Trye v UKME (UK Mission Enterprise Ltd) (Unfair Dismissal: Reasonableness of dismissal) [2016] UKEAT 0066_16_1207

EAT
Trye v UKME (UK Mission Enterprise Ltd) (Unfair Dismissal: Reasonableness of dismissal)
[2016] UKEAT 0066_16_1207 · 2016-07-12
[1]This is an appeal from a Decision of the Employment Tribunal sitting at London (Central). The Employment Tribunal (“the ET”) consisted of Employment Judge Mr A Glennie, Ms C McLellan and Ms R Dasey. The hearing was held over 9-13 and 16 February 2015, and in a Decision sent to the parties on 26 May 2015 the ET came to a unanimous decision that the Claimant’s complaints of race discrimination and of unfair dismissal were dismissed. I shall refer to the parties as they were below. On this appeal the Claimant has been represented by Mr Ogilvy and the Respondent by Mr Soanes, and I am grateful to both of them for their written and oral submissions.[2]On the paper sift in this case HHJ Eady QC decided that the proposed appeal raised no arguable point of law. However, after a hearing held under Rule 3(10) of the Employment Appeal Tribunal Rules HHJ Hand QC decided that the appeal did raise one arguable point of law. In order to identify what that point was, I should refer to the transcript of the Judgment of HHJ Hand QC given on 21 January 2016. HHJ Hand QC rejected a number of submissions made on behalf of the Claimant by Mr Ogilvy. At paragraph 13 HHJ Hand QC said that the remainder of Mr Ogilvy’s submissions were directed towards three paragraphs of the ET’s Reasons: that is, paragraphs 67 to 69. HHJ Hand QC rejected one of the arguments that was based on that paragraph, and he went on in paragraph 14 to describe what he termed “the final attack” on the decision of the ET. He said this:
“14. … The Employment Tribunal seemed to have had an argument addressed to it about the significance of the final warning, because in the second and third sentences of paragraph 69 … the Employment Tribunal seem to have thought that the final written warning must still been alive at the time the offence was committed. I am bound to say that this seems to me to be a rather prescriptive view by the Employment Tribunal. What the Employment Tribunal needed to do was to consider whether the employer was acting reasonably, looking at the matter in the round and looking at the employer’s record, to think that a final written warning that either had expired or was close to expiry added to an issue over sickness absence that the manager hearing the appeal, Mr Rickett, on the Employment Tribunal’s own finding (paragraph 67), “did not regard … as very serious in itself”
. If this were a matter at least one aspect of which was not very serious in itself and in respect of which a final written warning tipped the balance and apparently tipped the balance to the extent that this was regarded as a repudiatory breach of the contract of employment by the Appellant of such gravity that she was summarily dismissed, then it seems to me that the Employment Tribunal’s scrutiny of it falls arguably short of what ought to have been undertaken in terms of the band of reasonable responses.”[3]At paragraph 15 HHJ Hand QC said this:
“15. In my judgment, it is reasonably arguable with a prospect of success that the Employment Tribunal in paragraphs 67 to 69 did not adequately consider whether all of the factors relating to a breach of the absence procedure against the background of the employee’s record really did result in it being reasonable to regard this as conduct so serious as to warrant summary dismissal.”
