The claimant was dismissed for infringing health and safety procedures after he had ignored the warning signs on the piece of machinery he was repairing by disabling sensors and entering into the body of the machine itself. He claimed unfair dismissal. The ET was satisfied that the company had established a legitimate reason for the claimant's dismissal and that the respondent had had a genuine belief, following a fair investigation, that the claimant had been guilty of the misconduct. However, they held that there had been unfair disparity in treatment as between the claimant and another employee who had committed almost the same offence a year earlier but who had not been dismissed. The only major difference between the 2 cases was that the other employee went off sick with an injury caused as a result of the offence and disciplinary proceedings could not take place because he was not at work. He was eventually dismissed by reason of capability. The ET ruled that the 2 cases were factually indistinguishable and accordingly held the dismissal to be unfair. The respondent appealed.

The ET had made 2 critical findings: 1) the other employee, according to the respondent, would have been dismissed for gross misconduct but for the illness consequent on his injury; and 2) the differential treatment by reason of that injury was legitimately open to the employer. The EAT therefore decided that it was entirely inconsistent for the Tribunal to hold that the difference in treatment had been unexplained or insufficiently explained by the respondent.

_______________

Appeal No. UKEAT/0139/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 September 2011

Before

MR RECORDER LUBA QC, MR D BLEIMAN, MR T MOTTURE

GENERAL MILLS (BERWICK) LTD (APPELLANT)

MR A GLOWACKI (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MICHAEL ORD (of Counsel)

Instructed by:
Messrs Watson Burton LLP Solicitors
1 St James Gate
Newcastle upon Tyne
Tyne and Wear
NE99 1YQ

For the Respondent
MR JONATHAN BARKER (Solicitor)

Richmond Anderson Goudie Solicitors
1-2 Flake Cottages
Cone Terrace
Chester-Le-Street
County Durham
DH3 3QH

UNFAIR DISMISSAL – Reasonableness of dismissal

Unfair dismissal. Employee summarily dismissed for gross breach of health and safety procedures. Employment Tribunal would have found the dismissal 'fair' but for the different treatment of another employee who, a year earlier, had also been guilty of a gross breach of health and safety procedures but had not been summarily dismissed for misconduct. The Tribunal was not satisfied that the difference in treatment had been explained by the employer.

Appeal allowed. On the Tribunal's own findings, it had accepted as credible and reasonable the employer's explanation that the reason why the earlier incident had not also resulted in immediate dismissal for misconduct was that that employee had been very seriously injured. So serious was that injury that he was unable to take part in a disciplinary process and so was dismissed on capability grounds. But for the injury, the employer's evidence was that there would have been a summary dismissal for misconduct.

Held: that was a sufficient basis upon which any reasonable employer might have considered it appropriate to have treated the two employees differently, given the range of responses reasonably open to an employer faced with those facts.

1. This is an employer's appeal from a finding by the Employment Tribunal sitting at Newcastle upon Tyne, that it had unfairly dismissed its employee, Mr Glowacki. Mr Glowacki had worked for General Mills (Berwick) Limited, which we shall refer to as "the company", as an electrician from September 2007 until July 2010. His duties had included the repair of production machinery and equipment.

1. On 6 July 2010 he had been required to repair a machine known as a "palletiser". Contrary to the warning notices on the machine, he repaired it by disabling certain sensors and entering into the body of the machine itself. This was treated by the company as a serious infringement of health and safety procedures and later the same day he was given notice that a disciplinary hearing would take place a few days later to consider what action should be taken.

1. The panel conducting that subsequent disciplinary hearing was satisfied that Mr Glowacki had been guilty of gross misconduct. It decided that he should be dismissed. His appeal from that decision, and a further appeal against the rejection of a grievance he had lodged, were both dismissed by the company under its appeals procedures.

1. It was against that background that Mr Glowacki presented his claim for unfair dismissal to the Employment Tribunal Service. His claim form also raised a claim for race discrimination, alleging that the company had treated other workers, who were British, differently from him on the basis of his Polish national origins.

1. The question as to whether the dismissal of Mr Glowacki had been unfair fell to be determined by application of s.98 of the Employment Rights Act 1996. Most relevantly that section provides, at s.98(1):

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason [...]

