Metroline West Ltd v Ajaj (Unfair Dismissal) [2015] UKEAT 0185_15_0312
[27]“ 27. Unfair dismissal appeals to this court on the ground that the tribunal has not correctly applied section 98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst appeal tribunal members and the members in the constitutions of this court.[28]The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal 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 tribunal without committing error of law or reaching a perverse decision on that point.[29]Other danger zones are present in most appeals against tribunal decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law. 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 tribunal, but then overlooked or misapplied at the point of decision. The tribunal 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 employment tribunal 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.” 24. Those paragraphs make clear that the appellate body needs to guard against making the same legal error as the Tribunal stands accused of making in cases where unfair dismissal decisions are often challenged. It is easy to slip into a substitution mindset. On the other hand, even where a Tribunal gives a correct self-direction of law, it can then be overlooked or misapplied at the point of decision, so that a careful reading of the Judgment, not a pernickety critique, is necessary to see whether this has occurred. 25. The Respondent contends in relation to each of the three misconduct allegations that the Employment Judge repeatedly asked the wrong question to do with the Claimant’s capability for doing the work of a bus driver, which would have been relevant to a capability dismissal but was irrelevant to this conduct dismissal. Further, at the point of applying the law to the facts, he asked that question rather than applying the Burchell approach and asking the objective question whether the Respondent had reasonable grounds for its belief in the misconduct alleged having conducted a reasonable investigation. In answering the wrong question, the Employment Judge then wrongly substituted his view for that of the employer. Moreover, so far as the third allegation is concerned, the Respondent contends that that allegation included the question whether the Claimant had exaggerated the effects of his injury and the accident itself and the Employment Judge reached a conclusion that was perverse when he rejected that as a reasonable reason for dismissal in this case. 26. Against that Mr Ohringer submits that the Respondent is effectively seeking to re-engineer its case by reference to an argument not advanced in this way below. He submits that exaggeration was not a standalone reason for dismissal, and he points to Mr Moran’s letter to the Claimant dated 13 May 2014 and the way in which the original charges were characterised as follows: “1. Serious Breach of Trust - False claim of sick pay 2. Serious Breach of Trust - Misrepresenting your ability to attend work 3. Serious Breach of Trust - False claim of injury at work” 27. Those three allegations were plain and straightforward, and exaggerating the effect of his injury formed no part of those allegations or the reason for dismissal. It is therefore irrelevant to the question to be addressed under section 98(4), which requires a specific reason that was the reason in the mind of the employer to be identified, and he submits that so much was made clear by the Judge at paragraph 103. 28. So far as the first two allegations are concerned, Mr Ohringer submits that the Employment Judge was necessarily correct to look at the work that the Claimant was expected to perform as a bus driver in addressing whether those allegations were made out and that the Employment Judge was perfectly entitled, given the allegation that the Claimant misrepresented his ability to do his work, to look at the evidence that the Respondent had as to this ability to do his work. 29. So far as the third allegation is concerned, whilst Mr Ohringer accepts that neither Mr Moran’s letter nor the Judgment at paragraphs 102 to 105 are as clear as they might have been, he submits nevertheless that what emerges is a finding that exaggeration was not a standalone reason; it was simply something to give weight to the allegation that the Claimant made a false claim of injury. The Employment Judge was therefore entitled to conclude that Mr Moran made an impermissible leap from the observations under surveillance and Dr Kahtan’s report to the third allegation being proven. He submits that Dr Kahtan’s report was not sufficiently strong to allow this conclusion given her acceptance that in general patients can exaggerate unintentionally or unconsciously as well as deliberately. 