John-Charles v NHS Business Services Authority UKEAT/0105/15/BA
Appeal against a finding that the claimant's dismissal was fair. Appeal allowed and a finding that the dismissal was unfair was substituted.
The ET found that the reason for the claimant's dismissal was his conduct on 24 October 2012. The respondent had initially decided the sanction for this should be a final written warning. The decision to dismiss was made only after the dismissing manager had learned that the claimant had been issued with a first written warning subsequent to the 24 October 2012 events, albeit that the warning itself related to his conduct preceding that date. The ET concluded that the dismissal had been fair. The claimant appealed.
The EAT allowed the appeal on the basis of natural justice - although the claimant had been told that sanction would be considered only after findings had been made on the disciplinary allegations, he was not then advised of the significance that the warning had assumed (a new factor for the dismissing manager) or given the opportunity to make representations on that point. The fact that he was thereafter afforded a right of appeal did not answer the question whether the decision to dismiss was rendered unfair by this breach of natural justice.
Appeal No. UKEAT/0105/15/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 12 October 2015
HER HONOUR JUDGE EADY QC
NHS BUSINESS SERVICES AUTHORITY (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR DANIEL TATTON-BROWN (of Counsel)
Bar Pro Bono Scheme
For the Respondent
MS DEE MASTERS (of Counsel)
DAC Beachcroft LLP
UNFAIR DISMISSAL - Reasonableness of dismissal
Unfair Dismissal - Fairness of Dismissal - Section 98(4) Employment Rights Act 1996
The ET found that the reason for the Claimant's dismissal was his conduct on 24 October 2012. The Respondent had initially decided the sanction for this should be a final written warning. The decision to dismiss was made only after the dismissing manager had learned that the Claimant had been issued with a first written warning subsequent to the 24 October 2012 events, albeit that the warning itself related to his conduct (in particular his continued refusal to accept reasonable management instruction) preceding that date. The ET concluded that the dismissal had been fair.
The questions raised by the appeal were as follows:
(1) Had the ET ignored relevant matters in reaching its decision, specifically: (i) that the warning post-dated the conduct relied on for the dismissal ("the timing point"); (ii) that there was an outstanding appeal against the warning that remained unresolved ("the appeal point"); (iii) and that the Claimant was not given a further opportunity to make representations on this course of action ("the natural justice point")?
(2) Had the ET taken account of irrelevant matters, specifically its conclusion that it was unlikely that the Claimant's appeal against the warning would have been successful in any event?Held:
The Respondent accepted the ET had erred in considering the likely outcome of the Claimant's appeal against the warning (this was a matter that could go to remedy, not liability). It was not suggested, however, that this error undermined the ET's conclusion on fairness.
On the timing point, following the decision of the EAT (Lady Stacey presiding) in the case of Sweeney (deceased) v Strathclyde Fire Board UKEATS/0029/13/JW, a warning could be relevant even if given after the date of the events directly leading to the dismissal. Specifically, in this case, it was the substance of the matters with which that warning was concerned that had weighed with the Respondent. The ET was entitled to conclude that taking it into account did not mean that the decision fell outside the range of reasonable responses in this case.
Whilst an extant appeal against a warning would be a relevant matter, in this case the dismissing manager had reasonably believed the appeal was no longer being pursued. In the circumstances, the ET was entitled to conclude that the failure to take account of the ongoing challenge to the warning did not render the dismissal unfair.
On the natural justice ground, this was not a case which gave rise to a breach of process and resulting unfairness due to the involvement of others (as had occurred in cases such as Ramphal v Department for Transp. There was, however, a more general point of natural justice that arose. Although the Claimant had been told that sanction would be considered only after findings had been made on the disciplinary allegations, he was not then advised of the significance that the warning had assumed (a new factor for the dismissing manager) or given the opportunity to make representations on that point. The fact that he was thereafter afforded a right of appeal did not answer the question whether the decision to dismiss was rendered unfair by this breach of natural justice. The ET's failure to engage with this question meant that its decision was unsafe and could not stand.
