Don-Pevi v Royal Mail Group Ltd UKEAT/0232/15/DA

Appeal against a finding that the Claimant’s dismissal was neither unfair nor wrongful. Appeal allowed in part and case remitted to the same Tribunal to determine the outstanding wrongful dismissal claim.

The Claimant was employed by the Respondent as a postman from December 2000 until June 2014. Following a disciplinary hearing, which held that he had physically assaulted and threatened a customer, the Claimant was summarily dismissed for gross misconduct. Having unsuccessfully appealed the disciplinary decision internally, the Claimant issued Tribunal proceedings, claiming unfair dismissal and wrongful dismissal. The Tribunal dismissed both claims, maintaining that the dismissal was fair. Even if it were not fair, the Tribunal held that the Claimant's degree of contribution was such that he would have received no award in any event. The Claimant appealed, broadly on the grounds that the Tribunal failed adequately to address his wrongful dismissal complaint, reached perverse conclusions regarding his unfair dismissal and generally failed to provide adequate reasons.

The EAT allowed the Claimant's appeal in part (allowed in respect of the Tribunal's rejection of his wrongful dismissal claim, but dismissed in respect of his unfair dismissal claim). The tests for unfair dismissal and wrongful dismissal are different. The Claimant was entitled to expect the Tribunal to address his wrongful dismissal claim separately, setting out its reasoning in that respect, and the wrongful dismissal claim was accordingly remitted to the same Tribunal for determination with full reasoning.

Tim Crane, Employment Law Solicitor

_________________

Appeal No. UKEAT/0232/15/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 10 December 2015

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

DON-PEVI (APPELLANT)

ROYAL MAIL GROUP LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR ELLIOT HAMMER (Solicitor) Hartley Bain Solicitors 188 The Grove Stratford London E15 1NS

For the Respondent MR STEPHEN JOHN PEACOCK (Solicitor) Weightmans LLP 100 Old Hall Street Liverpool L3 9QJ

**SUMMARY**

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

CONTRACT OF EMPLOYMENT - Wrongful dismissal

UNFAIR DISMISSAL

Unfair dismissal - wrongful dismissal - Employment Tribunal Reasons

On its Reserved Judgment, dismissing the Claimant's claims of unfair and wrongful dismissal, the ET had set out its conclusions in summary form, as (essentially) bullet-point answers to the legal questions raised by the unfair dismissal claim. It had, however, not referred to the wrongful dismissal claim save at the outset of its Reasons (recording that the claim had been made) and in its formal Judgment (dismissing that claim).

On the Claimant's appeal:

Allowing the appeal in respect of the ET's dismissal of the wrongful dismissal claim. Whilst the ET had made findings of fact as to what actually happened during the incident in question, it had not demonstrated that it had regard to the (different) test to be applied to a wrongful dismissal claim and its reasoning in that regard could not simply be assumed. Moreover, the Claimant was entitled to understand the conclusions reached by the ET on his wrongful dismissal claim and its reasoning in this respect. This was not possible on the basis of the reasons provided and this matter would be remitted to the same ET.

Dismissing the appeal in respect of the ET's Judgment on the unfair dismissal claim. Although it would have been preferable if the ET had explained its conclusions more fully, its failure to do so did not constitute an error of law of itself. Taken along with the more extensive findings of fact, the explanation for the ET's conclusions was tolerably clear and based on permissible findings on the evidence; the Reasons were adequate to the task in this regard.

