Appeal No. UKEAT/0511/10/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
14 June 2011
Before
HIS
HONOUR JUDGE RICHARDSON
(SITTING ALONE)
MR
P S LOCKEY APPELLANT
EAST
NORTH EAST HOMES LEEDS RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out –
unfair dismissal and wrongful dismissal.
As to unfair
dismissal, since (as the Employment Judge recognised) it was arguable that an
important part of the decision maker’s reason for summary dismissal was flawed,
it was essential to look at the decision maker’s decision as a whole. Striking
out was not justified.
As to wrongful
dismissal, the Employment Judge ought not to have struck out the claim without
a hearing at which disputed facts were determined.
North Glamorgan NHS Trust v Ezsias [2007] ICR 1126
and ED&F Mann Liquid Products Ltd v Patel & Another
[2003] EWCA Civ 472 discussed.
HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Mr Paul Lockey (“the Claimant”) against a judgment
of the Employment Tribunal sitting in Leeds (Employment Judge Cox sitting
alone) dated 12 April 2010 whereby his claims of unfair dismissal and breach of
contract were struck out on the ground that they had no reasonable prospect of
success.
The background facts
2.
The Claimant was employed by East North East Homes Leeds Limited (“the
Respondent”) as a 24/7 Response Technician, carrying out emergency repairs to a
large stock of social housing. He had 18 years of service.
3.
On 20 June 2009 he was called out to repair the front door of a flat
which had been damaged. His view was that the door should be replaced with a
steel sheet door in order to protect the tenant, given the area where the flat
was located. However his supervisor did not agree. There was an argument.
His supervisor and the Respondent’s head of construction services attended the
flat. The Claimant was instructed to do a different kind of repair.
4.
The Respondent’s case is that steel doors should not generally be fitted
to the only exit from a property for reasons of safety. This, it is said, is
their general practice, because gaining access to a property with steel sheet
doors can be difficult, especially for the emergency services.
5.
The Respondent’s case is that the Claimant refused to carry out
instructions to do the different kind of repair and swore (1) at his supervisor
on the telephone and (2) at the Head of Construction Services at the site in
front of the tenant.
6.
The Respondent was dismissed for gross misconduct in three respects
(1) he
failed to carry out a management instruction
(2) he
behaved unacceptably towards a senior member of staff
(3) he behaved unacceptably in
front of a tenant.
7.
The Claimant’s case, as set out in his claim form, is that a steel sheet
door should have been installed; he had done so before without any query; and
he considered that in this locality such a door was required to protect from
burglary. He did not accept that the instruction to do a different kind of
repair (which he said his managers described as “bodge it”) was reasonable.
8.
The Claimant also said that, albeit reluctantly, he did start to comply
with the instruction. He was, however, told that he was not well enough to be
at work and instructed to leave; after objecting he did so. He says that he
did not swear at the Head of Construction Services in front of the tenant.
9.
The Claimant was summarily dismissed after an investigation. The
Respondent did not interview the tenant in the course of the investigation.
The claim form asserts that the Claimant’s trade union interviewed the tenant
and that the tenant agreed the Claimant was not abusive or threatening to the
managers, but rather that the managers had been more abusive. The response
does not address this aspect of the claim form.
The Tribunal proceedings and reasons
10.
The Claimant brought claims for unfair dismissal, breach of contract (in
failing to pay his notice pay) and disability discrimination. His claim for
disability discrimination was subsequently withdrawn.
11.
A pre-hearing review was held with a 2 hour time allocation to determine
whether to strike out the allegations and if not whether to order the Claimant
to pay a deposit. The Employment Judge heard submissions but no evidence.
12.
The Tribunal’s reasoning in respect of the claim of unfair dismissal was
as follows:
“7. In determining whether Mr Lockey’s claim of unfair dismissal
had any reasonable prospect of success, the Tribunal considered whether Mr
Lockey would have any reasonable prospect of establishing that:
a. the Respondent did not have a
genuine belief, based on reasonable grounds after a reasonable investigation,
that he was guilty of the misconduct with which he was charged, and/or
b. dismissal was outside the range of
possible reasonable responses to that misconduct.
8. The Tribunal accepted Mr Lockey’s argument that a reasonable investigation
of the allegation relating to inappropriate conduct in front of a tenant would
have involved the Respondent interviewing the tenant involved. It therefore
discounted this allegation when assessing the reasonableness of the
Respondent’s decision to dismiss.