[4]He concluded at paragraph 16 by saying this:
“16. Therefore, the only ground of appeal that can proceed to a Full Hearing, in my judgment, is that the Employment Tribunal had misdirected themselves as to the range of reasonable responses by themselves concluding that the final written warning was live at the time the offence was committed rather than asking themselves whether it was within the range of reasonable responses to dismiss in circumstances where the failing with regard to the medical certificate was not very serious in itself. The question is whether the Employment Tribunal [was], in effect, simply rubber-stamping what the Respondent had done in this case instead of critically considering the words of section 98(4) of the Employment Rights Act [ERA 1996] and whether there were circumstances that placed the dismissal outside of the range of reasonable responses. …”
[5]The ET at the beginning of its Judgment dealt with a number of preliminary points. The fourth preliminary point had been raised by Mr Soanes, who was representing the Respondent before the ET as he has done today. The ET recorded that Mr Soanes “by way of his duty to the Tribunal and to the Claimant as a litigant in person” raised the point that a claim for wrongful dismissal had not been pleaded in the claim and that if he had been representing the Claimant he would have applied to amend the claim to include it. He then made submissions to the ET that are recorded at paragraph 7 of the Decision, and the ET decided that it would not be just to include a claim for wrongful dismissal when the complaints had been identified at a Preliminary Hearing for case management at which the Claimant had been represented and where such claim had not been made.[6]In paragraph 10 of the Judgment the ET set out the issues that it had to decide in relation to the Claimant’s claim for unfair dismissal. At paragraph10.1 it said that one of the issues was, “What was the reason for the dismissal?” The burden, the ET said, was on the Respondent to establish the reason relied on, which in that case was a reason relating to conduct. At paragraph10.2 of the Judgment the ET went on to say that if the reason was established the next issue was whether the Respondent had acted reasonably in treating that reason as a reason for dismissing the Claimant. The ET then referred to the principles in the well known decision in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT, and it summarised the questions as follows:
“(1) Did the Respondent have a genuine belief based on reasonable grounds that the Claimant was [I think the word “guilty” is missing] of the misconduct concerned? (2) Did the Respondent carry out a reasonable investigation, including any questions as to the fairness and reasonableness of the procedure? (3) Was dismissal within the range of reasonable responses?”
[7]At paragraph 13 of the Judgment the ET set out in full and accurately the relevant provisions of section 98 ERA : that is, section 98(1) and section 98(4). The ET went on to say in paragraph 14 that it had already referred to the Burchell test and reminded itself at all stages of that test the question is whether the employer acted reasonably. The ET then said this:
“14. … The Tribunal must be careful not to be tempted to substitute its own decision for that of an employer that it has found to be acting reasonably. The Tribunal was also referred to Western [sic; Weston ] Recovery Services v Fisher [2010] [UKEAT/0062/10]. This authority holds that where there is a summary dismissal it would be an error for the Tribunal to ask whether the conduct concerned amounted to gross misconduct, in other words, that which would justify dismissal at common law. The statutory question is whether dismissal is within the range of reasonable responses, and the Tribunal should not concern itself with distinctions between summary dismissal and dismissal on notice.”
[8]In the light of the arguments that were developed on this appeal, that self direction, in my judgment, is a very important one.[9]Under the heading “Evidence and Findings of Fact” the ET summarised the evidence that it had heard and the findings of fact that it made on the basis of that evidence. The ET recorded that the Respondent’s business was to provide services including property and housekeeping, transport and security to a prominent Middle Eastern family. Members of that family and their guests used various properties in the United Kingdom, including properties in London and Newmarket, mostly during the summer months. Apparently, there were some 200 properties involved, and the Respondent employs about 400 permanent staff, a figure that nearly doubles, the ET said, with seasonal staff during the summer. The ET recorded that the Claimant had started as an agency worker in 2002 and had become a permanent employee in 2005.[10]In 2011 she had been allocated to a property at 14 Cheval Place in London, which was one of the principal properties that was visited more frequently by the family and the guests. The relevant housekeeping team including Ms Pilar Fleta, who was the housekeeping manager, and there were three housekeeping supervisors: Ms Joan Clarke, Ms Rhonda Neilson and Ms Susan O’Connor. The ET said that the Claimant was one of a number of housekeepers who worked in a team. She was managed by Ms O’Connor. The system was that the housekeepers reported to the office at the start of each shift. They entered, as the usual practice was, with a swipe card, which recorded their arrival time. The housekeeper would then collect the keys to the property where she was working and go to that property. Housekeepers were often allocated to a particular property for a long time, but they could be moved around from time to time. The supervisors worked from the office, and the system was that one of them had to be in the office from 8.00am every day. Every member of staff, the ET said, that the ET had heard about, had a work mobile phone. A point that became material, the ET recorded, was that there was no voicemail function on the office landline.[11]In 2011 there was an issue with the Claimant about a lost key. The ET recorded that there was no dispute that the key had gone missing. An investigation took place, and Ms O’Connor decided as an outcome of that investigation to write a letter of concern dated 11 October 2011 to the Claimant. This said that on that occasion the employer had decided not to proceed to a disciplinary hearing. The ET said this:
“20. … This evidently was, as the Tribunal finds, a relatively serious matter as the address of the property was attached to the key. It also shows, the Tribunal found, Ms O’Connor following the advice given by HR in respect of how to respond to the incident.”