**HER HONOUR JUDGE EADY QC****Introduction**
  1. I refer to the parties as the Claimant and the Respondent, as below. This is the Claimant's appeal against a Judgment of the Watford Employment Tribunal: Employment Judge Liddington, sitting alone on 14 January 2015; "the ET". Mr Hammer represented the Claimant before the ET as he does today. The Respondent was then represented by a paralegal but today appears by its solicitor Mr Peacock.
  1. By its Judgment, the ET dismissed the Claimant's claims of unfair and wrongful dismissal, alternatively held that (had the dismissal been fair) his degree of contribution was such that he would have received no award. The Claimant appeals. He complains, first, that the ET failed to address his wrongful dismissal complaint, alternatively, failed to give adequate reasons; second, it failed to make findings of fact material to the main issues in the case, alternatively, reached perverse conclusions; third, it reached a perverse conclusion as to the reasonableness of the Respondent's procedure/investigation; fourth, it failed to properly address the question of whether the Claimant's dismissal fell within the range of reasonable responses; fifth, it reached a perverse conclusion or failed to provide adequate reasons in respect of the 100 per cent contributory fault finding; and sixth, generally, it failed to provide adequate reasons.
**The Background Facts**
  1. The Claimant started working for the Respondent on 18 December 2000 as a postman. Standards of behaviour expected of the Respondent's staff are laid down in its conduct code and its code of business standards; it expects a high standard of personal behaviour and warns that abusive behaviour might constitute gross misconduct such as to justify summary dismissal.
  1. Up to 6 June 2014 the Claimant had a clean disciplinary record and was a well regarded employee. The ET describes the events of the morning of 6 June 2014, as follows:

"3.5. On the morning of 6 June 2014 the claimant was under pressure to complete some tasks in addition to his normal duties. On that morning, the claimant was to take his line manager, Danny Sherrington, to a nearby depot. According to Mr Sherrington's later statement … as he and the claimant approached the claimant's van, they saw that it was blocked in by a white van. The claimant sounded his horn and a man ran out of the enquiry office immediately to move it. The man, SH, drove his van into the yard in order to turn around at which point, according to Mr Sherrington, the claimant blocked him in the yard with his van and then jumped out of the van and walked towards the delivery office. Words were exchanged between the two men who then "squared up to each other". Mr Sherrington split them up and told the claimant to go inside the delivery office. The claimant continued shouting at SH from the double doors of the delivery office. Mr Sherrington assured SH that he would move the van. When the claimant came out of the office carrying some packets, SH began taking pictures of him on his mobile phone. The claimant tried to take SH's phone from him, "which seemed to provoke a physical struggle between the two men" … Mr Sherrington instructed the claimant to return to the office but the two men continued to shout at each other. SH threatened to have the claimant's legs broken and further said that he would lose his job and that the claimant "would be begging at his feet for his job back." The claimant said that "if he didn't have his uniform on he would knock him out." After the two men were separated, SH told Mr Sherrington that the claimant had "punched him in the neck." Mr Sherrington said that he had not seen a punch and when he spoke to the claimant later, the claimant denied punching SH but said that the mobile phone may have left a mark his (SH's) neck [sic]."

  1. The Claimant was later suspended that day, and the incident investigated, with statements being taken from SH, Mr Sherrington and another employee who was present (a Mr Sliney).
  1. SH's statement had included an allegation that the Claimant had hit him with a parcel that he (the Claimant) was carrying at the time. Mr Sliney was asked if he had seen the Claimant hit SH with a packet, and he is recorded as having responded:

"3.7 … it was more of a push. [The Claimant] had lost it. He was very upset looking. I don't think it looked that bad. It was more of a push. [The Claimant] received a lot of provocation in this incident."

  1. The Claimant gave his account on 10 June 2014. As the ET records:

"3.9. … the claimant admitted trying to take the phone away from SH and claimed that it was in self-defence and that SH was an intruder as he should not have driven into the yard. He said that SH had threatened him …"

  1. Ultimately, the Claimant faced a disciplinary charge of having physically assaulted and displayed threatening behaviour towards a customer. At the disciplinary hearing before the Respondent's delivery office manager, Mr Mahon, on 18 June 2014, the Claimant, represented by the Communication Workers' Union (CWU), contended he had been entitled to challenge SH, who had called him a "black idiot" and was trying to film the Claimant on his 'phone whilst threatening him future assaults. The Claimant accepted that in trying to get the 'phone to stop the filming he may have unintentionally hit SH with the packet he was holding:

