The Police And Crime Commissioner For Devon & Cornwall v Naldrett (Contract of Employment : Notice and pay in lieu) [2015] UKEAT 0401_14_1202

EAT
The Police And Crime Commissioner For Devon & Cornwall v Naldrett (Contract of Employment : Notice and pay in lieu)
[2015] UKEAT 0401_14_1202 · 2015-02-12
[1]“… The same is true if there is any question of wrongful dismissal which involves looking at whether the employee himself was in breach of contract. … In such a case, what is relevant is not what the employer thought happened, however reasonable that might be. It is what actually happened. A Tribunal needs to know, and say why it takes the view that it does, that the conduct happened as alleged or did not. ” 12. In his Judgment in the Rule 3(10) Hearing in this case he states at paragraph 3:
“The appeal point is that the Tribunal appeared to have approached the question as an evidential one. It appeared to have taken the view that, if there was direct evidence from a witness and no direct evidence on the other side, the only evidence was that of the direct witness. If that is so, it is said, in the circumstances of this case it was an error because the Tribunal did not take into sufficient account the evidence of those other circumstances. They did not express a necessary view as to whether the account given by the Claimant was or was not credible - it might be implicit but it was certainly not explicit – and if implicit, needed to say why, in these circumstances, when according to Mr Watson who appears for the Police and Crime Commissioner, the Claimant had been inconsistent to some extent in his previous accounts as to what had happened. Thirdly, the Tribunal was entitled to take account of the probabilities of his [that is, the Claimant’s] account being the case. The Tribunal was thus either in error of legal approach or did not say sufficient as to its reasons.”
The Employment Tribunal Decision 13. Turning, then, to the Judgment in this case, it sets out in 13 pages the facts found and the application of the law. Most of it is understandably taken up with the matter of unfair dismissal. At paragraph 5.10 the Employment Judge gives his conclusion that the dismissal was fair. He then turns to the question of whether the dismissal was in breach of contract. He had noted that as an issue at the beginning of his Judgment, and it is clear to me that the Employment Judge always knew that there were two separate matters and that he required to deal with them. 14. Having got towards the end of its Judgment then, he set out the matter out in this way at paragraph 5.11.1:
“It is trite law that the test for breach of contract is different from that in respect of unfair dismissal. It is necessary for the employer to prove, on the balance of probabilities, that the claimant had committed an act of gross misconduct entitling the employer to dismiss him without notice. It is not sufficient merely to have reasonable belief or reasonable grounds for believing that the claimant was guilty of such gross misconduct.” 15. No-one before me takes issue with that as a correct direction. The controversy arises on what the Employment Tribunal did to put that correct direction into practice. The next and last two paragraphs of his Reasons are as follows: “5.11.2. The only person who gave direct evidence before the Tribunal on this matter was the claimant. He denied the allegation of masturbating in a public place. Nobody attended to give evidence on the contrary. 5.12. The respondent has not, therefore, satisfied the Tribunal that the claimant committed the alleged act. Accordingly, the claimant was dismissed in breach of contract. He is awarded damages comprising six weeks’ notice pay and the amount of the pension contributions which would have been made by the respondent during that period.”
Submissions 16. For the Respondent (that is, the Police and Crime Commissioner) it is submitted before me that there is insufficient - indeed there is no practically no - reasoning given by the Employment Judge. By use of the word “therefore” the Employment Judge links the failure to call direct evidence with the positive finding for the Claimant. As Mr Watson put it in his written argument “One causes the other”. Counsel also argued that the Employment Judge had erred in law by failing to take account of evidence other than direct oral evidence from a witness by failing to consider and give an opinion on inconsistencies in the Claimant’s position and by failing to consider the inherent probability or otherwise of the Claimant’s evidence. 17. For the Claimant it was argued that the Employment Judge did not fall into the trap described in the Rawson case to which I referred above. On the contrary he recognised very clearly what the law is and directed himself accordingly. By finding for the police and therefore against the Claimant in the unfair dismissal question and for the Claimant and therefore against the police in the notice pay question the Employment Judge demonstrated that he applied two different tests. Counsel argued that the Written Reasons were sufficient and, while they had to be described as brief, that was not in itself a fault. 18. He addressed the word “therefore” and argued that it should be read as to take into account the painstaking examination of all of the evidence which was undertaken in the first 12 pages of the Reasons. He argued that all of that was absorbed into the finding on breach of contract. He argued that all of the evidence had been taken into account by the Employment Judge and he referred me to two cases, firstly Kingston v British Railways Board [1984] IRLR 146 and Manning and Langstaff v Middleton Miniature Mouldings BAILII: [2010] UKEAT 0439_09_0103 , UKEAT/ 0439/09/DM; UKEAT/0441/09/DM , which was an Employment Appeal Tribunal case of 1 March 2010. 19. In looking at these two cases Counsel argued, taking the latter case first, that it was not perverse if an Employment Tribunal took the view that a written statement lodged by way of evidence, on which the maker of the statement could not be cross-examined, should have little if any weight put on it. That was the decision in the Manning case, and Counsel argued that that showed that it was perfectly in order for an Employment Judge to decide to put little or no weight on such a statement. 