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Appeal No. UKEAT/0465/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 April 2010

Before

HIS HONOUR JUDGE McMULLEN QC

MR C EDWARDS

MR S YEBOAH

MR R M HONEY (APPELLANT)

CITY AND COUNTY OF SWANSEA (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**PRELIMINARY HEARING - ALL PARTIES****APPEARANCES**

For the Appellant
MR JONATHAN WALTERS (of Counsel)

Instructed by:
Messrs Thompsons Solicitors
Agincourt
14-18 Newport Road
Cardiff
CF24 0SW

For the Respondent
MR JONATHAN COHEN (of Counsel)

Instructed by:
Messrs Dolmans Solicitors
17-20 Windsor Place
Cardiff
CF10 3DS

**SUMMARY**

UNFAIR DISMISSAL

Reasonableness of dismissal

Procedural fairness/automatically unfair dismissal

The Claimant, a senior legal executive, was found in disciplinary proceedings to have claimed sick pay while on holiday, and not been truthful in his answers on return-to-work. On appeal the substantive charges against him were dismissed but the dishonesty was upheld and he was dismissed. The Employment Tribunal correctly found the reason for dismissal and that it was a reasonable response. It carried out all three steps in the 2002 Act regime. It correctly rejected the claim of disparity of treatment as the comparator was not apt.

**HIS HONOUR JUDGE McMULLEN QC**

1. This case is about unfair dismissal and the Employment Act 2002 (Dispute Resolution) Regulations 2004. It is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.

**Introduction**

1. It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Cadney sitting over three days at Cardiff, registered with reasons on 30 July 2009. The Claimant has today been represented by Mr Jonathan Walters of counsel, different counsel having appeared throughout the very long procedural history of this case. Mr Jonathan Cohen appears throughout for the Respondent.

1. The Claimant claimed unfair dismissal. He succeeded initially but that judgment was set aside in a series of three appeals and the case was restored to a different Employment Tribunal so that the events with which we are concerned are now four years old. The impact of the remission is demonstrated by the conspicuous care dedicated to the writing of the reasons by the Employment Tribunal. It took great care to set out its reasoning, particularly since its finding was different from its predecessor's.

1. The Claimant appeals now on three short points. Directions were given sending this case to a preliminary hearing by HHJ Hand QC. Because there was a cross-appeal on a ground run by the Claimant but not now pursued, the Respondent was given the right to attend. Initially it produced written submissions drafted by Mr Cohen but pursuant to the right given to the Respondent to make representations, we heard him.

**The facts**

1. The Claimant was engaged by the Respondent for over 30 years rising to a position as a senior legal executive on £30,000 pa. On 20 September 2006 he was dismissed on the grounds of gross misconduct. The circumstances were stark. To use the language of Mr Walters he was accused of throwing a sickie: while subject to contractual sick pay arrangements he had been able to take a holiday. When he returned to work material was adduced from a private investigator which confirmed the initial suspicions of the Claimant's Line Manager, Mr Patrick Arran, that he had said he was sick and was not.

1. The initial investigation was conducted at what is known as a return-to-work interview when the points were put to him and he lied. That led to a disciplinary investigation which canvassed the three principal issues which emerged in this case. As first enunciated they were not compartmentalised in a way which would have been helpful thereafter, for on 7 September 2006 the Respondent referred to a meeting conducted under the aegis of the disciplinary code. This is regarded as a Step 1 letter for the purposes of the 2002 Act regime (see below para 21).

1. The Step 1 letter says this:

"I refer to the disciplinary investigation meeting held today 7 September 2006, which was convened to discuss issues surrounding the period of sickness you had in July 2006. You attended and were represented by Mr Malcolm Harrington of Unison.

You were informed that the Authority has reason to believe that you had advised the Authority that you could not attend work due to sickness, but that you were clearly fit enough to partake of a holiday.

Further, you did not inform the investigating officer of this fact, until you were pressed and had been informed that the Authority had evidence which demonstrated that you were not at home for the week between the 11th and 17th of July 2006.

As a consequence of this, and the fact that it appeared that you had been less than frank with the truth, I would confirm that the matter will be referred to a formal Disciplinary Hearing.