"3.11 … No I don't remember hitting him with a packet but I don't dispute that this happened. All I know is I was trying to get his phone. I do not dispute this statement that I hit him with a packet. …"

  1. The CCTV footage seen by Mr Mahon (with the Claimant's consent) showed that the packet held by the Claimant came into contact with SH's shoulder during the altercation and Mr Mahon considered he had antagonised the situation. He concluded that the Claimant had failed to follow an instruction from Mr Sherrington that might have defused things, had behaved unacceptably (even if SH had been abusive towards him) and this amounted to gross misconduct meriting summary dismissal, even taking into account his long service and good conduct record. The Claimant unsuccessfully appealed this decision to the Respondent's appeals case work manager, Mr Miranda, who conducted the appeal by way of rehearing.
**The ET Proceedings, Conclusions and Reasons**
  1. The ET heard from both the dismissing and appeals managers for the Respondent, from the Claimant himself and from Mr Sliney. Mr Sliney had given a statement as part of the Respondent's investigation, to which the ET makes reference, which seemed to corroborate the finding that the Claimant had failed to follow Mr Sherrington's instruction and also suggested that the Claimant had physically pushed SH when trying to get the 'phone, albeit he had been provoked. In evidence before the ET, however, Mr Sliney said that was not wholly accurate and he had given a different statement that the Claimant had put in at the appeal stage.
  1. The ET does not include in its reasoning any summation of the parties' representations, but I have been provided with copies of the Claimant's written argument below and understand from Mr Hammer that central to the Claimant's case were the following contentions: first, that the evidence did not support a finding that the Respondent's decision takers genuinely believed the Claimant had struck SH; second, there were inadequacies in the investigation, not least as the CCTV evidence was not provided to the Claimant and had not been retained; third, given that - at most - the Claimant had sought to grab the phone from SH when provoked and threatened, it could not be found that this amounted to gross misconduct; and fourth, when his past good service was taken into account, the decision to dismiss fell outside the range of reasonable responses and could not justify summary termination of his employment.
  1. The ET reserved its Judgment, which was sent out with its Written Reasons about two months after the hearing, and stated its conclusions as follows:

"5. Conclusions

5.1. Applying the law to the facts as found by the tribunal:

5.1.1. The reason for dismissal was conduct, namely the respondent's belief that the claimant had assaulted a customer.

5.1.2. The investigation was reasonable. Statements were taken from the claimant, SH, Mr Sherrington and Mr Sliney. By agreement with the claimant, CCTV footage of the incident was also used.

5.1.3. The claimant, at all times, was aware of the charge against him and was given every opportunity to defend himself. He was accompanied to all meetings and had copies of all the relevant documentation.

5.1.4. In these circumstances, I find that summary dismissal was within the band of reasonable responses.

5.1.5. Had I found the dismissal to be unfair, the degree of contribution as a result of the claimant's behaviour on the day would have reduced any award to nil."