9. The Tribunal was satisfied, however, that Mr Lockey would
have no reasonable prospect of establishing that the Respondent did not have
reasonable grounds for concluding that he had refused to carry out a reasonable
management instruction. As already stated, Mr Lockey told the Tribunal that he
refused to carry out the instruction because he did not consider that it would
make the door as secure as he considered it needed to be. The Tribunal
accepted that that was his strongly-held opinion. Nevertheless, it did not
consider he would have any reasonable prospect of convincing a Tribunal that
the instruction that was given to him was not a reasonable one, even if it was
one with which he did not agree. An instruction to carry out a repair that
does not give a householder the optimum amount of security is not an
unreasonable instruction, objectively assessed.
10. Further, in the light of the statement that Mr Lockey
accepted Mr Walker had given to the investigating officer, the Tribunal was satisfied
that Mr Lockey had no reasonable prospect of establishing that the Respondent
had no reasonable grounds for its belief that Mr Lockey had behaved
unacceptably by swearing at Mr Walker during their telephone conversation.
11. Finally, the Tribunal did not accept that Mr Lockey would
have any reasonable prospect of persuading a Tribunal that no reasonable
employer would have decided to dismiss an employee whom it had reasonable
grounds for believing had refused to carry out a reasonable instruction and
sworn at his manager. These are serious acts of insubordination, clearly
amounting to gross misconduct.”
13.
The Tribunal’s reasoning in respect of the claim of breach of contract
was as follows.
“12. As already discussed, Mr Lockey accepted that he refused to
obey a management instruction which the Tribunal did not consider he would have
any reasonable prospect of establishing was unreasonable. On that basis, the
Tribunal did not consider he would have any reasonable prospect of establishing
that he was not in fundamental breach of his contract of employment and that
the Respondent was not entitled to terminate his employment without notice as a
result. The Tribunal therefore concluded that Mr Lockey’s breach of contract
claim for failure to give notice of termination would also have no reasonable
prospect of success.”
Submissions on appeal
14.
This case has proceeded to a full hearing essentially on grounds which
challenge the use by the Tribunal of the power of striking out in circumstances
such as these. Other grounds, relating to perversity and the sufficiency of
the Tribunal’s reasons, were not permitted to proceed: see the Order dated 2
March 2011.
15.
The Claimant has appeared himself, but with the benefit of a skeleton
argument prepared on his behalf. It is submitted that the use of the striking
out power was inappropriate for two reasons. Firstly, there were disputed
issues as to the reasonableness of the instruction given by management and as
to what occurred on the telephone and at the site. It was not possible to
decide the unfair dismissal claim without careful consideration of these
issues; and the wrongful dismissal claim required findings of fact about them.
Secondly, on any possible view the Respondent did not carry out a proper
investigation into the charges; and it was impossible to evaluate whether the
allegation of unfair dismissal should succeed without careful consideration at
a full hearing.
16.
It is submitted that as a general principle cases should not be struck
out on the ground that they have no reasonable prospect of success when central
facts are in dispute. I was referred to North Glamorgan
NHS Trust v Ezsias [2007] ICR 1126 at paragraphs 26-27.
17.
The Respondent has not been represented today, but it has asked me to
take into account written submissions in a skeleton argument lodged by counsel,
Mr David Jones. He submits that the Employment Judge was not obliged to hear
evidence at the pre-hearing and was entitled to proceed on the basis of that
which was not in dispute or was “not open to serious challenge”. He submitted
that the finding of the Tribunal that a reasonable investigation would have
involved interviewing the tenant did not undermine the decision to strike out
the claim, since the Employment Judge was entitled to hold that the Claimant
would have been dismissed in any event and on any view for the other two
charges. He submits that the Employment Judge was entitled to conclude that
the Claimant had disobeyed a reasonable instruction and was culpable of gross
misconduct. He submitted that Ezsias was a case concerning
whistleblowing, to which (like discrimination) special considerations applied.
