The claimant was dismissed for making remarks about a colleague within earshot of a client which the client subsequently complained about and which the respondent regarded as discriminatory. The respondent, who had a zero tolerance stance on any discriminatory behaviour, dismissed the claimant for gross misconduct. The ET held that the dismissal was unfair, concluding that it was:

“… not the decision to dismiss that was unreasonable but the decision to dismiss without any consideration of any alternative sanction…”.

The EAT disagreed with the Employment Tribunal, saying that the ET appeared at one stage to be saying that the dismissal did not fall within the range of reasonable responses but then back tracked by saying that it was not the decision to dismiss that was unreasonable. They had lost sight of what their function was, namely to test the dismissal in the manner in which it should be tested in the light of the authorities.

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Appeal No. UKEAT/0163/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 September 2010

Before

HIS HONOUR JUDGE ANSELL

DR B FITZGERALD MBE LLD FRSA

MR D EVANS CBE

LOOK AHEAD HOUSING AND CARE LTD (APPELLANT)

MR T RUDDER (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JEFFREY JUPP (of Counsel)

Instructed by:
Messrs Levenes Solicitors
Cromwell House
14 Fulwood Place
London
WC1V 6HZ

For the Respondent
MR T RUDDER (The Respondent in Person)

MRS RUDDER (Representative)

UNFAIR DISMISSAL – Reasonableness of dismissal

Tribunal failed to consider range of reasonable responses test in considering whether dismissal was unfair.

1. This has been the hearing of an appeal from a decision of the London South Tribunal. They heard the case in July of last year, the Chairman being Employment Judge Gumbiti-Zimuto, and the reasons were given on 10 September. The decision was that the Claimant had been unfairly dismissed, although they went on to find that he had contributed 80 per cent to the dismissal. The core reason for the unfair dismissal was the Tribunal's view that the employer had failed to consider possible alternative sanctions to dismissal.

1. The employer's case before us as Appellants is that the Tribunal have essentially taken their eye off the main decision, which was to decide whether the employer's actions in dismissing fell within the range of reasonable responses and have instead imposed a view as to what they may have done in the circumstances.

1. Some brief background facts about this matter: we should say that before us, Mr Rudder has appeared, together with assistance from his wife. They have both addressed us in very clear terms and we understand their position and certainly have some sympathy for it, but of course we have to look at the matter in terms of the legal issues that we face.

1. The Respondent commenced employment as a Tenancy Support Officer in 2001. The Appellant is a registered housing charity, providing housing, care and support services to over 3,000 vulnerable people, some with chronic mental health problems, operating in London and the South East. The workforce and the residents obviously comprise the whole range of racial and religious groups and obviously equality and diversity issues are very important to the charity. The Tribunal found that they exercised zero tolerance to any form of discriminatory behaviour and the Code of Conduct which the Tribunal cited makes it clear that employees are expected not to discriminate either in employment practice or in the provision of facilities or services in relation to any possible areas of discrimination, particularly sex or racial discrimination, and it makes it clear that unacceptable personal behaviour will be grounds for disciplinary action.

1. In February 2008, there were complaints about the Respondent. Lou Holland, the Senior Contracts Manager, invited the Respondent into her office to set out there had been a complaint from a resident. What happened has been throughout these proceedings in dispute, and indeed, in terms of the pleadings in this case, it was very much a factual dispute as to what did or did not take place, but as it turned out, the Tribunal found that the employer's version of events was indeed, broadly speaking, the correct one.

1. The complaint was that the Respondent was approaching a room with one of the residents for whom he was a key worker and found a sign on the door saying, "Praying" and when he attempted to open the door, they had to wait outside. Soon afterwards a member of staff, Mr Faruqi, came out and said, "Did you not see the sign on the door?" They then went in to use the room (as they had expected to do so for this personal consultation, it is fair to say) and it is alleged that the Respondent said in a loud voice, "This is not a place for prayer. If people need to do so, they should go to the church". The client then reminded the Respondent that Mr Faruqi was a Muslim and obviously was not able to go to a church to pray, and indeed, it was the resident (described as YE) who made the complaint.