30. I have reached the conclusion that I do not accept Mr Ohringer’s submissions. This is a case where I agree with Mr Solomon that the Employment Judge does appear to have fallen into the substitution mindset and this has led him into error. I do not consider that there has been the re-engineering by the Respondent of its case to which Mr Ohringer referred. One need only look at paragraph 27.1 of the ET3 where the Respondent said in terms that it had a genuine and reasonable belief based on a reasonable investigation that the Claimant had attempted to commit fraud at worst or at least to misrepresent and exaggerate his symptoms and that this was borne out by Dr Kahtan’s report. Both by reference to that document and by reference to the ET1, in which the Claimant himself acknowledged that he was told at the meeting on 24 April 2014 that his manager “did not believe that his injuries were as bad as he had made them out to be and suspended him”, I am satisfied that the case was advanced on the basis that there was either deliberate misrepresentation of the extent of the injuries and the accident, or there was deliberate exaggeration. 31. The starting point is paragraphs 80 and 82 to 83 of the Judgment where the Employment Judge found that there was no untoward reason for dismissal, this being a case of dismissal for reasons of belief in the Claimant’s guilt of misconduct as reflected by the decisions of Mr Moran and Mr Harris, and then at paragraph 83, made findings of fact that the reason for dismissal was the Respondent’s belief that the Claimant had: obtained or claimed sick pay by fraudulently representing to be sick when he was not; misrepresented his ability to attend work at review meetings with Mr Power and the Occupational Health doctor; and either exaggerated his condition or deliberately attempted to defraud the company with a claim of injury at work that was exaggerated or even staged. Exaggeration was part of the case advanced by the Respondent and was found as a fact to be part of the reasons for dismissal in the mind of the dismissing and appeals officers. Moreover, it is clear that each of those allegations was underpinned by a real question mark as to the Claimant’s honesty about the extent of his injuries. 32. Turning to the first allegation, at paragraph 85 the Employment Judge set out what might have been the question in his view - in other words, whether the Claimant was capable of walking reasonable distances - but held that was the wrong question. At paragraph 86 he said the question was whether the Claimant had absented himself from work and claimed sick pay when in fact he was fit to work and that question was to be answered by reference to whether he was fit to carry out his duties as a bus driver. In my judgment, that was an irrelevant question in the context of this misconduct case. The question was not whether the Claimant was capable of walking or capable of sitting for long periods; the question in this misconduct case was whether the Respondent had reasonable grounds to believe, based on a reasonable investigation, that the Claimant had misrepresented his injury and its effects. In addition, it seems to me that as well as asking the wrong question, at paragraph 88 the Employment Judge appears to have substituted his own decision when he came to answer it: “88. … It appears that there is nothing in the video evidence to show that Mr Ajaj was capable of sitting in one position for lengthy periods. …” 33. The appearance of substitution is reinforced at paragraph 90, where the Employment Judge found that the letter of Dr Kahtan dated 23 June did not appear to address the question of whether the Claimant was fit to work as a driver, or had difficulty in sitting for periods of time, or whether the video footage gave any indication as to these issues. He said that the Respondent did not acquaint itself with the medical position relevant to the Claimant’s duties and that in effect it ought to have done so. Had such questions been asked, said the Employment Judge, it cannot be said that he answers would not have reflected the GP’s opinion. Again, that was the wrong question. The reason Dr Kahtan was not asked to provide that material was that this was not a capability dismissal, and that question was irrelevant. It would of course have been necessary for the Respondent to address the question of capability by reference to the Claimant’s particular duties had this been a capability dismissal, but I cannot accept that this was necessary in the context of a misconduct dismissal. It seems to me that the Judge’s analysis involved a focus on irrelevant considerations and a substitution of his own view for that of the Respondent in relation to capability rather than conduct here. 34. So far as concerns the second allegation similar errors emerge from paragraphs 91 to 93. At paragraph 92 the Employment Judge said: “92. Turning to how the claimant had represented his ability when he held his sick review meetings and his discussions with the