[12]In 2012 another housekeeper raised a grievance against the Claimant. The allegations made in that grievance led Ms Fleta to decide that there should be an investigation of the Claimant under the Respondent’s disciplinary process. There was eventually a disciplinary hearing in connection with this, but before that happened, the Claimant being off sick, the Claimant had decided to return to work on 20 October 2012, which was a Saturday. On the Friday Ms O’Connor had asked her to work on the Saturday and the Sunday as the residents were arriving at the property on the Sunday. That meant that the Claimant would have to make childcare arrangements for the Sunday, and apparently if the residents arrived on Sunday they would give gifts to the housekeepers who were working there when they arrived. Ms Brimpong thought it was inappropriate for the Claimant to be working at the property when there was a disciplinary process pending in relation to that property. She told Ms O’Connor to tell the Claimant that she could not continue working there. Ms O’Connor thought that the Claimant would be angry about this, the ET said, and she was right. The Claimant would not accept this instruction from Ms O’Connor and wanted to be told it directly by HR. The Claimant called Ms Brimpong, saying that she wanted a letter from HR, and Ms Brimpong said that that was a housekeeping issue.[13]In the event, Ms O’Connor arranged for security personnel to attend on the Sunday as she thought there might be trouble. The Claimant arrived at the property and was not allowed in. At some point on the Sunday she phoned a client director, a Mr Mansouri, who reported that to Ms O’Connor on the Monday, 22 October. As a result of all this, Ms Brimpong decided that the Claimant should be suspended from work. There was a letter recording this, which the Tribunal saw. The ET accepted that the reason for the suspension was that stated by Ms Brimpong, namely that the Claimant had turned up at the property contrary to instructions and while standing outside the property had telephoned the director of the Respondent.[14]A further letter was sent to the Claimant on 26 October 2012 referring to additional disciplinary allegations. Those were failing to follow a reasonable instruction from Ms O’Connor and acting in a way that brought the company and the client into disrepute. The ET recorded in paragraph 29 that on 2 November 2012 there had been a disciplinary meeting chaired by a Mr Hardacre and that Mr Hardacre sent a letter dated 8 November to the Claimant recording the upshot of that meeting. He found that all of the allegations were upheld. The allegations as recorded by the ET were as follows:
“● Acting in a way towards Ms O’Connor which she perceived as threatening and intimidating. ● Continued lateness ● Unauthorised use of the company phone ● Failure to follow company procedures and policies ● Failing to follow a reasonable instruction from Ms O’Connor ● Acting in a way which brought the company into disrepute”
[15]The ET recorded that Mr Hardacre’s evidence had been that he had considered whether to dismiss the Claimant at that stage but that he had concluded on 8 November 2012 that a written warning would be enough. The ET said that it accepted his evidence as to his thought process. It was put to him that this had been a set-up or had been led by the Respondent’s HR department, and the ET specifically said that it rejected that suggestion. The ET said that the Claimant had undoubtedly used the telephone and had refused to accept the instruction not to attend on the Sunday. She had undoubtedly telephoned Mr Mansouri. The Tribunal, it said, was satisfied that Mr Hardacre had made the decision that he made in good faith. The Claimant appealed against that, and the appeal was heard by Mr Rickett on 16 January 2013. He upheld the final written warning.[16]In July 2013 the Claimant asked for leave to look after her son, who was seriously ill. The ET said that in the first instance the Claimant’s absence was treated as unauthorised in respect of a particular period, but subsequently the period in question was allowed as parental leave. The ET went on to record that there had been an issue in relation to 22 July 2013 and whether or not a particular conversation had taken place between Ms Fleta and the Claimant. The Claimant’s case had been that she did not remember such a conversation. Mr Rickett had said that, in the course of a later appeal, he had confirmed it with Caroline Cook, who said that she was present and that she had witnesses who witnessed this conversation. The Tribunal said that the Claimant’s argument that Ms Cook had not been present for such a conversation was, the Tribunal thought, difficult to reconcile with her lack of recollection of it. The Tribunal then said in paragraph 36 that there was a letter of 5 August 2013 in which Ms Fleta said that she was recording details of the conversation that had taken place on 22 July. This referred to concerns about absence reporting and said that the Claimant had not followed the correct procedure. There was then a reference to a second point, which was the use of the access swipe card, and the letter recorded that on 29 July the Claimant had failed to bring her card to work. The letter concluded that the Claimant should always use the swipe card in order to gain access to the office. At paragraph 37 the Tribunal said this:
“37. Later, as will be explained, the Claimant agreed that the second part of the conversation had taken place, although she continued to dispute the first part. The Tribunal accepts that the letter correctly records the conversation on 22 July. As Mr Rickett said, it would be surprising if Ms Fleta had invented a conversation about absence reporting before that became an issue in the disciplinary process that led to the Claimant’s dismissal.”