1. There was a note from Lou Holland as well, which contained various other comments that the Respondent is alleged to have made. It is not necessary for us to go into those. They are set out in paragraph 13 of the judgment, but it is right that at one stage, there is a comment recorded, "I feel the Muslims are pushing us out". As we have set out above, the Respondent denied at that time and told Lou Holland that the allegation was not true, maintaining that it may well be there was some confusion about the occasions or the people involved.

1. These comments, however, led to a disciplinary proceeding, and on 10 March, he was invited to what was described as a disciplinary investigation meeting. There were in fact five complaints made, two of them related to the initial comments and the further comment about Muslims that we have referred to. There were three other allegations then made. The meeting took place on 19 March. The Respondent was represented by a union representative and the Appellant had there Darren Johnson, Investigation Manager, and Sonia Marie Palmer, the HR Business Manager. The Respondent said during the investigation meeting that he had not said what was said in the minutes and he disagreed with the minutes that Lou Holland had made.

1. The matter then proceeded to a disciplinary hearing, again based on those five allegations. It is right to say that none of the witnesses that the Respondent had requested to attend did in fact attend, and that included Lou Holland, who was away at the first stage of that disciplinary hearing; that hearing was conducted by Sue Davies-Seur, who decided to adjourn the meeting to undertake further inquiries until 27 June. By that date, it is right to say that Lou Holland was back, but no attendance was made at the adjourned hearing. As we have indicated, that took place on 27 June and the Respondent was found guilty of gross misconduct in relation to allegations 1 and 2. With regard to the comments made, "This was not a place for prayer. If people need to pray, they should go to a church" Miss Davies-Seur found that to be gross misconduct, and also allegation 2 in relation to the comments made, "It is not appropriate to use this space, as Gateway is limited for space anyway and I feel that Muslims are pushing us out" again, that was found to be gross misconduct. There was an appeal process, but the appeal confirmed the decision.

1. The Tribunal spent some time in relation to procedural unfairness and found that it was unfair that Lou Holland was not available to be questioned at the disciplinary hearing, bearing in mind that she was very central to the allegations that were being made, but went on to consider under section 98A(2) whether it would have made any difference had a fair procedure been followed, and in paragraph 52, the Tribunal came to the conclusion that it would not have made any difference.

1. The Tribunal then of course had to go on to consider the substantial unfairness, having dealt with procedure, which they did from paragraphs 58 through to 60. The law is quite clear and has been established for many years that the Tribunal's function is to determine whether, if dismissal takes place, that dismissal is fair in all the circumstances, and falls within the range of reasonable responses which is open to an employer. The fact that the Tribunal might have come to a different decision had they been sitting in the employer's seat is not a ground for overturning the dismissal. The principle is set out in the current edition of Harvey at paragraph 975 of section D1, where the learned authors say this:

"In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the employee's view, have been appropriate, but rather whether dismissal was within the band of reasonable responses that an employer could reasonably make in the circumstances. The fact that other employers might reasonably have been more lenient is irrelevant."

1. They referred to two decisions, British Leyland UK Limited v Swift [1981] IRLR 91 and the decision in Scotland of the Inner House, Gair v Bevan Harris Limited [1983] IRLR 368. The learned authors do then go on to deal with attempts by various judges to get around that approach, but it is clear that range of reasonable responses is the approach, and indeed is the approach not only to the substantive aspects of dismissal, but also the procedural aspects. An example was given to us by Mr Jupp that can be found in Ngenfack v London Borough of Southwark [2002] EWCA Civ 711, a Court of Appeal decision, where Peter Gibson LJ said this at paragraph 23:

"That submission must have been accepted by the Tribunal in finding the dismissal fair. The Tribunal had directed itself correctly by reference to the test in section 98(4) of the 1996 Act, which had been quoted. It considered whether dismissal for the reasons shown by the employer (that is to say gross misconduct) was fair or unfair, the question depending on whether in the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason. It was the action taken by the employer, that is to say dismissal, that fell to be considered, not some other action which the employer might have taken but did not take. If the dismissal fell within the band of reasonable responses to the employee's conduct which a reasonable employer might have adopted, then that is the end of the Tribunal's inquiry. As Browne-Wilkinson J, giving a judgment to the EAT in Iceland Frozen Foods Limited v Jones [1983] ICR 17 said at page 75, 'If the dismissal falls within the band, it is fair. If the dismissal falls outside the band, it is unfair.'"