(2) A reason falls within this subsection if it-

[...]

(b) relates to the conduct of the employee,

[...]"

1. Subsection (4) provides that:

"(4) 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. The Employment Tribunal (Employment Judge Pitt and members) heard Mr Glowacki's evidence, and that of the company's relevant officers, over several days. It rejected the claims of race discrimination and we need say nothing further about them.

1. On the claim of unfair dismissal, the Employment Tribunal was satisfied that the company had established a legitimate reason for Mr Glowacki's dismissal, within the terms of s.98(1), i.e. gross misconduct. Further, the Employment Tribunal was satisfied that the company had had a genuine belief, following a fair investigation, that Mr Glowacki had been guilty of such misconduct, not least on the basis of his own admission that he had overridden the safety features that were in place on the relevant machine.

1. Whatever procedural shortcomings there may have been in the company's handling of the disciplinary procedure, the Employment Tribunal was satisfied that they had been cured by the opportunity of not simply one, but two appeals. The Employment Tribunal was further satisfied that on the facts relating to the incident, and not least Mr Glowacki's failure to acknowledge that he had acted in breach of safe working practice, a dismissal would have been within the range of reasonable responses open to an employer, applying the familiar test in British Home Stores Ltd v Burchell [1998] IRLR 379. Neither party takes any issue with any of those conclusions.

1. Having made those findings the Employment Tribunal went on to consider, as part of its determination of the unfair dismissal claim, whether there had been any unfair disparity in treatment, in relation to the company's response to health and safety infringements, as between Mr Glowacki, on the one part (who had been dismissed) and on the other part employees in comparable circumstances (who had not been).

1. It considered the circumstances of four other employees of the company. Three of those it rejected as insufficiently similar cases. We need say nothing further about them. However, in respect of a fourth case, that of a Mr Stevens, the Employment Tribunal considered that his case has been closely comparable and that he and Mr Glowacki had been treated differently. It found that in 2009, Mr Stevens had been guilty of a serious breach of health and safety procedures, indeed one so serious that he had suffered a debilitating injury. However, Mr Stevens had not been dismissed for gross misconduct by the company, but Mr Glowacki had been.

1. The Employment Tribunal were satisfied that the cases of Mr Stevens and Mr Glowacki were factually indistinguishable, and accordingly held that the dismissal had not been fair within the terms of s.98(4) because Mr Glowacki had been dismissed for gross misconduct, but Mr Stevens had not been.

1. From the order made on the basis of those findings, the company appeals to this Employment Appeal Tribunal. However, whilst this appeal was pending the company also sought a review of the decision by the Employment Tribunal itself. The Employment Tribunal acceded to that application and agreed to conduct a review. It considered the disparity point afresh, after hearing further argument, but it again concluded that the disparity of treatment between the two employees, Mr Stevens and Mr Glowacki, was such that the dismissal of Mr Glowacki was unfair.

1. It gave its Reasons in a further Judgment, sent to the parties in August 2011. The Employment Tribunal expressly confirmed the earlier decision it had given in January 2011, upholding the unfair dismissal claim.

1. There have been a number of aspects of the procedural steps leading up to this appeal, which have been less than satisfactory. First, Mr Glowacki failed to file and serve, within the appropriate time, an answer to the appeal as required by both the Procedural Rules and the express orders of this Employment Appeal Tribunal.

1. He then delivered, in May 2011, a message indicating that he was not opposing the appeal. Subsequently, a number of unsuccessful procedural applications were made to the Registrar of the Employment Appeal Tribunal seeking extensions of time, at least one of which applications was itself made out of time. The latest of the Registrar's adverse decisions was the subject of a review application by Mr Glowacki's representatives, and that review was listed for determination by us.

1. In the event Mr Ord, appearing for the company, indicated that the applications by Mr Glowacki to extend time for an Answer, and to enable Mr Glowacki to participate in the appeal, were not opposed. In those circumstances, we accordingly extended time and entertained argument on the appeal from Mr Barker, who appeared for Mr Glowacki.

