Scottish & Southern Energy Plc v Innes UKEATS/0043/10/BI

Appeal against a decision by the ET that i) a Polkey deduction should not be applied to the compensation awarded to the claimant as a result of a successful automatic unfair dismissal claim and ii) a deduction of 15% should be made in respect of contributory fault. Appeal allowed and remitted to a different Tribunal for a re-hearing.

The claimant was dismissed after it was found that he was using the internet excessively for personal use when he was supposed to be working. 3 months earlier he had been disciplined for the same conduct and received a written warning. The claimant admitted what he had done but claimed that he had had previous problems with depression and that his health problems had increased at the time his excessive use of the internet had resumed. The respondent conceded that the dismissal was automatically unfair because they had not told the claimant in the step 1 letter that dismissal was a possibility. However, the ET also ruled that the dismissal would have been unfair in any event because the respondent had failed to investigate properly the import of the internet usage report and had failed to investigate whether the claimant’s conduct could have been linked to his medical condition. No Polkey deduction was therefore applicable. They did find that the claimant contributed to his own dismissal by using the internet excessively, failing to take steps to obtain medical assistance and failing to alert his managers that he was having difficulties. They set the contributory fault at 15%. The respondent appealed against both rulings in respect of remedy.

The EAT found that the ET had misdirected itself on both aspects. The claimant had admitted misconduct so there was little scope for further investigation and dismissal was plainly within the band of reasonable responses. Dismissal would clearly have been on the agenda without the procedural failure and a Polkey deduction was plainly applicable. Also the 15% deduction due to contributory fault was so low as to be perverse.

_________________

Appeal No. UKEATS/0043/10/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 12 April 2011

**

THE HONOURABLE LADY SMITH**

MISS J GASKELL**

MRS A HIBBERD

SCOTTISH & SOUTHERN ENERGY PLC (APPELLANT)

**

**

MR DAVID RAYMOND INNES (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCESCES**

For the Appellant MR D CAMERON (Advocate) Instructed by: Messrs Blackadders Solicitors 30 & 34 Reform Street Dundee DD1 1RJ

For the Respondent MR K GIBSON (Advocate) Instructed by: Macnabs Solicitors 10 Barossa Place Perth PH1 5JX

**

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Impact on compensation

UNFAIR DISMISSAL - Compensation

Unfair dismissal. Misconduct dismissal: excessive personal use of internet and email and failure to carry out work allocated, employee having, three months earlier, been disciplined for like conduct and received a written warning. **Employee admitted "charges" of misconduct and put forward in mitigation that he had had previous problems with depression and that his health problems had increased at the time his prohibited use of the internet had resumed.

Employers conceded that dismissal automatically unfair due to their failure to communicate via their Step 1 letter that they were contemplating dismissing the Claimant but sought both a reduction and a reduction on account of the Claimant's contribution to his own dismissal. Employment Tribunal found that the dismissal would have been unfair in any event because the third strand of the Burchell** test had not been complied with; the employers had failed to properly investigate the import of an "internet usage" report and had failed to investigate the employee's health further – they had failed to investigate whether his conduct could have been linked to his medical condition. As to contribution, Tribunal found that Claimant had contributed to his own dismissal by failing to carry out the work he was employed to do, by using the internet excessively, by failing to take steps himself to obtain medical assistance and by failing to alert his managers to the fact that he was in difficulty; they fixed contribution at 15%. On appealEmployment Tribunal held to have misdirected itself. This being a case of admitted misconduct, there was little scope for further investigation and in all the circumstances, dismissal was plainly within the range of reasonable responses open to the Respondents. It was not open to them to find that the third strand of Burchell had not been met. Dismissal would, clearly, without the procedural failure, have been on the agenda. There should, plainly, have been a substantial reduction. Employers do not, in general, have a duty to investigate matters advanced in mitigation. As to contribution, 15% was, in all the circumstances, so low as to be perverse. Case remitted to Employment Tribunal for a rehearing.

THE HONOURABLE LADY SMITH

Introduction

  1. This is an appeal from a judgment of the Employment Tribunal sitting at Dundee, Employment Judge Mr I McFatridge, registered on 25 May 2010, finding that the Claimant was automatically unfairly dismissed and awarding compensation of £38,068.55.
  1. We will continue referring to parties as Claimant and Respondent.
  1. The Claimant represented himself before the Employment Tribunal and was represented by Mr K Gibson, advocate, before us. The Respondent was represented by Mr S Allison, solicitor, before the Tribunal and by Mr D Cameron, advocate, before us.
  1. It was accepted by Mr Cameron, for the Respondent, that the dismissal was automatically unfair on account of the fact that the "Step 1" dismissal letter did not indicate that they were contemplating dismissing the Claimant. The issues in the appeal were:

(a) Whether or not the Employment Tribunal erred in failing to make a** deduction on the ground that the Claimant would have been dismissed fairly in any event?

