The claimant was dismissed after an investigation following an incident where she had sworn at her line manager and refused to carry out a reasonable instruction. On the assessment of the evidence the Tribunal found that although the claimant did use some well known expletives, there was doubt as to whether or not they were actually directed towards her line manager rather than merely a natural expression of frustration. They consequently found that the dismissal was outside the band of reasonable responses and upheld her claim for unfair dismissal.

The EAT criticised the reasoning of the ET in 3 main ways. First, it was not for the employer to show that he carried out a reasonable investigation; secondly there was no mention of the employer’s reasonable grounds for his belief of misconduct; and thirdly, there was no warrant for the proposition that dismissal was a last not first resort. Further, in relation to the reasonableness of the sanction of dismissal, what the employer must show is a genuine belief in the misconduct alleged, not that there is no doubt as to the facts. The Tribunal had fallen into error in substituting their view as to what might have been said by the claimant and the context in which it was said - that was a judgment for the employer to make based on his investigation. The question for the Tribunal was: what was the employer’s belief? In reaching their own view, the ET fell foul of the Iceland dictum not to substitute their view for that of the employer.

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Appeal No. UKEAT/0362/10/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 December 2010

Before

HIS HONOUR JUDGE PETER CLARK

LADY DRAKE CBE

MR M WORTHINGTON

QUADRANT CATERING LTD (APPELLANT)

MS B SMITH (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR DANIEL BARNETT (of Counsel)

Instructed by:
Messrs Gregsons Solicitors
St Christopher's House
Tabor Grove
London
SW19 4EX

For the Respondent
MS MING-YEE SHIU (of Counsel)

Instructed by:
Messrs Simpson Millar LLP
165-167 The Broadway
London
SW19 1NE

UNFAIR DISMISSAL – Reasonableness of dismissal

Conduct dismissal – Employment Tribunal substituted own view as to nature of disciplinary offence for that of employer. Appeal against finding of unfairness (and remedy) allowed. Case remitted to fresh Employment Tribunal for rehearing.

1. The parties in this matter before the Plymouth Employment Tribunal were Ms Smith, Claimant, and Quadrant Catering Ltd, Respondent. This is an appeal by the Respondent against the judgment of a Tribunal chaired by Employment Judge M J R Griffiths, sitting with Mr R Phillips and Ms R Clarke, on 20 October 2009. By that judgment, promulgated with Reasons on 13 November 2009, the Tribunal upheld the Claimant's complaint of unfair dismissal brought against the Respondent, her former employer, and awarded her compensation totalling £24,447.

1. Before the Tribunal the Claimant was represented by Mr Brendan Allen, a trade union official, and the Respondent by Mr Nick Crighton, Employee Relations Director of Compass Group UK. The Respondent company was set up to conduct a joint venture catering business between Compass and the Post Office. The Claimant was employed by the Respondent as a chef at the Plymouth Mail Centre for some five years until her summary dismissal, effective on 3 April 2009.

1. The Respondent's grounds of appeal, settled by Mr Daniel Barnett of counsel, who, it follows, did not appear below, falls into two distinct categories. Paragraph 7.1-7 may be described as the substantive grounds challenging the Tribunal's approach to the question of unfair conduct dismissal and its remedy. Paragraph 8 raises allegations of apparent bias on the part of the Employment Tribunal towards the Respondent (the bias grounds).

1. On the initial paper sift HHJ Richardson directed, by an order seal dated 11 February 2010, that affidavits and members of the Tribunal's comments be obtained on the bias grounds in accordance with EAT Practice Direction paragraph 11, and dealt further with the contention, particularly at paragraph 7.4 of the grounds of appeal, that the Tribunal had made findings of fact unsupported by evidence. On this aspect I further directed on 8 October 2010 that the Employment Judge be asked for his comments on paragraph 7.4(a) and (b) of the grounds of appeal. Those comments were helpfully provided on 9 November 2010.

1. Meanwhile, affidavit evidence was received from the parties and comments on the Respondent's allegations obtained from all three members of the Tribunal.

1. The appeal was then put before Keith J for further sift. He directed that the appeal be set down for a full hearing on the substantive grounds only and that in the event of those grounds being dismissed further directions would be given, we infer by the division hearing the substantive grounds of appeal, as to the further conduct of the bias grounds of appeal.

1. It is in these circumstances that we heard argument on the substantive grounds only at this stage.

1. A short summary of the issues raised in this and other conduct unfair dismissal cases is to be found in the judgment of Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 563 where he said this at paragraph 3.

"The parties agree that the legal principles on conduct dismissals are those set out by the EAT 30 years ago in its judgment in British Home Stores Ltd v. Burchell [1978] IRLR 379 and affirmed by this court in Post Office v Foley [2000] IRLR 827. The essential terms of inquiry for the ET were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct. If satisfied of the Trust's fair conduct of the dismissal in those respects, the ET then had to decide whether the dismissal of Mr Small was a reasonable response to the misconduct."