Having permitted the parties to make further representations on disposal, no basis was identified by the Respondent on which a finding of unfair dismissal could arise given the failure to afford the Claimant natural justice in this regard. In the circumstances (and having due regard to the guidance laid down in Jafri v Lincoln College , it was appropriate to substitute a finding of unfair dismissal. The parties were agreed that the mater should then be remitted to the same ET for consideration of remedy.**HER HONOUR JUDGE EADY QC****Introduction**
- I refer to the parties as the Claimant and the Respondent, as below. The appeal before me is that of the Claimant against a Reserved Judgment of the London (Central) Employment Tribunal (Employment Judge Grewal, sitting with members on 21-25 July and then 28 July 2014 in chambers; "the ET"), sent to the parties on 20 October 2014 and comprising some 128 paragraphs, over 27 pages. The Claimant appeared before the ET in person but has been represented on this appeal by Mr Tatton-Brown of counsel. The Respondent was and remains represented by Ms Masters of counsel.
- By its Judgment the ET dismissed various claims made by the Claimant, of which I am only concerned with its rejection of his claim of unfair dismissal. His appeal was initially considered on the papers by Lewis J to disclose no reasonable basis to proceed. As was his entitlement, the Claimant sought an oral hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, which took place before HHJ Peter Clark on 15 April 2015, at which time Mr Tatton-Brown first appeared for the Claimant (acting under ELAAS) and provided amended grounds of appeal, which were permitted to proceed to this Full Hearing.
- The Claimant was employed by the Respondent (and its predecessor) as an ICT network engineer, from 7 September 2009 until his dismissal by reason of gross misconduct on 7 June 2013. As HHJ Peter Clark summarised in his Judgment on the Rule 3(10) Hearing, the ET's findings of fact point to a history of failures by the Claimant to follow reasonable management instructions culminating in a first written warning, decided upon by a Ms Sehgal on 14 January 2013, which was confirmed in writing to the Claimant on 28 January 2013 (ET paragraphs 86 to 87). An appeal against that warning remained unresolved as at the Claimant's dismissal.
- Prior to the issuing of that warning, however, an incident had taken place on 24 October 2012, when the Claimant had logged on to another employee's computer (it had previously been the Claimant's PC and was on his old desk). There was an exchange between the Claimant and his manager, Mr Mongia, about the fact that the Claimant was copying what he said was his personal data on his unencrypted personal hard drive, which had not first been vetted for security purposes (ET paragraph 78). The Claimant then went to the registration authority office although he had previously been told that that was not a suitable office from which he might work, access to that office being restricted because it issued smart-cards that enabled persons to have access to GP records detailing patient information and the Claimant did not have the right level of security clearance (ET paragraphs 66 to 67).
- This matter was investigated, and at the end of February 2013 the Claimant was informed that there was prima facie evidence of misconduct and the matter would proceed to a formal hearing on 7 March 2013. He was advised that the manager conducting the disciplinary hearing would not be told about the January 2013 warning unless and until any of the allegations being considered on 7 March had been found proven, and:
"92. … In those circumstances, the manager might choose to defer her decision on the sanction until his appeal had been determined."
- A disciplinary hearing duly took place before a Ms Farquharson on 7 March 2013. The Claimant provided a written statement but then left the room. Having continued with the hearing in the Claimant's absence, Ms Farquharson upheld seven of the ten allegations made against him, three of which she characterised as gross misconduct, namely (i) the Claimant had knowingly breached the Respondent's IT policies, (ii) he had risked corrupting the system by using an unauthorised device and (iii) he had accessed the registration authority office despite having been told not to do so (ET paragraph 101). The other matters found proven were considered to be incidents of serious misconduct.
- By letter of 13 March 2013, Ms Farquharson informed the Claimant of her findings and that the normal sanction would be dismissal in respect of the three offences of gross misconduct and a final written warning in respect of the four remaining matters. She did not, however, consider it appropriate to determine sanction at that stage as:
"… Based on your behaviour and approach at the hearing, I was concerned that you might be unwell and I have asked that you be referred to the Occupational Health Department for a clinical opinion as to whether any of your actions were attributable to a health issue. … If you advise that you do not intend to attend or if you fail, without acceptable reason, to attend an appointment arranged for you, then I will advise my final decision without reference to your state of health. On this basis, the notification of my final decisions will be held, pending the outcome of the Occupational Health appointment, as will confirmation of your right to - and the process for - appeal against my decisions."
