Ministry Of Justice v Parry (Practice and Procedure : no sub-topic) [2012] UKEAT 0068_12_1411

EAT
Ministry Of Justice v Parry (Practice and Procedure : no sub-topic)
[2012] UKEAT 0068_12_1411 · 2012-11-14
[1]An Employment Tribunal at Leeds decided for reasons delivered on 6 th December 2011 that the Claimant had been unfairly dismissed from her employment as a District Probate Registrar, that she had been wrongfully dismissed, and that there should be no ‘Polkey’ deduction from her damages. What might otherwise have been a relatively straight forward consideration of whether a dismissal on the grounds of misconduct was fair became more complex because the Claimant had been appointed to her office as District Probate Registrar [1] , after lengthy service within the Probate Registry, by the Queen on the recommendation of the Lord Chancellor, and her dismissal from office similarly was dependent upon a recommendation by the Lord Chancellor to the Sovereign.[2]A distinction must be drawn, however, between the office which the Claimant held (and from which she has not to date been removed) and her employment. A claim for unfair dismissal is predicated upon there having been a dismissal from employment: if there has been no dismissal, there is no right to complain of it to a Tribunal, and no jurisdiction to determine the complaint. No suggestion has been made here or elsewhere that the dismissal of the claimant by the Appellant was invalid. By bringing her claim the claimant here accepted that she had been dismissed – though, in the circumstances, from employment and not from office, though her case is that the latter will inevitably follow the former. The Facts[3]On 9 th November 2009, the Claimant was held guilty by her employer of gross misconduct. That consisted of her bullying and harassing a junior employee: the Claimant had interfered in her management when she was not her line manager, and had humiliated her in front of other staff. A final written warning was issued in respect of that offence, to expire after 12 months. No appeal was entered.[4]A sub-text to the facts was that the Claimant was said to have promoted the interests of her own daughter, who worked in an office to which she had access, above those of other staff who also worked there: the Claimant’s interference with the other employee was seen as being in support of her daughter.[5]On 25 th June 2010, and therefore within the period of validity of the final written warning, Caroline Nichols (a different employee from the one concerned in the events giving rise to the warning) complained of further overbearing behaviour by the Claimant. This, again, involved the Claimant’s daughter. The employee complained that the Claimant had picked upon her, and had taken issue with her management of the daughter even though she, the Claimant, was not her line manager.[6]When complaint was made of this by Caroline Nichols, the Claimant was suspended with effect from 2 nd July. She, her line manager Sally Holden, the daughter, her line manager Claire Husband, and the employee who had raised the initial complaint were all interviewed by a Mr Limbert. On 3 rd August he produced a report, finding that there was a case to answer in respect of an allegation that the Claimant had been guilty of bullying, abusing her position as Registrar and mother and so affecting the dignity of Caroline Nichols as to leave her feeling intimidated, undermined and distressed.[7]On 20 th September 2010 this came for hearing before a Mr Foulkes. He considered that the Claimant had vented her concerns in a manner which was neither warranted nor proportionate, and was unbecoming of a person in her position and grade. She had abused her position. The Tribunal found (para. 3.31.6):
“Mr Foulkes considered the allegations made by the Claimant in the disciplinary hearing that Caroline had upset other members of staff, had a complaint outstanding against her, and was protecting herself by downplaying the impact of her conversation with the daughter, and suggesting that members of the office management had a grudge against her which he considered to be a serious allegation. He found the statements of Caroline Nichols and Sally Holden to be entirely credible and so found the Claimant’s actions on 24 th June, to constitute bullying and an abuse of her position as Registrar, which was gross misconduct. He noted that the sanction entry point for gross misconduct was dismissal. In mitigation this was a single incident of short duration, the bullying was unintentional but entirely foreseeable. On the other hand the Claimant was subject to the final written warning had breached the protocol then issued and failed to recognise or accept culpability for her actions of 24 th June, and had attacked the character and integrity of two of her managers. As he concluded that the relationship of trust and respect had broken down, his decision was to recommend to the Lord Chancellor that the Claimant be dismissed.”
[8]On 24 th September Mr Foulkes read out his findings and reasons at a resumed disciplinary hearing, telling the Claimant that he had decided to dismiss her. Her last day of service was specified as being that day.[9]The Claimant appealed. She asked if she could be represented by a solicitor; and her solicitors asked that they could attend. This was the first time the Claimant had asked for legal representation. Her request was declined but the solicitors sent detailed and lengthy submissions in support of the appeal to Steven Cavan, the North East Regional Director of HMCTS, and he considered those submissions, some of which were read to him by the Claimant at the Appeal. She was accompanied by a former colleague, this being permitted. The Appeal was dismissed. The Tribunal Decision[10]Surprisingly for a conduct dismissal, the analysis by the Tribunal did not address in turn the issues to which case law has established a Tribunal should pay regard: whether the employer had a genuine belief that the employee was guilty of the misconduct alleged; whether that was based on reasonable grounds; after a reasonable investigation; and whether the decision to dismiss was within the range of reasonable responses open to an employer in respect of the misconduct.[11]The essence of the Tribunal’s decision was summarised in paragraphs 5.4 and 5.8. The letter reads:
“We … conclude that the decision to dismiss … in this case was unfair primarily due to the Claimant having been dismissed at a point in the procedure where she had been assured she would not be dismissed but also due to the lack of legal representation and the fact that the dismissing officer did not approach his task with an open mind, but assumed that it was the Claimant’s colleagues who were truthful without giving any credence at all to the suggestion that there were reasons why they may have exaggerated their account. 5.9 Those failures were not corrected on appeal, as the same errors continued into the appeal process.”