1. For the avoidance of doubt, it is for the employer to show a potentially fair reason for dismissal (here conduct) and he does that by satisfying the Tribunal that he has a genuine belief in the misconduct alleged. The further questions as to whether he had reasonable grounds for that belief based on a reasonable investigation, going to the fairness question under section 98(4) of the Employment Rights Act 1996, are to be answered by the Tribunal in circumstances where there is no burden of proof placed on either party.

1. Finally the questions of procedural fairness and reasonableness of the sanction, that is dismissal imposed by the employer, are to be determined by reference to the range of reasonable responses test.

1. It follows that in this case, where the central allegation is that the Claimant told her line manager, Alison Moore, to "fuck off", the liability questions for the Tribunal were as follows: (1) What was the Respondent's reason for dismissal; i.e. the set of facts known to him or beliefs held by him which caused him to dismiss the Claimant? (2) Was that a potentially fair reason relating to the Claimant's conduct? (3) If so, did the Respondent have reasonable grounds for that belief following a reasonable investigation? (4) If so, was the disciplinary procedure conducted by the Respondent fair? (5) If so, did the sanction of dismissal for the employer's reason fall within the range of reasonable responses open to the Respondent?

1. In answering those questions it is axiomatic that the Tribunal must not substitute its view for that of the employer, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439; approved by the Court of Appeal in Post Office v Foley [2000] IRLR 827.

1. Given that the task of the Tribunal in a conduct unfair dismissal case is to review the reasonableness of the employer's decision to dismiss we think it helpful at this point to set out the Respondent's pleaded case as it appeared in their response to the claim in their form ET3. In summary, it was that Ms Moore complained that on 22 July 2008 she asked the Claimant to attend a meeting to which the Claimant responded, "fuck off", in response to her first request, and then said, "for fuck's sake", when Ms Moore insisted that she attend the meeting, designed to discuss arrangements for a new salad bar. An investigation ensued; statements were taken from two employees present at the time, Marie Morgan and Christine Cheah, both of whom corroborated Ms Moore's account. The investigation was carried out by Mr Bronfield, who interviewed the witnesses and the Claimant. A disciplinary hearing was held before Mr Mustafa Dol, Group Manager, who decided to summarily dismiss the Claimant. That decision was upheld by Mr Farmer on appeal. Mr Bronfield and Mr Farmer only were called by the Respondent before the Tribunal. The Claimant gave evidence on her own behalf.

1. At paragraph 5 of their Reasons the Tribunal say this:

"Neither the claimant's line manager nor her dismissing officer gave evidence. In making findings of fact about the incident that gave rise to her dismissal, therefore, we relied upon the Claimant whose evidence we found to be both credible and consistent."

1. Their self-direction as to the law is expressed in this way at paragraph 18:

"The law applicable to misconduct dismissals is well known. It is for the employer to show that he carried out a reasonable investigation: that on the facts derived from that investigation he formed a genuine belief that the misconduct alleged against the employee had occurred: and that the dismissal fell within a reasonable band of responses. In assessing whether or not the investigation and subsequent procedure was reasonable, the appropriate test is the reasonable band of responses test. We further directed ourselves that in considering the reasonableness of a dismissal, an employer should view a dismissal as a last rather than a first resort and that it will only be in serious cases of misconduct supported by no doubt as to the facts, that a dismissal will be justified. In other circumstances, a warning will be the appropriate sanction."

1. That direction it seems to us contains three potential errors. First it is not for the employer to show that he carried out a reasonable investigation; secondly there is no mention of the employer's reasonable grounds for his belief and thirdly there is no warrant for the proposition that dismissal is a last not first resort; each case depends on its particular facts. Further, in relation to the reasonableness of the sanction of dismissal, too high a burden is placed on the employer. What he must show is a genuine belief in the misconduct alleged, not that there is no doubt as to the facts.

1. We accept Ms Shiu's submission that no burden of proof point is taken in the Notice of Appeal and therefore we do not decide this appeal on that ground. Secondly, although the requirement for the employer to have grounds of his belief is on the face of it a hurdle to be overcome by the employer, as Ms Shiu points out, the omission is not entirely moot, as at paragraph 7.3 of his grounds of appeal, Mr Barnett contends the omission shows a lack of clarity in the Tribunal's approach.

