Stoke on Trent City Council v Savigar (Debarred) (Unfair Dismissal) [2015] UKEAT 0228_14_1505

EAT
Stoke on Trent City Council v Savigar (Debarred) (Unfair Dismissal)
[2015] UKEAT 0228_14_1505 · 2015-05-15
[31]“ … It is not their role to engage in the sort of inquisitorial function that [counsel for the Claimant] suggests or, therefore, to engage in an investigation as to whether further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law. …” He made further reference to Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954 , [1998] IRLR 531 , in particular paragraphs 14 to 22, which shows that this approach is by no means new. 16. It needs to be borne in mind by Tribunals that the purpose of a hearing before a Judge or Tribunal is to determine the dispute between the parties. The parties know best what that dispute is. It is that dispute, as they identify it, which should be resolved. It is, of course, right that a number of litigants in person will not be experienced in law. As a result they may not know quite how to categorise legally the complaint which they are making. But they still have to make the complaint in the first place. Here the claim for unfair dismissal was plainly on one basis. The Tribunal resolved it on a basis which had not been put before it and indeed in respect of which they acknowledged that the Claimant herself had not sought to make any point as to procedure and had said so expressly. The Tribunal thus began addressing the facts by taking what I regard as a misconceived approach to its function. 17. I turn to the effects of this when one comes to the grounds of appeal. As to those grounds, the first which Mr Lovejoy chose to argue before me today was as to the reliance by the Tribunal upon its supposition that no reasonable employer would have dismissed summarily. He argued that it has been established at Appeal Tribunal level that whether a dismissal was on notice or summarily has nothing to say as to whether the statutory test has been satisfied. It must be remembered that the statutory test is that under the Employment Rights Act 1996 . It is not a contractual test. Although a breach of contract may give rise as being one of the circumstances leading to a conclusion that the employer acted reasonably or unreasonably, it is not in itself and alone a reason for so concluding. 18. In Treganowan v Robert Knee & Co Ltd [1975] ICR 405 in the Queen’s Bench Division Phillips J dealt with the point in relation to the statutory predecessor of what is now section 98 of the Employment Rights Act 1996 . In the report, [1975] ICR 405 at page 412, he said:
“… In my judgment, a tribunal has to say to itself, “This man was dismissed in such- and-such circumstances. The reason was so-and-so. Have the employers satisfied us that they acted reasonably in treating that reason, in those circumstances, as a sufficient reason for dismissing him?”
If “No”: unfair dismissal, and the complaint succeeds. If “Yes”: the complaint fails. They are not concerned for this purpose with whether the dismissal was summary or whether the notice was long enough. That would be relevant for a court to consider in determining whether the dismissal, whether unfair or not, was wrongful. Of course, the fact that the dismissal was summary, or the notice was short, may be a fact that the tribunal would want to take into account in determining other questions of fact, for example, what was the real reason for the dismissal, who is to be believed, and so on. …” He went on to dismiss the appeal. 19. Those words were subsequently built on by the Appeal Tribunal, presided over by HHJ Burke QC in the case of MPI Ltd v Woodland [2007] WL 1157991, a decision of 30 January 2007. In that, under the heading “The summary dismissal ground”, the Appeal Tribunal said:[20]“20. It has long been an established principle of the law of unfair dismissal that whether the dismissal was summary or on notice is irrelevant to the issue of the fairness of the dismissal, save in so far as it may bear on the credibility of witnesses. What the Tribunal have first to decide, in a straightforward unfair dismissal claim which does not involve any question of automatically unfair dismissal is what was the reason for the dismissal and, if a reason is identified, was that reason a reason which falls within section 98(1)(b) of the Employment Relations Act 1996 [he meant the Employment Rights Act]. If a reason is identified and the Tribunal conclude that that reason falls within section 98(1)(b), then the Tribunal must go on to consider whether it was reasonable to treat that reason as a sufficient reason for dismissing the employee, pursuant to section 98(4) of the Act. If it was not reasonable to dismiss for that reason the dismissal was unfair. If it was reasonable to dismiss for that reason the dismissal was fair. Whether the dismissal was summary or on notice is not a consideration which enters into this framework of statutory consideration.” 20. He made extensive reference to Treganowan v Knee , a case endorsed as far as principle is concerned in BSC Sports & Social Club v Morgan [1987] IRLR 391 by the Appeal Tribunal presided over on this occasion by Sir Ralph Kilner-Brown. Mr Lovejoy tells me that he is unaware of any authority to the contrary. 