(b) Whether or not the Employment Tribunal erred in making a deduction of only 15% in respect of contributory conduct?**

  1. The Claimant is a chartered accountant and was employed by the Respondent, an energy company, between June 1998 and 25 February 2009, when he was dismissed. The Claimant worked in the Group Audit department prior to October 2007. It was a highly pressured environment that involved working to deadlines. He had a period of sickness absence of about seven months between March and October 2007, due to depression, and when he returned to work on 18 October it was felt that it would not be appropriate to return to Group Audit, given the nature of the work. Instead, he was given business review audit work, namely short concise pieces of work which involved the auditing of specific business units. Each piece of work ought to have taken about 20 working days to complete. His move to business review audit was in the context of the Respondent's Occupational Health Service having advised, in October 2007, that the Claimant was fit to return to work on a "staged return" basis.
  1. The Claimant completed his first business review audit but not within 20 days; he completed it in January 2008. He was given two further such pieces of work, one for completion by the end of February 2008 and one for completion by the end of June 2008. Neither of those pieces of work were completed prior to his dismissal in February 2009.
  1. During 2008, the Claimant continued to have contact with medical services. He attended his General Practitioner, received medication for depression and attended cognitive behaviour therapy for about nine months. He contacted Dr Snape of the Respondent's Occupational Health Department on a number of occasions. He met with him on 17 December 2008. Dr Snape's report of that meeting indicated that he had requested a report from the Claimant's GP and that:

"In the meantime I can report that David has found the more structured nature of his work helpful and the supervision he receives beneficial. He admits that there have been a couple of learning points along the way particularly with regard to ways of working and methodology but nonetheless he believes he has coped with his workload recently."meantime I can report that David has found the more structured nature of his work helpful and the supervision he receives beneficial. He admits that there have been a couple of learning points along the way particularly with regard to ways of working and methodology but nonetheless he believes he has coped with his workload recently."

**

  1. By 22 January 2009, Dr Snape had received a report from the Claimant's GP together with copies of "relevant specialists' letters" and he provided a further report to the Respondent in the following terms:

"The report concludes that David has had a recurring depression since  2006 and currently requires to take appropriate medication. The letter from his specialists note that that they 'have exhausted the options as regards helping Mr  Innes' and they 'could not justify referring him to the Psychotherapy Service'. This is due to a lack of response on behalf of David to his therapy which reflects his response to his work situation despite the company's efforts to assist him in this area.

**

I am therefore unable to offer further advice other than to confirm that David should be capable of carrying out his role albeit with certain allowances being made for his condition such that he achieves a reasonable standard of work on a consistent basis. Unfortunately despite the best efforts of all concerned to help him achieve this he hasn't responded and continues to avoid the issues despite the obvious resultant problems."

**

  1. The other medical report that was available to the Respondent at the time of the Claimant's dismissal was a report from his GP, Dr Foster, dated 18 February 2009. It advised:

"David Innes has asked me to compile a report summarizing his recent medical problems.nnes has asked me to compile a report summarizing his recent medical problems.

**

He has been attending the surgery intermittently since being diagnosed with depression in April  2006. There have been multiple significant life events which have been discussed over the last 12  months or so including the birth of a new child in April  2008. I understand there have been behavioural and health issues affecting his teenage daughter. In March he informed that his father in Glasgow had cancer in his liver and he subsequently died over the Christmas period. This obviously unsettled Mr  Innes. There are other compounding issues which are of a sensitive nature. Mr  Innes was the victim of previous abuse as a boy, the alleged perpetrator of this abuse being an associate of Mr  Innes' father. Memories of this abuse during Mr  Innes' father's illness were unfortunately rekindled and have had an unsettling effect. Mr  Innes has at times mentioned to me some stress related to the work situation.

**

After the death of his father when I saw him on 8  January he reported that he did not require further time off work and was keen to try and proceed with work and address his problems.

**

He has received regular prescriptions for Sertraline 150mg  daily, an antidepressant medication, in addition to Diazepam 5mg as required.

