a “ Polkey reduction” ( Polkey v A E Dayton Services Ltd [1987] IRLR 503 ) in the Claimant’s compensation, nor was it just and equitable to reduce his compensation under section 123(6) of the Employment Rights Act 1996 (ERA) on the basis of contribution to his dismissal. The decision itself was a further hearing directed by the Employment Appeal Tribunal. On 24 March 2010 the same Employment Tribunal, Employment Judge Wright and lay members sitting at Brighton, determined that the dismissal of the Claimant by the Respondent was unfair and went on to determine remedy; I shall deal with these matters in so far as is relevant in greater detail later. The Reasons were sent to the parties on 27 April 2010.[2]At the remedy hearing the Employment Tribunal had declined or failed to make either a Polkey reduction or a reduction under section 123(6) ERA. The Respondent appealed to the Employment Appeal Tribunal. On 28 March this Tribunal, presided over by HHJ Reid, who sat with lay members, allowed the Respondent’s appeal on the grounds that the Employment Tribunal’s findings in relation to the reasons for dismissal were unclear and that it had not properly dealt with the case under Polkey and under section 123(6) ERA. The case was remitted to the same Employment Tribunal, which again, as I have already said, declined either to make a Polkey reduction or a reduction under section 123(6) ERA. It is convenient just briefly to refer at this point in time to section 123(6):
“Where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”
Factual background[3]I now turn to deal with the factual background, which we have taken largely from the two decisions of the Employment Tribunal. The Respondent is engaged in the skip hire business. The Claimant on 15 January 2008 was employed by the Respondent as a heavy goods vehicle driver. We understand that his job entailed the delivery and collection of skips. There do not seem to have been any concerns about the Claimant’s driving until May 2009, when his performance appeared to deteriorate significantly. Between May and July 2009 there were a number of incidents, five in all, involving the Claimant, four of which involved accidents; one of them, on 22 July 2009, involved an allegation that he had delivered, rather than an empty skip, a skip already containing rubbish, and there was an altercation, so it is said, between the Claimant and the Respondent’s customer. The Claimant admitted, so the Employment Tribunal found, responsibility for some three of those accidents. This led to a disciplinary hearing, which took place on 6 August 2009, when the Respondent considered why the Claimant’s performance levels had dropped off over the past few months. He was issued with a written warning that was to remain on his file for a six‑month period.[4]On 21 September 2009 two incidents occurred, referred to as “numbers six and seven”, with which we are particularly concerned today. The first incident, number six, was when the Claimant’s lorry – we believe, its bumper – was found to be damaged. The Respondent said this was caused by the Claimant. The Claimant said this was not the case; when he collected the lorry at the beginning of the shift, it had already been damaged, notwithstanding that this had not been noted on the inspection report. Later in that day, while driving his vehicle, he had an accident; the other vehicle involved was a grey Fiat Punto. It is apparent that the place where the accident occurred was well known to the Employment Tribunal, but what conclusions the Employment Tribunal drew from that it is not possible for us to say, not having the first‑hand knowledge that the Employment Tribunal had. In any event, it is clear that the Claimant took the view that the accident was the responsibility of the driver of the Punto. It is also clear that she had spoken to someone – we believe, the yard manager – at the Respondent’s depot, and she blamed the Claimant. One of the Respondent’s directors inspected the Claimant’s lorry and immediately took the view that the Claimant had misled them as to how the accident occurred and that the accident was the Claimant’s fault.[5]The Respondent’s case then is that the Claimant became aggressive towards a director, Mr Hudson, and Mr Hudson summarily dismissed him for gross misconduct. The Claimant, on the other hand, denied that he had behaved aggressively at all, and the Employment Tribunal accepted his case. We note that the Respondent made no attempt to comply with the ACAS guidance as to disciplinary proceedings; in particular, there was no investigation into the accident, which took place in Shoreham Road, Hove. There was nothing before the disciplinary hearing at all in relation to what the driver of the Punto may have said, neither was there evidence from the person to whom she had spoken, Mr Talbot, the site manager, who himself then relayed some information to Mr Hudson.