- Although the Claimant did raise various objections in response to Ms Farquharson's letter - and I have been taken to his emails of 15 March 2013 and 2 April 2013, to which Ms Farquharson was also included as an addressee, albeit they were actually dealt with by Ms Gibbs from Human Resources at that stage - there was a referral to Occupational Health and a report was produced on 10 April 2013. That report was reviewed by Human Resources but was not considered to disclose any health issue bearing on the Claimant's conduct.
- On 2 May 2013, a letter was sent to the Claimant informing him that Ms Farquharson had decided he should be provided with a further opportunity to present his case on 7 May 2013. There would be limitations on that opportunity - there would, for instance, not be a further opportunity to call or question witnesses - and evidence presented by the Claimant should relate to the events in question and not to subsequent events. The Claimant responded on 6 May 2013, stating he considered this to be a further breach of policy and due process and an act of victimisation. It became apparent he would not attend (ET paragraph 111).
- On 8 May 2013, Ms Farquharson indicated to Ms Wallin of Human Resources that she was minded not to dismiss the Claimant but instead to issue a final written warning. On 13 May 2013 Ms Farquharson attended a meeting with Ms Wallin and Ms Gibbs, both of Human Resources, at which was also present a Professor Keith Stone, there to provide advice on patient confidentiality, and Mr Hakan Azozek, the Chief Information Officer, who attended to provide technical advice on the potential impact of the Claimant using his own hard drive on clinical services. It was at that meeting for the first time that Ms Farquharson learned of the January 2013 warning. She was told that it was for the Claimant's repeated failure to follow reasonable management instructions. She further understood that the Claimant had failed to attend an appeal hearing that had been arranged in March and believed his appeal had then lapsed on his failure to pursue it. It was apparent that Ms Farquharson did not have a complete picture of the appeal process in coming to that belief. There had in fact been further communications with the Claimant, of which she was unaware, and which, if she had have been aware, would have led her to investigate the position further (ET paragraphs 114 to 115).
- Taking account of the advice given to her at that meeting and of the matters that had led to the January 2013 warning, without reconvening the disciplinary hearing, Ms Farquharson decided that the appropriate sanction was dismissal, the events of 24 October representing part of a pattern of failures by the Claimant to follow reasonable management instructions (ET paragraph 115). There was - albeit it is not referred to by the ET in its Reasons - an email exchange between Ms Farquharson and Ms Gibbs of Human Resources on 13 May subsequent to that meeting in which Ms Gibbs advised:
"… you are delivering a final written warning but because there is another warning on file he is dismissed. It is process that determines his dismissal."
- In her evidence to the ET, Ms Gibbs acknowledged that this was wrong. In any event, Ms Farquharson's evidence to the ET was clearly that the decision was hers, and the ET's reasoning demonstrates that it accepted this (see in particular ET paragraphs 115, 123 and 124).
- The Claimant was informed of this decision by letter of 13 May. He was dismissed with two months' pay in lieu of notice. Although advised of a right of appeal, he did not pursue that.
- The ET found that the reason for the Claimant's dismissal was his conduct on 24 October 2012, a potentially fair reason for section 98 purposes. It concluded that the dismissal for that reason was fair notwithstanding the fact that the Claimant's appeal against the January first written warning remained pending, something of which Ms Farquharson had not been advised but which was, the ET concluded, unlikely to succeed (ET paragraph 124).
- As permitted to proceed by HHJ Peter Clark, the Claimant's appeal is limited to a challenge to the rejection of his unfair dismissal claim, specifically: (1) the ET erred in concluding that the Claimant's dismissal was fair for the purposes of section 98(4) of the Employment Rights Act 1996 ("ERA") by failing to take account of all relevant circumstances, namely that the Respondent, having previously concluded that the conduct in question did not justify dismissal, nevertheless went on to dismiss having regard to an earlier disciplinary warning when (a) that warning was still subject to an appeal ("the appeal point"), (b) it had been issued only after the conduct in question had taken place ("the timing point"), and (c) the Claimant was not given the opportunity to be heard on this course ("the natural justice point"); and (2) the ET erred in taking account of an irrelevant matter, namely the likelihood that the appeal against the first written warning would not have succeeded.