**Submissions**

The Claimant's Case

  1. Given that the tests for unfair and wrongful dismissal are different, the ET had been required to set out its own findings on the question of whether the Claimant had committed a repudiatory breach of contract such as to mean that his contractual right to notice was rendered unenforceable. The ET failed to include any reference to the relevant test for a wrongful dismissal case in its consideration of the law and failed to make any reference to wrongful dismissal in its reasoning or conclusions save for in the introductory reference to the Claimant's claims. Moreover, the reasoning was simply inadequate to explain its findings on the facts. There was no attempt to resolve the question as to whether the Respondent believed that the Claimant had struck SH as opposed to having simply held a parcel that had unintentionally made contact with SH. There was also a failure to make any finding of fact as to whether SH had racially abused and threatened the Claimant.
  1. Similarly, the ET had failed to engage with the Claimant's criticisms of the process, specifically in terms of the Respondent's reliance on the CCTV footage when this had not been made available to the Claimant and was no longer available for use at the ET. It also failed to resolve the issue raised by Mr Sliney's evidence, i.e. that he had corrected his original statement, and failed to refer to the fact that the appeal hearing was not a full rehearing in breach of the Respondent's procedures; in particular, the Respondent had by then destroyed the CCTV evidence so it could not be reviewed by Mr Miranda, and there was no resolution of the change in Mr Sliney's statement. Furthermore, Mr Miranda had got the Claimant's total period of service wrong, apparently thinking it was some 16½ rather than 13½ years. The ET's conclusion on the reasonableness of the Respondent's procedure and investigation - in particular, as regards the CCTV evidence - was perverse. The Claimant had only consented to the CCTV evidence being viewed on the understanding that he would be able to see it as well.
  1. There was then a failure by the ET to properly address the question whether the Claimant's dismissal fell within the band of reasonable responses for unfair dismissal purposes. In that regard the ET needed to engage with the question of provocation and the Claimant's past good service record. It needed to explain how it had regard for those matters when apparently concluding that the dismissal still fell within the band of reasonable responses.
  1. Finally, the ET reached a perverse conclusion, alternatively, failed to provide adequate reasons in respect of its finding that there was a 100 per cent contribution on the part of the Claimant. Simply stating that conclusion at paragraph 5.1.5 was inadequate to the task.

The Respondent's Case

  1. This was a case where there was no substantial factual dispute. The ET made permissible findings, correctly directed itself on the law and reached conclusions demonstrating a proper application of the relevant legal principles to the facts found. There was no error of law, and the Reasons were adequate to the task. Although the ET had referred in general terms to the Respondent considering the Claimant had assaulted SH, that had to be read alongside the prior findings of fact. Doing so, it was apparent the Respondent had regard to the Claimant's threatening behaviour towards SH and the physical assault that occurred when he physically attempted to take SH's phone and hit him - whether intentionally or not - with the parcel.
  1. On the investigation, again the ET's reasoning was adequate when read in conjunction with the findings of fact. Specifically, on the CCTV evidence it found that the Respondent had proceeded with the Claimant's agreement. The same was true in relation to sanction: the findings of fact demonstrated that the decision takers had weighed the relevant matters and reached a balanced view that fell within the range of reasonable responses.
  1. On the wrongful dismissal appeal, once the ET had found that summary dismissal was fair any claim for notice fell away. The Respondent's case on unfair dismissal had been put as dependent upon its decision that the Claimant was guilty of gross misconduct. Once the ET found that the dismissal was not rendered unfair by the fact that it was without notice, it had to follow that the Respondent was contractually entitled to dismiss summarily.
**The Relevant Legal Principles**
  1. The right not to be unfairly dismissed is provided by statute, and the test, laid down by section 98 of the Employment Rights Act 1996 ("ERA"), is properly referenced by the ET. It is for an employer to establish its reason for the dismissal and that it falls within those categories of reason that are allowed might constitute fair reasons for the purposes of section 98(1) and (2) of the ERA. Thereafter, the burden of proof is neutral between the parties, and the ET will determine whether the dismissal is fair or unfair, having regard to the reason shown by the employer, applying the standard of the band of reasonable responses open to the reasonable employer in the relevant circumstances (section 98(4)). Where, as here, the ET is concerned with a conduct dismissal, it will be assisted by the well known guidance laid down in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT. Where a Respondent has established a potentially fair reason for the dismissal, the ET will consider - applying a neutral burden of proof - whether there were reasonable grounds for the Respondent's belief in the matters on which it relied as providing its reason for dismissal and whether it carried out a reasonable investigation before reaching its conclusion in that regard.
  1. That is a different test to that to be applied to a contractual claim of wrongful dismissal: that is, dismissal in breach of a contractual right to notice. In such a case, the test to be applied is laid down by common law and requires the ET to itself determine whether the employer has established that the Claimant acted in repudiatory breach of contract such as to entitle the employer to summarily dismiss him. The ET's obligation to determine this question is not one that is simply parasitic on the employer's findings (see in this regard the observations of Laing J in Phiri v Surrey & Borders Partnership NHS Foundation Trust : the ET has to evaluate the evidence for itself and reach its own conclusions as to what took place. That is not a task it can delegate to the Respondent.
  1. A similar obligation arises in respect of any finding (should the need arise) on contributory fault for the purposes of any reduction in the compensatory award under section 123(6) ERA. The ET has to determine whether the dismissal was to any extent caused or contributed to by any action of the Claimant. If so, it should reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding.
  1. The requirement on an ET in terms of its Reasons is laid down by Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, albeit the Rule is intended to be a guide not a straitjacket (see Balfour Beatty Power Networks Ltd and Anor v Wilcox and Ors [2007] IRLR 63 CA). By Rule 62(5) it is, relevantly, provided:

"… the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues. …"

  1. In the often cited guidance laid down by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 it is provided:

"8. … the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises …"

**Discussion and Conclusions**
  1. I address first the appeal against the rejection of the unfair dismissal claim. No issue is taken with the ET's self-direction on the law. The questions raised relate to the ET's conclusions relevant to the legal questions it had to determine and whether its Reasons are adequate to explain those conclusions.
  1. The way in which this ET set out its conclusions is unusual. As will be apparent from the citation from paragraph 5.1 of the Reasons, the conclusions are provided in the form of bullet-point answers to the legal questions raised on a claim of unfair dismissal. That might have the benefit of clarity, but it gives rise to the risk that the parties will simply not be able to understand why the ET has reached the conclusions it has. That said, to set out the conclusions in this way does not, of itself, give rise to an error of law. A Judgment must be taken overall and viewed as a whole. Paragraph 5.1 of the ET's reasoning does not stand in a vacuum; it has to be read in the context of the earlier - far fuller - findings of fact.
  1. Even adopting this approach, the Claimant contends that the ET's reasoning is inadequate: on the reason for dismissal it was unclear what the ET concluded was the assault and/or whether it found that the Respondent believed the Claimant had intentionally struck SH.
  1. Whilst I see it would have been more helpful if the ET had more fully set out its reasoning in this respect, reading the decision in its entirety I consider the findings to be tolerably clear. The ET accepted that the Respondent genuinely believed that the Claimant had assaulted SH in this altercation (paragraph 5.1.1). The disciplinary charge was of "physically assaulting and displaying threatening behaviour to a customer" (paragraph 3.11). The ET accepted Mr Mahon's evidence that the CCTV evidence showed the parcel being held by the Claimant came into contact with SH's shoulder (paragraph 3.12) and had found the Claimant had been "abusive and threatening towards the customer", "antagonised the situation" (paragraph 3.14) and had engaged in "unacceptable behaviour" when attempting to take the 'phone from SH (paragraph 3.13). It further accepted Mr Miranda's evidence that he concluded that "the claimant had struck SH either with his hand or with the parcel" (paragraph 3.18). The ET was not required to approach its task as if considering an indictment in the Crown Court. Its findings of fact as to what was in the minds of Mr Mahon and Mr Miranda provide sufficient basis for its conclusion as to the reason for the dismissal, as stated in summary form at paragraph 5.1.1 but plainly referring back to the fuller account given earlier in the decision.
  1. The Claimant then argues that the ET failed to engage with the issues between the parties and inadequately explained its conclusions on the matters relied on by the Respondent as providing the reasonable grounds for its decision and going to the question of reasonable investigation. It failed to engage with the Claimant's criticisms of the Respondent's reliance on CCTV footage not made available to the Claimant and failed to resolve the dispute regarding Mr Sliney's evidence or to consider how the appeal could have been a rehearing (as the disciplinary process required) when Mr Miranda had not seen the CCTV evidence.
  1. I am unable to see the criticism in respect of the CCTV material as raising any valid point of complaint. As the ET's summary at paragraph 5.1.2 makes plain, the ET did not see Mr Mahon's use of this evidence as unfair because the Claimant, with his CWU representative present, agreed to that course. Mr Hammer argues the Claimant was not really agreeing to anything other than the CCTV evidence being used if it was also to be shown to him. That, however, is not what the record of the disciplinary hearing shows and it was not put in issue by the Claimant on the appeal. There was plainly evidence to justify the ET's conclusion that the Claimant agreed to the course adopted by Mr Mahon and this did not render the process unfair.