This is because it appears that you have provided false information to the Authority. Further, as a Senior Legal Executive, it will be alleged that you have failed to demonstrate the high standards of honesty and integrity that the Authority is entitled to expect of its Legal Officers.

I would point out that dishonesty can potentially amount to gross misconduct, and that if proven, this could lead to the termination of your employment with the Authority, unless there are clear and mitigating circumstances.

I will now arrange for the Disciplinary Hearing to be convened and you will be advised in due course of the date, time and venue. You will receive a further letter outlining the allegations, together with a copy of the Report and any evidence which will be presented at the Hearing.

I would advise you that you may wish to be represented by a Trade Union representative or an employee of the Authority at the Hearing, although this is for you to arrange.

In the meantime, should you require any further information, please do not hesitate to contact me on the above telephone number."

1. The letter was followed by what is regarded as a Step 2 letter which sets out the basis of the case to be met by the Claimant at the disciplinary hearing. Here we see the categorisation of allegations into three:

"1. Fraudulently claiming contractual sick pay in taking a holiday whilst ostensibly unfit for work through sickness.

2. Failing to inform the Authority of the fact that you had taken a holiday on your return to work.

3. Breach of implied term of mutual trust and confidence."

1. Included within the material sent to the Claimant was a very substantial body of evidence. It apparently included a report of the disciplinary hearing which drew upon matters at the return#to#work meeting. It also included a witness statement of David Daycock, a Monitoring Officer, and important to these proceedings the witness statement of Lynne Owen, who conducted the return#to#work interview. Lynne Owen's statement makes clear that the points to be put against him were that he had not told the truth.

1. At the disciplinary hearing on 20 September 2006 Mr Anthony O'Sullivan, the Head of Transport and Engineering, concluded that the points set out in the Step 2 letter had been made out. The Claimant had been dishonest. The result was immediate dismissal.

1. The Claimant appealed. That was heard by Mr Jack Straw on 12 and 13 December 2006. The Claimant had been represented hitherto and was at the appeal hearing represented by Mr Jeff Baker, a Unison Officer. Mr Straw upheld the appeal in respect of points 1 and 2 above. The substantive basis on which the Claimant's conduct had been put was not made out. We have described it as a technical point in these proceedings. Mr Straw accepted that the Claimant was indeed sick at the time and so points 1 and 2 fell away, including the issue of the holiday. That left point 3. On that, Mr Straw agreed with Mr O'Sullivan and dismissed the Claimant's appeal.

1. The Claimant contended that the dismissal was unfair. The Tribunal made findings first on whether the 2002 Act regime (dismissal and disciplinary procedure, the statutory DDP) had been complied with. It held that Steps 1 and 2 had been. The third allegation was a freestanding matter which had its source in the Step 1 letter, the Step 2 letter and was the territory to be covered on appeal before Mr Straw. Thus, there was a proper sequence of three steps, letter, basis of charge and appeal, as required by the statute. So the dismissal was not automatically unfair.

1. The Tribunal then turned to fairness under Employment Rights Act 1996 section 98(2). It correctly addressed itself to the burden of proof under section 98(1) and (2). The Tribunal was first asked to decide the reason for dismissal. It upheld the view of Mr Straw that belief in the misconduct of the Claimant was the genuine reason for his dismissal. That satisfied the comparatively easy stage of section 98(1) and (2).

1. The Tribunal then went on to consider British Home Stores Ltd v Burchell [1978] IRLR 379, which is the standard test for misconduct dismissals, and avoided the imposition of a burden of proof on the Respondent. It recognised it needed to be satisfied that there was material upon which the Respondent could be said to have conducted a reasonable investigation and whether the conclusion to impose a disciplinary sanction by way of dismissal fell within the range of reasonable responses. It noted that the procedure is regulated at each stage by reasonableness since it cited Sainsbury's Supermarkets v Hitt [2003] IRLR 23 CA.

