Black Country Partnership NHS Foundation Trust v Herlock-Green (Unfair Dismissal: Reason for dismissal including substantial other reason) [2015] UKEAT 0035_15_1405

EAT
Black Country Partnership NHS Foundation Trust v Herlock-Green (Unfair Dismissal: Reason for dismissal including substantial other reason)
[2015] UKEAT 0035_15_1405 · 2015-05-14
[30]“… 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. ” 15. Here the ET had proper regard to section 98(4) of the Employment Rights Act 1996 , the ACAS Code , and BHS v Burchell . The EAT should be slow to infer that it did not then apply the law correctly. See, further, per Elias LJ in Roldan , paragraph 51:[51]“… save at least where there is a proper basis for saying that the tribunal simply failed to follow their own self direction, the appeal tribunal 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. …” 16. Dr Ahmad suggests it is reasonable to infer from the ET’s Reasons that it found that the Respondent had failed to demonstrate the appropriate level of belief in the Claimant’s gross misconduct - the reason it relied on for the dismissal - and had thus failed to show sufficient belief (albeit that Dr Ahmad accepts paragraph 7.5.1 could have been expressed more clearly in this regard). In those circumstances the ET did not need to go further. In so doing it did not fall into the substitution trap. Its findings as to the evidence were derived from the material before it, which included the Respondent’s policies (which Dr Ahmad took some time to explore before me) which it had breached or failed to have specific regard to. The requirement upon the ET was only to provide reasons proportionate to the case before it. If it had not done so, the right course would be to refer the matter back under the Burns-Barke procedure (see Barke v Seetec Business Technology Centre Ltd [2005] IRLR 633 CA). Discussion and Conclusions 17. This was a conduct unfair dismissal case, bringing into play section 98 of the Employment Rights Act 1996 , which (relevantly) provides:
“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show - (a) the reason (or, if more than one, the principal reason) for dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this section if it - (a) … (b) relates to the conduct of the employee, … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) 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 it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” 18. It was a case in which, it is common ground, the principles laid down in BHS v Burchell applied. It was thus for the Respondent to demonstrate the reason for dismissal and that it was a reason capable of being fair for section 98 ERA purposes. 19. Here, as the ET found (paragraph 7.3), the reason was conduct. Dr Ahmad contends that is simply a repetition of the Respondent’s stated case and that the ET in fact can be taken to have rejected the Respondent’s discharge of the initial burden upon it in terms of establishing its genuine belief in the Claimant’s gross misconduct. He says that is the correct inference to be drawn from the statement that the Respondent had failed in respect of “the level of its belief in the misconduct alleged against the claimant” (paragraph 7.5.1). I had not read the decision in that way and, notwithstanding Dr Ahmad’s best efforts, I am not persuaded it is correct. It would make it very hard to understand the ET’s express statement at paragraph 7.5: “The respondent having shown the reason for dismissal …”. 20. Even if I am wrong, and Dr Ahmad has identified the correct reading of the Judgment, then the reasons given would be inadequate to explain why the Respondent’s case was rejected. In this respect, I do not find it helpful to distinguish, as Dr Ahmad does, between “conduct” and “gross misconduct”
. A dismissal might be fair if for a reason relating to the conduct of the employee (section 98(2)(b)). That was the question the ET had to address; not some other. 21. I am, however, satisfied that I was correct in my initial reading of the ET’s decision: it found the Respondent had discharged the primary burden upon it to show the reason for the dismissal, and that was one related to the Claimant’s conduct. That, in my judgment, is what paragraphs 7.3 and 7.5 state. That being so, the ET was then obliged to consider - applying a neutral burden of proof - the question of the fairness of the dismissal for that reason (section 98(4)). In so doing, it would need to ask whether the Respondent had reasonable grounds for its belief and whether those were based on a reasonable investigation ( Burchell ). In carrying out that assessment, however, it would not be for the ET to reach its own view ( London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 ); its job was to apply the range of reasonable responses test: did the Respondent’s decisions fall within the band of reasonable responses of the reasonable employer in those circumstances ( Iceland )? 22. True it is that, given the seriousness of the matters alleged for the Claimant, the ET was entitled to expect that the Respondent would have carried out the investigation process with particular care ( Roldan ). That would be the standard of the reasonable employer in such circumstances. That said, in carrying out the necessary assessment, the ET had to be careful not to substitute its own evaluation of a witness - particularly when it had not heard the witness itself - for that of the employer, see per Wood J in Linfood , paragraphs 21 to 24 (approved by the Court of Appeal in Morgan v Electrolux Ltd [1991] IRLR 89, per Balcombe LJ at paragraph 11). 23. I turn then to the ET’s reasoning. I am unsure where the ET’s statement at paragraph 7.5.1 fits in to this assessment. The best I can do is to assume that the ET must have had in mind the question of reasonable grounds for the Respondent’s belief, albeit that does not make sense of the subsequent reference (paragraph 7.5.2) to “a further failure”. 24. Paragraph 7.5.2 does at least seem to explain the ET’s thinking rather more clearly. In so doing, however, that makes it plain that the ET was reaching its own conclusions as to the evidence even though it had not heard from the witnesses concerned. 