21. I do not approach this matter unguided, therefore, by authority. Had I done so, I would have thought there to be much that might be said for the alternative view, particularly since at the time Treganowan was decided the significance of procedural default on its own rendering a dismissal unfair had not been fully appreciated. That had to wait until the House of Lords delivered its opinions in Polkey v AE Dayton Services [1987] IRLR 503 . It might have been arguable that the timing of a dismissal was part and parcel of the dismissal which the court is considering, not simply a dismissal for that reason but the dismissal which actually occurs, which is a dismissal on a particular date. The date is of significance for various reasons within the statute. Here, the Tribunal was indicating that, had there been a period of notice, there would have been a further opportunity for the Claimant, assuming the employer to behave as one would expect a responsible Council to do, by drawing to the attention of the Claimant any suitable alternative employment which became available during that period. It might therefore have been a matter of real importance to her, which might be one of the circumstances to which regard could be had under section 98(4). 22. I have not found it necessary, however, to develop this line of reasoning any further than to identify it as seeming to me potentially arguable in some cases, depending of course, as the question of fairness always does, on all the circumstances of the particular case because it seems to me that I should loyally follow the decisions of the Appeal Tribunal thus far, which are all one way, unless I can be satisfied that they are plainly wrong. I am certainly not so satisfied. The law is, therefore, as they have declared. The Tribunal should have been aware of those authorities and therefore could not have adopted the argument which it did.[23]There is a second reason for holding that the conclusion as to summary dismissal was in error. That is that the Tribunal appear to suggest that no reasonable employer would summarily dismiss in these circumstances. This is a very difficult factual conclusion or conclusion of judgment to reach given, says Mr Lovejoy, that in the Tolley handbook it is recognised that employers most frequently do exactly as the employers in this case did. Nor does it rely entirely upon the opinion of a textbook writer. In the case of Abrahams v Performing Right Society Ltd [1995] ICR 1028 at 1039, the Court of Appeal was considering the questions which arose when there was dismissal and what purported to be a payment in lieu. It identified four factual situations. The fourth of those was where without the agreement of the employee:
“… the employer summarily dismisses the employee and tenders a payment in lieu of proper notice. This is by far the most common type of payment in lieu and the present case falls into this category. The employer is in breach of contract by dismissing the employee without proper notice. …” 24. Accordingly the Tribunal without explanation was identifying - as a practice which no reasonable employer would adopt - a practice which the majority of employers actually do. I have some sympathy with the point that that does not mean to say that the majority are necessarily acting reasonably in so doing, but it seems to me that the point would require a much greater explanation and adaptation to the particular circumstances of this case than occurred. In this respect I have a particular difficulty given the way in which this Tribunal approached Polkey . In effect the Tribunal was saying that the employer was wrong to dismiss because its effect was to deprive the Claimant of the chance of obtaining suitable alternative employment. In the next breath, however, in paragraph 6 it was assessing the chance of that suitable alternative employment as zero. It was therefore suggesting it was unfair for the employer to adopt the method of dismissal it did when there would actually have been no advantage to the Claimant in continuing the relationship contractually. This is different in my view from a Polkey situation since the whole basis for supposing that it was unfair was because it deprived the Claimant of a meaningful opportunity of further employment. On the facts here it did not. 25. The final complaint under this ground suggested that the Tribunal were approaching the matter as if it were an action for breach of contract where it is one under statute. I do not think that this adds anything to the discussion above. 26. The second ground argued before me was that the Tribunal found that the employer had not looked for alternative employment. The first point here was that it was no part of the Claimant’s case that the Respondent had failed to do so. Mr Lovejoy tells me that it was never put to any witness beyond one possible question, which would not bear this weight, addressed to Ms Lovatt. It is borne out by Mr Lovejoy’s note, but he was permitted by the Appeal Tribunal by earlier order to rely upon his notes for the purposes of this appeal. When she said that during the next five weeks after 9 August the search went on and then was asked “Are you aware of any attempt afterwards?” and she said “Can’t remember”, that is not evidence that there was no attempt. It is evidence that she did not know if there was one. 27. However, what was unchallenged (and there is no evidence before me that it was ever challenged) is that when she gave evidence she adopted a witness statement in which she said in relation to the meeting of 17 September that she had been informed by a Mr Pilmore that Mrs Savigar had submitted an application for a particular post but had not been shortlisted and “that no other suitable alternative roles had been identified and that Mrs Savigar had no other outstanding applications at that time.”
