The Claimant was dismissed for gross misconduct after an altercation with a customer whereby he held on to the customer's arm against his will. His dismissal was found by the ET to be unfair for 2 reasons: 1) the Respondent took into account earlier complaints about the Claimant which were not relayed to the Claimant so the Claimant could not give his account of the complaints; 2) The Respondent took into account that there were no signs of remorse from the Claimant - the Claimant, who was represented and leaving his representative to do the talking, could not know that his silence was being held against him. The ET found that there was a 50% likelihood that the Claimant would still have been dismissed and applied a 50% Polkey deduction (along with a 50% contributory fault deduction). The Respondent appealed against the 50% Polkey deduction.

The EAT dismissed the appeal. If the issue of remorse was likely to be critical to the Respondent and the Claimant would have volunteered an apology, there was plainly a significant chance that the Respondent would not have dismissed the Claimant. The assessment of that chance at 50% was very much a matter for the ET, and there was only a limited extent to which reasons could be given in a case like this for the precise percentage assessed.

_____________

Appeal No. UKEAT/0217/16/LA

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 9 June 2017

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

EAST COAST MAIN LINE COMPANY LTD (APPELLANT)

**

**

PHILLIPS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR CHRISTOPHER MILSOM (of Counsel)
Instructed by:
Kennedys Law LLP
25 Fenchurch Avenue
London
EC3M 5AD

For the Respondent
MR GEORGE WELCH (Representative)

**SUMMARY**

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

The Employment Tribunal gave sufficient reasons for its decision on the Polkey issue.

**HIS HONOUR JUDGE DAVID RICHARDSON****Introduction**

1. By a Judgment dated 9 May 2016 the Employment Tribunal sitting at London Central - Employment Judge Pearl, Miss Samek and Ms Plummer - upheld a claim of unfair dismissal by Mr Phillips, the Claimant, against East Coast Main Line Company Ltd, the Respondent. It found there was a 50 per cent likelihood that he would have been dismissed in any event and further that he contributed to his own dismissal to the extent of 50 per cent. The Respondent appeals against that Judgment. The Notice of Appeal was ambitious. There were some 18, largely factual, grounds. Following a Preliminary Hearing before HHJ Eady QC, a single ground has survived to this Full Hearing. It is that "The Employment Tribunal gave no real reasons for its assessment of the prospects of a fair dismissal at only 50%".

**The Background Facts**

1. The Claimant was a long-serving employee of the Respondent. He commenced employment in January 1990. He had a clean disciplinary record. He worked at the travel centre at King's Cross as a travel consultant, establishing the needs of customers and selling them the appropriate ticket or tickets or travel.

1. On 10 September 2014 a customer came to his position and said that he had missed his train. The Claimant told him that he had to buy a new ticket. There was evidently some kind of altercation. The customer went away to arrange a new ticket via his company. Then he returned and told the Claimant he wished to complain about him. He asked the Claimant for his name. It is the Respondent's policy that surnames are not given. The travel consultant wears a badge giving his first name. The Claimant told the customer he could not give his surname. The customer then tried to take his picture with a telephone. The Claimant was understandably upset lest the picture be posted on social media, perhaps with inappropriate or derogatory comments. The Claimant should have turned and walked away from the customer, but as the customer was about to take a picture the Claimant reached over the counter and grabbed the customer by his shirt with his left hand while holding the customer's left hand with his own right hand. He released his hold on the shirt after 14 seconds; he did not release his hold on the customer's hand or arm for almost 1½ minutes. He had called out for the police to be summoned. He held the man until two PCSOs arrived on the scene.

1. The Claimant was suspended on the day of the incident. He was made subject to a disciplinary charge that after arguing with a customer he held him by his arm and shirt against his will. This was said to be gross misconduct. There was a disciplinary hearing before Mr Hall, the area retail manager. By letter dated 27 November 2014 he dismissed the Claimant for gross misconduct. The Claimant appealed. The appeal was heard on 19 December 2014 by Mr Smithson, the station business manager. He rejected the appeal.

**The Employment Tribunal's Reasons**

1. The Employment Tribunal heard the Claimant's case, which involved allegations of disability discrimination as well as unfair dismissal, over three days in April 2016. For the purposes of this appeal I need say nothing about the allegations of disability discrimination. The Claimant did not establish that he had a disability at the relevant time. It is important, however, to summarise the Employment Tribunal's Reasons for finding the dismissal to be unfair.

