______________________

Appeal No. UKEAT/0429/09/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 May 2010

Before

HIS HONOUR JUDGE PETER CLARK

MR P GAMMON MBE

MR H SINGH

ROYAL BANK OF SCOTLAND (APPELLANT)

MR J M CHAER (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR SADIQ (of Counsel)
Instructed by:
Messrs Brodies LLP Solicitors
2 Blythswood Square
Glasgow
G2 4AD

For the Respondent MR GLOAG (of Counsel)
Instructed by:
ETAS Direct London
65 Merafield Drive
Plymouth
PL7 1TR

UNFAIR DISMISSAL – Reasonableness of dismissal

PRACTICE AND PROCEDURE – Perversity

Conduct dismissal. Employment Tribunal found dismissal unfair due to employer's failure to carry out a reasonable investigation. Appeal based on (a) perversity; and (b) impermissible substitution of Employment Tribunal's view for that of employer rejected.

1. The parties in these proceedings before the Watford Employment Tribunal were Mr Chaer, the Claimant, and Royal Bank of Scotland, the Respondent. We shall so describe them.

1. We have before us for full hearing, following a directions order made by HHJ McMullen QC on 9 October 2009, an appeal by the Respondent against the liability Judgment of an Employment Tribunal, chaired by Employment Judge Bedeau, upholding the Claimant's complaint of unfair dismissal. Reasons for that Judgment were promulgated on 8 April 2009.

1. We note that both parties have also appealed against that Employment Tribunal's remedy Judgment following a remedy hearing held on 24 April 2009. Having discussed the position with counsel this morning, it is agreed that, no directions having yet been given for the disposal of those appeals, they do not arise for consideration today. The issue in the liability appeal is whether the Tribunal was entitled, as a matter of law, to conclude that the Claimant's dismissal by reason of conduct was unfair because the Respondent had not carried out a reasonable investigation.

1. The Claimant commenced his employment with the Respondent on 9 May 2001. At the time of his dismissal in June 2007 he was employed as a Senior Business Manager based at their Wembley Business Centre. His line manager at the relevant time was Darren Leach, Area Business Manager.

1. In late January 2006 the Claimant raised certain concerns, which he had with Mr Leach's treatment of him, with Mr Leach directly. Mr Leach did not respond directly but in turn raised with Graham Reynolds, Regional Business Manager, questions about the Claimant's processing of loans and expenses. That was followed by a fact-finding meeting being scheduled for 7 February 2006 with Pamela Dukes, Business Risk Support Manager. The Claimant was informed the previous day by Mr Leach that the outcome of that meeting may be disciplinary action. He was told that at the meeting eight specified customer files would be discussed. The Tribunal found (paragraph 9.12) that the Claimant had insufficient time to adequately prepare for that meeting.

1. Present at the meeting was Miss Dukes, Mr Leach, acting apparently as note taker, and the Claimant. The Claimant said that he was unable to obtain representation or consider the eight files in time, but the meeting went ahead and lasted for three hours. Neither Miss Dukes nor Mr Leach gave evidence before the Tribunal.

1. Mr Leach suspended the Claimant on 7 February 2006. On 15 February 2006 he was signed off work by his doctor due to stress and anxiety. He did not return to work prior to his dismissal.

1. On 15 February 2006 and 16 February 2006 Miss Dukes interviewed the Claimant's colleague Rizwan Haq and a Senior Business Manager, Tom Rush. On 10 March 2006 the Claimant raised a grievance against Mr Leach, alleging bullying and harassment. He followed that up with a letter dated 5 May 2006 to Sir Fred Goodwin, then Group Chief Executive.

1. On 22 September 2006 the Claimant was invited to an informal fact-finding meeting with Miss Janice Crawford on 3 October 2006. He declined on the grounds of ill health. Asked to provide written representations he again declined on the basis that he had been the subject of a witch hunt.

1. In the absence of a substantive response from the Claimant, Miss Crawford prepared a report dated 7 November 2006 detailing 14 areas of concern arising out of her investigation. They are set out at paragraph 9.30 of the reasons. On 15 November 2006 Mark Dowden, Regional Business Manager, invited the Claimant to a disciplinary hearing on 21 November 2006 and the Claimant was informed that he faced allegations of gross misconduct, including fraud, theft and dishonesty.