[12]It was common ground between Counsel before us, both of whom had appeared below, that there was no evidential basis at all for the Tribunal’s conclusion that the Claimant had been given an assurance that she would not be dismissed at the end of the disciplinary hearing. It may be that the Tribunal reached this conclusion because it had seen a briefing note prepared in advance of Mr Foulkes’ hearing, which included advice that if the decision should be for dismissal “that would be submitted to the Lord Chancellor for consideration and removal from the Registrar list and dismissal.” That note, however, was prepared for the eyes of Mr Foulkes alone. The Claimant did not see it. No assurance was given. It was a mistake to think that it was.[13]In any event, the Appellant contended that the advice in the briefing note had been superseded by later advice (before the dismissal took effect) set out in a letter of 22 nd September to Mr Foulkes (see paragraph 3.33) to the effect that there was no provision to continue employment status or pay beyond the point of dismissal.[14]Accordingly, the primary reason for holding the dismissal unfair was illusory. It follows that unless the conclusion upon the findings of fact otherwise permissibly reached by the Tribunal was plainly and unarguably right, the decision cannot stand.[15]As to that, firstly the Tribunal said that for the ‘assurance’ reason alone it would have found the dismissal procedurally unfair. Conspicuously, it does not say the same about the other two reasons, both of which must be secondary reasons if the ‘assurance’ reason is truly primary. We shall now turn to the other two reasons given, to see if they show that notwithstanding the error of material fact the decision was plainly correct.[16]Before accepting the Claimant’s case as to representation, the Tribunal had to consider rival contentions as to the impact of Article 6 of the ECHR upon the Disciplinary Hearings held by the employer. Since Article 6 contains a fundamental right by definition, and thus in both logic and principle a court must be careful to ensure that full effect is given to the right and not merely a passing nod, it might be thought that if disciplinary proceedings which might result in the removal of an employee who is also an appointed officer of the court from employment were ones in which the opportunity of legal representation was mandated, then a dismissal decided upon in the absence of any such opportunity would necessarily be unfair procedurally. Mr Serr, for the Ministry, however argues both that Article 6 was not applicable in the particular circumstances of this case, and that, if it was in theory applicable, the failure to afford representation was merely one of the circumstances to which the Tribunal should have had regard but was not determinative of the issue of fairness. He contended that fairness required a consideration of all the circumstances of a case. It involved an overall assessment into which many matters fell. A failure to provide representation would not necessarily trump other considerations: and in particular, here legal representation had been provided to a considerable extent, because extensive representations made by solicitors had been received, advanced on appeal and considered.[17]We shall deal with the question first whether the proceedings attracted the Article 6 guarantee and secondly whether Mr Serr is right in his second contention.[18]Article 6 provides that:
“1. In the determination of his rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time, by an independent and impartial Tribunal established by law…”
[19]The Supreme Court considered whether Article 6 required that a teacher subject to disciplinary proceedings at his school was entitled to legal representation in R (on the application of G) v Governors of X School [2011] UKSC 30 . The teaching assistant concerned was accused of inappropriate sexual relations with a pupil. If a charge to that effect was upheld at a disciplinary hearing, referral to the Independent Safeguarding Authority (“ISA”) would follow, and the ISA had the right to place the teacher on a banned list so as to prevent him practising his profession as a teaching assistant and working with children generally.[20]The civil right in issue in that case, to which Article 6 referred, was not the right of the teaching assistant to remain in his employment at the school in which he had been working, but his right to practise his profession and work with children generally. The hearing before the Governors might determine the first, but it would not determine the second: instead, a hearing before the ISA would. Thus the issue in “ G ” (see paragraph 35) was whether the disciplinary proceedings would have such a powerful influence on the ISA proceedings as to engage Article 6 (1) not only before the ISA, but also before the disciplinary panel: in context, the question was what kind of connection was required between proceedings A in which an individual’s civil rights or obligations were not explicitly being determined, and proceedings B in which they were, for Article 6 to apply to proceedings A as well as proceedings B?[21]Lords Dyson, Walker, Brown and Hope agreed that the Strasbourg Jurisprudence adopted a pragmatic, context-sensitive approach to the question: it was not possible to classify every case in hermetically sealed categories (paragraph 67), In deciding whether Article 6 (1) applied, the European Court would take into account (paragraph 68):
“…a number of factors including (i) whether the decision in proceedings A is capable of being dispositive of the determination of civil rights in proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B; (ii) how close the link is between the two sets of proceedings; (iii) whether the object of the two proceedings is the same; and (iv) whether there are any policy reasons for holding that Article 6 (1) should not apply in proceedings A.”