[6]A dismissal letter followed. We do not have that dismissal letter. It is, however, apparent from the decision of the Employment Tribunal that it referred to the previous incidents and to the accident on 21 September, the Respondent’s duty of care to other employees and the general public, and the quality of the Claimant’s driving. The letter, which came from Mr Hudson, confirmed his decision to summarily dismiss the Claimant for these reasons and stated that due to the threat of violence by the Claimant this left him with no choice but to dismiss the Claimant immediately on the grounds of gross misconduct. We note at this point in time that there is no reference in that letter to the first of the two incidents that took place on 21 September; that is, the damage to the bumper on the Claimant’s lorry.[7]A somewhat different version of this letter was sent to the Jobcentre. The Jobcentre were told this was a copy of the letter of dismissal; it was not, but it made clear that the Claimant had been dismissed for gross misconduct. Quite understandably, the Claimant now complains that this letter, sent to the Jobcentre, has had a highly damaging effect on his prospects of re‑employment. Later on, the Respondent’s insurers sought to enlist the support of the Claimant to assist them in defending the claim. In fact, the Claimant did not assist the insurers, and the insurers conceded liability to the driver of the Punto.[8]The Employment Tribunal concluded that the dismissal was unfair – there is no appeal against that finding – and awarded him compensation in the total sum of £17,852.50. The calculations are to be found at paragraph 59 onwards of the first decision of the Employment Tribunal. For present purposes, we note that the Claimant was awarded in respect of loss of earnings a sum equivalent to 31 weeks’ loss of earnings. The Employment Tribunal decisions[9]We now turn to the first decision of the Employment Tribunal. The Employment Tribunal set out the facts; it noted that the Claimant had consistently denied liability for the accident on 21 September, although this was of course disputed by the driver of the Punto, and he told the Respondent that he was not responsible. There was no investigation, and it is apparent that during the disciplinary hearing there was no proper material before Mr Hudson other than from the Claimant as to how the accident had occurred. The Employment Tribunal at paragraph 22 set out the Respondent’s evidence. Mr Hudson said that he called the Claimant into the unit and asked him about the accident. The Claimant became angry. Mr Hudson challenged the Claimant’s version of events, which Mr Hudson had received from Mr Talbot and not first‑hand from the Claimant. Mr Hudson’s evidence is that he based his understanding upon what Scott Talbot had told him took place; Mr Hudson had not spoken directly to the driver of the Fiat Punto. The Tribunal noted that Mr Talbot did not give evidence, and therefore it did not hear Mr Talbot’s version of events.[10]Mr Hudson then went on to say that the Claimant had lunged at him with his right fist clenched and attempted to hit him. The Claimant’s account was quite different. The Claimant maintained that in fact it was Mr Hudson who lost his temper. The Employment Tribunal heard from both the Claimant and Mr Hudson. The Claimant’s evidence was Mr Hudson did not give him an opportunity to provide him with an explanation for the accident, and Mr Hudson believed the accident was the Claimant’s fault. The Claimant said Mr Hudson was not interested in anything he had to say, swore at him and fired him there and then. He denied having raised his hand, raised his voice or lost his temper, and said he did not offer any sort of violence. There is then some consideration of the circumstances in which the letter of dismissal came to be written, with which we need not deal with, other than to note that the version sent to the Jobcentre was not in fact a copy of the letter as sent to the Claimant.[11]Having referred to the law, the Employment Tribunal then at paragraph 45 said this:
“45. The Tribunal prefers the evidence of the Claimant over that of the Respondent for the following reasons. 46. The Respondent did not call Scott Talbot to give evidence as to what he was told by the Claimant in respect of the accident on the 21 st September 2009, what damage Mr Talbot saw on the lorry, or what Mr Talbot was told by the driver of the Fiat Punto. Nor did it hear evidence from the Fiat Punto driver.”