**

Mr  Innes has had his final psychology assessment in October  2008 with "very little if any success". I believe Mr  Innes has contacted Mindspace in Perth regarding ongoing counselling/support.

**

I last saw Mr  Innes on 18  February when he appeared quite unsettled regarding his work situation. A letter was requested by him as confirmation of recent discussions with me as his General Practitioner."

**

  1. The background to the Claimant requesting that letter from his GP was that he had been called to a disciplinary hearing fixed for 20 February 2009. The "charges" he was facing were set out in a letter dated 2 February 2009:

**

It is alleged that

**

* On timesheets for weeks commencing  5,12 and 19  January 2009 there are a large number of hours allocated to unproductive work, you failed to allocate time correctly on your timesheets

* There are unexplained absences from your desk during week commencing 26  January 2009

* That you have been accessing the company internet facilities for personal use (examples cover 5-30  January 2009).

* Using the company's email system for personal mail (example, 25  November to 29  January 2009).

* You failed to display your company ID badge and failed to follow the company procedures for PAC access on 29  January 2009."

  1. That was not the first time that the Claimant had been disciplined in relation to both his failure to carry out his work and his internet use. By October 2008, there were concerns that he was not carrying out work that had been allocated to him, about there being a substantial number of occasions when he was absent from his desk and about him using the internet excessively. Ms Upperton, of HR, investigated matters. She obtained a written report of his web usage. She met with the Claimant and he confirmed he had not submitted any work since August 2008. He also acknowledged that his use of the internet was in breach of the Respondent's IT policy. She discussed the web usage report with Mr Sergeant of the IT department. He explained that the number of 'hits' shown did not relate directly to user activity since allowance had to be made for sites with multiple components and those with "pop-ups" etc. However, the variety and number of accesses and range of categories in the usage report were, in his view, higher than was usual or to be expected. On 11 November 2008, the Claimant attended a disciplinary hearing at which he admitted the following charges:

* "You have failed to perform duties as directed by your manager that you could reasonably be asked to perform. The duties had been assigned and explained in an unambiguous way which you had the capabilities to perform.

* You made excessive of the work internet access for non-business purposes with consequence that your attendance hours were spent on non-business related activities."

  1. In light of those admissions, the Claimant received a formal warning; Ms Reeves, Head of Corporate Relations, wrote to him by letter of 14 November 2008 advising:

"In view of this, and as I advised you at the end of the interview, I confirm my decision to give you a formal warning that any further misconduct on your part during the currency of this warning will result in further formal disciplinary action being taken against you which may result in your dismissal. A copy of this letter will be placed on our personal file but unless you receive any further written warning during this period it will be disregarded for disciplinary purposes after a period of 12  months."

  1. Thereafter, according to the Tribunal's findings at paragraph 32, the Claimant "changed his practice and used the internet less than he had been using it before." Following a request for a note of evidence, the Employment Judge provided further detail of the Claimant's evidence on that matter (the accuracy of which was not disputed). It showed that he stopped using the internet for non-business matters after 14 November 2008 but that only lasted until the middle of December. He then began using it for non- business purposes again.
  1. After the disciplinary hearing in November 2008, the Respondent appointed Richard Nailor to provide specific support to the Claimant. He carried on having difficulties in carrying out his work and advised Mr Nailor of that, indicating that he appreciated that he was behind schedule.
  1. For the weeks beginning 5, 12 and 19 January 2009, he allocated a substantial number of hours to "unproductive time". Mr Nailor was very concerned that the Claimant was not attaining "the simplest of tasks in the most reasonable of time scales.", as reported by him on 13 January 2009. At that time, there was also renewed concern about his internet usage. The Respondent's Audrey Robertson investigated. She met with the Claimant on 30 January 2009 when he admitted having submitted timesheets showing "unproductive time". His explanation was that he had gone into a type of "shutdown" (not attributed by him to any particular causal factor) when he could not do anything. Audrey Robertson also obtained an internet usage report. When interviewed by Audrey Robertson, the Claimant's position was that he still accessed the internet but he did so via his own mobile phone during his lunch break. The internet usage report indicated otherwise, however. Her report was prefaced:

"Internet Usage – SSE Internet Account

**

I received a usage report of David's Company internet account from IT following the fact finding interview. The report covers period 5  Jan – 30  Jan 09. There were numerous non- business related sites on the report ranging from shipping, holidays, travel, personal banking, sporting and leisure activities plus various health-related sites."

