Elston v Robbie’s Photographic Ltd & Anor (UNFAIR DISMISSAL – Polkey deduction) [2019] UKEAT 0282_18_0705

EAT
Elston v Robbie’s Photographic Ltd & Anor (UNFAIR DISMISSAL – Polkey deduction)
[2019] UKEAT 0282_18_0705 · 2019-05-07
[12]“ … It is not on the employer’s assessment of how wrongful that act was; the answer depends on what the employee actually did or failed to do, which is a matter of fact for the Employment Tribunal to establish and which, once established, it is for the employment tribunal to establish and which once established, it is for the employment tribunal to evaluate. The Tribunal is not constrained in the least when doing so by the employer’s view of wrongfulness of the conduct. It is the Tribunal’s view alone which matters.” 39. Determining whether a Claimant’s conduct should lead to a reduction in compensation for these purposes, it is first necessary for the ET to find that the Claimant was in some way culpable or blameworthy, see Nelson v BBC (No. 2) [1980] ICR 110 CA, p 121, where Brandon LJ provided the following guidance as to what might constitute blameworthy conduct for these purposes:
“The concept does not, in my view, certainly involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct, which while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody minded. It may also include action which, though not meriting any of those more pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go so far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend on the degree of unreasonableness involved.” 40. As the EAT made clear in Steen , the assessment of contributory fault, both as to the finding of contributory conduct and as to the determination of the amount of any reduction, is for the ET (see Hollier v Plysu [1983] IRLR 260, CA) and its reasoning in that regard is to be read in the round, avoiding any pernickety criticism (see per Richardson J in Feltham Management Ltd v Feltham UKEAT/0201/16 at paragraphs 55 to 59). 41. Lastly, but importantly, where an appeal against the decision of the ET is pursued on the basis of a perversity challenge, there is a high threshold. There must be an overwhelming case that no reasonable Tribunal, on a proper appreciation of the evidence could have reached the decision in question (see Yeboah v Crofton [2002] IRLR 634 ). The Appeal and the Claimant’s Submissions in Support 42. The Claimant’s appeal has been pursued on five grounds, albeit that, for the purposes of this hearing, she has taken grounds one and two together - both relating to the ET’s finding that the dismissal was substantively fair, the finding that forms the basis for the ET’s Polkey reduction. Similarly, grounds three and four have been taken together - both relate to the ET’s Decision to make a further 80% contributory fault reduction. Ground five concerns the Claimant’s complaint relating to the ET’s finding on victimisation. 43. On the first and second grounds, it is the Claimant’s case that, save for its finding on the wrongful dismissal claim, the ET failed to reach any determination as to the seriousness of her conduct. By ground one, she complains that in determining that her dismissal was not substantively unfair, the ET erred by taking into account an irrelevant factor, namely her failure to pull together with the rest of the staff in respect of the financial difficulties, (paragraph 95). That was not the reason given in the dismissal letter, or relied on by the First Respondent in the ET3 or in argument before the ET, and it had not been identified in the list of issues, meaning there was an error for the ET to consider it (see per Langstaff J at paragraph 51 Land Rover v Short UKEAT/0496/10 and at paragraph 70 in Chandhok v Tirkey [2015] IRLR 195 ); it was not for the ET to conduct a broad assessment of the Claimant’s conduct outside the Respondents’ pleaded case. In any event, any failure of a Claimant’s part to pull together in respect of the financial difficulties could not amount to misconduct and the focus of section 98 had to be on the reason for dismissal (here, the alleged gross misconduct). By ground two, the Claimant contends that the ET also erred by failing to reach its own decision as to the fairness of the dismissal: the test was not whether the First Respondent reasonably considered the conduct to be gross misconduct - it was not for the employer to be the final arbiter of its own conduct in dismissing the employee (see Bowater at paragraph 18) - it was ultimately for the ET decide (see Burdett v Aviva at paragraphs 29 to 30). The ET ought properly to have first determined whether the conduct in issue was sufficient reason for the Claimant’s summary dismissal and then considered whether the First Respondent acted reasonably, in accordance with the substantial merits and equity of the case; it being a rare case where conduct that was insufficiently serious to amount to gross misconduct would warrant dismissal, see per Bean LJ at paragraph 61 Newfound v Thames Water Utilities Ltd [2015] IRLR 734 . 