1. At the outset of the hearing of the appeal proper, Mr Ord then invited us to treat the appeal as continuing to be against the Judgment made by the Employment Tribunal in January 2011 as affirmed in August 2011, but on the basis that the Employment Tribunal's revised, rather than original, Reasons should be the subject of scrutiny.

1. This was not entirely satisfactory. There had been no Notice of Appeal against the August 2011 decision and, accordingly, no answer to such appeal. The grounds of appeal in the original appeal notice had addressed the original reasoning of the Tribunal and no application had been made to amend them.

1. The skeleton argument in support of the appeal had been filed on the basis of the original grounds, and there has been no supplementary or substituted Appellant's skeleton argument. The Respondent's skeleton argument, filed contingent upon Mr Glowacki's ultimately successful application to extend time, did embrace the fact of the August 2011 review, but in little detail.

1. In the event, Mr Barker did not oppose Mr Ord's application that the appeal should proceed on the basis just described. In those rather unsatisfactory circumstances, we considered it just and proportionate to proceed with the hearing, and we allowed both parties a degree of latitude in the formulation of their respective submissions.

1. The focus of the appeal was, in the circumstances we have just described, exclusively upon the Employment Tribunal's handling, in its August 2011 review decision, of the question of alleged disparity between the treatment of Mr Stevens and the treatment of Mr Glowacki.

1. Before we set out the Employment Tribunal's findings, it is relevant to record that in their Judgment upon that occasion, the Employment Tribunal noted, at paragraph 6.1, that it was common ground that disparity of treatment between employees may found an unfair dismissal claim.

1. Further, the Employment Tribunal referred, at paragraph 6.2 of their August 2011 Judgment, to the Court of Appeal's decision in the case of Post Office v Fennell [1981] IRLR 221. The Tribunal indicate that they have had regard to the now-familiar passage from the Judgment of the court in that case, to the effect that the reference to the expression "equity" in s.98(4):

"[...] comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an Industrial Tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal."

1. I have there referred to a passage from paragraph 12 of the Judgment of Brandon LJ. Finally, in this respect the Tribunal refer, at paragraph 6.3 of their decision, to the Judgment of this Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, and again their Judgment indicates that they had regard to what is said by Waterhouse J, at paragraphs 24 and 25 of his Judgment, on behalf of this Tribunal in that case.

1. It is right to supplement our reference to those authorities to which the Employment Tribunal was referred, by mentioning that the passages in the Judgment of Waterhouse J in the Hadjioannou case were subsequently expressly approved by the Court of Appeal in Paul v East Surrey District Health Authority [1985] IRLR 305.

1. The Employment Tribunal's findings in relation to the parity question in their August 2011 Judgment are expressed in these terms at paragraph 7.1 to 7.8:

"7.1 The Tribunal revisited in its entirety the issue of whether the facts of the claimant's case were truly parallel to that of Mr Stevens. They were both serious breaches of health and safety rules; Mr Stevens suffered a very serious injury and damage was caused to machinery as a result, which presumably led to some down time. The Tribunal noted that the claimant was a professional electrician and Mr Stevens a production operative although from the accident report it appears his only role was to clean the roller reaction belt. Both employees ignored signage; both employees had to make a conscious decision to do what they did. The Tribunal are of the view it is difficult to see two more parallel cases, without them being identical which it seems is what Mr Ord urges upon us.

7.2 Having determined that the incidents were similar the Tribunal considered the difference in treatment. The claimant was immediately subject to disciplinary proceedings and ultimately dismissed. Mr Stevens, because of his injury, was not the subject of any disciplinary proceedings at all. The respondent in February 2011, some seven months after the accident, invited him to attend an investigatory meeting. Mr Stevens' Solicitor responded on his behalf saying he was too distressed by the accident. The Tribunal wondered whether in fact this was a tactic to avoid a dismissal. No further attempt was made to take action against Mr Stevens even though it is permitted for under the respondent's own procedures. Mr Stevens was the subject of a number of health reviews and in June it was clear that he would not be able to return to his previous role. Mrs Young told the Tribunal that it was at Mr Stevens' behest that his employment was terminated. This is supported by the documentation (page 13):

'John would like a decision to be made on his employment status as the employment agency wishes to take John through re-training...'