1. The case obviously troubled the Employment Tribunal. It found it difficult, it said, but came to these conclusions:

"45 Our conclusions are these. It must be open to an employer if it believes that an employee is acting fraudulently to appropriately investigate that, and if necessary to deal with matter under the disciplinary procedure, irrespective of whether there is an alternative procedure which could be adopted. In addition, whilst we are satisfied that Mr Arran did in fact form very early a view that the Claimant was guilty of misconduct, there is in reality only one way of investigating whether someone who is off sick is in fact, or is not, which is to observe them whilst they absent and see what they are doing. Accordingly, we are of the view that a reasonable employer could have come to the conclusion in this case that, dealing with the matter under the Management of Absence procedure was not appropriate and could have come to the conclusion that to deal with it as a disciplinary matter and to appoint a private investigator was necessary.

46 The reality is that the Claimant was dismissed, not in fact for anything revealed by the investigation, but was in fact dismissed for allegedly being dishonest in the return to work interview and in the investigatory interview. Accordingly, in respect of those matters, the only investigation which is necessary is to allow the Claimant to have an appropriate opportunity to explain why he said what he said, and to assert whether he maintains that they were true or untrue and, if untrue, why he said them. In our judgment it must have been apparent to the Claimant before both the disciplinary hearing and the appeal hearing that the belief that he had been dishonest in those accounts was absolutely fundamental to the Respondent's concerns. This appears to have been understood and addressed by the Claimant's representative in the appeal hearing. Accordingly, it does not appear to us that investigation carried out by the Respondent fell outside the range of reasonable investigatory procedures.

47 The next question therefore is whether reasonable conclusions were drawn. As indicated earlier, the Claimant accepted in cross-examination that the remarks he had made to Lynne Owen are not challenged, and also that the remarks that he had made both to her and in the investigatory hearing give an erroneous impression of what he was actually doing and the extent of his illness during his period of sickness. The question is, whether Mr Straw was entitled to draw the conclusion that they were deliberately erroneous, in other words, that the Claimant was intending and attempting to mislead the Respondent, or whether that was inadvertent. We have set out those remarks in full earlier in this decision and in our judgment, it is difficult to see that they could have been inadvertently erroneous and certainly, in our judgment, the conclusion that they were deliberately misleading falls well within the range of reasonable conclusions which were open to Mr Straw. It appears to us that it was certainly open to Mr Straw rationally to conclude that the Claimant had deliberately attempted to mislead, both Ms Owen and Mr Arran."

1. An argument as to disparity was advanced but the Tribunal considered that the material relating to the comparator was not truly relevant, for the comparator was in a low position whereas the Claimant was a Senior Legal Officer in whom significant trust was placed. There was a rational distinction to be drawn between the circumstances of the comparator and the Claimant. The dismissal was fair. The reason was conduct and it was reasonable in all the circumstances to dismiss.

**The Claimant's case**

1. Three arguments are advanced on behalf of the Claimant. The first is that the Tribunal did not deal with what are described as the altered reasons. He was convicted at the appeal stage, effectively at first instance, of a matter which he had not been expecting. As a matter of construction it is argued that points 1 and 2 give rise to point 3 only if they are upheld, and they were not.

1. Secondly, the material set out in the Step 2 letter did not provide a requisite basis for the completion of the three steps under the statutory procedure. Thirdly, Mr Straw had wrongly regarded the comparator as not truly apt because, once Mr Straw had himself upheld the Claimant's case on points 1 and 2, the circumstances of the comparator fell away. It was perverse for Mr Straw not to have taken that view, in the light of his finding, effectively acquitting the Claimant of the substantive charges in points 1 and 2. The comparator had committed what was originally the same sort of offence as the Claimant and had been treated more leniently.

**The Respondent's case**

1. Mr Cohen traces the genesis of the three allegations. He contends that there is a freestanding allegation of dishonesty as to the way in which the Claimant responded to the substantive criticisms put against him. These arise out of the return#to#work interview and throughout, as is demonstrated by a construction of the Step 1 and Step 2 letters. In the context known to the parties the Claimant was to be taxed with a contention that whatever the outcome on the substantive charges it was his response to those matters that gave rise to a third point. Thus, the statutory procedure was complied with, for the three matters were live throughout.