- The Respondent resists the appeal, essentially relying on the ET's reasoning, although conceding it had not been relevant at the liability stage for the ET to reach a view as to whether the Claimant's appeal against the January 2013 warning would have been likely to succeed.
The Claimant's Case
- Before descending into the specific grounds of appeal, Mr Tatton-Brown made three general observations on the reasoning provided by the ET at paragraphs 123 to 124. First, there was a failure to take account of the erroneous advice given to Ms Farquharson by HR, that she was obliged to take the first written warning into account. Second, it was unclear whether the ET had found that Ms Farquharson had appreciated that the warning post-dated the conduct with which she was concerned or simply that she ought to have done. Third, the ET's finding as to the reason for the dismissal, the Claimant's conduct on 24 October, did not reflect a proper engagement with the real reason operating on Ms Farquharson's mind. Had it done so, then it would have needed to question whether there was a reasonable investigation, which would have required looking at the question of the outstanding appeal against the January 2013 warning.
- Turning to the individual grounds, and starting with the appeal point, the issue here was Ms Farquharson's failure to have regard to both the January warning and to the Claimant's challenge to it, both of which were relevant (Tower Hamlets Health Authority v Anthony  ICR 656 CA). Ms Farquharson could not have taken into account the relevant matter of the Claimant's extant appeal against the January 2013 warning, because she was unaware of it.
- On the timing point, the purpose of a warning was to influence future conduct. Initially the Claimant had contended that reliance on a warning post-dating the relevant conduct would not be reasonable. Since becoming aware of the Judgment of the EAT (Lady Stacey presiding) in Sweeney (deceased) v Strathclyde Fire Board UKEATS/0029/13/JW, Mr Tatton-Brown moderated that submission but contended that the issue of timing remained one of the relevant factors to which the Respondent was required to have regard as part of its reasonable investigation (see per Moore-Bick LJ in Orr v Milton Keynes Council . Moreover, the warning was not obviously relevant in this case: it had not been a final warning; it post-dated the events in question; and it was itself subject to appeal.
- Finally, on the natural justice ground, the ET had failed to have regard to what was a blatant breach of natural justice in this case. Ms Farquharson only learned of the first written warning on 13 May, which was when the Claimant was dismissed. He had obviously not been afforded the right to make representations. Whilst it was the case that the Claimant was afforded a right of appeal (which he did not take up), that did not answer the natural justice point. More than that, it was apparent that the input from Human Resources, specifically Ms Gibbs, had gone beyond advice on process and had strayed into sanction, incorrectly suggesting that Ms Farquharson was bound to take account of the January warning. HR had trespassed into the decision making process without the Claimant's knowledge, and that rendered the decision unfair (Ramphal v Department for Transport UKEAT/0352/14/DA).
The Respondent's Case
- The reason for the dismissal was the Claimant's conduct on 24 October 2012. The relevance of the January 2013 warning was that it went to sanction.
- Dealing first with the appeal point, this was misconceived. It failed to have proper regard to the limitations on the ET's role and to take account of what Ms Farquharson knew. The ET was not concerned with the correctness of the decision but with its reasonableness, given the knowledge of the dismissing manager (see the EAT's Judgment in Wincanton Group plc v Stone and Anor . Where the dismissing manager's knowledge was erroneous, the question was whether she had carried out a reasonable investigation. Paragraph 114 recorded the relevant findings of the ET and showed Ms Farquharson's belief that the appeal was not extant was reasonable in all the circumstances. Her concession that, had she known the appeal might still be live, she would have investigated further, did not assist the Claimant; there was nothing to support the contention that she should have known.
- Moving to the timing point, what was clear from the Sweeney case was that a warning looked both ways and so could be relevant to take into account even if issued after the event that led to the dismissal decision. Even if Ms Gibbs had conceded to the ET that she had failed to appreciate that the January warning post-dated the conduct with which Ms Farquharson was concerned, that did not mean that it was irrelevant to Ms Farquharson's decision making.
- Lastly, on the natural justice point, this had expanded in the Claimant's submissions; in particular, the reliance placed on Ramphal, and the suggestion that Ms Gibbs had acted improperly or had given misleading advice, was not part of the case before the ET. In any event, it was clear that Ms Gibbs had acted appropriately; and, as the ET found, it was Ms Farquharson who made the relevant decision, and that was not based on any improper involvement by Ms Gibbs. This was not a Ramphal case, and it was not open to the Claimant to look behind the ET's finding, which was based on Ms Farquharson's evidence before it.