1. We are satisfied that the third potential error is made out by Mr Barnett and that it materially influenced the Tribunal's conclusion that dismissal fell outside the range of reasonable responses. Based on the Tribunal's assessment of the Claimant's evidence (see paragraph 5) they found at paragraph 19 that although the Claimant did use some well-known expletives (not specified in their Reasons) there was doubt as to whether or not they were directed at Ms Moore rather than merely a natural expression of frustration. We readily see a possible distinction between an employee saying to her manager, "fuck off", and the use of the expression, "for fuck's sake". However, it is not for the Employment Tribunal to make a fact judgment as to precisely what was or was not said by the Claimant and in what context. That is a judgment for the employer to make based on his investigation. The question for the Tribunal is: what was the employer's belief? Was it a belief held on reasonable grounds following a reasonable investigation? In reaching their own view as to doubts as to the context in which the language was used by the Claimant they fell foul of the Iceland dictum not to substitute their view for that of the employer.

1. The Tribunal went on to find that the Respondent failed to carry out a reasonable investigation. The basis for that finding was that Mr Bronfield, the investigating officer who gave evidence before the Tribunal, was only instructed by Mr Dol to investigate whether or not the language alleged had been used. He was precluded by Mr Dol from investigating the surrounding circumstances. Further, the Tribunal found, he did not approach his task with an open mind (paragraph 21). However, the Tribunal's recitation of the facts (paragraphs 6-25) does not at paragraph 11 set out the result of the investigation actually carried out by Mr Bronfield.

1. Having received Ms Moore's incident report of 22 July 2008, setting out her allegations against the Claimant, a witness statement was taken from Anne Morgan and she was interviewed by Mr Bronfield. Christine Cheah was also interviewed. That witness statement and notes of those interviews were in evidence before the Tribunal. Their accounts do corroborate that of Ms Moore. Mr Bronfield also saw the Claimant, who denied telling Ms Moore to "fuck off", or using that language. That material was before Mr Dol, the dismissing manager. The Tribunal noted that Mr Dol did not give evidence before them; he had left the company. However, his dismissal letter dated 31 March 2009 was. He there concluded that the Claimant had told Ms Moore to fuck off, and failed to carry out a reasonable instruction from Ms Moore in relation to the new salad bar and had undermined her authority in front of other employees. He characterised that behaviour by the Claimant as gross misconduct and summarily dismissed her without notice.

1. The Tribunal did hear from Mr Farmer, the appeal manager, who stated that the factual evidence (from witnesses) confirmed that the Claimant had sworn at her manager. The Tribunal made no finding as to whether they accepted that evidence and whether Mr Farmer had reasonable grounds for that belief. Even if the investigation by Mr Bronfield was limited to ascertaining whether the Claimant told her manager to fuck off, it appears to have fulfilled that aim. The Respondent's investigation also included the disciplinary and appeal hearings at which the represented Claimant had an opportunity to put her case.

1. It was in our judgment critical that the Tribunal formed a view as to whether Mr Dol and Mr Farmer genuinely believed that the Claimant had directed that language at Ms Moore. They made no finding as to that but instead substituted their view as to what might have been said and the context in which it was said. That flawed approach in our judgment ran throughout their reasoning.

1. Ms Shiu submits that even if, as we do, we conclude that the Tribunal fell into error by substituting its view for that of the employer, nevertheless there is no challenge by the Respondent in this appeal to the finding first, that the employer failed to carry out a reasonable investigation and secondly that dismissal fell outside the band of reasonable responses. We do not accept that on a fair reading of paragraph 7.1 and 7.2 of the grounds of appeal no such challenge is raised.

1. In the alternative, she argues that the Tribunal's findings under those two heads are unassailable. She prays in aid the Tribunal's findings as to the investigating officer's limited remit and closed mind; Mr Dol's memo to the Human Resources Department shortly before dismissal, characterised as showing that he was motivated by commercial interests in dismissing the Claimant (see paragraph 23, read with paragraph 14); the inordinate delay between the incident and completion of the internal appeal process (paragraph 25); and Mr Farmer's acknowledgment that the matter could have been resolved by a round-table discussion (paragraph 24).

1. We see the force of those features of the case, to which Mr Barnett has responded in his further grounds of appeal. However, we are not persuaded that they, taken together, surmount the hurdle of showing that the Tribunal's decision was plainly and unarguably right, notwithstanding the error of law which we have identified. In our judgment the appeal succeeds without considering the bias grounds. The proper course in our view is to remit the matter for rehearing to a fresh Tribunal. Without making any judgment on the bias grounds it is plain to us that it would not be appropriate to remit the matter to the same Tribunal, which has reached a clear and, we think as a matter of perception on the part the Respondent, unshakeable view as to the merits of the case.

1. On remission the new Tribunal will adopt the approach which we have outlined earlier. This case is evenly balanced; we express no view on the merits or demerits of the claim. If the Claimant does succeed on liability following remission the new Tribunal should consider the issue of contribution, not expressly dealt with by the earlier Tribunal, and before awarding additional compensation it must first make a reinstatement or re-engagement order which the first Tribunal omitted to do.

1. Finally it follows that we make no order for the hearing of the bias grounds, which are stayed pending further order of the EAT.