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Appeal No. UKEAT/0485/09/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 June 2010

Before

THE HONOURABLE MRS JUSTICE SLADE

MR A HARRIS

MS H PITCHER

CANCER RESEARCH UK (APPELLANT)

MR J R HARDING (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR KEITH BRYANT (of Counsel)
Instructed by:
Cancer Research UK
61 Lincoln's Inn Field
London
WC2A 3PX

For the Respondent MR PETER R COLLINS (of Counsel)
Instructed by:
Messrs Cooper Whiteman Solicitors
34 Bloomsbury Way
London
WC1A 2SA

UNFAIR DISMISSAL – Reasonableness of dismissal

Appeal from a finding of unfair dismissal allowed. The Employment Tribunal had failed to give adequate reasons for its decision. Further the Employment Tribunal erred in holding that the burden of proof rested on the employer to show reasonable grounds for its belief in the Claimant's misconduct based on a reasonable investigation. It failed to note that since the decision in British Home Stores v Burchell [1978] IRLR 379 the unfair dismissal legislation has been amended so that the burden of proof on the issue of the reasonableness of the dismissal is neutral (Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09).

1. This appeal by Cancer Research UK from the judgment of an Employment Tribunal which found that Mr Harding was unfairly dismissed is no longer opposed. In those circumstances we do not propose to give a full judgment on the appeal, but outline our conclusions and the respects in which the Employment Tribunal erred. We will refer to the parties by their titles before the Employment Tribunal.

1. The brief facts are these. The Claimant was one of a team of van driver stock collectors who was responsible for leafleting streets and then returning to collect bags of items for the charity left out by residents. He worked out of the Harold Wood depot. Five other drivers operated out of the Harold Wood depot and two other drivers worked out of another local depot.

1. On 19 December 2006 the Claimant was given a final written warning for gross misconduct in respect of his driving. The warning remained in force for 12 months. On 17 August 2007 a member of the public contacted the Respondent and complained that one of the Respondent's van drivers had been driving in such a way that "he nearly killed me". The caller outlined the matters of which he complained in the driving of the driver. An investigation was carried out. We do not propose to set out the details of such an investigation and the subsequent steps for reasons which will become apparent.

1. The Claimant was called to a disciplinary hearing which was held on 15 and 19 February 2008. The outcome of the hearing was that he was dismissed on 19 February 2008. An appeal from the dismissal was itself dismissed on 30 May 2008. The Employment Tribunal held that the Claimant was unfairly dismissed. The basis for that finding was the subject of one of the grounds of appeal. Since we do not propose to give a full judgment in the light of the non-opposition to the appeal, we merely set out the main features of the grounds of appeal which we find well-founded.

1. First, there is a challenge to the failure of the Employment Tribunal to give adequate reasons for its decision; we shall call this the Meek ground. In our judgment the Employment Tribunal failed to give adequate reasons for its finding of unfair dismissal. As examples it failed to make a finding as to whether the Respondent regarded the Claimant's driving as misconduct or gross misconduct. The Employment Tribunal failed to state whether and if so, to what extent the final warning was relied upon in the Respondent's decision to dismiss.

1. Second, the basis of the finding of unfairness. What aspect of the investigation was held to constitute unfairness? Paragraph 75 and 76 of the decision referred to two aspects. Yet another aspect referred to, however, was failing to give the Claimant details of the reason for the complaint against him.

1. Further, the basis of the findings in paragraphs 81 and 85 that the Respondent was not clear about what the driver had done is not stated. It is not apparent what reliance and importance the Tribunal placed on its observation that the Respondent had disregarded statements provided by the Claimant, which are referred to in paragraph 83 of its judgment. Also, it is not clear what importance the Employment Tribunal placed on what it viewed as the inability of the Respondent to say where exactly the "accident" took place or the direction of travel of the motor vehicles, referred to in paragraph 75 of the judgment.

1. Another aspect of the Meek ground of appeal is that the Employment Tribunal failed to deal with an argument raised under Employment Rights Act 1996 section 98A(2) that if there had been a default in the procedure leading to dismissal the outcome would have been the same and that therefore there should be no finding of unfair dismissal.

1. Quite properly Mr Collins for Mr Harding, the Claimant, agrees that the Employment Tribunal misdirected itself in considering the British Home Stores Ltd v Burchell [1978] IRLR 379 test, in that it regarded the employer as bearing the burden of proof not only in establishing the reason for the dismissal, namely that it fell within the statutory permitted grounds, but also in deciding the second and third questions raised in Burchell.

1. As HHJ Peter Clark and the Employment Appeal Tribunal in Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09 observed in paragraph 13, British Home Stores Ltd v Burchell was decided before the alteration of the burden of proof effected by section 6 of the Employment Act 1980. At paragraph 14 the Employment Appeal Tribunal held:

"The first question raised by Arnold J: did the employer have a genuine belief in the misconduct alleged" goes to the reason for dismissal. The burden of showing a potentially fair reason rests with the employer."

At paragraph 15 the EAT held:

"However, the second and third questions, reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under section 98(4) Employment Rights Act 1996 and there the burden is neutral."

1. In this regard the Employment Tribunal in the judgment which is the subject of the appeal before us treated the burden of proof as resting on the employer on each of the three elements in the British Home Stores Ltd v Burchell test.

1. Mr Bryant, for the Respondent, submits that this error of law and misdirection infects the totality of the Employment Tribunal's judgment. There were other subsidiary grounds of appeal, however, these are the principle grounds of appeal and they are more than sufficient to allow this appeal and we do so.

1. Mr Collins contends that the consequence of allowing the appeal should be a remission to another Employment Tribunal for rehearing. Mr Bryant seeks to overturn the judgment of this Employment Tribunal and invites us to substitute a finding of fair dismissal. He seeks to contend that this decision of the Employment Tribunal contains adequate findings of fact to enable us to reach such a conclusion. We disagree. This judgment of the Employment Tribunal is not adequate for us to determine whether all appropriate steps had been taken in this case and that if the Employment Tribunal had not erred in the respects it did the inevitable conclusion would have been a finding of fair dismissal. We note that no perversity ground has been raised in this appeal.

1. Accordingly, the appeal is allowed and we remit the claim for rehearing before a differently constituted Employment Tribunal.