occupational health doctor the position is that the Mr Ajaj consistently reported that he had problems with sitting, as well as walking and other activities. Key to his ability to return to work was his ability to drive, and that involves sitting for long periods. As mentioned above problems with sitting also feature in the medical advice as a factor preventing a return to work.”35. However, how the Claimant represented or misrepresented his ability was not the question. The question was whether there were grounds on which a reasonable employer could hold the belief that the Claimant had misrepresented his ability. That was the central issue in the case, and if there were such grounds, they involved or would have involved a serious breach of trust. The Employment Judge impermissibly asked an irrelevant question directed at capability and failed to ask a relevant one.36. The third allegation against the Claimant is, as indicated, reflected in the Tribunal’s finding at paragraph 83.3. The Tribunal held that that was the third reason in the mind of both Mr Moran and Mr Harris for dismissing the Claimant and that this reason was based on a genuinely held belief. Mr Ohringer’s argument that the question of exaggeration of injury and its effects was not a standalone reason for dismissal cannot be accepted in light of paragraph 83.3. The Tribunal made a finding of fact amply supported by the evidence I have been shown and in particular the letter of Mr Moran dated 13 May 2014.37. At paragraph 86 the Tribunal summarised the evidence of the Claimant’s ability to carry out day-to-day activities as contained in the video footage. The Tribunal referred in particular to the fact that the Claimant is seen to be walking with various degrees of freedom, carrying shopping bags, making journeys, ascending stairs and so on. The Tribunal recorded the fact that Dr Kahtan had observed that the footage showed an individual capable of undertaking a schedule of activities although there were times when it is clear that the individual is experiencing some discomfort but most of the time there is no obvious limitation. The Tribunal went on to say that if the question was whether the Claimant was capable of walking reasonable distances the evidence the Respondent had was very clearly capable of the conclusion that he was. At paragraph 102, the Tribunal accepted that the Respondent had grounds for concluding that the Claimant had exaggerated the walking effects of an injury in his attendances at the Occupational Health doctor. Later, in the context of the question of contribution, at paragraph 112 the Tribunal held that the Claimant did exaggerate the effects of his injury both to the doctor and to the Respondent’s managers and though the exaggeration was about being able to walk rather than the key capability of sitting, nonetheless he did mislead and that it was culpable and definitely led to the dismissal.38. Those are accordingly findings of fact by the Tribunal that this Claimant did exaggerate his condition, that this was culpable behaviour and that it misled both Occupational Health and the Respondent. The well-established test to be applied by the Tribunal in deciding whether the Respondent had acted fairly in dismissing the Claimant was an objective test of the reasonable employer, applied to every aspect of the decision to dismiss. It was perverse in those circumstances for the Tribunal to conclude nevertheless that the Respondent did not have reasonable grounds on which to uphold the third allegation.39. At paragraph 103 two reasons are given for the conclusion in relation to exaggeration. First, that there was no ground to say that the Claimant was exaggerating his inability to carry out the duties for which he was employed. However, the Claimant’s ability or not to drive was irrelevant to the question whether he was exaggerating the effects of his injury. The second reason is harder to understand. The Tribunal said that the allegation against the Claimant was that of making a false claim of injury at work. The Tribunal reasoned that it was not rational to conclude that the Claimant was guilty of making a false claim of injury at work by reason of exaggerating the effects of his injury, but that appears to fail to recognise that the allegation being considered as the Tribunal had summarised it at paragraph 83.3 and again at paragraph 94 was one of exaggerating the effects of his condition - and therefore exaggerating the injury - and appears to have failed to evaluate that reason. The Tribunal implicitly recognised that the allegation was a different one to that which it had already evaluated at paragraph 103 when at paragraph 105 it found that there had been a change in the basis on which the allegations were made that was not cured by the appeal, but in reaching that conclusion the Tribunal relied on the summary given by Mr Harris in