44. By grounds three and four, the Claimant turns to the ET’s finding on contributory fault, contending that it failed to provide adequate reasons in this regard. In general terms, employment litigation would be impossible if employees were not entitled to relay information that would otherwise be confidential to their solicitors; given that solicitors were bound by duties of confidentiality, there could not properly be said to amount to a breach of confidence. Given its findings in the context of the wrongful dismissal claim (that the Claimant had copied the invoices in a very specific context and had then disclosed them to a professional with their own duty of confidence), the ET needed to explain why this was found to be blameworthy conduct (see Nelson v BBC (No.2) ). Additionally, the ET needed to further explain why it determined that any reduction should be assessed at 80%. In the alternative, the ET’s finding of contributory fault and/or finding that the reduction should be as much as 80% was perverse. 45. By ground 5, in relation to the claim of victimisation, the Claimant complained that, having found (i) that her actions in copying the invoices to her solicitor amounted to a protected act, and (ii) that she had been dismissed for doing so, it was perverse of the ET to dismiss the Claimant’s victimisation claim. The Respondents’ Submissions in Response 46. In general terms, the Respondents contend that the Claimant is taking an overly pernickety view of the ET’s reasoning, contrary to the guidance laid down in RSPB v Crouch . 47. Turning to the first ground of appeal - the objection that the ET took into account an irrelevant consideration - the Respondents say the Claimant is misreading the ET’s finding in this regard: it was not finding that this was the principal reason for the dismissal, or even an act of misconduct in itself, it was, however, part of the context, as was the loss of trust in the Claimant. The Respondents’ pleadings and evidence before the ET provided a sufficient basis for such a finding. The principal reason for the dismissal was as set out at paragraph 95 of the ET’s Judgment, but the ET did not err in also assessing context (and see Bowater at paragraphs 11 to 12). In any event, even if this was an inappropriate finding, it did not vitiate the conclusion reached ( Jones v Mid Glamorgan CC [1977] ICR 815 at 826 (c) to (e)). 48. As for ground two – relating to what was said to have been the ET’s failure to reach its own decision regarding fairness – it was apparent that the ET had correctly directed itself as to the correct test and the need to question if the conduct was reasonably capable of amounting to gross misconduct (per Burdett v Aviva ); degrees of misconduct were not a feature of section 98 (see Quintiles v Barongo ) and even if the Claimant succeeded on this ground it was hard to see how the ET’s finding that she might, in any event, have been fairly dismissed could be challenged as a result – the assessment of that question was for the ET. 49. Turning to grounds three and four, and the argument that the ET’s finding on contributory fault were inadequately reasoned, it was wrong to consider paragraph 100 of the ET’s Judgment in isolation. The ET had itself cross-referred to paragraphs 103 to 104 and its finding that the Claimant should not have copied and sent invoices to her solicitor; it was entitled to find that conduct was blameworthy and there was adequate explanation for that finding. Moreover, contrary to ground four, there was nothing perverse in the ET’s finding the Claimant’s challenge did not meet the high test required (see Yeboah v Crofton ). The ET had paid careful regard to the Claimant’s conduct and had been entitled to find that this was blameworthy, given that she had disclosed invoices when she should not have done. 50. As to ground five – relating to the victimisation claim - this was also put as a perversity challenge but, in truth, the Claimant was seeking to re-argue the distinction between act and manner of act (see Martin v Devonshires ). The ET had permissibly concluded the dismissal was not in response to the doing of a protected act but some feature of it that was entirely separable. The issue was whether the EqA element was an operative cause and the answer was that it was not: it was not the protected acts but the Claimant’s conduct in copying and sending the invoices that was the reason for the dismissal. In this regard, it was significant that, at paragraph 93, the ET had found the reason for dismissal was the Claimant’s conduct in copying, and then sending to her solicitor, copies of the invoices. The Respondents’ submission as follows: “… Rather than go through appropriate channels and, following same, the Claimant chose to take matters into her own hands. She clandestinely took photographs of confidential invoices from a self-employer contractor. She had no legitimate business reason to be looking at these. She admitted to this conduct. Based on the facts, information, and evidence obtained during its investigation, the company was accordingly entitled to summarily dismiss her. Its actions were within the band of reasonable responses available to an employer in the circumstances and taking into account the size and administrative resources available to the Respondents.”