- Taking this as a straightforward issue of natural justice, the Claimant had been given the opportunity to make representations on the issue of sanction, and he was aware of the January warning. Human Resources had advised him Ms Farquharson would make her initial findings without knowing of the January warning but would then be told of that once she had reached her conclusions and might defer her decision on sanction until his appeal against that warning was determined. On 13 March, he was told the decision on sanction was being deferred, and he wrote to Ms Farquharson and Human Resources twice after that, including making reference to the January warning. He was then afforded the opportunity to make representations to Ms Farquharson as part of the disciplinary process when he was asked if he wished to attend a further meeting. Accepting the ET was wrong at the liability stage to ask whether the appeal was likely to succeed, it could not be said the Claimant had been denied natural justice.
The Claimant in Reply
- The test of fairness required consideration of the facts known by the dismissing officer. Even if it could be inferred that Ms Farquharson reasonably did not know of the extant appeal, that did not absolve the Respondent as a whole. The question was: ought she to have known of it? The Claimant had not concealed the fact; he had referred to the matter in his representations after 13 March, but it seemed that Ms Farquharson had taken no account of those.
- The starting point is section 98 of the ERA 1996, relevantly:
"(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 of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it -
(b) relates to the conduct of the employee,
(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."
- In conduct dismissal cases, guidance was set out in the well known authority of British Home Stores Ltd v Burchell  ICR 303. Allowing for the subsequent amendment to the burden of proof, that guidance provides that an ET would need to be satisfied by the Respondent that it genuinely believed the employee had been guilty of the conduct in question at the time of taking the decision to dismiss and, applying a neutral burden of proof, that it had reasonable grounds for that belief and had carried out a reasonable investigation. The approach to be adopted was further considered by the Court of Appeal in the case of Orr, where the majority of the court (Sedley LJ dissenting) ruled that regard had to be had to the knowledge or state of mind of the actual decision maker rather than imputing wider institutional knowledge; see per Moore-Bick LJ, with whom Aikens LJ agreed, at paragraphs 44 and 60:
"44. The approach taken in these cases to the determination of the fairness of the dismissal concentrates on the conduct and state of mind of the employer immediately before and at the time of the dismissal. In substance it requires one to ask whether, when he took the decision to dismiss the employee, the employer had taken all reasonable steps to inform himself of the facts, whether, having done so, he formed the view on reasonable grounds that the employee had behaved in a way that justified his dismissal and, finally, whether his conclusion that the conduct justified dismissal was itself reasonable. In Iceland Frozen Foods Ltd v Jones  IRLR 439, 442 Browne-Wilkinson J, giving the decision of the EAT which has subsequently been approved by this court, held that in deciding the last question it is necessary to determine whether in the particular circumstance of the case the decision to dismiss the employee fell within the band of reasonable responses which the employer might have adopted. …
60. Sedley LJ suggests that the person deputed to carry out the investigation on behalf of the employer must be taken to know any relevant facts which the employer actually knows, which include not only matters known to the chief executive but also any relevant facts known to any person within the organisation who in some way represents the employer in its relations with the employee. However, in my view it would be contrary to the language of the statute to hold that the employer had acted unreasonably and unfairly if in fact he had done all that could reasonably be expected of him and had made a decision that was reasonable in all the circumstances. That is why it is important to identify whose state of mind is intended to count as that of the employer for this purpose. To impute to that person knowledge held by others is to reverse the principles of attribution formulated in the Meridian [Global Funds Management Asia Ltd v Securities Commission  2 AC 500 HL] case and to place the whole exercise on an artificial footing. The obligation to carry out a reasonable investigation as the basis of providing satisfactory grounds for thinking that there has been conduct justifying dismissal necessarily directs attention to the quality of the investigation and the resulting state of mind of the person who represents the employer for that purpose. If the investigation was as thorough as could reasonably have been expected, it will support a reasonable belief in the findings, whether or not some piece of information has fallen through the net. There is no justification for imputing to that person knowledge that he did not have and which (ex hypothesi) he could not reasonably have obtained. …"
- The relevance of responsibility for the decision making in issue can mean that the involvement of others, including Human Resources officers, may render a process unfair where the employee has not had the opportunity to address that input. As the EAT (HHJ Serota QC presiding) put it in the case of Ramphal :
"48. … for the dismissal to be fair there has to be a fair investigation and dismissal procedure. If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it, in my opinion, will be unfair, all the more so if the Claimant has no knowledge of it."