[12]The Respondent’s submissions to us are that the conclusion of the Tribunal in paragraph 45 that it preferred the Claimant’s evidence over that of the Respondent only relates to the aggression, and does not relate to the circumstances of the accident and any damage to the Claimant’s lorry. We are not minded to agree. It is clear paragraph 46 and also paragraph 50, which relates to photographs referred to Mr Talbot that were not in fact produced, again were in relation to the accident. It seems to us that the Employment Tribunal would have had no reason to refer to material relating to the circumstances of the accident if when it stated it preferred the Claimant’s evidence to that of the Respondent it was not including in that evidence the evidence that related to the accident.[13]The Employment Tribunal at paragraph 53 concluded that the Respondent’s summary dismissal of the Claimant was unfair because the Respondent did not act reasonably in accordance with section 98(4)(a), and the suspicion of misconduct without a full investigation of the position did not justify its decision to summarily dismiss the Claimant:
“The Tribunal finds that as it prefers the Claimant’s evidence regarding what took place during the alleged altercation and finds there were no circumstances which rendered it an ‘exceptional situation’ allowing the Respondent to summarily dismiss the Claimant without going through any form of disciplinary procedure.”
[14]This passage is relied upon by the Respondent as suggesting that what was said earlier in paragraph 45 was limited to the altercation. We have already indicated why we do not agree with this submission.[15]At paragraph 54 the Employment Tribunal also found the Respondent’s explanation for the circumstances in which a different letter was sent to the Jobcentre from that sent to the Claimant was not credible. At paragraph 55 they continued:
“55. The Tribunal also took into account what it described as the inconsistency of the Respondent wanting the Claimant to provide a statement to its insurers giving his version of events (i.e. that the collision with the Fiat Punto was not his fault) in order that they could dispute the claim. This contradicts the view the Respondent took on the late afternoon on 21 st September 2009 […] which indicated that it was the Claimant’s fault and also undermines the Respondent’s credibility. 56. The Claimant had made the same statement consistently throughout the case that the accident with the Fiat Punto on 21 September 2009 was not his fault. This is contrasted by the Respondent’s case, that it found, without holding an investigation or following any sort of disciplinary process that the accident on the 21 st September 2009 was the Claimant’s fault (paragraph 9 of Mr Hudson’s statement). Yet the Respondent wanted the Claimant to provide assistance in defending the claim brought by the driver of the Fiat Punto. If the Respondent was defending the Fiat Punto driver’s claim, the Tribunal finds it must follow that the Respondent was now saying in November 2009 and March 2010 […] that the blame for the accident lay with the driver of the Fiat Punto and not the Claimant.”
[16]The Tribunal went on to consider remedy. It was satisfied that there was nothing in the point that the Claimant had failed to mitigate his loss. It found that the Respondent had not discharged the burden of demonstrating that was the case. The Tribunal found that after the summary dismissal for violent conduct and with a break in his driving history the Claimant had not failed to mitigate his loss. It noted the admitted failure by the Respondent to follow the ACAS Code of Practice on disciplinary and grievance procedures and therefore uplifted the award by 25 per cent. The Claimant had also made a claim in respect of the failure to provide him with a written statement of his terms and conditions of employment in accordance with section 1 of the ERA; this complaint was upheld. In total, the Claimant was awarded the sum of £17,852.50, of which 31 weeks’ loss of wages was included.[17]There was no discussion in relation to a Polkey deduction or contributory fault. The Respondent appealed to the Employment Appeal Tribunal; I have already referred to the Judgment given by Judge Reid on 28 March. It was unclear what the Employment Tribunal found was the reason for the Claimant’s dismissal. The Employment Tribunal had failed to deal with contribution under section 123 or Polkey . The Employment Appeal Tribunal noted during the course of its Judgment that there was an incident on 21 September involving the Fiat Punto, but it was not necessary for the purposes of the hearing before the Employment Appeal Tribunal on that occasion to make any findings or attempt to make any findings about whose fault that may have been.