**

  1. A list of some 20 sites then follows and the report continues:

"The full report of internet usage by David using the Company internet account is available as a separate document as there are over 25,000 lines on the Excel spreadsheet, making it impractical to paste into this document. However, as an example of two days' internet activity for non-business related sites on David's Company internet access, see report below for  19 & 29  Jan 09."

**

  1. There then follows a list of some 29 sites that were accessed between 11.26 and 16.19 on 19 January and some 15 sites that were accessed between 10.32 and 19.03 on 29 January. Mr Gibson, for the Claimant, confirmed to us that the Claimant accepted that he had accessed these sites as shown in Ms Robertson's report. The sites accessed include shopping websites (eg. Tesco, Amazon), the Scottish Athletics website, the "justgiving" website, and the Ryanair website. The Tribunal heard evidence from the Respondent's Mr Bremner (Head of IT) who explained (as had Mr Sergeant when advising Ms Cupperton) that not every entry on the spreadsheet represented a separate click of the mouse. What does, however, appear to be clear is that, whatever his initial position when interviewed by Ms Robertson, the Claimant did access the internet via the Respondent's system during working time and did so to a degree that was of some substance. Indeed, in the course of the disciplinary hearing on 20 February, he accepted that he should not have been acting as he did so far as his use of the internet at work was concerned.
  1. The disciplinary hearing was chaired by Mr Pratt, to whom Audrey Robertson's report was provided. He did not appreciate that each line of the spreadsheet showing the Claimant's internet usage was not representative of a separate click of the mouse. He made no investigations in that regard. He found three of the allegations to have been established and decided that the Claimant should be dismissed. By letter dated 25 February 2009, the Claimant was advised:

"(1) On timesheets for weeks commencing  5,12 and 19  January 2009 there were a large number of hours allocated to unproductive work; you failed to allocate time correctly on your timesheets.

**

(2) That you have been accessing the company internet facilities for personal use (examples cover 5  to 30  January 2009).

**

(3) Using the company email system for personal emails (examples cover 25  November to 29  January 2009).

**

I considered your points in mitigation in terms of your current health issues however I am satisfied that you have demonstrated to me that you can function normally on non-related work activity during your working day and that you have made a conscious decision to use the company internet and email system for personal use during the working day even after receiving a formal disciplinary in November  2008 for the same."

**

  1. The Claimant appealed. He accepted that the three allegations were made out (as was confirmed by Mr Gibson before us) but submitted that the penalty imposed was harsh because of the "prevailing circumstances" which were said to be that the period of unproductive work commenced four days after his father's funeral, that he had had problems with depression over the last couple of years, that Dr Snape's letter of 22 January did not cover a period during which his health problems had increased and the medical information in his GP's report of 18 February 2009 showed that a lesser penalty was called for (see: notes of appeal hearing at p.84 of the Appeal bundle). His appeal, which was heard by Mr Mathieson (whose understanding of the limitations of the internet usage report was somewhat better than Mr Pratt's and was that there was a significant amount of excessive use – it was not suggested by Mr Gibson that that was not a view that he was entitled to hold) was not successful. Mr Mathieson's approach was that the Claimant had deliberately chosen to act as he did, that if he was capable of using the internet and emails then he was capable of working, that the Respondent had done all that they could reasonably be required to do so far as accommodating him was concerned, that nothing in the GP's letter of 18 February was relevant and he had had regard to Dr Snape's opinion.
  1. The Employment Tribunal made no findings in fact regarding what would have been concluded if Mr Pratt and/or Mr Mathieson had made enquiries into the detail of what was shown by the internet usage report. That said, there seems no doubt that at the very least, the conclusion would have been that there had been non- business internet usage by the Claimant of some substance and certainly not merely de minimis. **The record for 19 and 29 January 2009 alone is indicative that that was the case.
  1. Nor does the Employment Tribunal make any findings as to what, if anything, might have been found if further investigation had been made of Dr Snape and/or the Claimant's GP and/or any of the other specialists involved in his care.

The Tribunal's reasons

  1. The Tribunal found that even if the dismissal had not been automatically unfair, they could not have concluded that there was any chance of the Claimant being fairly dismissed in any event. That was, they said, because the third stage of the requisite Burchell** steps had not been complied with:

"93. In the view of the Tribunal there was a clear failure by the respondents to meet the third strand of the Burchell test. There had in the view of the Tribunal been a failure by the employers to properly investigate the matter."

**

  1. Also, at the end of paragraph 101, they state:

"The obligation the law places on them … is to properly investigate."

