The claimant was a bus driver who was dismissed for gross misconduct after he interfered with a CCTV camera installed in his cab. The Tribunal found that his dismissal was unfair because of a lack of parity between the treatment of the claimant and the earlier treatment of other employees involved in similar misconduct. The Tribunal ordered reinstatement, taking account of 'judicial knowledge that the respondent has been advertising vacancies for bus drivers'. The respondent appealed.

The EAT rejected the respondent’s argument that the ET had failed to distinguish between employees on the basis of the claimant already having been given a final written warning. The respondent had not relied on the claimant’s prior record when deciding to dismiss him so the unfair dismissal appeal failed. However, the EAT upheld the reinstatement appeal. The Tribunal ought not to have relied on any knowledge they had about job advertisements without raising it with parties – something which they ought to have done before the end of the hearing.
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Appeal No. UKEATS/0052/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 22 March 2012

Before

THE HONOURABLE LADY SMITH, MR M SIBBALD, MR R THOMSON

FIRST GLASGOW LTD (APPELLANT)

MR JOHN ROBERTSON (RESPONDENT)

JUDGMENT

For the Appellant
MS L GALLAGHER (Solicitor)

HBM Sayers
18 Hanover Street
Edinburgh
EH2 2EN

For the Respondent
MR L G CUNNINGHAM (Advocate)

Instructed by:
Cassidys' Advice and Solicitor Services
40 Carlton Place (basement)
Glasgow
G5 9TW

UNFAIR DISMISSAL

Reasonableness of dismissal

Reinstatement/re-engagement

Bus driver dismissed for gross misconduct in relation to interference with CCTV camera in driver's cab. Tribunal found dismissal to have been unfair; lack of parity between treatment of Claimant and earlier treatment of other employees involved in similar misconduct. Appeal against that finding on ground that Tribunal failed to distinguish between employees on basis of Claimant's record of prior final warning. Appeal dismissed - employer had not relied on the Claimant's prior record.

Reinstatement. Tribunal ordered reinstatement taking account of 'judicial knowledge that the Respondent has been advertising vacancies for bus drivers. No further specification given and not raised with parties. Appeal against order for reinstatement upheld and case remitted to Tribunal to consider remedy of new.

1. Mr Robertson was employed as a bus driver by First Glasgow Limited and was found to have been unfairly dismissed by his employers by an Employment Tribunal sitting at Glasgow, Employment Judge R Sorrell, by Judgment dated 8 August 2011.

1. This is the employers' appeal. We will continue, for convenience, to refer to parties as Claimant and Respondent.

1. The Claimant represented himself before the Tribunal and was represented by Mr Cunningham, advocate, before us. The Respondents were represented by Ms Gibb, solicitor, before the Tribunal and by Ms Gallagher, solicitor, before us.

1. The Respondents, in common with other bus companies, introduced CCTV systems into their vehicles some years ago. The Claimant was dismissed for gross misconduct arising from his having, on two occasions in October 2010, interfered with a CCTV camera in the driver's cab in that he covered it with a microphone. He had received a prior final written warning in respect of an unrelated matter in May 2010.

1. Two other bus drivers had been disciplined for similar misconduct prior to October 2010. In December 2009, Alan Thomson had covered the camera when he was applying tape to a light which was too bright; he received a final written warning. In April 2010, Mr A Cook, who was a diabetic, had covered the camera to hide the fact that he was eating a piece of fruit in the cab; he too was given a final written warning.

1. The Claimant was disciplined in respect of his actions in relation to the CCTV camera. The decision following his disciplinary hearing was that he was to be dismissed for gross misconduct. He appealed. His appeal was heard by Mr John Cahill, Director of Operations, who gave evidence before the Tribunal. They found as fact:

"He did not take account of the claimant's current final written warning as the charge of gross misconduct in this instance alone was sufficient to justify summary dismissal." (paragraph 16).

1. The Tribunal found that the dismissal was substantively unfair because the decision to dismiss the Claimant as compared to giving Mr Thomson a final written warning for similar conduct amounted to a lack of parity of treatment, such as would not have been the action of a reasonable employer (paragraph 61).

1. The Tribunal ordered reinstatement, explaining their reasons for doing so at paragraph 68:

"68. The Tribunal considers that a Reinstatement Order, as set out in the terms described above, is appropriate in this case. In evidence, Mr Cahill said that in his 28 years of employment with the respondent, no compulsory redundancies had been made. It was also within judicial knowledge that the respondent has been advertising vacancies for bus drivers. However, in terms of the practicability test, Ms Gibb, in spite of prompting from the Tribunal, did not take evidence from Mr Cahill or address the Tribunal as to whether it is practicable for the respondent to comply with an order for reinstatement. The Tribunal therefore find that it would be practicable for the respondent to comply with such an order."