[17]The ET then discussed events on 29 August. On that day the Claimant was signed off sick by way of a medical certificate. That certificate covered the period to 22 September 2013, which was a Sunday. The Respondent was expecting the Claimant to return to work on Monday 23 September unless they heard otherwise. The ET then referred to the Respondent’s absence reporting procedure. The ET said, in short, that this was not expressed in very clear language:
“40. … That, it seemed to the Tribunal, was somewhat difficult to interpret in detail. That said, the overall point is clear, and that is that there is a requirement for an employee to report if they are not going to be at work, and as her subsequent explanations demonstrated, the Claimant knew that she should inform her employers if she was going to be absent.”
[18]The ET said that the Claimant did not have a medical certificate covering 23 September and she did not speak to anyone on that day. She did speak to Ms Rockwood on 24 September and said then that she was still unwell. She stayed off work then and obtained another medical certificate covering the period from 27 September to 11 October, which the Respondent received on 4 October. The Claimant returned to work on 14 October.[19]On 18 October the Claimant was invited to an investigation meeting to consider three allegations. It was only necessary for the ET to refer to two of those. The first was an allegation that between 23 and 26 September the Claimant had been absent from work and had failed to provide a medical certificate for that period. The second was that he Claimant had failed to follow the correct procedure for reporting an absence, did not respond to the correct procedure for absence, and did not respond to a request from HR or line management about the reason for her absence. At paragraph 43 of the Judgment the ET referred to an investigation meeting on 25 October 2013, which had been conducted by Ms Neilson with Ms Potter present as the HR representative. The ET recorded from the notes of the meeting the exchanges that had occurred at that meeting, and those exchanges concerned whether - and, if so, when - the Claimant had been in touch with her employers. There was a difference of dates, but Ms Neilson said that Ms Rockwood had said that the Claimant did not call and that she had tried to call and left the Claimant a message. The Claimant said that she did not receive any messages. The Respondent then obtained a statement from Ms Rockwood. The ET recorded that this statement included some anomalies about the dates, and at the end of paragraph 44 they said this:
“44. … Although there is an anomaly about the dates, it appeared that Ms Rockwood was saying that she had called the Claimant on Monday and had left a message, and that she had then received a call from the Claimant on the Tuesday.”
[20]Ms Potter recommended that a disciplinary process should be conducted, and on 30 October 2013 a letter was sent to the Claimant inviting her to a hearing to be chaired by Ms Cook. The disciplinary meeting in fact took place on 5 November 2013, and it was chaired by Ms Cook. The ET recorded that they had heard no evidence from Ms Cook because she was no longer employed by the Respondent, having herself been dismissed for gross misconduct. The ET said that the notes of the meeting showed that Ms Cook had asked the Claimant why she did not return to work on 23 September and that she had referred to what Ms Rockwood had said in her statement that the Claimant had told her that she believed that her certificate had been valid until 29 September. The Claimant’s reply, as recorded in the notes, was:
“I wasn’t well. I had been taking sleeping tablets and was suffering from dizziness. I wasn’t well enough to get up and go to work. I didn’t want to get up and go to work and then fall down sick.”