The evidence thus does not suggest that the employer deliberately stopped looking after 5 September although it is not absolutely clear. The weight of what was said suggests that there were indeed ongoing enquiries. The best position from the Claimant’s point of view if she had wished to rely upon it was that it was not altogether clear. But the Tribunal’s reasoning, coming as it did without Mr Lovejoy being asked to address it in the course of submissions, was unfair: it is axiomatic that if a point occurs to a Tribunal it should raise it with the parties so that they may deal with it. Mr Lovejoy tells me (and there is no contradiction in the circumstances of this case) that that did not happen. There is no indication from the papers that it did. And, as I have indicated already, by starting this discussion in respect of dismissal by saying in effect that the Tribunal was going to decide the fairness of the dismissal on a basis which the Claimant had not herself put forward because the Tribunal thought it knew better, it appears to me that there was an error of law. 28. The third ground argued was that relating to the paragraph in which the Tribunal dealt with the Occupational Health report. The Claimant had not said that she was fit for work. The issue here is not the fine wording of the Occupational Health advice. The recent decision of Gallop v Newport City Council [2014] EqLR 141 is authority to the effect that it is for the employer to make up its own mind upon it, although it will obviously and must take proper account of what the Occupational Health advisor is saying. But here it seems to me that Mr Lovejoy is right to say that the Tribunal has focussed upon one particular phrase in isolation from the totality of the report. More fundamentally, he submits that the Tribunal was here examining the question of fairness of the employer’s procedure. The Tribunal accepted that Ms Lovatt did not read the double negative in context as being a double negative. It did not criticise her for that. It followed, he submitted, that in the absence of suggesting that she really ought to have looked more closely, which was never put to her, and never suggested by the Tribunal in its Decision, it could not conclude that the employer had acted unfairly. In my view this criticism is justified. 29. If it had put the point, and had been entitled to criticise Ms Lovatt for not realising there was a double negative, then in any event I think there is considerable force in Mr Lovejoy’s points that, sensibly read, the Occupational Health report was all one way. It was saying that the Claimant herself accepted that she was not fit for her substantive post. She might be fit for some suitable alternative work but none had been identified. The double negative was only part of the totality of a document which had to be looked at in whole and in the context of the case. Although in this respect there was a comment as to the double negative made in the ET1, and therefore the Tribunal was entitled to look at it, it came to a conclusion which seems to me to be such a wholly artificial way of reading the document as not to be justifiable in law. Moreover I turn again to the way in which the Tribunal dealt with Polkey . It seemed to think that there was no reasonable prospect, or any prospect to which any percentage chance could be assigned, that the Claimant would have been able to return within a reasonable time to her post. If so, I simply do not understand how the Tribunal could conclude that in this particular case the dismissal was unfair for the reasons it gave. Further Remarks 30. It is always difficult to deal with an appeal against a Tribunal when the Respondent to the appeal is not represented and is not here to put her view of the matter. Accordingly some of the conclusions which I have expressed with some strength might, had the fuller facts been appreciated, have had to be viewed with greater qualification. However, I have to resolve the appeal as it is put upon the basis on which it is placed before me. On that basis I see no answer to any of the three points of appeal which have been raised and accordingly this appeal is allowed. The conclusion as to unfair dismissal is overturned since there is no basis which was argued before the Tribunal by the Claimant upon which it could be upheld. This is not a case for remission. The Claimant’s primary case, indeed the only case made in her ET1 with the one exception of the side remark about the health report, was as to the reason which had inspired the Council to dismiss her and which the Tribunal resolved in favour of the Council. Accordingly I substitute a finding here that the dismissal was not unfair.