A test proposed by Laws LJ in the Court of Appeal was regarded (see paragraph 69) as a useful formulation, namely that an Applicant:
“…may (not necessarily will) by force of Article 6 enjoy appropriate procedural rights in relation to any (other set of proceedings) if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation” which captured the idea that the outcome of proceedings A was capable of playing a major part in the determination of the civil right concerned in proceedings B. Lord Hope added (at paragraph 95): “working backwards, as it were, I would also have been inclined to hold that the better way to cure any breach of Art 6(1) at the initial stage would have been to require the ISA to adopt procedures which complied with Art 6(1) rather (than) to require the employer to adopt these procedures to make good gaps in the machine that is operated by the ISA..”
[22]In Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 a doctor appealed against the dismissal of a claim that his dismissal from post by the defendant was ineffective, in part, because he contended that he should have been, but was not, afforded the rights guaranteed by Article 6 in the course of disciplinary hearings before his employer. The question before the court was posed by Stanley Burnton LJ at paragraph 49 as being “does a decision by an employer whether to dismiss an employee under a contract of employment determine a civil right of the employee within the meaning of Article 6?” Stanley Burnton LJ said (paragraph 52):
“ I would emphasise the court’s reference to “ the right to continue to exercise the medical profession The decision of the Trust to dismiss Doctor Mattu did not affect his right to practise his profession. He could lawfully do so either in private practice or as an employee of another NHS Trust or of a private hospital. His civil right lawfully to practise his profession was not engaged. 53. Mr Hendy submitted that, although Doctor Mattu’s legal right to work as a doctor was not affected by his dismissal, in practice his right was affected because the practical consequence of his dismissal is that he cannot find employment with another NHS Trust… 54. However … in my judgment the question of applicability of Article 6 cannot depend on whether in fact a doctor or other professional can obtain work in his field as a result of his dismissal by an employer. Article 6 is concerned with legal rights and obligations. Its application cannot vary depending on the particular facts of each case.”
[23]He went on to note that the principal authority relied in support of the submission that Article 6 applied to a decision which had a practical, but not a legal, effect upon employability in one’s profession was Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2010] ICR101. The doctor claimant in that case had been entitled by contract to representation at a disciplinary hearing: what was said in that case about the applicability of Article 6 was therefore, and expressly, obiter. He reviewed that case and later cases which had demonstrated the practical difficulties it created, concluding that the obiter view was wrong. He said, starkly, “the obiter remarks in that case do not represent the law”. That is ratio in Mattu : Elias LJ expressly agreed with it.[24]Elias LJ also distinguished between the contractual rights enjoyed by an employer and an employee in the context of a contract by one to employ the other, on the one hand, and the civil right to practise one’s own profession, on the other. He said:
“101. The decision to dismiss pursuant to a disciplinary process involves a claim by the employer that he is lawfully exercising a contractual right. He is not purporting to act like a judge; he is protecting his own interests under the contract, albeit that this necessarily involves finding facts and interpreting the scope of the contract. He is asserting a right rather than determining it. Likewise in the case of an employee who resigns in response to what he alleges is a repudiatory breach of contract by the employer. In my judgment, it is fanciful to suggest that he is thereby determining the employer’s rights. Furthermore to require an independent body to determine the contractual rights before the parties have decided what positions they will adopt with respect to a particular issue undermines the autonomy of the parties which contract is designed to confer. 102. It is not that civil rights are not engaged in the disciplinary process leading to dismissal; plainly contractual rights are in issue and they are civil rights, as is the right to remain in the employment one currently holds… Domestic procedures engage and they affect those rights but it has never been suggested that the decision to dismiss from a particular job engages Article 6… In the employment context [a dispute between the parties] comes later once an employer asserts and acts on what he believes to be his contractual rights. If the employer’s actions are challenged, a dispute arises and the determination of rights will then be made by a Court or Employment Tribunal as the case may be, which will be Article 6 compliant… …… 104. Free from authority, I would unhesitatingly hold that the exercise of the contractual power to dismiss, even pursuant to agreed procedures, does not attract the protection of Article 6 even where the dismissal effectively freezes the employee out of his chosen profession.”
Having analysed Kulkarni and G , he concluded:
“…I would therefore conclude that there has as yet been no decision which has authoritatively held that the exercise of the contractual power to dismiss involves the determination of civil rights, even in those exceptional cases where its effect is that the employee will be unable to get a job elsewhere in the same field.”