1. This time the Claimant put in written submissions, although he felt unable to attend the hearing, which was then postponed. Meanwhile, his grievance was considered by Miss Ockleton of Policy & Advice Services. A copy of her report was sent to the Claimant by Mr Dowden on 11 May 2007. He was asked to attend a disciplinary hearing fixed for 29 May 2007. Again he declined on grounds of ill health and the hearing was re-fixed to 4 June 2007.

1. In the Claimant's absence Mr Dowden concluded, on 4 June 2007, that the Claimant was guilty of gross misconduct and decided that she should be summarily dismissed. He notified the Claimant of that decision by a letter dated 15 June 2007. The Claimant appealed against his dismissal. The purpose of the appeal, before Craig Leyland, Head of Business Development, was to review the dismissal decision and to consider his appeal against rejection of his grievance by Mr Dowden.

1. We interpose that the old distinction in the cases between a review and rehearing on appeal is now no longer recognised following the Court of Appeal decision in Taylor v OCS Group Limited [2006] IRLR 613 CA.

1. The appeal hearing took place on 9 August 2007. The Claimant attended with his trade union representative, Greg Oakes. Following the appeal hearing Mr Leyland carried out further investigations, in particular, he interviewed Mr Leach on 27 September 2007. Mr Leach admitted that he had given consent to manipulation of sales figures and to assigning a blank transfer form which he gave to the Claimant. Mr Leach was later given a written warning.

1. Mr Leyland dismissed the Claimant's appeal against dismissal and found that Mr Leach had not bullied the Claimant. Those decisions were communicated to the Claimant by a letter dated 9 October 2007. By then the Claimant had lodged his form ET1 at the Tribunal on 3 September 2007.

1. The Tribunal directed themselves, among others, to the cases of British Home Stores Ltd v Burchell [1978] IRLR 360 and Sainsbury's Supermarkets v Hit [2003] IRLR 23. They reminded themselves that they should not put themselves in the position of being the reasonable employer (Reasons, paragraph 11). Their critical finding, reasoned at paragraphs 14 to 22, was that the Respondent had not carried out a reasonable investigation. It is that conclusion which forms the focus of this appeal.

1. Mr Sadiq puts the liability appeal in essentially two ways. First, that the Tribunal's conclusion that the Respondent failed to carry out a reasonable investigation was legally perverse; secondly, that the Tribunal, despite their self-direction, impermissibly substituted its own view for that of the employer. As to perversity, we need hardly articulate the high hurdle faced by Appellants in this ground of appeal following Yeboah v Crofton [2002] IRLR 634. Has the test been met in this case? We are satisfied that it has not.

1. Mr Sadiq has taken us to the extensive reasons given by Mr Dowden for his decision to dismiss and those of Mr Leyland in dismissing the appeal. He points to the further investigation carried out by Mr Leyland following the appeal hearing and, in particular, his interview with Mr Leach. Put in that way we see the force of the Respondent's case below on reasonable investigation.

1. However Mr Gloag, for the Claimant, plainly focussed on this aspect of the case in his written closing submissions below which we have read. The Tribunal saw and heard the witnesses and carefully examined the documentary evidence before them. They accepted the Claimant's case on this aspect. They found that the investigation by the inexperienced Miss Crawford was flawed; Mr Dowden relied on that flawed investigation in arriving at his decision to dismiss; Mr Leyland did not sufficiently explore the role of Mr Leach in the matters with which the Claimant was charged. Those are findings, in our judgment, which we cannot properly go behind.

1. Secondly, substitution. Mr Sadiq points to the Tribunal's observation at paragraph 23 that they found the Claimant's account credible. True it is that an Employment Tribunal must not simply substitute its view of the Claimant's credibility for that of the employer's dismissing and/or appeal managers. However, it may inform their view as to the adequacy of the investigation carried out by the employer; it may be relevant to their later finding on the Claimant's contributory conduct, 20% in this case; and that observation follows their completed reasoning on the reasonableness of this Respondent's investigation which concluded at paragraph 22 of the Reasons.

1. For all of these reasons we are not persuaded that any error of law was made out in the Tribunal's liability decision. Consequently this appeal fails and is dismissed. In these circumstances the respective further appeals on remedy will now go forward to the paper sift.