  1. In that regard, they found that there was a twofold failure to investigate. On the one hand, Mr Pratt and Mr Mathieson should have obtained advice as to the meaning of the internet usage report. On the other hand, they should have investigated the Claimant's state of health, particularly whether the Claimant's actions "could in any way be linked to his medical condition or to the fact that his father had just died." (paragraph 101). At paragraph 98, in the course of explaining why they found that the third strand of Burchell** had not been complied with, they state:

"98. The more important failure so far as the Tribunal was concerned related to the complete failure by either Mr  Pratt or Mr  Mathieson to engage in any way with the claimant's primary defence which was based on his state of health at the time. The situation was that the claimant had been off sick with depression for a period of eight months in  2007. He had undergone a phased return to work and certain adjustments had been made to the work he had been doing. There were clearly still major problems in this regard. The claimant was suffering from a depressive illness and had been taking strong drugs for a considerable period of time. The primary event which led up to him coming to a disciplinary hearing had started on his return to work a few days after his father died."

**

  1. We would observe that the only medical basis the Tribunal had for drawing any conclusions about the Claimant's state of health as at 20 February 2009 was his GP's report of 18 February 2009, to which we have already made reference. Contrary to what is suggested by the Tribunal in paragraph 98 above, the Claimant was not diagnosed as suffering from depression at that time, nothing is said about the strength of the drugs which he had been prescribed (or indeed about whether he was taking any drugs as at 18 February 2009), it is not stated that the Claimant was suffering "major problems" at that time and the GP refers only to the Claimant being "unsettled" and "quite unsettled", which were manifestly not diagnoses of specific illness.
  1. The Tribunal summarise their reasoning in paragraph 102 where, having reiterated that they did not consider that the Claimant would have been fairly dismissed absent the procedural failing, they state:

"If an investigation had been carried out which fell within the band of reasonableness then the respondents would have had to investigate exactly what the respondents' policy on internet and email usage so far as directed against someone in the claimant's position actually was, the actual amount of such internet usage and the extent if any to which it fell outwith the policy and most importantly whether the claimant's medical condition had influenced his actings. Had they done so it was the view of the Tribunal that there was no chance that the claimant would have been fairly dismissed."

**

  1. We observe that, at this point, the Tribunal's concern does not appear to have been a failure to investigate further the meaning and import of the internet usage report but, rather, the implications for the Claimant of the Respondent's internet policy. However, more importantly, the Tribunal does not explain why more needed to be known about the Respondent's internet policy nothwithstanding the Claimant's admissions of the charges against him. Further, the Tribunal makes no findings as to what would have been concluded concerning the causal link between the Claimant's health and his misconduct about which they speculate.
  1. Turning to the matter of contribution, the Employment Tribunal found that the Claimant had contributed to his own dismissal. They concluded:

"113. The Tribunal considered that the claimant's dismissal had to some extent been contributed to by his actions. By his own admission the claimant was not carrying out the work he was paid to do. He was sitting at his desk in what he termed "shutdown mode". He was using the internet in a manner which he accepted was more than he should be. The Tribunal consider that although the claimant had taken some steps to alert his managers to the difficulties he was facing he had not followed this through or dealt with matters properly. It must have been clear to the claimant that he was in need of help. The respondents' HR advisor Ms  McDonald accepted that with hindsight the fact that the claimant filled in his timesheet using the words 'unproductive time' could perhaps be categorised as a cry for help. This was not the way the claimant should have done it. The claimant ought to have taken greater steps himself to seek appropriate medical help and indeed to take sickness/bereavement absence. Although the Tribunal considered that the claimant had been at fault in the way he had dealt with the matter, the Tribunal considered that the reduction for this should be relatively modest and assessed the reduction for contribution at  15%."