- Specifically, the EAT in that case went on:
"55. … an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct. …
56. … an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure. …"
- As to the relevance of earlier warnings and challenges to such warnings by way of appeal, guidance was laid down by the EAT in the case of Stone (Langstaff P presiding). Assuming an earlier warning was valid, it would be relevant to take into account; as would be the fact that it is under challenge if the employer is aware of that (see Stone, paragraph 37). A not dissimilar approach was adopted by the Court of Appeal in Anthony, albeit that case was concerned with a rather more specific contractual provision.
- The potential relevance of a disciplinary warning was also in issue in the case of Sweeney. There the EAT was concerned with a dismissal by reason of a criminal conviction that would have led to a lesser sanction but for a final written warning for other misconduct, which had been given after the criminal conduct in question. The Claimant had argued that the final written warning should have been ignored because it had not existed at the time of the conduct relied on for the decision to dismiss. The EAT disagreed, holding:
"36. … While it is correct to argue that a warning is an admonition that tells the employee that future misconduct will have certain consequences, it is in my opinion more than that. It is also a recording of the commission of misconduct in the mind of both employer and employee. Mr Napier [counsel for the Respondent] submitted that a warning is "Janus like" in that it looks both ways. I accept that submission. I am of the view that the Respondent was entitled to look at the Claimant's record when deciding on the disposal in the disciplinary procedure relating to the criminal convictions. The Respondent was entitled to take notice of a finding of misconduct which was marked by the imposition of a final written warning. In my opinion the Respondent was absolutely entitled to proceed as they did. That being so it cannot be said under section 98(4) that the Respondent acted unreasonably when one considers all the circumstances of the case."**Discussion and Conclusions**
- I start my consideration for this appeal by reminding myself of the reason for dismissal (as the ET found); that is, the Claimant's conduct on 24 October 2012. There was no appeal against that finding. In oral submissions, Mr Tatton-Brown suggested the ET might have failed to properly engage with the question of reasonableness in terms of a broader reason for the dismissal, including the January 2013 warning. The challenge raised by this appeal is, however, solely to the ET's subsequent finding under section 98(4). On that question there is now no issue with the reasonableness of the Respondent's belief in the Claimant's misconduct on 24 October 2012 or as to the investigation into the events of that day. The appeal is only concerned with the question that arose when the ET turned to the issue whether the decision to dismiss for that reason fell within the band of reasonable responses.
- It is apparent that Ms Farquharson considered the January 2013 warning was relevant to that question. Mr Tatton-Brown suggests that her decision making in this regard may have been tainted by Ms Gibbs's wrongful involvement, which crossed the line so as to render the process unfair in a way that breached natural justice (as described in Ramphal, albeit that he accepts that the facts of this case are not as clear as those in Ramphal). I do not think that it is open to the Claimant to put the case so high. That was not how the case was put below, but, in any event, it is clear that the ET found the sole decision maker to have been Ms Farquharson, without her role in that regard having been infected by the involvement of others.
- Looking then at Ms Farqharson's decision, the issue of the Claimant's earlier and more general conduct and the January 2013 warning clearly came in when she was determining sanction, having already made her findings as to the Claimant's conduct on 24 October 2012. Was it irrelevant for her to have regard to the January 2013 warning, given that it had not been extant on 24 October 2012 (the timing point)? The ET did not think so; it did not take the decision outside the range of reasonable responses. Following Sweeney, that was a permissible approach. Ms Farquharson might have taken the view that timing was a relevant factor but what weighed with her was that the January warning related to the Claimant's conduct more generally - to his continuing failure to follow management instructions - which also informed his behaviour (as she had found) on 24 October 2012. Regardless of timing, it was, as the ET found (paragraphs 115 and 124), the substance of the January warning that persuaded Ms Farquharson of its relevance. The ET was entitled to conclude that that did not take her decision outside the range, whatever the timing of the January warning.