7.3 As a result Mr Stevens' employment was terminated on the grounds of capability. Thus, avoiding the stigma of a dismissal for misconduct.

7.4 Whilst the Tribunal might speculate as to why this course of action was taken by the respondent in relation to Mr Stevens it was one legitimately open to them.

7.5 The Tribunal looked at how that impacts upon the claimant. It seems it was raised as an issue of discriminatory treatment by the claimant during his grievance and the respondent did not uphold his grievance on that basis or any other at that stage, however nor did they take account of the manner of the termination of Mr Stevens' employment.

7.6 In looking at the position it is clear to this Tribunal that the evidence neither of Mr Turnbull, which has not been challenged nor subject to correction, is that Mr Stevens would have been disciplined and possibly dismissed if he had returned to work. There has been no evidence led as to why there was a difference in treatment save that Mr Stevens was absent through ill health and a request from his Solicitor not to proceed any further with the investigation.

7.7 The Tribunal therefore concluded that there was a difference of treatment between the employees.

7.8 Turning to the issue of future dismissals; the Tribunal is concerned with whether this particular claimant was dismissed; whether that decision has an impact and in what way on future situations is not for this Tribunal."

1. It is right to record that the parties are agreed that in paragraph 7.6 of that extract, the word "neither" should be treated as deleted. In the light of those findings, Mr Ord's case for the company was in summary, firstly, that the Employment Tribunal had applied the wrong test when dealing with the disparity question. His submission was that the Employment Tribunal had asked themselves only the question "was it unfair to dismiss Mr Glowacki when Mr Stevens had not been dismissed for gross misconduct?" Mr Ord submitted that the proper question was "was the decision to dismiss Mr Glowacki so irrational that no employer could reasonably have made it?"

1. If he was wrong as to his submission that the Tribunal had asked itself the wrong question, Mr Ord urged that the Tribunal had in any event reached conclusions which were inconsistent with the facts that it had itself found, and he took us to various passages in paragraphs 7.1 to 7.8 to make good that proposition, insofar as he was able.

1. For his part, Mr Barker for Mr Glowacki, invited us to uphold the Judgment of the Tribunal for the reasons it had given in its August 2011 Reasons. He put to us that the proper test or question was as follows:

"The Employment Tribunal has to be satisfied if there has been disparate treatment of truly parallel cases, that the employer has given sufficient evidence to show why that disparate treatment was not unfair."

1. His submission was that the Tribunal had, in effect, asked itself that question and answered it in a way which had given adequate reasons, and could not be said to have been in any way in error of law.

1. Both parties made reference in their oral or written submissions to the case of Securicor Ltd v Smith [1989] IRLR 356. In the event, both representatives accepted that the Court of Appeal in that case had dealt with a circumstance in which an employer had deliberately differentiated between the treatment of two employees engaged in the same incident, and that the question of whether to make a distinction between those two employees had been made at the time that the decision in that case to dismiss was ultimately upheld by the employer's appeal panel.

1. The case of Paul v East Surrey District Health Authority is of the same type. That is to say, a context in which the aggrieved employee subject to dismissal, takes the point as part of the dismissal proceedings whilst still an employee, that he or she has been treated unfairly in comparison to others.

1. By distinction, from those two cases, in the instant case there is no suggestion that the company had in mind the circumstances of Mr Stevens, or his earlier misconduct, when it resolved to dismiss Mr Glowacki. The facts pertaining to Mr Stevens were not introduced as potentially relevant to the fairness, or otherwise, of his dismissal by Mr Glowacki at all, whether at the time or as part of the subsequent internal appeals process. Moreover, they formed no part of his complaint to the Employment Tribunal in respect of unfair dismissal.

1. The question of the circumstances relating to Mr Stevens came into play, we understand, for the first time during the hearing before the Employment Tribunal in late 2010. In those circumstances, in our judgment, it fell to the Employment Tribunal, bearing in mind the cautious approach urged by this Tribunal in Hadjioannou, and endorsed by the Court of Appeal in Paul, to determine ex post facto for the purposes of s.98(4), whether a reasonable employer could properly, within the bounds of a range of reasonable responses, have decided to deal with Mr Glowacki by dismissal for gross misconduct, when it had not so dismissed Mr Stevens.