[21]Ms Cook was recorded as asking whether the Claimant knew the date that the certificate had run out, and the Claimant had replied that she did. Ms Potter pointed out that Ms Rockwood had said that he Claimant had told her that she thought that the medical certificate expired on 29 September. The Claimant said that that was not what she said. A little later Ms Cook was recorded in the notes as referring to the Claimant’s failure to contact the Respondent on 23 September and said that Ms Rockwood had said that she had left a message for the Claimant. The Claimant had said that it was not possible to leave a message on the phones. The ET said:
“47. … As we have recorded, that was accepted in relation to the landline, although not in relation to the mobile phones.”
[22]The notes also recorded that the Claimant had said that she had called on 22 September, she said, “Yes, I called Charmian to tell her that I still wasn’t feeling well but she did not pick up the phone”. Ms Cook is then recorded as asking “did you leave a message”, and the Claimant as saying, “No”. When Ms Potter asked “why not” the Claimant said “because I was intending on calling her back but I didn’t get round to it because I wasn’t feeling well”.[23]The ET recorded in paragraph 50 that various other matters had occurred in the course of the disciplinary meeting and that the Claimant had denied having had a conversation with Ms Fleta on 22 July about the absence reporting procedure and had denied receiving the letter of 5 August. The ET recorded at the end of that paragraph that it was apparent that, whatever the obscurities of the terms of the reporting procedure, the Claimant knew what was required of her. The notes, the ET said, recorded that Ms Cook referred to the final written warning that had been imposed in the November and that she had asked what steps the Claimant had taken since then to improve her conduct. The Claimant is recorded as replying:
“I haven't done anything wrong, I didn’t do anything wrong then and I haven't done anything wrong now.”
[24]Ms Cook then referred to events in 2012, and the Claimant is recorded as replying, “I never did anything wrong. Everyone had their own opinion”.[25]At paragraph 52 of the Decision the ET recorded evidence about the mobile phone log. This showed that Ms Rockwood had tried to call the Claimant three times on 23 September, that the Claimant had called on 24 September and that the Claimant had been asked about the telephone numbers. The Claimant had said that sometimes she used her child’s phone, and Ms Cook was then recorded as asking:
“If Charmaine called you on that number you have to say you were contactable on that number are you happy to say that.”
[26]The Claimant is recorded as replying, “Yes”. The ET summarised that evidence in this way:
“52. … In other words, the Claimant confirmed that this was a number on which she could have been contacted at the time. Although at the hearing before the Tribunal the Claimant disputed that this was her number, the Tribunal concluded that it was one that was available to her, that being what she told the disciplinary hearing at the relevant time.”
[27]The ET referred to the fact that the disciplinary meeting had been reconvened on 12 November 2013 and Ms Cook had then announced her decision that the Claimant would be summarily dismissed. That, the ET said, was confirmed by a letter of the same date, and that letter included two findings:(1) that the Claimant was absent from work from 23 to 26 September but had not provided a medical certificate for that period; and(2) that the Claimant had failed to follow the correct procedure for reporting absence and did not respond to a request from HR or from line management about the reasons for her absence. The dismissal letter referred to a right of appeal. I have not seen the dismissal letter, but I am told that it did not refer to the letter of concern that had been sent to the Claimant but only to the final written warning.[28]The Claimant did appeal, and at paragraph 56 the ET referred to the evidence on the appeal about the phonecalls. The ET summarised the evidence in this way:
“57. Pausing there, and without going through a detailed analysis of what the Claimant was saying, it was apparent to the Tribunal that her explanations at the original disciplinary hearing and at the appeal hearing differed in relation to what efforts she made to make a call and why it was that she had not made contact with Ms Rockwood.”
[29]The ET then said that there had been a discussion at the appeal about the sending of the medical certificate and a discussion about the conversation of 22 July with Ms Fleta. The Claimant said that she had no recollection of discussing her absence. The ET then said this:
“58. … Ms Aslett then asked how the Claimant would ensure that she followed procedures and read letters in future, saying, “how would these things change?”
