HOLT v RES On Site Ltd (Unfair Dismissal) [2014] UKEAT 0410_13_2702

EAT

HOLT v RES On Site Ltd (Unfair Dismissal)

[2014] UKEAT 0410_13_2702 · 2014-02-27

[51]“ [Where] the Tribunal properly directed themselves in accordance with the principles established in Burchell v British Home Stores.. . In these circumstances, save at least where there is a proper basis for saying that the Tribunal simply failed to follow their own self direction, the EAT should not interfere with that decision unless there is no proper evidential basis for it, or unless the conclusion is perverse. That is a very high hurdle. In Yeboah v Crofton

[2002] IRLR 634

Mummery LJ said that this would require an ‘overwhelming case’ that the decision was one which no reasonable tribunal, properly appreciating the law and the evidence, could have made.” Submissions on appeal 21. For the Claimant, it was submitted that the real point on grounds 1 and 2 was that the Tribunal had erred in how it approached the treatment of the Claimant at the disciplinary appeal stage. The matters which had tipped the sanction into dismissal had not survived the appeal and the Claimant was therefore dismissed for a reason which would not have led to her dismissal at the first instance disciplinary hearing, albeit that the Claimant accepted that this was not a case (per Monie v Coral Racing Ltd

[1981] ICR 109

), where she could assert a change in reason for the dismissal between the disciplinary and appeal stages. The reason relied on at appeal in this case was one of those underpinning the original dismissal decision. 22. Secondly, the Claimant had been prejudiced by the approach adopted because she had effectively been denied the opportunity to appeal against the revised reasoning relied on. The position was analogous to that considered in McMillan v Airedale NHS Foundation Trust

[2013] EWHC 1504

, where it was held that it is only where the appeal is by way of complete re-hearing that the appeal officer would be in a position to reach factual conclusions of a more serious kind than those reached at first instance. Alternatively, the appeal stage was unfair, as it did not take sufficient account of the fact that the original decision taker would not have dismissed solely for the only surviving reason ultimately relied on. 23. Third, on the exclusion of evidence point, the Claimant had put forward an alternative positive case as the reason for her dismissal and was seeking to question what was the real reason relied on by the Respondent. On her case, it was all about her continuing friendship with Dr Buckley. The Employment Judge stopped questions going to this alternative case. This was a point proximate to the reason relied on by the Respondent - the second e-mail - because it was the Claimant’s case that it was the recipient of the e-mail that was crucial. It was also an issue that went to credit, which was important because the reason relied on by the Respondent was an issue. 24. Fourth, the Claimant challenged the finding on contributory fault. In so doing, she accepted that this was a perversity challenge and would need to meet the high test laid down in Yeboah v Crofton . The Claimant contended that the second e-mail itself was not obviously offensive and indeed the Employment Judge had accepted that she had not been malicious in sending it to Dr Buckley. It only took on the confidential nature ascribed to it because the Respondent had taken the view that it was confidential. 25. For the Respondent, it was stressed, in general terms, that there was no challenge to the Employment Tribunal’s self-directions as to law and the correct approach, as laid down in the legislation, case-law and ACAS Guidance. That being so, per Roldan , the EAT should be slow to interfere. There would need to be a challenge on the ground of perversity, and that was not asserted here. 26. On the first and second grounds of appeal, it would have been wrong to have required the appeal manager to abrogate his responsibility and effectively remit the question of sanction to the original dismissing officer. The Employment Tribunal had been right to apply the range of reasonable responses test to the decision taken on the appeal, seeing that as part of the disciplinary process taken as a whole. That was entirely the right approach. 27. On the third ground of appeal, the wrongful exclusion of evidence point, the Respondent relied on the Employment Judge’s reasoning, but also observed that how the case on relevance was being put before the EAT was different, not only from the Claimant’s case as put in the internal process but also as to how she had put her case in her witness statement before the Employment Tribunal. There, she had been suggesting that it was a breakdown in her own relationship with the Managing Director, Mr Atkinson, that was the real issue. Indeed the witness statements of both the Claimant and Dr Buckley made no assertion that he had difficulties with anyone within the Respondent. Moreover the Claimant’s case before the Employment Tribunal accepted misconduct. The issue was with the sanction imposed. So the question of the authenticity of the e-mails or as to how they were obtained was not relevant. The only issue was whether sanction was within the range of reasonable responses. 28. Lastly, on the question of contributory fault, the Respondent observed that the Claimant was not saying that any of the Employment Judge’s reasoning was wrong and did not challenge the finding of gross misconduct. The Claimant continued to maintain that she saw nothing wrong in the sending of the e-mail. The Employment Judge’s finding, on the contrary, was that sending the second e-mail was an act of gross misconduct and a gross breach of trust. Given that finding, the conclusion on contributory fault could not be said to be perverse. Discussion and conclusions 29. There is an obvious overlap between grounds 1 and 2 on this appeal. In my judgment, neither discloses any error on the part of the Employment Tribunal. In looking at a disciplinary process, the appeal stage is part of that process and should be considered in the round (see West Midlands Co-operative Society v Tipton and Taylor v OCS ). This is not a Monie v Coral Racing - type case. The Respondent here did not rely on a subsequent and different reason at the appeal stage to that which formed part of the original reason to dismiss. In Monie the original reason related to dishonesty. At the appeal stage it was confirmed there was no evidence of dishonesty, but the Claimant was held to have failed to have acted responsibly, and that became the reason for upholding the decision to dismiss; the goalposts shifted. Here, the second e-mail, and the Claimant’s misconduct in sending that to Dr Buckley, had always been in issue. Similarly, I do not find helpful the dicta in McMillan v Airedale NHS Foundation Trust . Here, the Respondent on appeal was not reaching a factual conclusion of a more serious kind. It was reaching the same conclusion as part of the original decision to dismiss. 30. Taking the disciplinary process as a whole - including the appeal stage - as it was bound to do, the question for the Employment Tribunal was whether it was within the range of reasonable responses for the Respondent to dismiss for that reason. As part of that assessment, the Employment Tribunal had to take into account the fact that the original decision taker had stated that he would not have dismissed for that reason alone. The Employment Judge had due regard to that evidence. Given the seriousness of the issue in question, the Employment Judge found it to be surprising. Having had regard to that evidence, however, the Employment Judge tested the reason relied on by the Respondent at the end of the entirety of the process and found that the decision to dismiss for that reason fell within the range. The Judge applied the correct approach and was entitled to reach that conclusion. No error of law is disclosed. 31. Ground 2 effectively makes the same point from a different direction, arguing that the appeal decision rendered the dismissal unfair. I do not, however, see that the Claimant suffered any prejudice. She had known that the second e-mail was in issue and that it was seen as a misconduct issue. She may have been successful in persuading Mr Povall that the other grounds should not be relied on (save as part of the broader background or evidentiary material), but that did not mean that the second e-mail point did not remain at large. Given that it did, Mr Povall was entitled to consider what sanction was appropriate in respect of that matter, and his conclusion in that regard was properly scrutinized by the Employment Judge, applying the correct – range of reasonable responses – test. Section 98(4) Employment Rights Act 1996 does not require Employment Tribunals to adopt overly technical approaches when judging the fairness or otherwise of an employer’s decision to dismiss. They are entitled – indeed, obliged - to look at the decision in the round, as the Employment Judge did here. 32. Turning then to Ground 3, the evidence point. In my judgment, this was a case management decision for the Employment Judge. It is trite law that a trial court has the power to limit the evidence adduced and indeed the cross-examination of that evidence, see Watson v Chief Constable of Cleveland Police