1. The Employment Tribunal made, at paragraph 7.1 of its Reasons (which we have already recited), its finding that the two cases of Mr Stevens and Mr Glowacki were truly parallel or closely comparable cases. That was a finding of fact. It was not open to either party, and it is not open to us, to go behind that finding.

1. The critical question, therefore, is whether the Employment Tribunal has lawfully determined, on the evidence available to it, that the company had failed to show a reasonable justification for the difference in treatment between the two cases.

1. In our judgment, there are two critical features of the Employment Tribunal's reasoning which touch on that issue. The first, as Mr Ord emphasised, is that at paragraph 7.4 the Tribunal find that the company's treatment of Mr Stevens had been legitimately open to it. That is important, because it directs the Employment Tribunal itself to a "range of reasonable responses perspective" which it needed to apply, in our judgment, also to Mr Glowacki's dismissal.

1. Secondly, at paragraph 7.6, the Employment Tribunal in its second sentence say, as we have already set out in the extract above:

"There has been no evidence led as to why there was a difference in treatment save that Mr Stevens was absent through ill health and a request from his Solicitor not to proceed any further with the investigation."

1. That is an important, but also difficult, sentence. The unchallenged evidence of the company given by Mr Turnbull, was that Mr Stevens would ordinarily have been subject, as a result of his serious breach of health safety procedures, to the same disciplinary proceedings and ultimately dismissal for gross misconduct, as Mr Glowacki had subsequently himself been.

1. Indeed in the first sentence of paragraph 7.6, the Tribunal itself records that fact. Moreover, although the sentence in 7.6 is formulated by reference to the proposition that Mr Stevens might be "possibly dismissed", a reference back to the January 2011 findings of the Tribunal records the evidence of Mr Turnbull, which was accepted even more clearly. At paragraph 15.2.4 of that Judgment the Tribunal state:

"15.2.4 Had he been at work the respondent would have followed their disciplinary procedure and this could have resulted in his dismissal. In his evidence before us Mr Turnbull told us that he could not recall the details but he was in no doubt at all that Mr Stevens would have been sacked for a breach of health and safety rules."

1. Put together, therefore, the two sentences in paragraph 7.6 of the Employment Tribunal's conclusions come to this: Mr Stevens and Mr Glowacki would, on the company's evidence, have been treated the same way in respect of their breaches of health and safety procedures. That is to say they would both have been, and Mr Glowacki was, subject to disciplinary proceedings and a dismissal for gross misconduct.

1. The reason in the evidence of the company, accepted by the Tribunal, why that was not so in the case of Mr Stevens, was simply that Mr Stevens had been absent through ill health and unable to participate in a disciplinary investigation. He had, nevertheless, been dismissed by reason of his incapacity.

1. It seems to us, therefore, that the Employment Tribunal has itself found that the company had established a reason why Mr Glowacki was treated differently from Mr Stevens. The question was not whether the Employment Tribunal might think that a good or sufficient reason to have proceeded with a gross misconduct dismissal of Mr Glowacki, notwithstanding the absence of a gross misconduct dismissal of Mr Stevens, but whether a reasonable employer might have done.

1. Asking the correct question, in our judgment, admits of only one conclusion. Put another way, having made the two critical findings to which we have already referred, namely that Mr Stevens would have been dismissed for gross misconduct but for the illness consequent on his injury, and that the differential treatment by reason of that injury was legitimately open to the employer, it is in our judgment entirely inconsistent for the Tribunal to hold, as it did, that the difference in treatment had been unexplained, or was not sufficiently explained, by the company.

1. For these reasons the conclusion of the Employment Tribunal cannot be sustained. We will accordingly allow the appeal. If, as we have found, the dismissal cannot be justified as or described as unfair, on the basis of disparate treatment, there is no other basis upon which it can be held to have been an unfair dismissal.

1. It must follow, therefore, consequent upon our reversing the decision of the Employment Tribunal, that the claim for unfair dismissal itself must stand dismissed. In the light of this Judgment, which is the unanimous judgment of the Employment Appeal Tribunal, our orders will be: (1) the appeal is allowed; and (2) the claim for unfair dismissal is dismissed.