his letter dated 25 June 2014. That Tribunal summary makes no reference to the last sentence of the relevant paragraph in Mr Harris’s letter, where Mr Harris recorded that Mr Moran: “… further believed that you exaggerated your claim to our occupational health advisors misleading them in the process.”40. There is nothing to suggest that Mr Harris was excluding that last sentence from the reasons relied on by Mr Moran for dismissing the Claimant. It is difficult, therefore, to understand why the Tribunal reached the conclusion that the flaw it identified was not cured by the appeal panel. Mr Harris arranged for the video footage to be delivered to the doctor so that she could address concerns raised by the Claimant and his representative and provide a further report amending, retracting or confirming her previous advice. Mr Harris went on to consider that additional material and to reach conclusions by reference to it. In those circumstances, the conclusion is a puzzling one and not adequately explained by the Tribunal. Nonetheless, I am satisfied, whatever the Tribunal had in mind at paragraph 105, that the Judge was perverse in concluding that the Respondent did not have reasonable grounds on which to uphold the third allegation at least in so far as it concerned the question of exaggerating effects of his injury and the accident.41. For all those reasons, it seems to me that the appeal must be allowed and that the findings of unfair dismissal in relation to each of those three allegations must be set aside.42. So far as the challenge to the finding that the Claimant was wrongfully dismissed is concerned, at paragraphs 114 and 115 the Tribunal held that for the same reasons as already expressed the Claimant had not committed the misconduct alleged against him. At paragraph 116 the Tribunal explained in summary its reasons that there was ample evidence that the Claimant suffered an injury and was gradually recovering from it and no evidence that his injuries were the result of some other incident. So far as exaggeration of the injury was concerned, the Tribunal held: “117. … there is no evidence that he was ever able to sit for long periods of time such as to be able to resume normal duties as a bus driver. I therefore did not find that he had exaggerated his lack of ability to return to those duties.”43. Mr Ohringer argues on the Claimant’s behalf that the question of repudiatory conduct requires conduct that is so serious that it strikes at the foundation of the employer/employee relationship and that the question here was one for the Tribunal. If the Respondent did not have grounds to uphold the allegations themselves and advanced nothing new, then it is no surprise that the Tribunal reached the conclusion that it did in relation to wrongful dismissal.44. For the reasons I have given in relation to the unfair dismissal grounds, it seems to me that the wrongful dismissal finding cannot stand. The Employment Judge made the same errors in relation to wrongful dismissal as he did in relation to unfair dismissal in the sense that he was evaluating the conduct by reference to the Claimant’s ability to perform his job as a bus driver sitting for long periods rather than by looking at whether what the Claimant did amounted to deliberate exaggeration, misleading his employer and the Occupational Health doctor. Mr Ohringer faintly suggested that absence from work based on an assertion that one is unfit to work might give an employer grounds to dismiss, but would not necessarily amount to gross misconduct. I disagree: an employee “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.45. Had the Tribunal assessed the Claimant’s conduct by reference to the reasons relied on both by Mr Moran and Mr Harris the only conclusion available in light of the Tribunal’s findings was that the Claimant was guilty of serious misconduct that did amount to a fundamental breach of contract. Accordingly, in my judgment, this ground of appeal succeeds, and the conclusion that this was a wrongful dismissal also cannot stand.46. I turn briefly to address the question of contribution which does not strictly arise in light of my conclusions on unfair and wrongful dismissal. Whether a Claimant has caused or contributed by his actions to a dismissal such as to entitle a Tribunal to reduce the compensation to which he would otherwise be entitled is a question of fact. It is well established that the conduct that can be relied upon for these purposes extends to any conduct of the Claimant before his dismissal that caused or contributed to it, provided that the evidence demonstrates that the conduct is culpable and played a part in the dismissal. As to what can properly be characterised as culpable, this was dealt with by the Court of Appeal in Nelson v BBC [1979] IRLR 346 at paragraph 44. Nelson is also authority for the well established proposition that