[25]Sir Stephen Sedley, though disagreeing with some of the reasoning of the majority, also held that the reason why Article 6 had no application in Mattu was uncomplicated:
“An employer which dismisses an employee, without or with the benefit of a formal hearing, is not determining the employee’s civil rights. It is exercising a contractual power. Depending upon the process adopted and its outcome, two civil rights may then come into play: the common law right not to be unlawfully dismissed and the statutory right not to be unlawfully dismissed. For the determination of each of these the State provides an independent and impartial tribunal. It is required to do the same in respect of bodies empowered to truncate the practice of an individual’s profession…”
[26]The Tribunal did not have the advantage of being referred to Mattu : its decision was made some 8 months beforehand. It heard submissions as to whether the absence of legal representation had in the circumstances of this case breached Article 6. Mr McNerney referred to passages from G including those at paragraph 71 (the more serious the allegation and the graver the consequences of the allegation is proved, the greater the need for enhanced protection) and paragraph 89 (it would have to be shown that there was a close nexus between the disciplinary process and the barred list procedure operated by the ISA). He argued that no procedure at all would occur between the dismissal of the Claimant by the Appellant and the Lord Chancellor’s automatic recommendation to the Queen that the Claimant should be removed from her position as Registrar. The dismissal decision would simply be rubber-stamped. There was no place other than in the employment of the Ministry of Justice in which the Claimant could practise her profession.[27]The Tribunal preferred that submission to the absolutist stance taken by Mr Serr to the effect that Article 6 was never engaged in internal disciplinary procedures, and applied only if those procedures were dispositive of other proceedings, of which there were none in the present case. It concluded in paragraph 5.7:
“We do not find that it is necessary to have two sets of formal proceedings, if the decision to dismiss is dispositive of a Claimant’s right to practise her profession and hold a public office. The parties agreed that the decision to dismiss the Claimant as an employee will inevitably lead to the Lord Chancellor recommending to the Queen the Claimant should be removed from the list of Probate Registrars and so to her removal from a public office …”
[28]Mr Serr submitted on the basis of G that there must be two sets of proceedings – an internal disciplinary hearing, proceedings A, and an outside body to determine the wider question of continuation in practice in the profession, proceedings B.[29]We do not accept this submission. To hold a right fundamental is to demand that it be applied in substance, and not defeated by immaterial technicalities. The guarantees provided by Article 6 in this area arise where a civil right is adjudicated upon in a manner which is dispositive of the right to practise one’s chosen profession, whether that be in one set of proceedings, in two or in more if there is a sufficient link between the proceedings [2] . In G (taking it as an example), it could not be argued that Article 6 would not apply to the ISA: and if, in consequence of the decision in that case, it did not apply to the disciplinary proceedings before the School Governors, it would then be to deprive Article 6 of any meaningful effect if a court were to declare that because the proceedings before the ISA were now in the position of “Proceedings A”, without a subsequent “Proceedings B”, there could be no breach. The Tribunal was right on this: we regard the argument as untenable. Indeed, in the course of oral submissions Mr Serr rightly rowed back from it.[30]Drawing, however, on the decision in Mattu , he submitted that the disciplinary proceedings merely determined the right of Mrs Parry to hold her particular job. There was no proper analogy with that of the case of the teacher or doctor, in each of whose cases a further body might give a ruling affecting their civil right to engage in their chosen profession – effectively barring them from it, wherever they might choose to exercise it, and setting up a legal not a merely practical bar. He complained that Mr McNerney’s arguments confused the practical effect of the decision to dismiss Mrs Parry (that she would, on the approach agreed before the Tribunal then be removed by the Crown from office with the consequence that she would most probably not work again as a District Probate Registrar) with there being a legal bar to her doing so.[31]Mr McNerney for his part noted that Mrs Parry was both an employee and office holder. She could not practise as a District Probate Registrar without being an office holder. He would have wished to submit that removal from the list of Probate Registrars, referred to in paragraph 5.7, and 30.3(vi) of the Tribunal decision was equivalent to an order made by the ISA making it unlawful for an individual to work again with children, or by the GMC making it unlawful for a doctor to work as a registered medical practitioner. This sets up removal from the list as a legal, as opposed to merely practical, prohibition or obstacle on re-employment as a Registrar.[32]It became apparent, however, that (perhaps curiously, given the identity of the employer) there had been no material put before the Tribunal as to that of which the “list” consisted, or its significance, whether it was a necessary qualification for appointment that a name should be on the list, or whether it was merely a list identifying the current staffing complement, which would have no significance beyond recording actuality at the time. It might be thought a curious system for local management to determine at a disciplinary hearing not only the continued employment of an individual in her then current post but also to make it unlawful for her to work again in that field anywhere else in the country, and we have seen no material put before the Tribunal which showed that the employer thought that might be what it was doing. In the absence of necessary information about the existence, nature and purpose of the ‘list’ we simply cannot say whether the Tribunal was correct or not: and nor, in our view, could it.