[2001] EWCA Civ 1547

and, applying the same test in the Civil Procedure Rules to Employment Tribunals, HSBC Asia Holdings BV & Anr v Gillespie

EAT/0417/10

per Underhill J. 33. Relevance of evidence is not an absolute concept. It has to be judged by reference to the issues to be determined, but not every point, where there is some marginal relevance, should necessarily be allowed. It will be for the first-instance Tribunal to determine in each case. 34. The Employment Judge’s observation in this case, in the Reasons provided, was that the conduct that had led to the dismissal had been admitted subsequent to the discovery of the e-mails. The evidence of those admissions was itself clearly admissible and relevant to the issues. That being so, the Employment Judge was entitled to conclude that no useful purpose was served by debating whether the acquisition of the evidence was tainted by illegality. 35. In oral submission before me, it was clarified as to how the Claimant’s case had been put within the internal process, both at the disciplinary and appeal hearings. She had not sought to suggest at the disciplinary hearing stage that the emails had been wrongly obtained and should not be taken into account by her employer. There was a reference at the appeal stage to the Claimant contending that she was being dismissed for the company’s actions, but that was clarified at the appeal hearing to her making a reference to the fact that the Respondent had failed to stop her sending further emails after it had first become aware of the first e-mail to Dr Buckley, a different point. 36. So, before the dismissing and appeal managers, the evidence was that these e-mails had been sent and the Claimant had admitted them. That was what the Respondent had in mind. The wider issue of motive in obtaining the e-mails was not before the relevant managers. The Employment Judge was charged with testing the Respondent’s decisions on the basis of the evidence before it; that was, the admitted sending of the emails in question. This was not a case where the Respondent had taken a decision on the basis of disputed evidence. Moreover, having had regard to the witness statements put before the Employment Tribunal by the Claimant (to which I have been taken at this hearing), I do not accept that the Claimant was putting her case before the Employment Tribunal primarily on the point now suggested. It is clear that the Claimant, in submissions through her counsel, accepted that the sending of the e-mails constituted misconduct. The issue was the application of the sanction of dismissal. That being so, how the Respondent obtained the e-mails did not arise as a question. That submission was made after the Claimant’s counsel had been given the opportunity to cross-examine the Respondent’s witnesses as to their relationship with Dr Buckley. It seems that that point, if it had been in issue at some stage, fell away during the hearing. 37. I see no error of law in the Employment Judge’s case management decision to restrict the evidence adduced in the way that he did. 38. As for the last ground of appeal, on the question of the finding on contributory fault, this was accepted to amount to a perversity challenge, and I do not find that it begins to meet the high test required for such a challenge, as laid down in Yeboah v Crofton . The focus of the Employment Tribunal was properly on the conduct of the Claimant. It found her to have committed an act of gross misconduct, which was a gross breach of trust. On this point I cannot better the reasons given by Recorder Luba QC on the initial sift. The Employment Judge was plainly satisfied that the second e-mail incident was an act of gross misconduct justifying summary dismissal. It cannot be said to be perverse to then conclude that, if there was any unfairness in the dismissal, then in the alternative the Claimant had contributed to her dismissal by reason of her own conduct. 39. For all those reasons, I dismiss this appeal.