It was apparent that the ET had this in mind; the language that it had used had also focussed on the Claimant’s copying of the invoices, which was not part of the protected act found by the ET. If the Respondents had reached the decision in question for reason that was severable from the protected act that was not victimisation. That was what the ET had found here. Discussion and Conclusions 51. In order to address the issues raised by this appeal, it is necessary to start by looking again at the ET’s findings as to the reason for the Claimant’s dismissal. In considering her complaint of victimisation, the ET stated its conclusion that this was not because she, “ ...had done any of the protected acts or even that they had a significant influence on those outcomes .” To the extent that the protected acts had motivated the Second Respondent’s reasoning at all, the ET apparently found that it was only her desire to “ go legal ” that had caused the Second Respondent disappointment, in the context of their previous friendship and, “ her failure, as he saw it, to co-operate with him to tackle the financial difficulties he was facing” (see paragraph 89). 52. Although the ET did not expressly explain how it approached its task under section 136 EqA , it would seem that it assumed that the burden had shifted to the Respondents but found that they had established that the dismissal was by no means related to the Claimant’s protected acts. 53. Turning to the Claimant’s complaint of unfair dismissal, in contrast with its approach to the question of victimisation, on this claim the ET started not by looking at what had not influenced the First Respondent’s decision but focussed on what had been in the relevant decision-takers’ minds at the time the decision was taken, concluding that was, “ her conduct in copying and then sending to her solicitor copies of the invoices .” 54. Placing that finding back into the framework of the ET’s reasoning on victimisation, an obvious problem arises. The ET had defined the protected act as the Claimant’s sending of the invoices to her solicitor (paragraph 86). In then finding that the same act was at least part of the reason, or the principal reason, for unfair dismissal purposes, an obvious question arises as to why the ET then concluded that in no way tainted that decision for the purposes of the victimisation claim. 55. The Respondents say the ET’s findings as to the reason for unfair dismissal purposes must be read holistically: in considering the fairness of the dismissal, the ET went on to put this in context – it was part of the loss of trust and the Claimant’s failure to pull together with the rest of the staff in respect of financial difficulties (paragraph 95). Where the detriment in question (here, the dismissal) related to the means by which a protected act is carried out, it may well be that it is not the protected act itself that is the issue (see Martin v Devonshires ); in the present case, the ET had expressly accepted the Respondents’ case, which demonstrated that the real issue was the Claimant’s failure to follow internal procedures and to, instead, copy confidential information and send that to a third party and that was separable from the more limited protected act of simply sending copies of the invoices to her solicitor. 56. There are, however, numerous difficulties for the Respondents in this respect. First, the ET did not express its reasoning in Martin v Devonshires terms. I am told that it was referred to the earlier case law, consistent with Martin v Devonshires , but, as Mr Large has fairly accepted, the ET’s reasoning makes no reference to this. The Respondents say this is something that can be implied, but if the ET had found the manner in which the Claimant acted was properly separable from the protected act, it would have been reasonable to expect its decision to make that clear; it does not. Second, even if one looks at the further finding - made for the purpose of the unfair dismissal claim - or imports into the reasoning at paragraph 93 the wider objections raised by the Respondents (which would have included the copying of the invoices, not merely the sending of those invoices to the solicitor), that would not detract from the ET’s finding that the reason for the dismissal was, at least in part, for the same conduct that the ET had found amounted to a protected act for section 27 EqA purposes (that is, the sending of the invoices to the Claimant’s solicitor). Third, and more specifically, when considering the victimisation claim, the ET had not found that the view that the Claimant had failed to cooperate to tackle the Respondents’ financial difficulties was untainted by her protected acts. On the contrary, the ET expressly found that the Second Respondent’s disappointment in the Claimant in this regard related to her decision to “ go legal” . Ultimately, whichever way one looks at the ET’s findings on the reason for dismissal, it is thus impossible to escape from the link to the protected act. 57. It is right to observe that any Appellant before the EAT faces a high threshold in seeking to establish a perversity challenge. That will particularly be the case where the challenge relates to an assessment carried out by the ET - as the first instance Tribunal of fact - in determining what was the real reason for a particular decision taken by the employer. Here, however, the Claimant’s challenge arises squarely from the ET’s own finding on reason for the purposes of the unfair dismissal claim. The ET had the advantage of hearing from the relevant decision‑takers (the Second Respondent and Mr Leslie) and it determined that the facts and beliefs in their minds, at the relevant time, included the sending of the copies of the invoices to the Claimant’s solicitor and (albeit not the principal factor weighing on their minds) the Claimant’s failure to demonstrate support in a time of real financial difficulty (a failure that was also found by the ET to be related to the protected act - the Claimant “ going legal ”). On its own findings, it was thus simply inconsistent for the ET to find that the Claimant’s protected act played no part in the decision to dismiss; on those findings of fact, no reasonable ET, with a proper appreciation of the law, could have reached the conclusion that this had not been a material influence in the decision. 