1. The Claimant having been dismissed for the potentially fair reason of gross misconduct, the task for the Tribunal was to determine whether or not the dismissal was fair, having regard to the provisions of section 98(4) of the Employment Rights Act 1996:

"In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. Under section 113(a) of the 1996, the Tribunal has power to order reinstatement. Section 116 provides:

"116 Choice of order and its terms.

(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—

(a) whether the complainant wishes to be reinstated,

(b) whether it is practicable for the employer to comply with an order for reinstatement, and

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. "

1. There is no onus on an employer, at that stage, to establish that reinstatement is not practicable. The issue of practicability is one which the Tribunal requires to determine in the light of the whole circumstances.

1. Conversely, if an employer seeks to avoid being penalised for having failed to comply with an order for reinstatement , there is then an onus on him to show that it was not practicable to comply with the order (see section 116(3)(b) and (4)(a) of the 1996 Act).

1. Ms Gallagher addressed us on two grounds of appeal. First she submitted that the Tribunal had erred in finding that the Claimant was unfairly dismissed because they had failed to take account of the fact of his prior written warning. That distinguished him from the two employees who had received warnings instead of dismissal. Regarding Mr Cahill's evidence, she submitted that the employers' actual reasoning was irrelevant. Furthermore, where an employee was subject to a final written warning and was found guilty of misconduct worthy by itself of dismissal,that showed that dismissal was within the range of reasonable responses.

1. Secondly, she submitted that the Tribunal had erred in deciding to order reinstatement. They had taken account of what they referred to as judicial knowledge regarding advertisements for job vacancies. However, the stated 'knowledge' was inspecific and, furthermore, the matter had not been raised at the hearing. The Respondents had had no opportunity to consider and respond to the matter. The Tribunal was not, in these circumstances, entitled to rely on it.

1. She submitted that there should be a remit to the Tribunal to consider all matters anew.

1. Mr Cunningham submitted that the appeal should be dismissed. Regarding the finding of unfair dismissal, the Tribunal required to have regard to the Respondent's reasons for dismissal and were entitled to conclude that since Mr Cahill had not relied on the Claimant's prior final written warning, they were not required to do so either.

1. Regarding the second ground, he confirmed that it was his understanding that the Tribunal had not raised the matter of any job advertisements. However, the fact of there being no compulsory redundancies showed that the Respondents were a thriving business and the Tribunal were thus entitled to decide as they did.

1. We can deal with the first ground briefly. It was not well founded. Section 98(4) of the 1996 Act directs tribunals to have regard to the employers' reasons for dismissing an employee. Ms Gallagher was wrong to suggest that the Tribunal was obliged to ignore Mr Cahill's evidence that he did not take the Claimant's prior written warning into account. He certainly could have done so and if he had, there might have been a sound basis for distinguishing between the Claimant and the other two employees. That, however, was not the position and we could not find that the Tribunal were not entitled to conclude as they did.

1. Turning to the second ground of appeal, we are satisfied that it is well founded. Ms Gallagher's criticism of the 'judicial knowledge' as lacking in specification was a reasonable one. When and where were these advertisements? What did they say? How could the Tribunal know whether or not the vacancies had been filled? More importantly though, the point is one of fundamental fairness. It is not fair for a Tribunal to make a decision on the basis of a fact which did not form part of the evidence and/or was not raised with parties. The Respondents had no opportunity to deal with the issue whether by leading evidence or making submissions. The Claimant had no chance to say what his position was. The Tribunal ought not to have relied on any knowledge they had about job advertisements without raising it with parties – something which they ought to have done before the end of the hearing.

1. We would add that to say, as the Tribunal did, that the Respondents did not lead evidence or address the Tribunal on practicability and therefore reinstatement was practicable is no answer at all. There is, at the stage of deciding whether or not to order reinstatement, no onus on an employer to establish that it is not practicable; there is no statutory presumption of practicability. That does, however, appear to have been the Tribunal's approach, judging by what they say at paragraph 68.

1. Finally, we reject Mr Cunningham's contention that the fact of a policy of no compulsory redundancies shows that the Respondents were a thriving business and that therefore reinstatement was practicable. None of these considerations necessarily follow on from each other.

1. In these circumstances, we will pronounce an order upholding the appeal but only to the extent of setting aside paragraphs 3, 4, 5 and 7 of the tribunal's judgment and thereafter remitting to the same Employment Tribunal to consider of new the issue of remedy, namely, whether or not reinstatement should be ordered and if not, what compensation ought to be paid to the Claimant.