Kids City Ltd v Gayle (Unfair Dismissal : Reasonableness of dismissal) [2014] UKEAT 0106_13_2402

EAT
Kids City Ltd v Gayle (Unfair Dismissal : Reasonableness of dismissal)
[2014] UKEAT 0106_13_2402 · 2014-02-24
[28]“ 28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point. ...[30]Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid. ”22. Moreover, on the question of perversity, the EAT should not interfere with the decision of the Employment Tribunal unless there is no proper evidential basis for it or unless the conclusion was perverse, a very high hurdle for an Appellant, Yeboah v Crofton [2002] IRLR 634 CA.23. On the question of contributory fault, section 123(6) requires a Tribunal to consider the conduct of the employee. The guidance offered by HHJ Peter Clark in the case of Optikinetics Ltd v Whooley [1999] ICR 984 is helpful:
“(1) Before making any finding of contribution the applicant must be found guilty of culpable or blameworthy conduct. The enquiry is directed solely to his conduct and not that of the employer or others. (2) For the purposes of s 123(6) the employee’s conduct must be known to the employer at the time of dismissal...and have been a cause of the dismissal. (3) Once blameworthy conduct causing, in whole or in part, the dismissal has been found, the tribunal must reduce the compensatory award by such proportion as it considers just and equitable. … … (4) A finding of contribution under s.122(2) does not require a finding that the conduct is causatively linked to the dismissal. ... The wording of s.122(2) grants to the Employment Tribunal a wide discretion as to whether to make any, and if so what, reduction in the basic award on the grounds of the applicant’s conduct. (5) ... it is now clear that different proportionate reductions are permissible in relation to the basic and compensatory awards... (6) The appellate courts will rarely interfere with the Employment Tribunal’s assessment of the percentage reduction for contribution...”
Submissions 24. Mr Paulin, acting for the Respondent on the appeal, puts forward essentially three main arguments (addressing the grounds of appeal in reverse order). First, in addressing the contributory fault ground of appeal and drawing on HHJ Clark’s guidance, as cited above, he contends that the Tribunal misconstrued the reason relied on by the Respondent. The Respondent was not, as suggested by the last sentence of paragraph 34, holding the Claimant responsible for the “unhappy atmosphere and answers urged by his independent representative” but, as the dismissal letter put it, giving “false answer or answers...willing to do this when directed to do so by another person...willing to avoid your employer’s direct questions in the disciplinary meeting.” 25. Furthermore the Employment Tribunal’s own findings of fact demonstrated that the Respondent was entitled to find the Claimant’s behaviour culpable in this regard, see its finding at paragraph 24 to the effect that the Claimant gave a number of answers not helpful to himself and gave the impression of being evasive and difficult. The Respondent had been entitled to seek to get to the bottom of the matter and take the Claimant’s responses into account in doing so. 26. Similarly, the Claimant’s admitted conduct towards the child in question and towards other children was relevant to contribution; see, in particular, the finding at paragraph 32 that, on the information available “there had been some sort of inappropriate conduct”. 27. On ground 2 Mr Paulin argued this was a classic case of the Employment Tribunal falling into the substitution mindset. He noted that the language of the Tribunal throughout was littered with references to the terminology of criminal proceedings, suggestive of its applying a higher test. Moreover, the Employment Tribunal had failed to make reference to the case against the Claimant. That included the interview with the child, her evidence that the injury had been caused by the Claimant’s action meted out as a punishment, the interview obtained from her with her social worker to the same effect, the evidence from her mother, referring to the hurt caused to her child and the visible injury shown on the photograph. The Employment Tribunal’s summary did not begin to set out a fair record of the evidence. 28. Furthermore there was a partial admission from the Claimant. He had been unclear in his evidence as to his previous interactions with other children where he had also tweaked their noses, and he had given inconsistent evidence. The Respondent had been left with an unclear picture as a result of how the Claimant had chosen to present his case. By agreeing to his representative, the Respondent was not agreeing the Claimant engaging in tactics designed to avoid its questions. That this had been taken into account by the Respondent was wrongly criticised by the Tribunal. The Claimant had only been presented with these additional matters after the disciplinary hearing because they had arisen out of what had happened at the hearing. Moreover the Claimant’s politeness was not relevant to the issues the Respondent was faced with, and the Tribunal’s repeated references to this factor suggested substitution – it was considering what it felt should have gone into the balance rather than what the Respondent had considered relevant. 