[33]It follows that the Employment Tribunal was not in any position to determine definitively whether Article 6 applied to the disciplinary hearing faced by Mrs Parry. Two consequences follow. First, the Tribunal was in error to decide the matter as it did, since it could not be satisfied that the hearing of the disciplinary appeal was dispositive not just of the Claimant’s contract of employment but also her entitlement to work again elsewhere as a Probate Registrar and thus follow her chosen profession; and secondly we cannot therefore be satisfied that notwithstanding the material error we have identified the decision was plainly and obviously right.[34]Mr Serr submitted that, even if legal representation was required by Article 6 its absence did not determine that the procedure adopted was necessarily unfair. He relied on XvY [2004] EWCA Civ 662 , in which Mummery LJ, at paragraphs 53 and following, encouraged Employment Tribunals to deal with issues of Convention rights in a structured way. The starting point (paragraph 54) was the cause of action – in this case, as in XvY , under section 94 of the Employment Rights Act . Although, unlike the claimant in XvY , Mrs Parry worked for a public authority, no claim was advanced under the Human Rights Act as such. Under section 3 of the Human Rights Act , however, an Employment Tribunal must, so far as it is possible to do so, read and give effect to section 98 in a way which is compatible with the Convention rights asserted (here Article 6).[35]We are not greatly assisted by this authority, which relates both to employment in the private sector and to a complaint which in substance alleged a breach of Article 8 ECHR, whereas here there is a public employee, whose claim involves alleged violation of a procedural right guaranteed by Article 6.[36]We do not need to come to a final determination on this point, since, given our views as to the applicability of Article 6, it does not arise. However, in light of the extensive argument before us we should say that there seems to us to be force in Mr Serr’s submissions. The question for the Tribunal here was that posed by section 98 (4) ERA. It is the fairness of a dismissal judged overall which is material. The determination of fairness: “ depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating as a sufficient reason for dismissing the employee and (b) shall be determined in accordance with equity the substantial merits of the case”.[37]The principle of effectiveness suggests that circumstances in which a violation of Article 6 in the processes leading to dismissal does not render the dismissal likely to be held unfair should be rare. Nonetheless we can see that there may be some, though exceptional, cases in which in their particular circumstances it may be otherwise – whether because of particular features of the substantive merits of that case, or because in those (unusual) circumstances the additional advantage conferred by honouring Article 6 is so minimal as not to affect an overall conclusion that the procedures taken overall were fair. For instance, a failure to provide representation before a disciplinary hearing (assuming that to be a breach) might be followed by a re-hearing on appeal at which it is afforded. Though there has been a violation of Article 6 at one point, the dismissal might none the less be held fair. Accordingly, even if we had felt that the disciplinary hearing did not concern only the contract under which the Claimant worked, but also was dispositive of her status both as a District Probate Registrar in Leeds and, for the foreseeable future, elsewhere, the Tribunal would still need to have considered whether that rendered the decision overall an unfair one. We cannot say that, approaching the facts properly in law, it necessarily would have done. Closed Mind[38]Mr Serr contended that the third reason adopted by the Tribunal for its conclusion at paragraph 5.8 was flawed. In paragraph 5.5 it had referred to “Mr Limbert’s lack of objectivity in the investigation” meaning that no investigation or any real credence was given to the Claimant’s contention that Caroline Nicholls and Sally Holden may each have had an axe to grind against the Claimant. Indeed (commented the Tribunal): “ rather than have those investigated, Mr Limbert expressly rejected the notion that the Claimant was entitled to ‘cast doubt’ on what the Respondent’s witnesses had said. This continued into the disciplinary hearing, as it is echoed when Mr Foulkes said that he did not wish to deal with extraneous matters. Neither man appears to have appreciated that the Claimant’s allegations against her colleagues were an essential part of her defence”.[39]It was common ground between the advocates before us that the Claimant’s contention that Caroline Nicholls and Sally Holden may have had their own personal reasons for bearing a grudge against the Claimant was, on the evidence, first made during the course of the disciplinary hearing before Mr Foulkes. Since it had not been made beforehand, there could be no criticism of Mr Limbert in failing to investigate it. Mr Serr described the criticism of Mr Limbert as “left field”, and Mr McNerney did not seek to defend the position. However, we have to place this factual error by the Tribunal into context. Mr Limbert was not determining the disciplinary hearing. Although in its findings of fact the Tribunal had said at one point (3.31.6) that Mr Foulkes had considered the allegation made by the Claimant as to the ulterior motives which Caroline Nicholls and Sally Holden might have had, and found their statements to be entirely credible, yet at a later point found (arguably inconsistently) that he said he did not wish to deal with extraneous matters, Mr Serr conceded that there was material to support that latter finding. The Tribunal was thus not perverse in concluding that Mr Foulkes had a closed mind. However, the finding in paragraph 5.9 that Mr Foulke’s failure in this respect was not corrected on appeal had (again, it was agreed) no evidential basis to support it.