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Appeal No. UKEAT/0518/09/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 July 2010

Before

HIS HONOUR JUDGE ANSELL

PROFESSOR S R CORBY

MR J MALLENDER

COMMISSIONER OF POLICE OF THE METROPOLIS (APPELLANT)

MS S BUCHANAN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS ALICE MAYHEW (of Counsel)

Instructed by:
Messrs Weightmans LLP
6 New Street Square
New Fetter Lane
London
EC4A 3BF

For the Respondent
MR T BUCHANAN (Representative)

UNFAIR DISMISSAL – Automatically unfair reasons

1. Tribunal in error in holding that a letter inviting an employee to a meeting and enclosing a police report and witness statement did not comply with Step 1.

1. Tribunal correct in finding that dismissal was unfair when the police employers had held a Convictions Board to deal with dismissal although the employer had not received a conviction or warning but only accepted a fixed penalty notice.

1. This has been the hearing of an appeal against a decision of a London (South) Tribunal chaired by Employment Judge Hyde who heard the case in June 2009 and gave reasons on 24 September. This appeal lies pursuant to an interim order of Silber J dated 4 December.

1. At the Tribunal hearing, the Tribunal determined that the dismissal of Miss Buchanan by the Metropolitan Police was both automatically unfair because of a breach of the then requirements under the Employment Act 2002, this being a dismissal which had occurred prior to the change in the law of 2009. Indeed, it was also an unfair dismissal both procedurally and, as the Tribunal found, substantially because of the manner in which the matter had been investigated by the police through what was called a "Convictions Board" and indeed the appeal procedure thereafter.

1. The Metropolitan Police appeal that decision on two grounds. Firstly, the Step 1 letter point, where the Tribunal determined that there had been insufficient detail, is challenged by the Metropolitan Police and they invite this court to determine that there was indeed compliance with the Step 1 procedure and in terms of the dismissal itself, the police argue that applying the well known principles set out in BHS Ltd v Burchell [1980] ICR 303 that the employers satisfied that test and further that dismissal was an appropriate remedy for the gross misconduct which occurred.

1. What was the alleged gross misconduct? Miss Buchanan has been employed for a number of years, since February 1991 as a civilian Scenes of Crime Officer and had progressed through the ranks and had apparently done well in that occupation. Two senior officers spoke up for her at the dismissal hearing.

1. On a date in March 2008 she attended a farewell function for a work colleague which started in the early afternoon and carried on for the rest of the day. On her own admission she had too much to drink. There was an incident which involved the possible non-payment of a taxi fare and in the course of that incident it is alleged that she was abusive to the taxi driver and also maintained that she was a police officer.

1. Other police officers became involved in the incident and it is said that there was swearing in front of them and eventually she was taken to a police station, kept in custody for a number of hours and at the end of the investigation she was offered a penalty notice disposal under the provisions of the Public Order Act 1986 and the Criminal Justice Act 2001. That procedure gives somebody the opportunity of accepting a fixed penalty provided that they pay up within a period of 21 days and as the procedure makes clear, that acceptance of the penalty notice is neither an admission of guilt nor a formal conviction.

1. On 24 April 2008 a letter was sent to Miss Buchanan in these terms:

"It is MPS policy that a member of police staff who is convicted, cautioned or given a formal warning for a criminal or serious traffic offence should attend a convictions board to show cause why they should not be dismissed. An explanatory note, which gives details of the procedure, is enclosed.

In view of your recent conviction of causing harassment, alarm or distress contrary to Section 5 Public Order Act 1986 at Lewisham Police Station you are required to attend a discipline board [then gives the times].

I also enclose

• A copy of the Custody Record Front Sheet.

• A copy of a police report regarding your arrest.

• A copy of the Penalty Notice for Disorder.

• A copy of the Witness Statement.

• Convictions Board Procedure."

It then sets out the membership of that Board. In due course that hearing took place.

1. That letter really foreshadows what the Employment Tribunal found was wrong with the whole procedure in this case and in this dismissal, namely that for some reason, which is not entirely clear to us, the Metropolitan Police treat a PND (as it is called) as either a warning or a conviction. Indeed, it then suggested because of the PND it is appropriate for the employee to attend a Convictions Board. It is clear from the letter that that Convictions Board proceeds on the basis that, as it were, gross misconduct is established by virtue of the penalty notice, although neither a conviction or a warning, and the Board hearing thereafter is really geared towards mitigation and an analysis of whether or not dismissal should follow as a result.

1. In the appeal before us, the Metropolitan Police complain that the Tribunal spent far too much time at the hearing and in the decision, criticising the approach of the police in bracketing a PND within the procedure. But it seems to us that it was that erroneous bracketing which has led to what occurred in this case.