The Claimant replied:, “I do follow procedures. There were just certain things that I overlooked. There isn’t much that I can say. Most of these allegations are nothing to do with me. They have just been building up over time. I have worked for this company for many years and I have never been in this sort of trouble up until the disciplinary. I don’t really know what is going on.” ”[30]Mr Rickett decided to uphold the decision to dismiss the Claimant, and he told the Claimant this in a letter dated 16 December 2013. Again, I have not seen this letter, but I am told that it referred not only to the final written warning but to the letter of concern that had been written earlier in 2013.[31]Under the heading “Conclusions” the ET considered first of all the Claimant’s allegation that she had been discriminated against on the grounds of her race. At paragraph 64 in the context of that discussion the ET said this:
“64. Furthermore, and importantly, the Tribunal found that the reason given for the decision to dismiss the Claimant was logical and understandable. The Claimant had been given a final written warning which, although not related to absence, arose in part from a failure to follow procedures. While that warning was current, she had been warned in July 2013 about her failure to follow the absence reporting procedure. The Claimant had then again failed to inform the Respondent when her absence extended beyond the terms of her medical certificate. She had given inconsistent accounts of the incident in the course of the disciplinary process and ultimately maintained that she had done nothing wrong. The Tribunal found it unsurprising that the Respondents [sic] decided to dismiss the Claimant in the circumstances. …”
[32]I should quote paragraphs 66 to 69 directly:
“66. Turning to the complaint of unfair dismissal, for essentially the same reasons the Tribunal was satisfied that the Respondents [sic] had proved the reason for the dismissal, and that this was the potentially fair reason of a reason related to conduct. 67. The Tribunal then considered the Burchell test. For the reasons already given, the Tribunal found that Ms Cook and Mr Rickett had a genuine belief, based on reasonable grounds, that the Claimant had committed the relevant conduct. Although Mr Rickett did not regard the failing with regard to the medical certificate as very serious in itself, there was no doubt that the Claimant had failed to inform the Respondents [sic] of her absence.”
These two parts of the Reasons refer back to the two reasons that the ET identified firstly in paragraph 42 by reference to the disciplinary process and in paragraph 53 by reference to the dismissal letter. The ET went on:
“68. The Tribunal was not referred to any procedural failings or defects in the investigation as such, nor could it detect any such failings. The Respondents [sic] obtained evidence from Ms Rockwell [sic], and the phone records that supported it. The Claimant was given opportunities to explain her position and exercised the right of appeal. 69. Finally on this aspect, the Tribunal found that dismissal was within the range of reasonable responses. The Claimant was subject to a final written warning when she committed the conduct concerned. The Tribunal [I think the word “found” is missing] that this was the relevant date to consider for this purpose, rather than the date on which the decision was made. The Claimant’s case about why she had not made contact was weak, being that she had made one unsuccessful attempt at speaking to someone and had then fallen asleep.”
[33]The ET then went on to deal with the allegations of her race, and at paragraph 73 concluded that the complaints of unfair dismissal and discrimination because of race were therefore dismissed.[34]Apart from the well known decisions to which the ET referred in its Judgment, the parties have referred me to five cases. The first of those is the decision of this Tribunal in Iceland Frozen Foods Ltd v Jones [1982] UKEAT/62/82, [1983] ICR 17 . This is a very well known early authority about the law of unfair dismissal. Browne-Wilkinson J, as he then was, summarised the then-current state of the law in five propositions:
“(1) the starting point should always be the words of section 57(3) themselves [that is, the predecessor provision to section 98(4)]; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many (though not all) cases there is a “band of reasonable responses” to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”
[35]This Tribunal went on to say in the next paragraph that a statement of the law in a case called Vickers Ltd v Smith [1977] IRLR 11 EAT was capable of being misunderstood:
“… so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section. That is how the industrial tribunal in the present case seem to have read Vickers v Smith . That is not the law. The question in each case is whether the industrial tribunal considers the employer’s conduct to fall within a band of reasonable responses and industrial tribunals would be well advised to follow the formulation of the principle [in two other cases Browne-Wilkinson J referred to].”
[36]The second decision to which I have been referred is another decision of this Tribunal, in Fisher . At paragraph 11 of that decision this Tribunal noted that the ET in that case had appeared to have accepted that the employer genuinely believed on reasonable grounds following a reasonable investigation that the Claimant was guilty of the misconduct that had been alleged and that dismissal for that misconduct fell within the range of reasonable responses. There was no finding of procedural unfairness, and it had not been suggested that the employer had failed to follow any relevant procedure. This Tribunal then asked:
“11. … How then did the Tribunal reach the conclusion that the dismissal was unfair under, presumably, section 98(4)?”