[40]Viewed realistically, the view that Mr Limbert on the one hand, and the appeal officer on the other were both of closed mind was part and parcel of a decision as to fairness which had to be based on all the circumstances. Whether viewed as a material misapprehension of fact, or (so far as Mr Limbert and the Appeal Officer were concerned) as perverse or whether regarded as a failure to ask whether the dismissal overall (taking into account the disciplinary hearing and appeal together) was fair, the conclusion is unavoidable that the Tribunal was in error of law here too. Polkey[41]The Tribunal approached the question of a Polkey deduction in the following way:
“6. We have heard submissions from the parties in respect of Polkey and on contributory fault. Mr Serr submits that given a prior written warning for gross misconduct, we would have to be satisfied that the Respondent would, if it had followed a fair procedure, have had to have found no misconduct whatsoever in order for the Claimant to avoid being dismissed. We think that is a misunderstanding of the position. Whilst it is true that in order for the Respondent not to have the power to dismiss after a final written warning there would have to be no misconduct whatsoever, it is not the same as saying that if some misconduct had been found the Respondent would inevitably have decided to dismiss. It is for us to decide, as best we can, what is more likely than not to have happened. We prefer Mr McNerny’s submission that had the investigation been more open-minded, the gravity of the misconduct may have been reduced. Further, had the Claimant had the benefit of legal representation at the internal disciplinary hearing the Claimant would not inevitably have been dismissed. There was at least a prospect that the age of the original misconduct causing the written warning, the Claimant’s very long and hitherto unblemished service, and the unusual events of the allegation, may have caused a lesser penalty to have been triggered. We note in particular the advice given, quoted at paragraph 3.33 above, as to how others may view a decision to dismiss in these circumstances, especially when no recommendations had been made at the time of the written warning for the Claimant to be given appropriate training. All of those factors could and in our view would have led, either at the Disciplinary or the Appeal Hearings, to a further warning being given and therefore a recommendation for anger management training, especially in the light of the fact that the Claimant’s daughter was unlikely to return to that particular office after her maternity leave, and so the triggers and stresses which had caused the two incidents of misconduct were highly unlikely to occur. For those reasons our view is that the Claimant would not have been dismissed at the time she was.” (Emphasis added)
[42]In that paragraph, the Tribunal set out the burden of proof it proposed to adopt: proof on the balance of probabilities. Before the introduction of section 98A (2) of the Employment Rights Act 1996 by the Employment Act 2002, and ever since the repeal of that section in 2009, Polkey , however, has not been about probability, but about chance. On the test proposed by the Tribunal, there would either be one hundred percent deduction, or nil (save only in the case of the 100% deduction the possibility of there being some compensation payable for the period of time which would have elapsed between the unfair dismissal which occurred and the fair dismissal which otherwise would have done). As Lord Bridge of Harwich put it in Polkey vAE Dayton Services Ltd itself [1988] ICR 142 , from which the “Polkey” principles take their name, at 163 G - H:
“(at the stage of assessing compensation…) … as Browne-Wilkinson J put it in Sillifant’s case [3] at page 96 ‘there is no need for an “all or nothing” decision’. If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.”
[43]The Tribunal Judge who presided over the Tribunal is both senior and experienced. Proper latitude must be given for the infelicity of expression to which all judgments may be subject, but perhaps particularly Tribunal decisions: an over pernickety approach should not be taken to any isolated shortcoming. We would have been inclined to overlook the statement of approach as an unintentional error if the rest of the paragraph had demonstrated that, taken overall, that is what it was. There are indications of this: the Tribunal considered how the gravity of the offence ‘may have been’ reduced; and how with legal representation the Claimant ‘would not inevitably’ have been dismissed. The use of these expressions, and the phrase ‘at least a prospect’ is to use the language of chance, albeit that the words ‘chance’ or ‘risk’ or ‘percentage’ do not appear. However, the conclusion - after language which suggests that there was some mild possibility that the Claimant would not have been dismissed - was summed up in a view which repeated the balance of probability:
“All those factors could and in our view would have led… (to actions short of dismissal)” and the last sentence of the paragraph repeats it: “ Our view is that the Claimant would not have been dismissed at the time she was.”