  1. Thus, although the Tribunal were critical of the Respondent for failing to engage with the Claimant regarding his state of health as at 20 February 2009, they were also critical of the Claimant for not having done so. They do not explain why the Respondent should bear so much more of the responsibility in that regard than the Claimant – their assessment of his contribution for that and his other failures as amounting to only 15% in total are indicative of that being their approach.**
  1. Mr Cameron submitted that the Tribunal had reached a conclusion which was not open to them on the facts found and had substituted their own view for that of the reasonable employer. The test for perversity set out in Yeboah v Crofton Crofton* [2002] IRLR 634 was met. Further, it was plain that the Tribunal had substituted its own views for that of the reasonable employer. There were two aspects to the submission (a) the Tribunal was, on the facts, bound to make a ""*deduction but failed to do so, and (b) the Tribunal's percentage assessment of the Claimant's contribution to his own dismissal was so low as to be perverse.
  1. Mr Cameron submitted that it was evident that the Tribunal had misdirected itself in its application of the Burchell* test and that was the source of their failure to make any deduction, a course which was still open to them notwithstanding the finding of automatically unfair dismissal: Jury's Inn Group v Tatarovann Group v Tatarova UKEAT/0295/10 This was a misconduct dismissal. The investigation that was required for Burchell purposes was investigation into the question of whether or not the Claimant was guilty of the charges brought. This being a case where the Claimant admitted the charges of misconduct which were, on both occasions, found to have been established, there was little scope for further investigation; the burden on the employer was lightened - Royal Society for the Protection of Birds v Croucher [1984] ICR 604- but the Tribunal had failed to recognise that. The Claimant's reference to his health was a matter of mitigation but when it came to the application of s.98(4) of the Employment Rights Act  1996("the 1996 Act") an employer did not have a duty to investigate matters advanced by an employee in mitigation. The Respondent had had due regard to what was put forward by the Claimant in respect of his health. So far as the internet usage report was concerned, even if there had been further investigation, it was clear that the conclusion would still have been fairly drawn that the Claimant's use had been excessive. Mr Cameron submitted that the Tribunal had taken the two matters in respect of which they had criticisms and shoehorned them into the third strand of the Burchell* test but they were wrong to do so. Further, the Tribunal had failed to take account of the fact that the Claimant was dismissed not only for his misconduct vis a vis his use of the internet and email but also for his failure to carry out his work.
  1. As to the medical evidence, the report from the Claimant's GP of 18 February 2009 did not suggest that he was not fit for work. Dr Snape had found him fit for work. The Claimant appeared at the disciplinary hearing and there was no suggestion made by him or his representative that he was not fit to do so. In all the circumstances, it was entirely reasonable for the Respondent to approach matters so far as the Claimant's health was concerned, in the way that they did namely to have regard to it but to decide that it should not be accorded such weight as to elide dismissal. Further, there were no findings by the Tribunal of what would have been discovered had there been more investigation into the Claimant's state of health. The implication of the Tribunal's approach was that information would have been forthcoming that would have shown that the Claimant was ill and, in particular, that his illness was responsible for his misconduct. There was, however, no material before them that provided a basis for any such inference to be drawn. Mr Cameron observed that this was not a case of dismissal for lack of capability; it was possible that the Employment Tribunal had erroneously approached matters as though it was.
  1. Mr Cameron submitted that there was a near certainty that without the procedural unfairness that occurred, the Claimant would have been fairly dismissed. A reduction by 100% or something close to that ought to have been made.
  1. Turning to the matter of contribution, Mr Cameron referred to Ingram v Bristol Street Parts Bristol Street Parts** UKEAT/0601/06 for a submission that a finding of automatically unfair dismissal did not preclude a reduction in compensation to allow for an employee's contribution to his own dismissal even to the extent of 100%. Here, there should, he submitted, have been such a reduction. At the very least it should have been a reduction by 75%. The Claimant's understanding of the Respondent's internet usage policy was that only limited personal use and use so as not to interfere with normal work was allowed. He had, nonetheless, admittedly engaged in excessive use. He had been warned. He did not heed the warning. He was disciplined for the same misconduct in February 2009 as he had been disciplined for in November i.e. internet use interfering with his work and not carrying out work that he should have been carrying out. This was a conscious decision on his part and a decision which was taken in the face of the specific warning that he had received. There was a wide base of conduct which caused his dismissal – he was not carrying out the work he was employed to do and he was acting in breach of company rules and the warning he had received. When it came to his appeal, he did not appeal against the findings of misconduct; his appeal was against the sanction imposed. In all the circumstances, for the Employment Tribunal to have assessed contribution at only 15% was irrational.
  1. For the Claimant, Mr Gibson accepted that there were no findings nor material on which findings could have been made about what would have been the outcome of any further investigation into the Claimant's state of health. That said, his GP's letter referred to various difficulties in the Claimant's life and showed that he was not healthy. The Claimant raised the issue of his health in mitigation and since an employer has, he submitted, a duty to investigate matters raised in mitigation, the Respondent had a duty to make further investigations in that regard. He referred to no authority in support of that proposition.
  1. Mr Gibson explained that the Claimant's position was that although he admitted deliberate and excessive use of the internet and emails (both so as to interfere with his work), his culpability was not as high as a healthy person. The Tribunal's conclusion was open to them. If matters had been properly appreciated by the Respondent, that is how his misconduct would have been viewed. Mr Gibson went on to submit that if the Respondent had made investigations about the internet usage report, they would have found that the report was questionable and of very little value – he did not point to any finding in fact in support of that submission but relied, rather, on the findings of the lack of investigation and that not every one of the 27,000 separate entries amounted to a separate click of the mouse. Mr Gibson did, however, ultimately seem to accept that the examples for 19 and 29 January 2009 referred to in Audrey Robertson's report showed accessing of non-business websites that was of some substance and which took place over significant periods during the working day.
  1. Regarding contribution, Mr Gibson submitted that the Employment Tribunal must have had in mind that the policy was that the Claimant could use the internet for limited personal use so long as it did not interfere with his work, that they must have had in mind that there was an extant warning at the time of the disciplinary hearing in February 2009, that he had resumed his prior use of the interest and that they must have proceeded on the basis that his use of the internet in that way was caused by his ill health. Matters had, he submitted, to be looked at in the round. He accepted that there was no evidence before the Tribunal which entitled them to conclude there was a causal connection between his ill health and his accessing the internet in breach of the Respondent's policies and the warning he had received. However, his admissions had to be taken in the context of his ill health. Then, whilst it was accepted that he did not challenge the findings of misconduct at his appeal, the Tribunal were entitled to view that in the context of his ill health. It was in the best position to make the findings in fact, they were fair minded, thorough and had put weight on what they considered were the important factors. Whilst it was accepted that the assessment of contribution was very low, it was not outwith the band available to them.