[37]At paragraph 12 this Tribunal went on to say:
“12. We think that the Tribunal fell into error in taking the view that because, in their judgment, the conduct in question did not amount to gross misconduct, that is, conduct justifying summary dismissal at common law, the dismissal was statutorily unfair.”
[38]This Tribunal went on to refer to a statement by Phillips J in Redbridge London Borough Council v Fishman [1978] ICR 569 EAT at page 574C. He said:
“… Many dismissals are unfair although the employer is contractually entitled to dismiss the employee. Contrariwise, some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee. …”
[39]This Tribunal then said that applying that law to the facts as found by the ET in that case that case fell into the latter category. This Tribunal then said:
“15. … Section 98 is, so far as is material, concerned with the sufficiency of the conduct reason for dismissal. It is not concerned with the common law concept of gross misconduct, that is, conduct by the employee amounting to a repudiatory breach of the contract of employment entitling the employer to terminate the contract without notice of pay in lieu of notice.”
[40]I was also referred by Mr Soanes to the decision of this Tribunal in Wincanton Group plc v Stone [2012] UKEAT/0011/12. In that decision, among other things, the former President, Langstaff J, dealt with the relevance of a final warning to the consideration of the dismissal mandated by section 98(4) ERA 1996 . At paragraph 37 he said this:
“37. We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning. A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98(4), applies. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer’s act in treating the conduct as a reason for the dismissal. If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. …”
[41]I pause there to say that it is clear from the ET’s reasoning in this case that the earlier warning was not invalid in that sense. In Wincanton this Tribunal went on to say that where the earlier warning was valid then:
“(1) The Tribunal should take into account the fact of that warning. … (6) A Tribunal must always remember that it is the employer’s act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually will be met with dismissal, and it is likely to be by way of exception that that will not occur.”
[42]Mr Ogilvy referred me to the decision of the extra division of the Inner House of the Court of Session in Diosynth Ltd v Thomson [2006] CSIH 5 . When I pointed out to him that that decision concerned a case in which the warning in question had expired before the relevant acts of misconduct took place (see paragraph 27 of that case), Mr Ogilvy did not refer me to any particular passage in the decision. I note that Diosynth was distinguished by the Court of Appeal of England and Wales in Airbus UK Ltd v Webb [2008] EWCA Civ 49 ; [2008] ICR 561 . I need do no more than to read the headnote of Airbus , which says:
“ Held , allowing the appeal, that an employer’s dismissal of an employee for misconduct could be fair, within section 98 of the [ERA], even though the employer, in his response to the reason for dismissal, took account of previous misconduct which had been the subject of an expired final warning; that the previous misconduct, the fact that a final warning had been given in respect of it and that the final warning had expired when the later misconduct occurred were all objective circumstances to be considered relevant to whether the employer’s actions were reasonable or not and, within the broad terms of subsection (4), went to the equity, merits and fairness of the particular case; that the claimant’s subsequent misconduct on its own was shown by the employer to have been the reason, or principal reason, for his dismissal and not the expired final warning or earlier misconduct … which were relevant only to the reasonableness of the employer’s response to dismiss following the subsequent misconduct; and that, furthermore, the claimant was not treated differently from the other four other employees …”
[43]The following six propositions can be deduced from those authorities. First, the starting point is the express words of section 98(4) ERA 1996 . Second, the question posed by section 98(4) is not whether the employee has been guilty of gross misconduct. Third, it follows that a finding of gross misconduct is not a precondition to a finding that a dismissal is not unfair. Fourth, the question is whether the employer’s conduct falls within the band of reasonable responses to such conduct. Fifth, a final warning is relevant to that enquiry. Sixth, if there is a final warning that is current under the terms of the employee’s contract of employment, it is only in exceptional circumstances that further misconduct will not be met with dismissal.