No percentage figure is stated. The Tribunal appears to think that what was necessary was simply a yes/no distinction: dismissal or not. It is very difficult to conceive, on the facts of the case, that the Claimant would have been entirely free of any risk of dismissal, if the facts had properly been assessed and fairly approached – another factor which leads us to think that the Tribunal here has despite its experience simply adopted the wrong test.[44]Even if it had adopted the right test, and concluded that viewed realistically there was no chance at all that the employer if acting fairly would have dismissed (a conclusion, we are bound to say which would have struck us as perverse given that the Claimant had a final written warning for broadly similar conduct, only some seven months earlier) this decision could not have stood, since the Tribunal took into account the lack of open-mindedness in ‘the investigation’. It is to be understood from its earlier findings that it regarded the investigation as including the initial investigation by Mr. Limbert, the disciplinary hearing by Mr. Foulkes, and the subsequent appeal. Yet it is agreed that there was no evidence that Mr Foulkes’ lack of open mind was repeated on appeal, just as there was none to support the Limbert findings. Accordingly, the assessment of the chance of a different view being taken by the employer of the gravity of the conduct (which fed in to the overall conclusion that there was no realistic chance of dismissal) was flawed – it should have recognised that the appeal hearing had come to the same conclusion as the disciplinary without being itself affected by a closed mind.[45]The probability that the Tribunal simply did not approach the Polkey issue appropriately is underscored by the finding of the Tribunal that the Claimant substantially contributed to her own dismissal. Though not descending to great detail the Tribunal accepted the Claimant ‘clearly behaved unwisely and inappropriately on the day in question in allowing her maternal feelings to affect her actions at work” i n consequence of which it assessed her contributory fault at 50%. For someone to be significantly at fault in causing their own dismissal, yet it be thought that there was no risk of a fair dismissal for that conduct, is puzzling unless the answer be that the Tribunal thought it was applying a “what would probably have happened” test.[46]We should add that some of the way in which this subject is dealt with in Harvey has the capacity to be misleading. At paragraph 2558 (Vol 1, D1) it cites Software 2000 Ltd. v. Andrews [2007] IRLR 568 , and accurately quotes a lengthy passage from the judgment of the EAT given by Elias P. Under paragraph 54, at point (7) under in his distillation of the effect of the authorities he says:
“(7) Having considered the evidence, the tribunal may determine: (a) that if fair procedures had been complied with, the employer has satisfied it-the onus being firmly on the employer-that on the balance of probabilities the dismissal would have occurred when it did in any event: the dismissal is then fair by virtue of section 98A(2) ; (b) that there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly..”
Unfortunately, it is not made clear in the text of Harvey that this part of the decision is no longer appropriate guidance, since s.98A(2) was in force at the time it was delivered, and has been repealed since. When it was in force the range of chance of dismissal met a watershed at 50% above which – by however little or however much – a completely fair hypothetical dismissal was to be assumed for the purposes of compensation to be awarded for an actual one already held unfair. It is not in force any more. Chance of dismissal now runs across the whole spectrum from zero to 100%, as assessed by the Tribunal. It would therefore be best if this part of the otherwise very helpful guidance were no longer put forward as if it might be relied upon. Breach of Contract[47]The Tribunal came to the view that the Claimant was guilty of misconduct on 24 th June, but that her actions on that day could not reasonably be described as gross misconduct. Its self-direction in law was as follows:
“Even if the Respondent decided to dismiss the Claimant for that misconduct because of the final written warning for gross misconduct, that factor could not turn ordinary misconduct into gross misconduct and we note that the dismissing officer conceded that he would not have dismissed for the incident of 24 June alone. Our judgment is that the Claimant was wrongfully dismissed…”
[48]Wrongful dismissal is a contractual concept, to which conventional contractual principles apply: see Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 , [2010] ICR 908 : Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 . Here the Tribunal identified the need for there to be a breach of contract, objectively considered, if summary dismissal were to be justified (itself in breach of contract unless the employee had first repudiated her part of the bargain). Accordingly, the issue was whether the misconduct of the Claimant, which the Tribunal accepted as misconduct, was sufficiently serious, in context, to “show an intention to abandon and altogether refuse to perform the contract” (per Maurice Kay LJ, in Tullett Prebon v BGC Brokers LP and others [2011] EWCA Civ 131 [2011] IRLR 420 , adopting words from the judgment of Etherton LJ in Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 1168 (paragraph 61)) Ordinarily, this will be a question of fact, as to which the circumstances are so many and various that there can be no rule of law saying what circumstances justify such a finding, and which do not (see Woods v WM Car services (Peterborough) Ltd [1982] ICR693, at 698F, per Lord Denning MR). However, here the critical matter in the factual evaluation conducted by the Tribunal was stated as if a principle of law.[49]Since ordinary contractual principles apply, a case in which it is alleged the employee has committed a repudiatory breach cannot be approached on the basis of principles different from those which apply to the employer. This general proposition is subject to one anomalous exception, so well established as to be entrenched at this level. The law already distinguishes between the situations of employee and employer, in that an employer is entitled to rely upon repudiatory conduct discovered after dismissal in order to justify the dismissal which has occurred, even though he did not rely upon at the time of dismissal since he was then ignorant of it. By contrast, an employee is confined to the reasons he has for resigning at the time of resignation, even if there has been a repudiatory breach by his employer as yet unknown to him. This anomaly - if it be such - does not in our view indicate that any wider distinction should be drawn between the respective positions of employer and employee when considering constructive dismissal.