He drew my attention to ED&F Mann Liquid Products Ltd v Patel &
Another (an authority cited with approval in Ezsias at
paragraph 27) in which Potter LJ said at paragraph 10, with reference to the
power to strike out in the Civil Procedure Rules:
“It is certainly the case that under both rules, where there are
significant differences between the parties so far as factual issues are
concerned, the court is in no position to conduct a mini-trial: see per Lord
Woolf MR in Swain v Hillman [2001] 1 ALL ER 91 at 95 in relation to CPR
24. However, that does not mean that the court has to accept without analysis
everything said by a party in his statements before the court. In some cases
it may be clear that there is no real substance in factual assertions made,
particularly if contradicted by contemporary documents. If so, issues which
are dependent upon those factual assertions may be susceptible of disposal at
an early stage so as to save the cost and delay of trying an issue the outcome
of which is inevitable: see the note at 24.2.3 in Civil Procedure (Autumn 2002)
Vol 1 p467 and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16,
[2001] 2 ALL ER 513 per Lord Hope of Craighead at paragraph [95].”
Conclusions
18.
In my judgment the Employment Judge erred in law in striking out the
claims of unfair dismissal and breach of contract.
19.
I accept that there is an aspect of the reasoning in Ezsias which
does not apply to an ordinary claim of unfair and wrongful dismissal. In cases
of discrimination and whistleblowing there is a particular public interest in
examining claims on their merits which should cause a Tribunal to consider with
special care whether a claim is truly one where there are no reasonable
prospects of success: see Ezsias at paragraph 32, applying Anwanwu
v South Bank Student’s Union [2001] IRLR 305. That particular public
interest does not apply to claims of unfair or wrongful dismissal.
20.
It remains the case, however, that there is a fundamental difference
between a striking out application and a hearing on the merits. The reasoning
in ED&F Mann Liquid Products should be kept in mind. The
Tribunal is in no position to conduct a mini-trial; issues which depend on
disputed facts will not be capable of resolution unless it is clear that there
is no real substance in factual assertions made, as it may be if they are
contradicted by contemporaneous documents.
21.
It should also be borne in mind, in an unfair dismissal case, that the
Employment Tribunal’s task is to review the reasonableness of the decision to
dismiss. For this purpose it will usually receive evidence from the decision
maker at the main hearing of an unfair dismissal claim. Its evaluation of the
evidence of the decision maker may be of some importance; and the Tribunal
should keep carefully in mind that it cannot test the decision maker’s
reasoning when it hears an application to strike out such a claim.
22.
In this case the Employment Judge proceeded on the basis that the
decision maker ought to have interviewed the tenant before reaching a
conclusion on the question whether the Claimant was abusive in front of the
tenant. She was plainly right to proceed on this basis for the purposes of a
striking out application and to hold that it would arguably be unfair to
dismiss for the third ground given by the Respondent.
23.
In my judgment the Employment Judge ought to have appreciated, at this
point, that the Claimant’s case could not be dismissed as unarguable without a
full hearing. If at that hearing the Claimant indeed established that one of
the three grounds for summary dismissal was flawed, it would be necessary to
examine carefully whether (1) the decision maker would have dismissed and (2)
it would have been reasonable to dismiss, on the other two grounds.
24.
Disobedience to a reasonable instruction may amount to misconduct, but
not necessarily to gross misconduct for which it is reasonable to dismiss
summarily. It may be appropriate to give a warning, particularly if the
disobedience is for a genuinely held view or if the instruction was not one
which had been applied to him before, as the Claimant said. The decision
maker’s consideration of these issues ought to be the subject of examination at
a hearing.
25.
Likewise, it is arguable that swearing at a supervisor over the
telephone is quite different to swearing at a senior member of management
before a tenant. The latter, it may be thought, is plainly gross misconduct.
Whether the former is gross misconduct is rather more arguable and may depend
on the circumstances.
26.
Moreover it must be borne in mind that the Claimant did not accept
aspects of the Respondent’s case about these matters. How the decision maker
evaluated disputes of fact, and precisely what conclusions he reached, are
matters which could only be resolved at a full hearing.
27.
Put shortly, since it was arguable that an important part of the
decision maker’s reason for summary dismissal was flawed, it was essential to
look at the decision maker’s decision as a whole. Striking out was not
justified.
28.
Likewise in my judgment the Employment Judge was not justified in
striking out the wrongful dismissal claim. This depended on whether the
Claimant had committed gross misconduct which entitled the Respondent to
dismiss him summarily; and that in turn depended, in this case, on disputed
facts as to whether the instruction was reasonable, whether in the
circumstances disobedience amounted to gross misconduct and whether the
Claimant was abusive in the manner alleged by the Respondent. A hearing was
indispensable for resolving these issues.
29.
It follows that the appeal will be allowed and the case remitted to the
Tribunal with a direction to proceed to a full hearing.