Relevant law

  1. It was common ground that notwithstanding the occurrence of an automatically unfair dismissal, if there was a chance that a fair dismissal would have taken place had the correct procedure been followed, applies and an Employment Tribunal then requires to consider whether any percentage reduction in compensation to allow for that possibility should be made under s.123(1) of the Employment Rights Act 1996**.
  1. It was accepted by the Claimant and by the Employment Tribunal that the Respondent's reason for dismissing the Claimant "related to his conduct" (Employment Rights Act s.98(2)(b)). Misconduct is a potentially fair reason which opens the door to the possibility of a conclusion of fair dismissal and care requires to be taken to examine the means by which the employer has reached his conclusion that the claimant did do that which he is said to have done. It is necessary to ask whether the employer's belief that the employee carried out the acts alleged was a reasonable one. As explained in Burchell**, answering that question involves three elements namely first, the employer has to establish the fact of that belief; secondly, the Tribunal has to be satisfied that the employer had reasonable grounds for the belief and thirdly, at the point when the employer formed his belief, he had to have carried out a reasonable investigation. However, where an employee admits the alleged misconduct it is difficult to see that there will be any requirement for further investigation. In every case, making enquiry of the employee himself regarding an allegation of misconduct is likely to be a sensible first step in a reasonable investigation and if that enquiry bears fruit in the form of relevant admissions by the employee, there cannot be anything further to find out so far as concerns the issue of whether or not it was reasonable for the employer to believe that the employee was guilty of the misconduct alleged. Hence the observations in the case of RSPB v Croucher at p.611 – 612:

"The Burchell case, it will be remembered, was a case which concerned instances in which there has been a suspicion or belief of the employee's misconduct entertained by the employers. Here there was no question of suspicion or of questioned belief: there (sic) the dishonest conduct was admitted. There was very little scope, therefore, for the kind of investigation to which this appeal tribunal was referring in Burchell's case; investigation, that is to say, designed to confirm suspicion or clear up doubt as to whether or not a particular act of misconduct has occurred."

  1. Had this been a case of dismissal for reasons relating to the Claimant's capability – on health grounds - for performing work of the kind for which he was employed (s.98(2)(a) of the 1996 Act), it would have been incumbent on the employer, before reaching any such conclusion, to take reasonable steps to find out what was the true medical position (see: e.g. Spencer v Paragon Wallpapers [1977] ICR 301; East Lindsey District Council v G E Daubney [1977] IRLR 1810**. That is, it would have been incumbent on the employer to carry out a reasonable investigation into the nature and import of whatever ill health of the Claimant was being founded on as rendering him incapable of carrying out his work. This was not, however, such a case. It was a case of dismissal for misconduct.
  1. As regards contribution, s.123(6) of the 1996 Act provides:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable."

  1. As explained in Ingram v Bristol Street Parts, reduction for contribution is not excluded by reason of the dismissal being automatically unfair.