a decision of an Employment Tribunal on the amount of reduction for contributory conduct can only be interfered with on appeal in an exceptional case where it is an error of law.47. The Tribunal found that the Claimant’s conduct involved exaggerating of his symptoms and that misled the doctor and the Respondent. Mr Ohringer points to paragraphs 24 and 28, where the Judge recorded what was shown in the video footage, and also the passages where Dr Kahtan’s findings are set out. He says by reference to those passages and others that at no stage did the Employment Judge make findings that what the Claimant did, whether by exaggeration or otherwise, was done deliberately.48. I disagree. The Employment Judge expressly found this to be culpable at paragraph 112. True it is that he did not explain in any detail why, but it is hard to see, as Mr Ohringer accepted, how exaggeration can be culpable if it is unconscious. The hypothetical case advanced in the course of argument of a melodramatic person exaggerating their injuries is not this case. In my judgment, it is implicit in the Tribunal’s findings that the Claimant had deliberately exaggerated his symptoms. There was on the Tribunal’s findings ample evidence in the video footage to support that. Such conduct is plainly culpable if it is deliberate and where it is to any extent causative of the dismissal it amounts to relevant contributory conduct. Here, the Tribunal found that it led to dismissal. This is not, accordingly, a case where the Tribunal failed to consider whether there was culpable causative behaviour, although I accept that its reasons for doing so could have been better spelled out. 49. Once blameworthy conduct and causation were established, it was for the Tribunal to assess the amount of the reduction that the Judge regarded as just and equitable. I have set out the principles and the limited scope for appellate interference with such an assessment. Perversity is alleged here by the Respondent but not by the Claimant. That is a particularly high hurdle to surmount in the context of an evaluative assessment based on impression, opinion and judgment. If the appeal on unfair dismissal and wrongful dismissal had failed, I would not have interfered with the Employment Judge’s assessment. 50. Finally, in relation to remedy (also academic) had it arisen for consideration, ground 1 would have succeeded in the light of the Respondent’s concession. It seems to me the Employment Judge clearly made an error. So far as ground 2 is concerned, persuasive as Mr Solomon’s argument was, it is difficult to see how the Tribunal could have concluded that a fair dismissal could take place within the period identified, and proper notice could have been given in that self same period. I would accordingly have allowed Mr Ohringer’s appeal on ground 2. Costs 51. The Respondent applies for its fee costs in the sum of £1,600 under Rule 34A(2)(a). That is a costs order to which different principles apply than the broader powers that exist for awarding costs in a case where there has been unreasonable, improper or vexatious behaviour. Moreover, following other decisions of this Appeal Tribunal, which are not necessarily binding on me but which, in my judgment, are right, the discretion of the Tribunal is not the broad discretion urged on me by Mr Ohringer. This Rule looks simply at the question of repayment of fees that it was necessary to pay to bring the appeal, and there is a presumption that the unsuccessful party will pay those fees in respect of the successful party. 52. In this case, I am satisfied that the Claimant has done more than simply be brought here by a Respondent seeking to overturn the decision. Not only has he actively resisted the appeal but he has advanced arguments by way of Respondent’s Notice and cross-appeal. This is not simply a case of a Claimant who was successful before the Tribunal doing the minimum to hold onto that decision. The only way in which the Respondent could challenge the decision was by bringing this appeal, and it seems to me that the power to order repayment is engaged. 53. However, I am also satisfied that the provision in Rule 34B(2) applies to any costs order I might consider making here. In other words, I am entitled to have regard to the paying party’s ability to pay when considering amount. I am satisfied, having heard Mr Ohringer’s account of the Claimant’s means and his net income and outgoings, that there is very little left for him after paying rent, repayments on his credit card and providing financial support to his five children ranging from 2 to 19. Taking a broad-brush approach and bearing in mind the objective of Rule 34A(2)(a), but also having regard to the Claimant’s means and doing justice as between the parties, the Claimant should pay the sum of £400 in respect of the appeal fees, and that is the order I accordingly make.