1. As to the parity argument, it is contended that the high threshold required in this court for a successful appeal based on perversity is not met. The circumstances were different and evidence was given through cross#examination of Mr Straw as to what were the differences between the Claimant and the comparator. The Tribunal's finding that there was a rational distinction is correct, albeit it was not principally in the mind of Mr Straw at the time he heard the argument about it.

**The legal principles**

1. The legal principles relating to the statutory DDP under the Employment Act 2002 (Dispute Resolution) Regulations 2004, now repealed, were set out by Elias P in Alexander & Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422. The contents of the Step 1 and Step 2 letters seen in context need not be technical but must indicate to the Claimant what is being put against him.

1. The standard required for a perversity appeal to succeed in this court was set, as this constitution particularly knows, in Yeboah v Crofton [2002] IRLR 634 CA. It is a very high threshold; an overwhelming case must be made.

1. The use of comparators has to be sparing. Fairness requires people in truly parallel circumstances be treated the same in terms of discipline, but the focus must always be upon the particular merits of the case in question.

**Discussion and conclusions**

1. We prefer the arguments of Mr Cohen and have decided that the appeal should be dismissed. He has not been at any disadvantage in putting the materials that would be necessary at a full hearing for we consider that he is plainly correct. The first point, initially, is one of construction. Do the Step 1 and Step 2 letters contain the basis of what was ultimately the reason for dismissal which is the third point, the dishonesty on return#to#work.

1. As a matter of construction they plainly do. Mr Cohen readily accepted that there was some poor drafting of the correspondence but its meaning was plain to the Claimant; he has legal qualifications, but that does not matter. What was being put against him were the two substantive matters and his unsatisfactory response to the officers when they broached these matters to him. That remained the case he had to meet, the case he failed to meet before Mr O'Sullivan, but, in part, won on appeal before Mr Straw. Nevertheless, the breach of the implied term of mutual trust and confidence in respect of the return#to#work matters was squarely in issue. That was Mr Straw's point.

1. This is a public sector employer. The Claimant was employed to represent the Respondent and give evidence before courts. On findings that he was dishonest about his conduct during June 2006, the Respondent could not have trust in him to carry out his duties. The Respondent looked carefully at his unblemished record for almost 30 years, but that did not overcome the difficulties.

1. In our judgment the Employment Tribunal was entitled to hold the concerns found by the Respondent were those of a reasonable employer and dismissal was within the band of reasonable responses. It must be borne in mind that it is the fairness of the Respondent's conduct which is in issue here (see London Ambulance Service v Small. It is in the best position to know what standard is required of its senior legal executive. We cannot say that the Tribunal was wrong to hold that the employer's depiction of his actions as breaching the implied duty of trust and confidence is wrong. It was a permissible option for this employer and the Tribunal made no error in upholding the judgment of the Respondent.

1. We hold there was no breach of the statutory DDP since, as we have analysed both the letters and the detailed minutes and transcripts of the various meetings, there is a constant theme of the dishonesty on return#to#work. This matter was properly conducted through Step 1, Step 2 and a Step 3 appeal.

1. Finally we turn to the argument based on parity. The written submissions of Mr Cohen make the point. We accept that the issue to be decided was what was in the mind of Mr Straw. At the time, he did not regard the comparator as a true comparator, but when he gave evidence to the Employment Tribunal other matters arose including the obvious one which is the disparity of seniority. The comparator himself was a mobility assistant, having been engaged previously as a manual worker. The Tribunal's decision, essentially one of fact, that there was a rational distinction to be made between the comparator and Mr Honey was open to it.

1. It may appear at first sight that the comparator got away with more serious misconduct than the Claimant and survived albeit with a final written warning on his record, but he was not required to do legal work on behalf of the Respondent time and again. So, we would reject the contention that the different treatment of these two men was irrational; it was within the band of responses to treat them differently.

1. It follows that the strict requirements for parity arguments to succeed set out in Paul v East Surrey District Health Authority [1995] IRLR 305 and Post Office v Fennel [1981] IRLR 221 per Brandon LJ have not been met. The appeal is dismissed.