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Appeal No. UKEAT/0131/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 August 2010

Before

HIS HONOUR JUDGE SEROTA QC

MR D EVANS CBE

MR P GAMMON MBE

WILSON DEVONALD LTD (APPELLANT)

MS S SUCKLING (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PHILIP THOMPSON (of Counsel)

Instructed by:
Messrs Peter Lynn & Partners
2nd Floor, Langdon House
Langdon Road
Swansea
SA1 8QY

For the Respondent
Written submissions

UNFAIR DISMISSAL – Reasonableness of dismissal

Appeal allowed. Employment Tribunal wrongly substituted its views for those of employer as to reasonableness of dismissal.

1. This is an appeal by the Respondent, Wilson Devonald, from a decision of the Employment Tribunal at Cardiff which was promulgated on 17 December 2009. The case was heard by Employment Judge Collier sitting with lay members. We note that the hearing took place on 5 March 2009, but the Employment Tribunal did not meet in Chambers for some eight months until 5 November 2009. We do not know the reasons for the delay. The Employment Tribunal held that the Claimant had been unfairly dismissed. The Respondent was given permission to appeal by HHJ Peter Clark on 1 March 2010.

1. We now turn to the factual background. The Respondent is a firm of solicitors. The Claimant was employed from 7 May 1996 as a Receptionist. Initially she was employed by a firm of which certain of the Respondent's partners were partners. When those partners left to found Wilson Devonald she went with them in 2001. She was dismissed for gross misconduct on 9 May 2008. There had been no previous concerns or complaints about her work, save in relation to one minor matter which is not relevant at all to these proceedings.

1. We take the factual background largely from the decision of the Employment Tribunal. The Respondent was a firm that specialised in undertaking criminal work. Without, in any way, being unkind or patronising, it had a certain class of clientele who probably required a greater degree of caution in dealing with than of an ordinary firm of solicitors dealing with other matters. The offices were controlled by a security lock worked by the Receptionist to control entry.

1. On 18 January 2008 the Respondent received complaints that a sign writer had attended its office to carry out some sign writing and the Claimant had been extremely rude to him. On 22 February 2008 the representative of a mobile phone company, who had been invited by one of the partners or directors of the Respondent, was refused entry to reception by the Claimant and treated very rudely.

1. The most serious complaint about the Claimant related to an incident that took place on 11 February 2008. Two young clients came to the front door of the office in an anxious state. One of them had an injured hand which was bleeding. They demanded entry. They said they could not go out through the front door and they wanted to be let out through the back door. The Claimant admitted them and the Respondent said they should not have been admitted given their state, nor allowed in to part of the building from which clients were excluded, nor escorted to the back door. This, effectively, enabled them to make an escape from whoever was pursuing them. We note that in the ET3 it was said in terms by the Respondent that they were being pursued by the police but the Employment Tribunal said they were being pursued by people, possibly the police.

1. It was known to the Claimant that these men both had the Hepatitis virus and were both rumoured to be HIV positive. The fact that one of them was bleeding posed an obvious risk to staff. There followed investigations which lead to the Claimant's suspension on 26 February 2008, the disciplinary hearing and eventually dismissal. The Claimant appealed but her appeal was dismissed.

1. The Employment Tribunal set out the facts as we have described. It correctly directed itself by reference to the Burchell decision, that the dismissal would only be fair if it were within the range of reasonable responses of an employer, having had a proper and fair investigation, believing in the Claimant's guilt and having proper grounds for that belief for believing in the Claimant's guilt. I do not set that out as a comprehensive statement of what the employer must do, but only so far is relevant.

1. The Employment Tribunal in this case found that the investigation had been reasonable, as were the procedures leading to the dismissal. Any defect was cured by the appeal. The Employment Tribunal found that there were reasonable grounds for believing the Claimant had been guilty of the conduct alleged: the Respondent genuinely believed in her guilt; it rejected the Claimant's case that the allegations against her and her dismissal as a result was a ploy simply to enable the Respondent to dismiss her without compensation for redundancy.

1. Having cited the Iceland Frozen Foods Ltd v Jones [1983] ICR 17 case, the Employment Tribunal went on to find that the dismissal was outside the band of reasonable responses. For these reasons; the Claimant had worked since 1996; there had been no previous complaint and insufficient consideration of this had been given or to her satisfactory work record; the matters had occurred within four weeks of one another, seemingly out of the blue, and a reasonable employer would have sought an explanation before suspending. In paragraph 18 of the decision the Employment Tribunal had this to say:

"18. We felt a reasonable employer might have asked for an explanation before suspending her, had that been considered necessary. The problem with her conduct seemingly came 'out of the blue.' We were not given evidence of a history of similar problems or indeed any problems with her conduct, leading to these three incidents. We felt in the circumstances insufficient regard was had to her clean disciplinary record and satisfactory work performance in the job. We found a reasonable employer would have given her an opportunity to improve and a possible sanction could have been a final written warning. In view of the nature of the complaints of rudeness by the two callers, it may have been appropriate to have sent her on a training course despite the fact that the Respondent felt she may have been reluctant to attend. If she had refused to go on a course and had her behaviour not improved, then these were matters which could have been taken into account had there been any further disciplinary problems.