[18]The matter was remitted to the Employment Tribunal to reconsider matters relating to Polkey and section 123. In the second decision of the Employment Tribunal, which, as we have said, was sent to the parties on 29 September 2011, the Employment Tribunal at paragraphs 12 and 13 made clear that it was not concerned with the first five of the seven incidents relied upon by the Respondent because they did not affect the issue the Tribunal had to decide. The Tribunal found there was a break in causation between the incidents in May and July 2009 and the incident on 21 September 2009. By a letter of 3 August 2009 the Claimant was invited to a disciplinary hearing in respect of those incidents; that letter informed the Claimant of the nature of the meeting, stated it was the Respondent’s intention to issue a formal warning, informed the Claimant of his right of representation, and stated to the Claimant he had the right to appeal against any decision made. The Claimant was then issued with a written warning, which, as we have said, was for six months only. The Respondent had concluded its dealings in respect of those incidents, albeit the written warning was to stay on file for six months. We just note in passing that paragraph 13 reveals that the Respondent was aware of and well able to comply with the ACAS Code of Practice.[19]The Employment Tribunal then at paragraph 17 noted the Respondent’s case that Polkey applied as there was potentially a fair reason for dismissal, namely the Claimant’s conduct: the collision with the Fiat Punto. It appears therefore that the case put to the Employment Tribunal was that Polkey applied because of the Fiat Punto rather than the Claimant’s previous driving history. The Tribunal found the Claimant did not act in the manner alleged by the Respondent and his dismissal was unfair, and it then had this to say (paragraph 16):
“It follows that the reason for the Claimant’s dismissal was the incident referred to at paragraph 18 – the collision between the Claimant and the Fiat Punto.”
[20]This point is picked up again in paragraph 17:
“The Respondent’s case is that Polkey applies as there was potentially a fair reason for dismissal, namely the Claimant’s conduct – the collision with the Fiat Punto. It is the Respondent’s case it would have, on the balance of probabilities, fairly dismissed the Claimant within 1‑2 weeks, thereby limiting his losses to that period.”
[21]The Employment Tribunal then relied upon a letter from the Claimant pointing out the ACAS Code of Practice in a grievance that he had raised in disciplinary proceedings, but this had simply been ignored. The Employment Tribunal, revisiting the evidence it had heard in March 2010, concluded that the Respondent had shown a potentially fair reason for dismissal, but on the balance of probabilities, based on the evidence it heard, the Respondent would not have followed a fair procedure and therefore the Respondent’s Polkey argument failed. At paragraph 21 the Employment Tribunal again criticised the manner of the Claimant’s dismissal and on the balance of probabilities found:
“[…] due to an inconsistent approach by the Respondent, the only conclusion that it could draw was that the Respondent did have the opportunity to follow a fair procedure yet it did not do so. The Respondent’s Polkey argument therefore fails. The Tribunal’s findings undermine the Respondent’s submission that it would have conducted a fair investigation and the inconsistent approach taken by the Respondent to the issue of liability in respect of the incident with the Fiat Punto, further undermined the Respondent’s contention that it ‘would have’ followed a fair procedure resulting in a fair dismissal.”
[22]The Employment Tribunal then went on to consider the question of contributory fault. It found that the Respondent intended to terminate the Claimant’s employment at some stage; indeed, it had made an offer to terminate his employment in August 2009, which in fact came to nothing. “The Claimant denied any liability for the incident with the Fiat Punto […] yet, this was never properly investigated by the Respondent.” It noted that it had found that the Respondent accepted the Claimant’s statement that the collision with the Fiat Punto was not his fault in order to dispute the claim by the driver of the Punto, yet the Respondent dismissed the Claimant unfairly as a result of that collision. At paragraph 24 they continued:
“The Respondent’s conduct in accepting the Claimant’s version of events in order to defend the claim by the driver of the Fiat Punto yet relying upon its contention (without having conducted any form of investigation) that the Claimant was liable and therefore his conduct contributed to his dismissal. The Tribunal has revisited Section 123(6) and consulted the evidence which was presented to it at the hearing on 24 March 2010 and reconfirms its decision to exercise its discretion not to reduce the compensatory award as it would not be just and equitable to do so due to the findings [it had made]. It is not now open to the Respondent to argue that the Claimant’s conduct contributed to his dismissal when it has failed to follow basic principles of natural justice by not allowing the Claimant to explain his position at a hearing and the Respondent cannot now argue that the Claimant’s conduct caused or contributed to his dismissal.”