  1. As for Mr Sliney's evidence, the ET alludes to the further statement in its recitation of the history (paragraph 3.8), but there is nothing to suggest that the Respondent's findings were dependent upon anything said in Mr Sliney's initial statement (taken at the initial fact finding interview). The evidence that weighed with the Respondent's decision takers seems rather to have been that given by Mr Sherrington, the CCTV evidence and the Claimant's own admissions. I cannot see that the ET had anything to resolve in this regard, and Mr Hammer has taken me to nothing to demonstrate any substantive issue raised by this point.
  1. As for the internal appeal, the Claimant challenges the conclusion that this was in the nature of a rehearing. Whilst Mr Miranda did not view the CCTV evidence himself, I am unable to see that as makes good the Claimant's point. On the basis of Mr Mahon's evidence (which the ET accepted) that evidence was broadly consistent with the Claimant's admissions. The Claimant had not raised an issue about the CCTV evidence in his appeal, and, crucially, Mr Miranda expressly formed his own view on the basis of the other evidence. I cannot see there was any need for Mr Miranda to look at the CCTV evidence. Certainly his failure to do so did not mean that the ET was unable to conclude that the appeal had been by way of rehearing.
  1. Turning to the question of sanction, the Claimant contends there was a failure on the part of the ET to make a finding as to whether SH had racially abused and threatened the Claimant (as the Claimant contended). Alternatively, given the provocation and the Claimant's past service, he argues that the ET's conclusion was perverse.
  1. I do not consider these to be valid criticisms. Accepting it might have been better if the ET had explained its conclusions more fully in paragraph 5.1.4, when this sub-paragraph is read against the background of the earlier findings of fact it is apparent that the ET accepted the Respondent's case, as per the evidence of Messrs Mahon and Miranda, that, whatever the provocation and however good his past service, the Claimant behaved in an inappropriate way such as to constitute gross misconduct or misconduct such as to mean that dismissal fell within the range of reasonable responses. Given the Respondent's conclusion that it had been open to the Claimant to walk away and thereby defuse the incident, I cannot see that the finding on sanction (notwithstanding the provocation, was impermissible).
  1. On the additional point raised by Mr Hammer in oral submissions, relating to the fact that Mr Miranda erroneously referred to the Claimant having 16½ rather than 13½ years' service, I am unable to see how any substantive point arises; if anything, the mistake was in the Claimant's favour. I do not infer this demonstrates that Mr Miranda was careless in his approach to sanction. As the ET accepted, he approached this as a case of a long serving employee and expressly took into account the Claimant's long service and good conduct record but still concluded that his behaviour in this incident merited dismissal (see paragraph 3.14).
  1. Having considered each of the Claimant's points individually, I have also stepped back to reflect on the overall picture to see whether it might be said that the ET's Reasons failed to enable the Claimant to understand why he failed in his unfair dismissal claim. Undertaking this exercise, I do not think that the Claimant is so disadvantaged. If regard is had to the findings of fact, it is apparent that the ET was satisfied that this Respondent had a reasonable basis for concluding that the Claimant's conduct on 6 June 2014 was such as to justify the decision to dismiss, notwithstanding the mitigation both in the form of SH's behaviour and the Claimant's past service record; it carried out a reasonable investigation in coming to that conclusion, and its decision fell within the range of reasonable responses open to the reasonable employer in the circumstances. The appeal against the rejection of the unfair dismissal claim must therefore fail.
  1. That being so, I do not need to consider the appeal against the ET's conclusion on contribution save to the extent that may be relevant to the wrongful dismissal appeal.
  1. Turning then to the wrongful dismissal claim, whilst the ET refers to this as one of the Claimant's claims in the introduction to its Reasons it then fails to refer to it in its reasoning, albeit that it rejects the claim in the formal part of its Judgment.