Discussion and decision

  1. The reason why the Employment Tribunal found that the dismissal would, in the absence of the procedural failure, still have been unfair was, as they put it, that "there was a clear failure to meet the third strand of the Burchell* test." However, as we explain above, this was a case where the Claimant had admitted the charges which were found to have been established. Further, he did so in circumstances where the misconduct which he admitted was a repeat of the misconduct in respect of which he had received a written warning only three months or so earlier. We are satisfied that not only was there "little scope" (to use the language of this Tribunal in the RSPB v Croucher case) for further investigation for the purposes of the third strand of Burchell but there was no such scope. The Respondent was plainly entitled to conclude that the Claimant had acted as alleged and admitted by him. We accept the submission that the Tribunal erred and were not entitled to find as they did on this matter which was, of course, highly relevant to the issue of whether or not there should be a *reduction.
  1. We note that the mainstay of the Tribunal's concerns was that if there had been more inquiry into the Claimant's state of health, it might have been discovered that there was some causal link between it and his conduct. Whilst an employer is likely to be in difficulty where the reason for dismissal is capability if he has not carried out a reasonable investigation into the employee's state of health, as discussed above, it is not an issue which would normally arise in the case of a misconduct dismissal. It might, we suppose, be relevant if the employee refutes responsibility for his actions on the grounds of, say, automatism but nothing of that sort was advanced in this case. The Claimant accepted that he was responsible for his actions. We can see that it may be, as was suggested by Mr Cameron, that the cause of the Tribunal's error was that their mindset was that which would be applicable in the case of a capability dismissal but if that is correct, it was the wrong mindset for this case.
  1. What the Tribunal here was required but, we are satisfied, failed to do, so far as the **issue was concerned was to approach matters on the basis that the Respondent held a reasonable belief that the Claimant had misconducted himself in the three respects alleged and admitted and then ask whether, in all the circumstances, including the prior history of the Claimant's excessive internet use and failure to do his work, the fact of the written warning, the conscious resumption of excessive internet use within about a month of receipt of that warning, his persistent failure to carry out the work required of him, Dr Snape's assessments, his GP's report of 18 February 2009 and the Claimant's own "plea in mitigation", dismissal for the misconduct which had recurred after the written warning and which was admitted in February 2009 would have been within the range of reasonable responses.
  1. So far as contribution was concerned, we note that the circumstances were that, on the findings in fact, the only work that the Claimant had been given in 2008 was two business review audits which should each have taken some 20 days to complete but neither of these pieces of work had been completed at the time of his dismissal which followed a period of three weeks in January 2009 when he had allocated a large number of hours to "unproductive work". As at 31 October 2008, he had admitted that he had failed to perform duties which he "could reasonably be asked to perform" and which he had the ability to perform. Although he attributed his "non productive" hours in the weeks of 5, 12, and 19 January 2009 to periods when he was going into a kind of "shutdown" following the death of his father, he told his GP, on 8 January, that he did not need time off work, and the list of his accessing some 29 websites on 19 January is indicative of his being able to function normally during a substantial part of that day at least. As the Tribunal observed, at paragraph 113, he was "not carrying out the work he was paid to do" and they were satisfied that he had thus contributed to his own dismissal. It is implicit in that finding that they were satisfied that these were conscious and deliberate failings on the Claimant's part. The Tribunal also found that the Claimant had failed to take steps himself to address the difficulties he said he was experiencing; again at paragraph 113, they are critical of him in that regard. These criticisms go to the heart of those matters which brought about the Claimant's dismissal. We do not accept Mr Gibson's submission that the Tribunal must have been regarding the Claimant's contributory conduct as being caused by his ill health because there was no evidence on which they could have made a finding of there being such a causal link and, in any event, they made no such finding (it was not even open to them, given the absence of any contemporaneous diagnosis of illness by his GP, to find that he was suffering any specific illness at that time). In all the circumstances, we accept Mr Cameron's submission; the reduction for contribution made by the Employment Tribunal was so low as to be perverse. The facts all pointed to the appropriate reduction being a substantial one.
Disposal****
  1. The case will require to be remitted for a rehearing on the issue of (a) whether or not the circumstances were such as justify a reduction in the compensatory award and if so, to what extent; and (b) what reduction ought to be made for the Claimant's contribution to his own dismissal. Mr Cameron submitted that the remit should be to a freshly constituted Tribunal and we agree that that would be appropriate. Mr Gibson did not suggest otherwise.

Published: 27/05/2011 10:23

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