1. A further example was highlighted by the Tribunal in paragraph 15 of their decision, where they refer to the Police Staff Discipline Policy Document and in particular refer to page 102 where they speak of:

"...the formal warning (PND or FPN) is for a minor offence it may be more suitable to deal with the matter by way of a staged warning."

Again, we repeat that a PND or FPN is not a formal warning, as we have indicated.

1. The first area that concerned the Tribunal was indeed that letter that we have just referred to. It is right to say that the Tribunal did not refer in detail to the enclosures that were sent with the letter. Their conclusions in paragraph 84 were that the Tribunal did not consider that the letter complied with the requirements of the Employment Act 2002 because insufficient detail was given about the circumstances which led the Metropolitan Police to contemplate disciplinary action. The fact that the Claimant had not been convicted of anything was a central part of the Tribunal's reasons for this conclusion. Further, the Tribunal found that the range of issues raised with the Claimant at her disciplinary hearing was not foreshadowed by the terms of the Step 1 letter.

1. The disciplinary procedure under Part I Schedule 2 of the Employment Act 2002 provides for Step 1 being the statement of grounds for action and invitation to meeting:

"1(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter."

1. We have been referred to a number of authorities by the Appellants, particularly Alexander Brigden Enterprises Limited [2006] IRLR 422, where the EAT at paragraph 38 said:

"...the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty."

1. Elias P in Silman v ICTS UK Limited said this:

"The purpose of these procedures is to ensure that there is a proper and fair opportunity for the parties to seek to address any disciplinary issues and other matters which may lead to dismissal prior to the matter ending up in litigation before the Employment Tribunal."

1. In Draper v Mears Ltd [2006] IRLR 869, the EAT found that although the letter itself was worded in some "arcane" way, there had been sufficient compliance with the statutory procedures where the employers had held two investigatory meetings, so by the time the employee received a Step 1 letter he was well aware of the employer's concerns. True in this case there were no meetings that could be linked with the Step 1 letter.

1. Nevertheless, in this case there was a finding from the Tribunal that either at the time of her arrest or certainly immediately thereafter, Miss Buchanan was aware that her behaviour was going to likely lead to a Convictions Board. We have seen the documents that accompanied the letter to which we have already referred. In particular, the witness statement (three pages from the taxi driver) together with a two page report from PS Darren James who was the investigating officer.

1. It is quite clear from the letter inviting Miss Buchanan to a Disciplinary Hearing that dismissal was clearly a possibility, together with the detail contained in that letter were, in our view, more than sufficient to comply with the requirements of Step 1. For our part, we do not understand the point that the Tribunal are making where they say that because Miss Buchanan had not been convicted of anything, that was a central part of the Tribunal's reasons for this conclusion. True, the letter itself referred to a conviction and invited her to a Convictions Board, and we have already commented upon the inappropriateness of that language and that procedure. But for our part, errors in the wording do not detract from the detail that was given in that Step 1 letter, which was considerable.

1. Today Mr Buchanan, on behalf of his daughter, argues that the letter did not outline some of the characteristics of misconduct that the Board eventually took up when they investigated the matter. In particular, they did not make it clear as to who was the recipient of the harassment contained within the section 5 Notice. In particular, they did not make it clear that a key concern of Miss Georgiou and her colleague was going to be the possible use of her police employment as a way of avoiding the trouble that she was in. In particular, what is set out in the cab driver's statement when he refers to Miss Buchanan maintaining that she was a police officer.

1. However, it is clear from Miss Buchanan's statement that she put into the Board that she realised the seriousness of the behaviour and the fact that she had brought her employer's good name into certainly some disrepute by her actions, in terms of the impersonation or otherwise of a police officer. Whilst the allegation in terms of misconduct was not there, certainly there was sufficient detail from both the police report and the cab driver's statement for her to be able to appreciate that that was certainly one of the factual matters that was going to be alleged.

1. So, we cannot agree with the Tribunal's view of Step 1. It appears that they have, in our view, been somewhat sidetracked by the use of the term "conviction" in the letter, and as a result, failed to look at the detail that was given to Miss Buchanan, which, in our view, was more than sufficient.

1. However, we turn to the Disciplinary Hearing itself before the Convictions Board. As we have already highlighted, the Tribunal's concern was the whole approach in putting matters to a Convictions Board. It is interesting that within the Tribunal's decision they make reference to the fact that if there is an acquittal or a charge which is not proceeded with, then the matter is in fact placed before a Disciplinary Board rather than a Convictions Board. We share the Tribunal's view that a Disciplinary Board should have been the appropriate route for this alleged misconduct.