  1. Recognising the difficulty with this, Mr Peacock seeks to defend the ET's Judgment by observing that the Respondent's case had been put on an all-or-nothing basis: if the ET did not find it had been entitled to dismiss for gross misconduct, the Claimant must succeed on both the unfair and wrongful dismissal claims. The crucial finding was that "summary dismissal was within the band of reasonable responses" (paragraph 5.1.4). If summary dismissal was a fair response then, given the way the Respondent had put its case, it had to justify dismissal without notice, applying the contractual test relevant to the wrongful dismissal claim.
  1. The way in which the Respondent put its case in this regard may well explain why the ET failed to separate out its conclusions on the wrongful dismissal case, but I do not think that is sufficient to excuse it doing so. The tests for unfair dismissal and wrongful dismissal are different. Whilst I can see that the ET's finding that summary dismissal was fair might well mean it would also find that it was contractually permissible, I do not think I can simply assume or infer that. At a more basic level, the Claimant was entitled to expect the ET to address his wrongful dismissal claim and to set out its reasoning in that respect; it failed to do so.
  1. Given the ET's findings of fact, however, the question arises as to whether I can supply the answer myself. An ET is obliged to reach its own conclusions as to what took place for these purposes and, to some extent, this ET has done so. Hence, at paragraph 3.5 (see above), the findings are not couched in terms of what the Respondent found or as to what was alleged to have taken place but, on their face, explain what the ET itself judged had occurred. Having regard to the contractual material - summarised at paragraphs 3.2 and 3.3 - the ET then had to reach a conclusion as to whether the Claimant's conduct was such as to justify the Respondent dismissing him without notice. On this point, it might be said that the answer lies in the ET's finding on contributory fault (see paragraph 5.1.5, set out above). The difficulty is that the conclusion in that regard is unexplained and does not record the ET's own view taking into account the broader circumstances (in particular, as to the provocation and threats made to the Claimant). Even if the Claimant's behaviour might have amounted to misconduct, did it amount to gross misconduct such as to warrant his summary dismissal? I do not think I can assume the answer to that question; ultimately, that has to be a matter for the ET and I therefore allow the appeal against the rejection of the wrongful dismissal claim.
**Disposal**
  1. Having given my Judgment in this matter, I allowed for further submissions on the question of disposal. The Claimant submits that this matter should now be remitted to a different ET. It has been some time since the ET hearing, further evidence would need to be heard, and it would be proportionate for the matter to be considered by a new ET, which would also avoid the risk of the ET being seen to have a second bite at the cherry. The Respondent disagrees, contending that this is really a matter for remission for the ET to fill in a gap in its earlier reasoning. The amount at stake was relatively limited, and it was proportionate for the matter to go back to the same ET. There should be no need for further evidence to be heard.
  1. In considering this question I have had regard to the criteria set out by the EAT in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763. I am conscious of the need not to be seen as permitting an ET to have a second bite at the cherry, but here the relevant findings of fact have already been made, and I think it is right to characterise this as a remission to enable the ET to make good its earlier failure to deal with one of the claims before it. I have no reason to doubt the professionalism of this Employment Judge in approaching her task, applying the correct legal approach required for the wrongful dismissal claim to the findings of fact previously made. As to the precise mechanics, I think that is for the ET. Given the length of time that has passed, I would have thought that it was appropriate for a further - hopefully short - hearing, to permit further submissions to be made in the light of my Judgment. Whether it is necessary for further evidence I would doubt, but I think that has to be a matter for the ET should any submission to that effect be made by either of the parties. I therefore remit this matter to the same ET for a decision to be made on the wrongful dismissal case.

Published: 31/01/2016 21:45

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