1. The Employment Tribunal found that the reason for dismissal related to conduct. It found that the hearing before the area retail manager was suspect and unfair, not least because that manager did not appreciate that he had a discretion whether or not to dismiss. It also found, however, that the appeal before Mr Smithson was a complete re-hearing. So, if Mr Smithson had acted fairly and reasonably, the Employment Tribunal could have found the dismissal to be fair; but the Employment Tribunal found that the dismissal was unfair, for two reasons.

1. Firstly, Mr Smithson looked at the Respondent's computer system and found that there were earlier customer complaints against the Claimant. It was a factor that he took into account when he decided to dismiss. He said it helped him to come to a decision on the balance of probabilities whether the Claimant could be redeployed. But he did not tell the Claimant that he was taking the complaints into account; he kept it to himself. None of the complaints had resulted in any kind of disciplinary action. The Claimant had no opportunity to give his account of the complaints; that was unreasonable (see paragraphs 36-44 and 69-70). The Employment Tribunal said this could not be said to be a marginal consideration because it was of considerable importance to the decision maker.

1. Secondly, Mr Smithson said he was looking for signs of remorse and expected these, if they were to be forthcoming, to be volunteered by the Claimant. He said that an apology and genuine remorse "might have made a difference". He thought the Claimant was very reluctant to accept blame. The Employment Tribunal was critical of this approach (see paragraphs 41-43 and 72-76). The Claimant, who was represented and leaving his representative to do the talking, could not know that his silence was being held against him. Moreover, there was evidence that the Claimant was willing to apologise, which Mr Smithson did not take into account. One of the PCSOs had recorded that he apologised to the customer for holding him whilst saying that he objected to the photograph being taken, and at the disciplinary hearing the Claimant had said, "There is no excuse for what I did. I blew up with the customer", and, "I should have walked away and for one stupid second of my life will affect the next 20 years".

1. There are two passages within the Employment Tribunal's findings and reasons concerning unfair dismissal that are of particular relevance to this appeal. The first relates to the willingness of Mr Smithson to consider measures short of dismissal if there was an apology. The Employment Tribunal said (paragraph 43):

"… We therefore, find, taking all of Mr Smithson's evidence into account, that the issue of showing remorse or giving an apology, and saying that it would not happen again, was an important one for him. At one point in his evidence he was at pains to say that these are difficult decisions and that he takes them very seriously. We accept this evidence and consider that in the light of all he has said in the tribunal the issue of remorse might have been critical. There was an implicit recognition of this at the end of his evidence after he was recalled because Mr Smithson told us that it would be very difficult to know what he would have done had the Claimant volunteered the sort of apology that he was looking for."

1. The other relates to the likelihood that the Claimant would have apologised if the issue had been left open. The Employment Tribunal said (paragraph 74):

"… Accordingly, the approach that Mr Smithson took to the expression of remorse leaves the tribunal uneasy and we are prepared to say that on this ground alone a reasonable employer would have asked open questions that would have given the Claimant an opportunity to say how he felt. Had this been done or had an apology been canvassed expressly, we consider that the Claimant would have volunteered the same."

1. It was against this background that the Employment Tribunal considered the question whether if the Respondent had acted fairly there was a chance that the Claimant would have been dismissed in any event. Its conclusion was set out at paragraph 78:

"We accordingly turn to the questions of Polkey [v A E Dayton Services Ltd [1987] IRLR 503] reduction and contribution. Particularly in the case of procedural defects, we are obliged to ask whether or not, had the correct procedures been applied, any different result would have occurred. Although it is difficult to speculate we accept that the case law requires that we have to do our best to make an assessment. If Mr Smithson had spoken openly about an apology/remorse or looked a little further into the papers and picked up on some of these references and perhaps raised them with the Claimant, there might have been a different outcome. Had there been a discussion about previous complaints it is possible that that factor would have been removed as one that adversely affected the Claimant's prospects of retaining his job. We consider that when both matters are put together there is a 50% likelihood that the Claimant would still have been dismissed. In round terms we think that it is about 50/50, in that the Claimant might well have persuaded Mr Smithson that he could be given one final chance and it may have resulted in a final written warning."