29. Moreover the apparent criticism of the Respondent for having taken into account the fact that the Claimant may have acted inappropriately on other occasions on other sites was inexplicable: why would that not be a relevant matter for the Respondent to take into account? In particular, when the Tribunal went on to make observations as to whether the injury to the child was visible to others, that could not be relevant to the exercise it was charged with carrying out. It was engaging in speculation, and substituting its view of the evidence rather than having regard to the Respondent’s position and the evidence it had before it. Part of that evidence included the fact that the child in question had special needs. The Tribunal failed to make any reference to that, but it was an important part of the context for the Respondent. Similarly, paragraph 36, whilst dealing with compensation/remedy, very much suggested the Tribunal was taking its own view and bringing in considerations which suggested that it was substituting its conclusions for those of the employer. At paragraphs 29 and 35, when the Tribunal referred to training and monitoring perhaps being a more suitable sanction than dismissal, that was both ignoring the evidence before the Respondent (see the express reference to this in the letter of dismissal) but was also substituting the Tribunal’s view for that of the employer in this case. 30. Finally, the Tribunal’s findings in these respects were simply perverse. For example, when dealing with the process of appeal, the Tribunal stated “...even if there was a conclusion that there was a tweaking or twisting of the nose”. That was perverse given the Employment Tribunal’s own finding (paragraph 32) that there had been some sort of inappropriate conduct. 31. In his written submissions in this appeal the Claimant relies on the reasons given by the Employment Tribunal for its Judgment and notes that he had not been aware that there was any problem with the child in question till the matter was drawn to his attention, and he immediately apologised. He also observes that Miss Nunn of the Respondent was, in her own words, unclear following the investigation whether the Claimant had done anything wrong. He further notes that a lot of emphasis was put on his conduct in the disciplinary hearing, and his response to his representative; the “No”, was relied on as a reason to dismiss him, which he plainly felt was unfair. He repeated again that he would never hurt anyone, child or adult, in his care. Discussion and conclusions 32. This was a case where the Employment Tribunal plainly had some sympathy for those involved: the Respondent, operating in a difficult climate; and the Claimant, in that he was a young man, with a clean disciplinary record, a relatively short employment history, and an ill-advised choice of representative for what appears to have been his first disciplinary hearing. Having accepted, as I understand the Tribunal to have done, that the Respondent had an honest belief that the Claimant had mis-conducted himself, however, it was required to look at the steps taken by the Respondent from the perspective of a reasonable employer in those circumstances. The circumstances here included: an allegation of injury to a vulnerable child in the Respondent’s care; evidence as to how that injury arose from the child herself, consistently given, both directly to the Respondent and through her interview with her social worker; photographic evidence of the injury; and an evasive and inconsistent response from the employee concerned. 33. This was not a case where the Employment Tribunal felt there were further steps the Respondent could have taken in its investigation. It was satisfied that it had been reasonable as to the steps it had taken. 34. Moreover, on the Employment Tribunal’s own finding of fact at paragraph 32, the employer was entitled to take a view “...that there had been some sort of inappropriate conduct by playing or jumping and hugging or indeed all three which resulted in a very small inflammation of the child’s nose for a day or so.” 35. To seek to form its own view as to the conclusion that the Respondent should have formed as to the seriousness of the child’s injury (see paragraph 28) was, in my judgment, a classic case of substitution by the Employment Tribunal. Moreover, as the Tribunal found, the Claimant had admitted that his interaction towards the child in question was inappropriate in this particular incident and “one or two others on different sites” (paragraph 35). That the Tribunal appears to have thought that the Respondent should not have had regard to the admission in respect of the Claimant’s conduct towards other children on previous occasions I can only characterise as perverse. 36. Furthermore the Employment Tribunal appears to have misunderstood the Respondent’s concern and, therefore, its finding at the dismissal stage. Again, I suspect, that was because it substituted its own views for those of the Respondent. So the ET suggests (see paragraph 28):
“So far as the interaction with the child E is concerned on the Respondent’s own version they never reached a firm conclusion as to what had happened.”