1. Mr Jupp's complaint about the Tribunal's analysis, paragraphs 58-60, is that it seemed to contain a mixture of both a view of what the range of reasonable responses was and whether the employer's actions fell within that range, together with the Tribunal's own view of the fairness or otherwise of what had taken place. Paragraph 58 recited as follows:

"We have gone on to consider whether dismissal was reasonable having regard to the reasons for the dismissal. This is something which has given the Tribunal a considerable amount of difficulty to resolve. We do not consider at face value the Claimant's comments as so serious or so unacceptable as to necessarily justify the Claimant's dismissal. However, we take on board the nature of the Claimant's role and the nature of the organisation in which he worked and the organisation's attitudes towards discriminatory conduct of any kind. This should have made it clear to the Claimant that comments of the sort which he is alleged to have made were unacceptable."

1. Again, a mixture there in terms of the Tribunal's own view as to whether or not the comments justified dismissal, and on the other side, comments about the employer's view in terms of the organisation's attitude towards discriminatory conduct, but no reference in that paragraph, it is said by Mr Jupp (and correctly so, in our view) to the range of reasonable responses. Paragraph 59:

"However, we consider that in this particular case when we look at the approach which is adopted by the Respondent both at the disciplinary hearing and at the appeal that there was no real consideration given to the question whether the Claimant's conduct in fact was so serious as to justify only dismissal, it appears to merely have been the position that because the comments were made then dismissal necessarily follows. We do not consider that this is a fair approach. A properly balanced consideration ought to have been given to the comments made by the Claimant and their seriousness, and also consideration given as to whether any sanction less than dismissal could have been appropriate."

1. Again, it seems that is a mixture of views from the Tribunal about whether or not the dismissal fell inside or outside the range of reasonable responses, together with the Tribunal's view about consideration as to other sanctions.

1. However, the telling paragraph, in our view, is paragraph 60. The Tribunal say this:

"In coming to this conclusion the Employment Tribunal has reminded itself that it is not for the Employment Tribunal to replace its decision for that of the employer."

1. However, the next sentence read as follows:

"However it is not the decision to dismiss that was unreasonable but the decision to dismiss without any consideration of any alternative sanction that the Employment Tribunal considers critical in arriving at the conclusion that this dismissal was unfair."

1. Mr Jupp argues that once the Tribunal had reached the end of the first part of that sentence (in other words, the words, "However, it is not the decision to dismiss that was unreasonable") that answered the question. That dealt with the question which the Tribunal had to deal with as to whether or not this dismissal fell within the range of reasonable responses that was open to this employer, bearing in mind the nature of the comments which they had found proved and the necessity in their organisation for a zero-tolerance policy, again matters which the Tribunal had accepted earlier on in their decision, and Mr Jupp argues that the second part of that sentence was unnecessary and simply reflected the Tribunal seeking to impose their own views, rather than looking at the key question.

1. Mr and Mrs Rudder have urged us to adopt the Tribunal's decision, they being the industrial jury and able to determine whether a dismissal did or did not fall within the range of reasonable responses. As we have indicated already, in paragraph 59, they did appear at one stage to be saying that dismissal did not fall within the range of reasonable responses, but then in a sense backtracked on themselves by saying that it was not the decision to dismiss that was unreasonable, and it seems to us overall that they fell into the trap of perhaps having some sympathy for Mr Rudder's overall position, wanting to help him out in some way, and losing sight of what their function was, to test the dismissal in the manner in which it should have been tested in the light of the authorities. Regrettably, therefore, we will have to set aside the finding of unfair dismissal and make a finding that his dismissal was fair. The only other potential unfairness that they found was a procedural unfairness that they had gone on to determine that, in the circumstances, that would not have made any difference. Accordingly, this appeal is allowed.