58. I turn then to the Claimant’s grounds of challenge to the ET’s findings on the unfair dismissal claim. 59. The first relates to the decision that there should be a Polkey reduction of 80% on the basis that, had a fair appeal procedure been followed, there was only a 20% chance that there would have been an outcome other than dismissal. As the Claimant’s grounds acknowledge, this conclusion arose from the ET’s earlier finding that the decision to dismiss the Claimant, although she had not been guilty of gross misconduct, fell within the band of reasonable responses; that is, as it is sometimes described, that it was substantively fair. The ET explained its conclusion in this regard at paragraph 95 of its reasoning. It first rejected the Respondents’ assessment of the Claimant’s conduct as gross misconduct but, having found that it still amounted to misconduct, the ET did not consider it could find that the decision to dismiss fell outside of the range of reasonable responses. In reaching that conclusion, the ET specifically had regard to the context - from the Respondent’s perspective - and what was described as the loss of trust and the Claimant’s perceived failure to pull together with other staff given the First Respondent’s financial difficulties. For completeness, I should say that I do not find that, in making these findings, the ET thereby went beyond the pleaded case it had to determine; its reasoning in relation to those matters makes clear that it was permissibly having regard to the broader context. 60. The assessment of fairness is, of course, very much for the ET – indeed, it is tantamount to a finding of fact. The question of reasonableness, however, imports an element of objectivity; an ET does not simply defer to the employer in this regard. And it is apparent in this case that the ET considered the context of a Claimant’s conduct - the sending of the invoices to a solicitor, who had their own obligation of confidentiality, and with a specific issue in mind - to be relevant to the assessment of the seriousness of that conduct for the purposes of determining whether it amounted to gross misconduct. There is, however, no indication that the ET then had regard to that context in determining the seriousness of the Claimant’s conduct more generally for section 98(4) purposes. That was a relevant consideration and it was part of the circumstances that the ET was bound to consider. More particularly, the determination of reasonableness for section 98(4) purposes requires the ET to have regard to the reason shown by the employer. In this case, however, the reason had a context: the Claimant was seeking her solicitor’s advice and assistance in her grievance and needed to show her adviser the documents she had seen. In that context, did the decision to dismiss still fall within the bound of reasonable responses? It is possible that an ET might find that it did, or, at least, that there was a percentage chance that it would have done (perhaps for the wider reasons set out in the Respondents’ response) but I am unable to see that the ET had regard to this relevant context when making its assessment of reasonableness in this case. That being so, I agree with the Claimant that the ET’s finding under Polkey is rendered unsafe. 61. Similarly, when turning to the ET’s finding of contributory fault, while I can see that it might have been open to an ET to find that the Claimant had been blameworthy in copying the invoices, that is not how the ET chose to express its finding of contributory conduct. Instead, the ET focussed on the Claimant’s disclosure of the invoices to her solicitor. Given that, as the ET went on to find, this was for an entirely legitimate purpose and the Claimant’s solicitor would be bound by their own duty of confidence, I am unable to see how this particular act can be said to be blameworthy. The Respondents say that the ET’s reasoning needs to be read holistically, incorporating its findings under the heading of wrongful dismissal, which included the act of copying the invoices. That might be right, but the fact remains that the ET’s decision was stated to have been informed by the provision of the invoices to the Claimant’s solicitor, which begs the question as to why that aspect of her conduct was blameworthy? Allowing that the ET’s wider reasoning might provide some basis for a finding of contributory conduct, I do not find that the Claimant’s case has met the high threshold for perversity challenge under this head. I do, however, allow the appeal against this finding on the adequacy of reasons ground. Disposal 62. For the reasons provided, the appeal is allowed on grounds 2, 3 and 5. 63. In relation to the victimisation claim, given the ET’s findings of fact, I consider that only one outcome is possible and the ET’s Judgment in that regard will be set aside and substituted by a finding that the victimisation claim relating to the Claimant’s dismissal is upheld. The questions of any reduction under Polkey and/or for contributory fault will, however, need to be remitted for reconsideration. Having regard to the guidance provided in Sinclair Roche & Temperley v Heard and anor [2004] IRLR 763 EAT, I am satisfied that this should be to a differently constituted ET. The findings of fact made by the ET have not been disturbed, the issues on remission require an assessment to be carried out on the basis of those facts; that does not have to be carried out by the same ET. Sometime has now passed since the original hearing and the saving of time and the question of proportionality are therefore neutral considerations in this case. I have, however, found that the ET’s approach in certain respects was fundamentally flawed and, although I do not doubt this ET’s professionalism, there is bound to be a danger that, if this matter was remitted to the same ET, this would be seen as simply giving it a second bite at the cherry. On balance, therefore, I consider that the remaining issues to be determined should be remitted to a differently constituted ET.