19. The Tribunal therefore made the following findings:

i. The Claimant was dismissed for a fair reason, namely conduct, pursuant to section 98(2) of the 1996 Act.

ii. That the Respondent's procedures were fair and complied with the statutory standard dismissal procedure set out in Part1 of Schedule 2 of the Employment Act 2002.

iii. The Respondent did not act fairly in treating the reason for dismissal as sufficient reason to dismiss and therefore the dismissal was unfair."

1. It is to be noted that the Employment Tribunal was satisfied that the Claimant had been guilty of gross misconduct. Now, the principal ground of appeal in this case is that the Employment Tribunal had fallen into error by substituting its views for those of the Respondent. Our attention has been drawn to what is now a very well known passage from the judgment of Mummery LJ in London Ambulance Service v Small [2009] IRLR 563 at paragraph 43 where he said:

"It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the Claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal."

1. Now, the correct test that should have been applied to determine if there had been a fair dismissal is whether it was reasonable for the Respondent to have dismissed the Claimant on the basis of the gross misconduct which had been found. One finds this clearly set out in the judgment of Lord Denning in the case of British Leyland UK Ltd v Smith [1981] IRLR 91 which has been cited by Mr Thompson at page 4 of his skeleton argument. I quote:

"The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said: "[…] a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate." I do not think that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair, even though some other employers may not have dismissed him."

1. It is said by the Respondent that the Employment Tribunal had substituted its own view into the decision making process. The suggestion that a reasonable employer would have asked for an explanation is not relevant to the application of the reasonable range of responses; suspension is clearly, on the authorities, a neutral act and not an act implying criticism. It is designed to enable a proper investigation to be carried out.

1. If one turns as well to the language of the Employment Tribunal, it appears that the Employment Tribunal is almost conceding that the dismissal was within the reasonable band. We note that in paragraph 18 the Employment Tribunal said:

"We felt a reasonable employer might have asked for explanation before suspending her…. a reasonable employer would have given her an opportunity to improve and a possible sanction could have been a final written warning."

Again, that seems to suggest that a possible sanction did not have to be a final written warning; as put by Mr Thompson, the language of paragraph 18 is relevant to the element of substitution. The test was not whether a reasonable employer might have followed the options, the test, which the Employment Tribunal do not appear to have applied, was whether the dismissal was reasonable in all the circumstances.

1. We also refer to paragraph 12 where the Employment Tribunal found there were reasonable grounds on which to believe that the Claimant was guilty of the misconduct alleged. The Respondent did not accept her explanations. In all the circumstances they had reasonable grounds to conclude that she was guilty of the misconduct alleged. We note that, having found that the misconduct amounted to gross misconduct, which seems to us is prima facie a dismissible offence, we would have thought it is extremely difficult to characterise a decision to dismiss on the grounds of that misconduct as outside the range of reasonable responses. We do not see how it can easily be said that no reasonable employer could fairly have dismissed the Claimant for what was complained of.

1. The Employment Tribunal, it was submitted, should have confined its consideration to the facts relating to the dismissal. As the Employment Tribunal, as we have said, had found it was reasonable for the Respondent to form the view of conduct it did, it is inconsistent with the finding that the decision to dismiss was outside the range of reasonable responses. Mr Thompson put it in this way:

"Gross misconduct is disruptive of the employment relationship and merits dismissal. It could not be said that no employer, in similar circumstances, would be unreasonable if it dismissed the Claimant."

1. He also submitted that the Claimant's experience was to be regarded as an aggravating rather than a mitigating factor. The Employment Tribunal, he also said, failed to consider adequately the nature of the Respondent's business as solicitors. He made good this submission by reference to the case of NC Watling and Co. Ltd v Richardson [1978] ICR 1049. The Employment Tribunal should have considered what a reasonable solicitor, dealing with criminal clientele and needing special security, would have done. Mr Thompson, in the circumstances, submitted that the appropriate course for us was to allow the appeal and not remit it.

1. The Claimant has not attended today, for reasons of expense, but has very helpfully provided us with a skeleton argument. She maintains that the Respondent, it was found, had failed to act reasonably. There was no evidence if it had considered the alternatives to dismissal. The Claimant had an unblemished reputation and there was no evidence that the Respondent had paid attention to this.

1. There is a very curious passage in the Respondent's skeleton argument to which we would now refer. At paragraph 17 it is submitted:

"That the Tribunal is not saying that a reasonable employer would not have dismissed the Respondent."

That is a difficult sentence to understand, and if one turns it inside out and removes the negative it looks as if it is being conceded that a reasonable employer might have dismissed the Respondent.

1. In paragraph 18 of the skeleton it said:

"That the Tribunal said that a reasonable employer and a reasonable investigation could have considered other sanctions such as training or even a warning before dismissal as a sanction."

Again, the word "could" gives a clue to the fact that the Claimant is, in effect, conceding that while a reasonable employer could have considered other sanctions, other reasonable employers might have taken the view that other sanctions were inappropriate.

1. In the circumstances we prefer the submissions of the Respondent. We take the view that, unfortunately, this Employment Tribunal has fallen into the substitution mindset and has, in effect, substituted its views as to whether dismissal was a reasonable sanction, for those of the employer. In those circumstances, we have come to the conclusion that the Employment Tribunal, had it properly applied the Burchell test, would have concluded that the dismissal was a fair dismissal. In those circumstances, we see no purpose in remitting the matter to the Employment Tribunal and the appeal is allowed with a declaration that the Claimant's dismissal was fair.