[44]Mr Ogilvy’s main submission was to rely heavily on the decision of HHJ Hand QC made on the Rule 3(10) application. In his decision on that application HHJ Hand QC expressed a provisional view that the Respondent had a reasonable argument with a prospect of success on the point that HHJ Hand QC let through as a result of the Rule 3(10) Hearing. The Respondent, of course, was not present at that hearing. Mr Ogilvy came close to submitting that I was bound by the decision of HHJ Hand QC that this point was an arguable point to conclude that the appeal succeeded. I reject that submission.[45]Mr Ogilvy submitted, secondly, that the dismissal fell outside the band of reasonable responses. His submissions, in my judgment, came close to, if not actually being, an invitation for me to substitute my view of what the right decision was for the view taken by the ET. He did not submit that no reasonable ET properly directing itself in law could have come to the conclusion that dismissal fell outside the band of reasonable responses. The submission as formulated does not, in my judgment, disclose a ground of appeal.[46]Mr Ogilvy’s third submission was that the conduct to which the decision to dismiss was a response did not appear to be serious enough to warrant dismissal because if there had been no final warning dismissal would not have been within the range of reasonable responses. As Mr Soanes pointed out in his submissions, that argument does not fall within the scope of the grant of permission to appeal on the Rule 3(10) Hearing, but in any event, in my judgment, the submission goes nowhere, because this was a case in which there had been the conduct that led to the decision to dismiss and there was a current final warning that was still in force. Further, it is clear from the headnote of Airbus, to which I have referred, that even a final warning that is no longer current under the terms of the contract can be a relevant consideration when the ET comes to consider whether dismissal falls within the range of reasonable responses; a fortiori , if the final warning is still current under the terms of the contract when the conduct to which the dismissal as a response occurs, it seems to me that dismissal is capable of being within the range of reasonable responses.[47]Mr Ogilvy’s fourth submission was based, in my judgment, on a misreading of the decision of this Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust [2013] UKEAT/ 0358/12/BA. The submission was that an ET is bound in every case to consider whether or not the conduct for which the employee is dismissed is gross misconduct or not. I reject that submission. It is inconsistent with the express language of section 98(4) and is inconsistent with the authorities to which Mr Soanes referred me, notably the decision in Fisher . Furthermore, the submission is contradicted by the express language of HHJ Eady QC in another case to which Mr Ogilvy referred me, Burdett v Aviva Employment Services Ltd [2014] UKEAT/0439/13/JOJ. At paragraph 28 of that decision HHJ Eady QC said this:
“28. In a claim of unfair dismissal, the starting point is section 98 of the [ERA]. Relevantly, at section 98(2)(b), a dismissal is capable of being fair if for a reason which “relates to the conduct of the employee”
. The reference to conduct is in general terms. The conduct in question does not have to amount to gross misconduct, although that is how the ET characterised the nature of the conduct in this case.”[48]Remarkably, Mr Ogilvy persisted in making this submission in his reply, despite the submissions advanced by Mr Soanes orally, based on the decision of this Tribunal in Fisher .[49]Mr Ogilvy’s fifth submission was that the ET was required to weigh up the employee’s conduct. I agree up to a point, but that is precisely what the ET did do in its Decision as a whole. Paragraphs 67 to 69 do not purport to be, nor could they be, a history of all of the conduct that was relevant to the exercise that the ET was conducting in paragraphs 67 to 69. Those paragraphs, rather, are a summary of the ET’s conclusions based on the history that it had set out in significant detail in the previous paragraphs of its Judgment. The ET was in no doubt itself about Mr Rickett’s nuanced view about the gravity of the September conduct, but equally the ET was in no doubt, as is clear from paragraphs 66 to 69 but also importantly from paragraph 64, which is incorporated in paragraphs 66 to 69 by the language “for essentially the same reasons”, that that conduct had to be seen against the background of the employee’s previous conduct.[50]The sixth submission that Mr Ogilvy made I have already alluded to. It was a reference to the Scottish decision in Diosynth , but it was a submission that was not developed.[51]His seventh point was that the ET had not “properly carried out a fair balancing exercise”. That submission does not disclose an error of law by the ET; rather it is a further invitation to me to conduct a factual assessment, which is the sole province of the ET. I reject that submission.[52]Finally, Mr Ogilvy attempted to persuade me that the ET had erred by not taking into account relevant mitigation. Mr Ogilvy had no permission to argue that point on behalf of the Claimant, and I reject it.[53]It therefore follows that I must dismiss this appeal.