- Also potentially relevant was the fact that the Claimant had an outstanding appeal against the January 2013 warning (the appeal point). Where a warning is relevant to a dismissal decision but is being challenged by the employee at the time the decision is being taken, that can certainly be relevant to the question of fairness. I agree, however, with Ms Masters that the crucial question for the ET here was what was reasonably known by the decision maker. In this case, Ms Farquharson understood that the Claimant's appeal was no longer being pursued. Given the time that had passed, that was not, on its face, an unreasonable belief. More relevantly, the ET specifically had regard to this fact and did not conclude that Ms Farquharson had behaved unreasonably. Her genuine belief was not - on the ET's findings - unreasonably held, nor was it based on an unreasonable investigation.
- As to whether or not the Claimant's appeal might have succeeded, the parties are agreed that was not a relevant question for the ET at the liability stage (although it is a question that might properly arise at the remedy stage). That said, the Claimant has not suggested that the ET's reasoning depends solely on that finding.
- I turn then to the last ground of appeal, the natural justice point. For the reasons I have already given, I do not think that the facts of this case give rise to a breach of process as found in cases such as Ramphal. There was no finding that the input of Human Resources overstepped the mark as in that case, and I do not see that as part of how this case was run below. There is, however, a more general point of natural justice which I think is properly raised by the appeal. Whilst the Claimant had been told that Ms Farquharson would only be informed of the January 2013 warning once she had made her decision on the 24 October 2012 allegations, he was not advised of the significance of this point. He was informed that she had made findings of gross misconduct that would usually lead to dismissal but that she would be delaying deciding sanction pending obtaining advice from Occupational Health. He was not informed that, regardless of Occupational Health input, Ms Farquharson did not consider that she would dismiss in this case notwithstanding what might have been the normal sanction following her findings. Nor was he advised that she only became minded to dismiss once she learned of the January 2013 warning. The point was not so obvious; the warning post-dated the events of 24 October 2012, it was under appeal (albeit Ms Farquharson did not appreciate that), and it was a first, not a final, warning. The Claimant was entitled to be given the opportunity to make representations on what was a new factor - a new turn in the case - for Ms Farquharson; the way in which the process was conducted did not, on the ET's findings, afford him that right.
- In this regard, I would not consider it enough that he did in fact make emailed representations (sent to Ms Farquharson as well as Human Resources) although I accept those referred to his appeal and the warning. It was plain that he made those representations in a way unconnected with the disciplinary process, hence perhaps why Ms Farquharson did not engage with the emails, and it was also plain that he had not appreciated the significance of the point. Equally, I do not consider the point to be answered by the fact that the Claimant was afforded a right of appeal. The question for the ET was the fairness of the decision to dismiss, and at that stage the Claimant had not been given a right to be heard on what became the decisive issue on sanction. That was potentially unfair, and the ET needed to engage with that point. That it did not do so renders its decision unsafe, and I therefore allow the appeal on that basis.
- Having given my Judgment in this matter, I allowed the parties to make further representations to me on the question of disposal. For the Claimant it is submitted that I should substitute a finding of unfair dismissal and remit this matter to the same ET to consider remedy in the light of my Judgment. For the Respondent it is submitted that my Judgment only allows that the dismissal was potentially unfair, the ET erred in failing to engage with the question of natural justice and that I should therefore remit that point to the ET.
- I accept that in expressing my Judgment on liability I was careful to insert the words "potentially unfair" because I was mindful of the fact that I had not heard further submissions on the question of disposal. I also bear in mind the injunction laid down by the Court of Appeal in the case of [Jafri v Lincoln College ]() EWCA Civ 449 that if there is more than one outcome possible I must remit to the ET. Having, however, considered the submissions made to me on disposal, I am unable to see that there is any alternative to a finding of unfair dismissal here. On the ET's findings of fact the Claimant was denied the opportunity to make representations on what became the significant issue in the disciplinary process. That unfairness in the procedure, in my judgment, could only result in a finding of unfairness, and I therefore substitute my finding in that regard.
- Otherwise, the parties are agreed that the appropriate course is to remit this matter to the same ET for a remedy hearing, and I duly do so.
Published: 02/12/2015 16:08