**The Appeal**

1. On behalf of the Respondent Mr Christopher Milsom submits that the task of the Employment Tribunal was to assess what the Respondent would have done if it had acted fairly (see Hill v Governing Body of Great Tey Primary School. He argues that the Employment Judge never engaged in this assessment; paragraph 78 states a conclusion without any or any adequate reasoning. He argues that the likelihood of a meaningful apology was minimal given the Claimant's attitude at various times during the incident and the disciplinary process. A solicited apology would have been of little value. Moreover, it would have been of little value if the Claimant had been given an opportunity to comment on customer complaints, since he would be unable to recall instances some time earlier. Mr Milsom therefore says that the reasoning of the Employment Tribunal cannot stand. He invites me to substitute a finding that there was a certainty or virtual certainty that a fair dismissal would have eventuated at the same juncture, dealing with the matter myself in the interests of proportionality.

1. So far as the law is concerned, I agree with Mr Milsom. The task of the Employment Tribunal is summarised in the valuable judgment of Langstaff P (as he then was) in Hill:

"23. Because of the frequency with which tribunals have found employers wanting in the procedures they have adopted to effect dismissals which might otherwise have been fair this latter aspect of the broader question of compensation is known as the 'Polkey' deduction …

24. A 'Polkey deduction' has these particular features. First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes. This is to recognise the uncertainties. A tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done. Although Ms Darwin at one point in her submissions submitted the question was what a hypothetical fair employer would have done, she accepted on reflection this was not the test: the tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand."

1. It is the duty of the Employment Tribunal to give sufficient reasons for a decision on this question. Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides:

"(5) In the case of a judgment 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. Thus in Meek v City of Birmingham District Council [1987] IRLR 250 Bingham LJ stated that although Tribunals are not required to create "an elaborate formalistic product of refined legal draftsmanship" their Reasons should:

"… 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 of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises …"

1. It is always important to read the reasoning of an Employment Tribunal as a whole, avoiding an over-technical or pernickety approach, in order to see why a particular result has been reached and whether correct legal principles have been applied. This is particularly important with reasoning concerning Polkey. Findings and reasoning relating to Polkey will flow from and be closely linked to findings made in respect of the underlying unfair dismissal.

1. In this case it is plain that paragraph 78 of the Employment Tribunal's Reasons must be read against the findings made in respect of the underlying unfair dismissal. Paragraph 78 does not start from scratch; it assumes knowledge of what has gone before. The Employment Tribunal was not required to repeat verbatim all the findings it had made under the heading of unfair dismissal when it turned to the Polkey issue. It would have improved paragraph 78 if the Employment Tribunal had referred back expressly to the main findings it had made earlier, but the parties and an appellate Tribunal can be expected to read a Polkey finding in the light of findings already made earlier in the Reasons.

1. Once that is done, it is, in my judgment, clear why the Employment Tribunal reached its broad 50 per cent assessment. The Employment Tribunal did consider what the Respondent would have done on the hypothesis that it had acted fairly. It applied the test in Hill. It found, at paragraph 43, that the issue of remorse might have been critical to Mr Smithson. This required it also to consider what the Claimant would have done if he had been given an opportunity to say how he felt or if an apology had been canvassed. The Employment Tribunal found that he would have volunteered an apology (paragraph 74). This latter finding also disposes of Mr Milsom's submissions to me that there was a minimal chance of a meaningful apology. I have no doubt that the Employment Tribunal meant a meaningful apology at paragraph 74, not what Mr Milsom engagingly called a "mantra" of an apology. It is clear, especially having regard to the Employment Tribunal's findings about what the Claimant said at the disciplinary hearing, that it meant a true apology.

1. Once these passages are read with paragraph 78, it is, to my mind, plain how the Employment Tribunal reached the broad conclusion that there was a 50 per cent chance that the Respondent if it had acted fairly would not have dismissed the Claimant. If the issue of remorse was likely to be critical to Mr Smithson and the Claimant would have volunteered an apology, there was plainly a significant chance that the Respondent would not have dismissed the Claimant. The assessment of that chance at 50 per cent was very much a matter for the Employment Tribunal, and there is only a limited extent to which reasons can be given in a case like this for the precise percentage assessed.

1. It follows that the appeal will be dismissed. I should mention that there may be a slip in the last paragraph of the Employment Tribunal's Reasons. It seems to say that the effect of its ruling (50 per cent Polkey, 50 per cent contributory conduct) will be that the basic and compensatory award will be reduced by 75 per cent. That is true of the compensatory award, but the Employment Tribunal may wish to reflect on the question whether the basic award should be reduced on Polkey grounds. That is, however, not a ground of appeal for me; and it is a matter that can no doubt be considered when remedy is finalised.