Notice of Appeal and Respondent’s submissions[23]We now turn to the Notice of Appeal and the Respondent’s submissions. Firstly, it was submitted that the Employment Tribunal was wrong to find that it followed from the finding that the Claimant was not dismissed for the reason given by the Respondent – that is, his aggression – that he must have been dismissed solely by reason of the accident with the Fiat Punto. When finding that the Claimant had been dismissed by reason of the accident with the Fiat Punto, it did not address the issue of whether he had been dismissed as a result of that accident or that accident cumulatively with the other incidents, including the incident relating to the altercation with a customer.[24]Secondly, it is said that the Employment Tribunal misapplied the principles set out in Polkey . It failed to address relevant evidence – that is, the Claimant’s past history – and the possibility that because of his recent driving record it was likely that he would give cause for further complaint leading to his dismissal within a short period of time; as I have said, the Respondent was seeking a finding that would have occurred within two weeks. The Employment Tribunal, it was submitted, was bound to consider the position as though in fact there had been a fair procedure followed and to consider whether and for how long the Claimant’s employment would have continued. The Employment Tribunal was bound to approach a Polkey question on the basis that the employer would act fairly and reasonably. Our attention was drawn by Mr Pilgerstorfer, who appears on behalf of the Respondent, to the Judgment of Elias J, as he then was, in Software 2000 Ltd v Andrews [2007] ICR 825 . Elias J at paragraph 43 referred to the decision in Gover v Propertycare Ltd [2006] EWCA Civ 286 , in which the Employment Tribunal had found there were fundamental failings in the way in which the employer sought to bring about changes in employment contracts. This had led to constructive dismissal and the finding of unfair dismissal by the Tribunal, but it was held that even if proper consultation had occurred, the employees would not have accepted the fundamental changes that the employer was seeking to introduce into their contracts and that all they had lost was the period during which consultation would have occurred, which the Tribunal found to be four months. In the course of giving judgement, Buxton LJ in turn cited with approval a passage in King v Eaton Ltd (No. 2) [1988] IRLR 686 and added the fact that the issue was a matter of impression and judgment to the Tribunal:
“22. […] indicates very strongly that an appellate court should tread very warily when it is being asked to substitute its own impression and judgement for that of the Tribunal.”
[25]He also observed that the Polkey approach, assessing what would have happened had the dismissal been fair, was wholly consistent with the principle of assessing loss flowing from the dismissal on a just and equitable basis, which is the principle underlying section 123:
“14. [These] should be a matter for the common sense, practical experience and sense of justice of the ET sitting as an industrial jury.”
[26]He also approved the way in which HHJ McMullen QC had described the process in the EAT in that case where he had said that the Employment Tribunal’s task was:
“[…] to construct, from evidence not speculation, a framework which is a working hypothesis about what would have occurred had the [employer] behaved differently and fairly.”