25. I am mindful of the need not to substitute my view for that of the ET. I am particularly conscious of that requirement when I, sitting alone, am reviewing the decision of a three-member ET. That said, I am unable to see the reasoning at paragraph 7.5.2 as anything other than a substitution of the ET’s own view for that of the employer. There is a complete absence of the application of the range of reasonable responses test; no assessment of the evidence of Ms Staples or Mr Campbell (who had both set out explanations for the emotional nature of the evidence before them, observing that the witnesses were seen to be genuinely upset by what they had witnessed and were concerned about giving evidence against a colleague); and no engagement with their evidence as to why they had accepted the statements of those witnesses. 26. The ET then moves on to consider the process and makes criticisms of the Claimant. Having done so, it then also makes reference to the Respondent’s decision to proceed with the disciplinary hearing in her absence as possibly “ill-judged” but does not explain why. That, of itself, might not matter; something can be ill-judged but not render a dismissal unfair. The ET then goes on, however, to describe this as a procedural error by the Respondent, which was not wholly addressed by the appeal (paragraph 7.7). That raises a number of questions as to the ET’s reasoning. First, the Respondent’s decision to proceed with the rescheduled disciplinary hearing in the Claimant’s absence fell to be assessed against the range of reasonable responses test, but there is no indication that the ET did so. There is certainly no explanation as to why so proceeding was found to be (if it was) outside the range. Second, the ET had to identify what were the failings at the initial dismissal stage, so as to be able to assess whether those were remedied by the appeal. It does not do so. Third, the ET had then to explain why it found those failings had not been remedied by the appeal. Again, it does not do so. 27. In making these observations, I am mindful that it would be wrong to be overly critical of an ET’s reasoning. The Judgment is to be read as a whole without the introduction of a fine-tooth comb; I should not focus on particular passages or turns of phrase to the neglect of the decision read in the round ( Fuller v Brent ); the ET had only to do sufficient to enable the parties to understand why they had won or lost ( Meek v City of Birmingham DC [1987] IRLR 250 CA). And, I accept Dr Ahmad’s observation that the reasons need only be proportionate to the significance of the issue (Rule 62(4) ET Rules 2013 ). 28. For clarity, I make clear that my criticisms of the ET, in terms of substitution and the failure to apply the range of reasonable responses test, amount to findings that it erred in its approach, not simply its reasoning. That said, even the failings of reasoning I have identified - even if not reflective of more fundamental failings in approach - are substantial. They take this firmly outside the category of case which might be addressed by use of the Burns-Barke procedure in any event. As I have stated, I would not lightly interfere with an ET’s judgment call on an unfair dismissal case. Here, however, for the reason I have given, I am obliged to do so; this decision cannot stand. 29. Having given my Judgment, I allowed the advocates the further opportunity to address me on disposal. Both were in agreement that, in the light of my reasoning, the appropriate course is for this matter to be remitted for an entirely fresh hearing in front of a different ET. Having in mind the guidance given in Sinclair Roche Temperley v Heard [2004] IRLR 763 , the nature of the criticisms that I have made, and also the fact that this is, and should remain, a short matter where it is proportionate for it to be heard afresh, I agree with the advocates. The matter will be remitted for a fresh hearing before a new ET. 30. The Respondent has, further, made an application for recovery of its costs pursuant to Rule 34A(2A) of the EAT Rules 1993 , limited to the fees incurred in pursuing this appeal (the £400 lodgement fee and the £1,200 hearing fee). I have a broad discretion as to whether or not to grant such an application and, if so, as to whether it should be for the full or partial amount. It has been observed (see, e.g. Look Ahead Housing and Care Ltd v Chetty and anor UKEAT/0037/14/MC) that, in the times in which we now live, it is not an unreasonable expectation that the successful party will recover these fees, although other parties might avoid liability by not seeking to resist the appeal (albeit the Appellant would still incur the fees of pursuing the appeal). A further relevant factor in the exercise of the discretion is also likely to be the means of the potentially paying party. If the Appellant, this is something taken into account when lodging the appeal in any application for remission. If responding to an appeal, the assessment can only be done by the court upon an application under Rule 34A(2A). 31. In this case, I do not have clear information as to the Claimant’s means. The best evidence is her ET statement, where she spoke of her difficulties in mitigating her loss and finding alternative work. On the other hand, she paid for representation below and before this court, albeit I am told that is at a very low level. I have noted that the Respondent did not seek (either in advance of lodging the appeal or before incurring the hearing fee) to warn the Claimant of the risk of such an application or to ask her to provide a statement of means for the court to take into account. Taking a practical view, I am not minded to make the full order for costs that I might make against a party with more obviously substantial means and/or where they had been put on notice of the need to provide evidence in this respect. On the other hand, I do not consider it would be right for the Respondent to meet all the costs. Doing the best I can, in those circumstances, I order the Claimant to pay £400 towards the Respondent’s costs incurred by way of fees in this matter.