That is simply not a fair summation of the Respondent’s position. It was the Claimant’s evasive response and his decision to walk out of the disciplinary hearing that meant the Respondent had been unable to establish why he had conducted himself as he had. That is apparent from the first two paragraphs of the dismissal letter. The Respondent was plainly satisfied that the Claimant had “used an unacceptable type of interaction with children which means you are willing to go outside the established play protocols”. What the Respondent had done was to give the Claimant the benefit of doubt - contrary to the evidence of the child - as to why he had behaved in this way. On the question of what had happened, however, it had made a finding adverse to the Claimant, which was capable of constituting misconduct on his part. On the Employment Tribunal’s findings of fact, that was a conclusion, on the evidence before it, that the Respondent was reasonably entitled to come to. 37. Similarly the Employment Tribunal’s view that it was in some way wrong for the Respondent to have regard to the Claimant’s conduct at the disciplinary hearing was again an error of substitution, alternatively, it was simply a perverse conclusion for the Tribunal to have reached. Given that this was a matter that only arose at the hearing, it could not have been raised before. Equally, however, given that the Claimant walked out of a disciplinary hearing that he had been instructed to attend by his employer, it could have come as no surprise to him that it was a matter taken into account by the Respondent in reaching its decision. 38. Moreover, it was more than simply a matter of the conduct of his representative. On the Employment Tribunal’s own finding (see paragraph 24) the Claimant had given a number of answers unhelpful to his case and he was evasive and difficult. Contrary to the suggestion it made at paragraph 34, the Respondent was not simply holding him responsible for his representative’s conduct, but for his own. This was apparent from the letter of dismissal, where the Respondent said: “The facts are...you gave false answers or answer and were willing to do this when directed by another person; you were also willing to avoid your employer’s direct questions in the disciplinary meeting. This means that your continued employment with Kids’ City is unsustainable for the reason that the trust between us has been breached.” 39. Given the need for trust between the employer and employee, and given the particular difficulties facing the Respondent in circumstances where it had to make a judgment as to an allegation made by a vulnerable child (which it could not simply ignore or disregard), the decision to take into account the Claimant’s evasive and unhelpful responses could not have been outside the range of reasonable responses for a reasonable employer. 40. Further, when addressing the question of sanction, the Tribunal’s reference, at both the end of paragraph 29 and in paragraph 35, to this situation “requiring perhaps further training a period of monitoring and/or warning and something of that kind” is again a substitution of the Tribunal’s view of what would be appropriate rather than having regard to what the reasonable employer, operating in this difficult context, might consider appropriate. It was also a conclusion that simply ignored the evidence that the Respondent expressly considered the question of training. That is apparent from the reasons given in the dismissal letter, where the Respondent specifically refers to the training given to the Claimant on joining its organisation; not only as to how he should behave in terms of not putting the children in his charge at risk, but also as to how to conduct himself so as to protect himself from the risk of allegations of abuse. If the Tribunal had not focussed on its own view but had, instead, had regard to the evidence and circumstances facing the Respondent, then it is hard to see how it could have suggested some lesser sanction involving a further period of training/monitoring would have been the only reasonable response. 41. Given the conclusions I have come to on the grounds of appeal relating to substitution and perversity, it is unnecessary for me to deal with the finding on contributory fault. Had I needed to do so, however, my view is that the Employment Tribunal unnecessarily restricted the matters that it took into account in dealing with the question of contributory conduct in this case, and that further would have amounted to an error of law. Disposal 42. If the Employment Tribunal had simply erred in terms of substituting its view for that of the reasonable employer in these circumstances, then I would have been reluctant to step in to state any concluded view as to the fairness of the dismissal in this case. That would have been so, notwithstanding the length of time that has passed in this matter and the difficulties that that might represent. In this case, however, I have found that – having regard to the Tribunal’s own findings of fact - the Employment Tribunal’s conclusion that the dismissal was unfair was perverse. 43. In particular, I have had regard to the findings as to the evidence before the Respondent of some injury to a child caused by the Claimant; to the Claimant’s own admission as to his conduct and how that had been inappropriate towards this child and to one or two others. That is not to say that I am falling into the error of thinking that this amounted to a necessarily serious assault, but - recognising the context in which the Respondent operates - I can see that those findings alone would be sufficient for it to find misconduct. That being so, the Respondent was entitled to an open response from the Claimant, and he failed to give that. It may be that he was ill-advised, but – again, on the Employment Tribunal’s own findings - he gave answers that were unhelpful to his case and the impression of being evasive and difficult. 44. In all those circumstances, my judgment is that, on the findings of fact made by this Employment Tribunal, the only outcome could be that the decision to dismiss was within the range of reasonable responses. It may be that not all employers would have taken that decision, but it would be perverse to find that it was outside the range. 45. In those circumstances I uphold the appeal. I set aside the finding that there was an unfair dismissal, and I substitute a finding that the claim of unfair dismissal is not made out and should be dismissed.