[27]The third line of submissions made by Mr Pilgerstorfer was that the Employment Tribunal had fallen into error when it looked at the Respondent’s conduct as being relevant to the issue when it should have looked solely at the Claimant’s responsibility. It was only the Claimant’s conduct, not the Respondent’s, that was relevant to the issue of contributory fault. Further, regarding the finding, which we have read, that as the Respondent had acted in breach of natural justice it was somehow precluded from arguing that the Claimant’s conduct contributed to his dismissal, it is said that this was plainly wrong (see the Respondent’s skeleton argument, paragraph 31(c)). Further, conduct that can result in a reduction for contribution can relate to matters that are unrelated to the principal reason for the dismissal. Our attention was drawn to the decision of Parker Foundry v Slack [1992] IRLR 11. The Claimant’s submissions[28]The Claimant prefaced his submissions by drawing attention to the fact that he was appearing in person. He had not been able to enlist the support of ELAAS by reason of a lack of communication with them, and he accepted that legal arguments in this case were over his head, but he did submit that the Employment Tribunal had been correct to reject the relevance of the matters that had occurred and had been subsumed in the written warning. He submitted the Employment Tribunal had found he was not responsible for the accident with the Punto and the Employment Tribunal was entitled to find that the Employment Tribunal would never have followed a fair procedure. He went on to tell us that since his dismissal he had driven over 100,000 miles without any issue as to his driving; we note this, but of course it was not in evidence, and we say no more about it, other than the fact that we have noted what he said.[29]Also, Mr Sanders submitted to us he only accepted responsibility for two out of the seven incidents, not four; again, we can only go by what the Employment Tribunal found, and that is that he had accepted responsibility for four. Conclusions[30]In our view, which we have already mentioned, when the Employment Tribunal said it was accepting the Claimant’s evidence it was not restricting this finding to the allegations made against him of aggression, but it included his evidence as to the circumstances of the accident in Shoreham Road on 21 September. So far as we can tell, no findings or material were raised in relation to incident number six; that is – the first allegation of damage on 21 September – either having been raised at the disciplinary hearing or during the course of the Employment Tribunal hearing. Certainly, no findings were made by the Employment Tribunal. It follows that although Polkey issues may still be live, it is difficult to see how the Claimant could be said to have contributed towards his dismissal by his involvement in an accident that was not his fault. In those circumstances, as it seems to us, if the reason for which he was dismissed was not his fault, it seems wholly wrong that the Respondent should be allowed to rely in reduction of his claim upon matters that had already formed the subject of a disciplinary hearing and a written warning.[31]So far as the law is concerned, we accept the Respondent’s submissions, firstly, that the Employment Tribunal was wrong in its approach to Polkey . The Employment Tribunal’s decision was inconsistent with authorities to which we have referred that in assessing a Polkey reduction it must be assumed that fair procedures were put in place and carried out by the employer. Secondly, we accept that the Employment Tribunal’s approach to contribution was flawed in so far as it looked at the Respondent’s conduct as well as the Claimant’s rather than particularly concentrating on the Claimant’s conduct. It was also wrong, as a matter of law, for the Employment Tribunal to find that the Respondent was somehow precluded from raising arguments as to contribution by reason of its own conduct. There is no estoppel or anything like that in this kind of case.[32]The Respondent’s difficulty in this case is with the facts: the finding that the Claimant was not at fault in relation to the accident in Shoreham Road, and the fact that there are no findings in relation to an earlier incident on that day (although it does appear that the Claimant’s evidence on this, that it was not his fault, was accepted). This leaves only the Polkey point. Both parties want us to deal with this matter rather than go to the expense of a further remission, which would in the circumstances possibly require there to be a new Employment Tribunal, with added expense and delay. There is some authority for the proposition that where an Employment Appeal Tribunal is in as good a position as the Employment Tribunal to decide something it can go on to do so without sending the case back; see Buckland v Bournemouth University Higher Education Corporation [2010] ICR 908 in the Judgment of Jacob LJ. In all the circumstances, and having regard to the parties’ agreement – and we stress the importance of that – and also the question of proportionality, we are anxious to avoid further delay and further expense to the parties. We are prepared to undertake the task of assessing an appropriate Polkey deduction.[33]It has to be said that the Claimant’s driving record was not good, and it appears to have been deteriorating. We think it is likely that he would have been involved in further accident for which he was responsible possibly within and possibly without the balance of the six‑month warning. Having regard to this, and also having regard to the fact that the period must assume a fair procedure on the part of the Respondent, which would require the investigation of any further allegation of misconduct, the opportunity for there to be an appeal and compliance with ACAS directions that would preclude disciplinary action until after a proper investigation – the Claimant should have been advised of his right to be accompanied, and he should be provided with provision of witness statements and told of his rights of appeal, and an appeal made available – on the balance of probabilities, and doing the best we can, we consider that it is likely his employment would have terminated approximately 6 months after the date of his actual dismissal; i.e. after some 26 weeks. It follows, therefore, that the award should be adjusted to that extent.[34]To that extent, we allow the appeal; apart from that, the grounds of appeal are dismissed.