1. It is not for us to speculate as to where the fault lies. But, one only has to look at Miss Georgiou's opening comment within the Disciplinary Board, where she sets out that the purpose of the meeting was to decide why Miss Buchanan should not be dismissed from the organisation for gross misconduct. Those comments really highlight what the Tribunal found was wrong with this procedure:- in short and laymen's terms: guilty until proved innocent was the approach. Indeed, later on in the transcript Miss Georgiou refers to the Panel having to think about whether the reasons Miss Buchanan had given outweigh the conviction that she had received.

1. Miss Mayhew, on behalf of the Police, who in well argued written and oral submissions has really said everything she could do on their behalf, argues that the Tribunal failed to conduct a proper analysis in accordance with the three stage test for dismissal of misconduct, which she sets out (the Burchell test) in paragraph 27 of her submissions, namely that the employer must show that it genuinely believed the employee committed the misconduct, satisfied the Tribunal the employer has reasonable grounds on which to sustain that belief, the Tribunal must be satisfied that the employer formed the belief and it carried out as much investigation as was reasonable in the circumstances of the case before then going on to determine the appropriate sanction.

1. It is right to say that the Tribunal's reference to Burchell only came in the final three lines of their decision when they made reference to the submissions Miss Mayhew had put in. But we are satisfied that they must have had those principles well in mind. They are well known and in this case had been highlighted for them by Miss Mayhew in her submissions. She argued that if the Tribunal had carried out this analysis they could have been satisfied that the police were able to satisfy the Tribunal that the three stage test was indeed satisfied in this case. In particular, she relied on the admissions that Miss Buchanan had made in her statement that was given to the Convictions Board, as well as admissions made on her behalf at the outset by her representative when he said this to Miss Georgiou: that he advised the Board that Miss Buchanan was fully aware of the seriousness of the situation, the fact that she accepted the FPN was her acceptance that what she did was wrong.

1. But in our view that only gets really to the stage of Miss Buchanan accepting that there had been misconduct. It seems to us that the Tribunal were effectively saying there was insufficient investigation in this matter, simply because the Board were approaching the matter, as it were, from the end of the story. They really did not consider stages 1, 2 and 3 of Burchell at all. They, as it were, jumped in at stage 4 which is: what is a proper sanction for this form of gross misconduct and are there any mitigating factors?

1. Indeed, if one looks at the Tribunal's decision and the notes of the Board meeting itself, one can see that throughout the discussion the key phrase was "mitigating factors". There was no analysis of what was said to constitute gross misconduct. Certainly, it was potentially there, the nature of the drunkenness, the way that it is alleged she spoke to both the taxi driver and police officers and what use she made of her identity as well as the more general allegation of bringing the police into disrepute. Certainly, the potential for gross misconduct was there. But, as the Tribunal found, because of the procedure that was used, the Board effectively took their eye off the ball. There was no proper analysis of the facts of the incident before proceeding onto, as it were, penalty and mitigation.

1. We cannot say whether that would have made any difference at all to the eventual outcome. The Tribunal certainly felt that the procedure was so tainted with unfairness that on any view this dismissal was unfair.

1. There was an additional factor which also concerned the Tribunal, the use of CCTV video footage which Miss Georgiou had obtained. There was discussion in the course of the Board hearing, inviting Miss Buchanan and her representative to view the video with the Board Members. But if she did not want to the Board said this:

"If you do not want us to look at it, we won't."

However, it emerged in fact that Miss Georgiou had already looked at that video taken, as we understand it, in the police station. So there was an additional element of unfairness which concerned the Tribunal about the manner in which the hearing was carried out.

1. The defects were not cured in any way by the appeal procedure. In particular, the Tribunal were concerned that again that appeal procedure did not allow a challenge to the underlying factual basis of the "conviction". So the Tribunal analysed the various matters that were put to the Appeal Board, which was a review rather than a rehearing, and felt that certainly there was no cure to the unfairness which the Tribunal found had taken place before the Convictions Board.

1. Accordingly, we do not propose to interfere with the Tribunal's findings as to the unfairness of the Board hearing and the appeal hearing caused by the Metropolitan Police's mistaken approach. We are told this is the first time that there has been an appeal against the use of a Convictions Board following a PND notice and we hope that they will rethink their procedure where there is a PND notice issued, because we share the Tribunal's concerns that a disciplinary procedure would be more appropriate since quite clearly gross misconduct has to be established in accordance with the Burchell principles.

1. This, of course, is not the end of the road for Miss Buchanan. There will be a remedies hearing. We note that she has asked for reinstatement and that will clearly be an issue for a remedies hearing to deal with. Although the merits hearing did not highlight the matter in their decision, quite clearly the issue of contributory conduct must figure very largely in any award and Miss Buchanan will have to appreciate that. On any view this was a poor piece of behaviour on her part and may well be reflected in the way that the Tribunal deal with its eventual award in relation to reinstatement or compensation.