[50]In Lewis v Motorworld Garages Ltd [1986] ICR 157 C.A., an employee had elected to affirm his contract of employment after the employer had committed a repudiatory breach. Thereafter, the employee suffered persistent criticism from his employer. After the last occasion on which he was criticised, he resigned, claiming to have been constructively and unfairly dismissed. The Industrial Tribunal regarded the earlier repudiatory conduct as spent at the time when the employee had affirmed the contract, and that it could not therefore be considered as forming part of the employer’s course of conduct. The criticisms in themselves were not repudiatory. Accordingly, the employee had not been constructively dismissed. This reasoning was rejected by the Court of Appeal. As Glidewell LJ put it “the breach... may consist of a series of actions on the part of an employer which cumulatively amount to a breach... though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? This is the ‘last straw’ situation.”[51]It should be noted, that, at any rate viewed from the employee’s point of view, the last act or ‘final straw’ which leads an employee to resign might not always be unreasonable still less blameworthy, provided that it is an act in a series, the cumulative effect of which is to amount to a breach of the implied terms: see Omilaju v Waltham Forrest London Borough Council [2004] CWCA Civ 1493; [2005] ICR 481 Meikle v Nottinghamshire County Council [2004] CWCA Civ 859, [2005] ICR 1 , C.A. There is no reason in principle why the same should not apply if it is the employer who seeks to rely upon the repudiation by the other party to the contract of employment, the employee. The conduct of the employee should be seen as a whole. The “last straw” must apply as much to an employer deciding to accept an employee’s conduct overall as repudiating the contract, as it does to an employee in respect of his employer’s behaviour.[52]This legal analysis underpins the recognition by the Industrial Members of this Tribunal of the practical force of a final written warning: except in exceptional circumstances, an employer will usually be justified in dismissing an employee who commits a further act of misconduct within the period of effect of the warning, even though the act on its own would certainly not merit dismissal. The whole purpose of a final warning is to ensure fairness in the relationship between employer and employee, by warning the employee of the way in which further repeated conduct is likely to be viewed – that it will in effect be seen as indicating that the employee will not honour his side of the contractual bargain.[53]In short, the Tribunal was bound to see the actions of 24 th June in context. The context here included serious previous misconduct, and a warning that any misconduct within a year was liable to be met with dismissal, even if it would not otherwise have merited it. The Employment Tribunal should have viewed the events of 24 th June in context. It expressly ruled out the necessary context. It was in error of law in doing so. Conclusions: Summary[54]On each Ground of Appeal which has been raised, the Appellant succeeds. The principal ground for dismissal upon which the Tribunal relied had no evidence to support it. Further and separately, there was insufficient material to show that the facts here fell within an exceptional class of case, namely one in which the decision to dismiss from employment was also a decision which created a legal barrier to the Claimant working again as a Probate Registrar. Further and separately, the Tribunal could not assume without careful consideration that it would necessarily be unfair for there to be no legal representation even if the decision to dismiss did create such a legal barrier. Next, the Tribunal approached Polkey by applying the wrong legal test, and finally it took an erroneous approach to identifying whether the employee had been guilty of gross misconduct, since it did not properly consider whether she had been in repudiatory breach so as to justify dismissal contractually. Disposal[55]Mr Serr asks us to substitute a finding that the Claimant was not unfairly dismissed nor wrongfully dismissed. We decline to do so. We do not know enough about the procedure before the Lord Chancellor, and in addition and in particular, the nature of “the List” referred to and whether it is a pre-condition for appointment to be on such a list, or whether removal from it is a bar to appointment ever thereafter”, or whether it is simply a list of current appointees and therefore without significance as a bar to further application or appointment. It is thus conceivable that a Tribunal approaching the facts in detail and with care might have material which persuaded it that legal representation was required by Article 6. It would then have to evaluate, in the light of all the facts, whether in the absence of representation the dismissal here was fair. So far as wrongful dismissal is concerned, the assessment of whether the conduct on 24 th June was so trivial as not to constitute a repudiatory breach of contract (or as the Tribunal called it ‘gross misconduct’) when viewed in its full context is essentially a factual enquiry in which there is at least some room for a possible answer in favour of the Claimant. (For completeness, we should add that we also do not know whether in this case the observations of Lord Hope at paragraph 95 of G (see para. 21 above) are applicable to the effect that there is room for an Article 6 compliant hearing before the Lord Chancellor, or whether if he appreciated that Article 6 was in play he would afford one.)[56]Though invited by Mr McNerney to remit the case to the same Tribunal, since it has already considered the facts at length, we accept Mr Serr’s submission that remission should be to a fresh Tribunal since the decision under Appeal is deeply flawed. This Tribunal supposed facts to be established when they were not. We could not be sure that some such errors might not persist into a further hearing without the Tribunal recognising them to be errors.[57]Accordingly, the matter will be remitted for complete re-hearing before a fresh Tribunal. We would hope that if the Claimant seeks, despite Mattu , to argue that Article 6 required legal representation to be afforded to Ms Parry then material is put before the Tribunal, by evidence or agreement, which shows that a decision by the Lord Chancellor to recommend to her Majesty that the Claimant be removed from her office as District Probate Registrar in Leeds would also have the effect of acting as a legal (as opposed to merely practical) barrier to her re-employment in her chosen profession. [1] Such a post was held by Ouseley J. not to constitute its holder a judge: R (on the application of d’Costa) v DCA ( [2006] EWHC (Admin) 465 . No argument was advanced before us that this was incorrect. [2] In the case of G what was in issue was the nature of that link: hence the reference to the utility of the test proposed by Laws L.J. [3] Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, EAT