20. Turning to the other case, that is Kingston , Counsel sought to argue that the Court of Appeal in that case had read carefully what was said by the Tribunal at first instance, and under reference to paragraphs 43 to 49 Counsel argued that a similar analysis could be applied here. He reminded me that the focus in this Employment Tribunal and indeed in any similar Employment Tribunal will be on the unfair dismissal part of the case, and he commended the way in which the Employment Judge had refrained from unnecessary repetition. That led, he argued, to a decision which was extremely concise. Counsel was, of course, realistic and accepted that it would suit his arguments better had there been rather more reasoning, but he argued that there was sufficient. He invited me to apply what he called a holistic analysis, which would lead me to decide that the Employment Judge appreciated the different questions he was asked and that he took a decision to which no exception could be taken because he was entitled to place either no weight or very little weight on indirect hearsay evidence when comparing it to direct evidence. That, he argued, was what he did and what he said he did. Counsel pointed out that a close analysis showed that the Employment Judge did not say that there was no evidence for the Respondent but, rather, carefully said that there was no direct evidence. Conclusions 21. I have considered all that was put before me both by way of Skeleton Arguments and written submissions in the Grounds of Appeal and the Response and the oral argument before me this morning. Despite Mr Worthley’s valiant attempts to defend the Decision, I have decided that the Employment Judge has not written enough to show that he has put into practice the correct direction which he gave to himself. The losing party, that is the Police and Crime Commissioner, cannot tell from this Decision what the Employment Judge made of all of the evidence (direct, oral, indirect and written) which was put before him. While I agree with Mr Worthley that there is no need for long repetitious Judgments, there is a need for more than is given here. I have to say that I did not regard the cases of Kingston and Manning as particularly helpful as they are illustrative of process and they depend on their own facts. Because I take the view that this Employment Judge has directed himself correctly but has then not put his own direction into practice or at least has not given reasons which show that he did that, I will allow the appeal. Disposal 22. Disposal was also a matter of controversy were I minded to allow the appeal. Mr Watson submitted as his first position that I should remit it to a freshly constituted Tribunal in order that they might hear evidence on the wrongful dismissal question only and make a fresh Decision. His secondary submission, if I were not with him on that, was that it should be remitted to the same Employment Judge for him to have before him written submissions from each party about the wrongful dismissal question and for him to give a written Decision. Mr Worthley submitted that I should simply remit it to the same Employment Judge for him to give fuller reasons. If I were not with him on that, then he adopted the secondary submission put forward by Mr Watson, that is that I should remit it for written submissions on the matter of wrongful dismissal on the evidence already led and for a written Decision. I have considered this matter and I have decided that, in fairness to both parties, I should remit to the same Employment Judge to consider written submissions from both parties on the evidence already led. 23. In order that I make this entirely clear, I should say that no further evidence should be led before the Employment Judge but written submissions should be made by each party, if so advised, on the evidence which was led at the Tribunal which has already taken place. The Employment Judge should consider those submissions, consider all of the evidence that was before him and should make a decision on the question of the notice pay (that is, the wrongful dismissal only), which of course he should give in writing. 24. I am grateful to Counsel for the assistance they have given me this morning. Fees 25. I am asked to make an order under Rule 34A(2A) in respect of the fees, which are a total of £1,600 which have been paid in order to bring this appeal. The decision which I have made today has shown that the Employment Judge failed to give sufficient reasoning for his decision and I have required to remit it to him in order that he hears once again in writing submissions from parties about the wrongful dismissal case. Therefore, as Counsel clearly recognise, while the appeal has been allowed, the final outcome of the case cannot be known today. The final outcome has to have some relevance to this question of fees and therefore I am of the view that I should not make any order regarding fees today while that final outcome is unknown. The perhaps more difficult question is, should I make an order which would enable the Respondent to seek those fees at a later stage depending on the final outcome of the case? 26. I have decided not to do that. I am told that the Claimant did make an offer to settle this case following his Counsel having had a watching brief at the hearing under Rule 3(10) and Counsel taking a view at that stage that there was at least a colourable possibility that the appeal might be allowed. Therefore advice was tendered and accepted that the Claimant should offer to take less than the amount that was found in the first place to be due to him. Counsel has submitted to me today that it would be an unusual Claimant who offered to take nothing in that situation, but he argues that the Claimant acted properly in offering to take less than he had been awarded. I am told that the Respondent did not make a counter-offer and of course did not accept the offer made to settle because the matter was one of importance. It is put before me that the Respondent is a large employer and, simply because the Respondent is a large employer, these matters are of importance because, in the nature of things, claims are made from time to time to any large employer and it is therefore important for that employer to know what the Employment Appeal Tribunal makes of cases in order that it may make sure that it is carrying out its duties under the law. 27. On that basis, given that one side of this dispute does consist of a large employer with a proper interest in that, and the other side of the dispute consists of an individual who has been awarded so far a relatively small sum of money, just a little over the amount that we are discussing in fees, I have decided that I will not make any order as to fees. 28. Once again, I am grateful to Counsel for their arguments on this rather awkward matter of fees. I do not pretend that that is straightforward, so I am grateful to you both.