SUMMARY
UNFAIR DISMISSAL
Reasonableness of dismissal
Contributory fault
Hospitality manager summarily dismissed for gross misconduct.
Single incident of failure to check a booking sheet leading to a complaint from
a customer about service provided at the booked event. Both the dismissing
manager and an appeals officer rely on that incident, and no other prior matter,
as justifying dismissal.
Employment Tribunal find summary dismissal would normally be
outside the range of reasonable responses but that the employee had previous
written and verbal warnings for capability arising out of similar
circumstances. It decides that given those additional matters, dismissal was
within the range of reasonable responses. In the alternative, that those
matters taken together with the incident gave rise to 100% contribution to own
dismissal. Appeal allowed.
The “reason” for dismissal with which section 98(4) and
section 123(6) ERA are concerned is the employer’s actual reason
for dismissal not the reasons for which the employee might otherwise have been
dismissed. The employers having disavowed the previous matters as having
formed part of their reason for dismissing, it was not permissible for the
Tribunal to substitute a reason or supply an additional reason which the
employer had not in fact adopted at the time.
Claim for UD upheld. Assessment of remedy remitted to same
Tribunal.
MR RECORDER LUBA QC
Introduction
1.
Mr Nejjary, the Claimant, claimed to have been unfairly dismissed by his
employers, Aramark Ltd, the Respondent, when they terminated his employment in
late October 2009. His claim was heard by the London Central Employment
Tribunal, comprised of Employment Judge Norris and two members. It was heard
over two days in June 2011. The Employment Tribunal dismissed the claim for
reasons that they gave to the parties in writing on 24 August 2011.
The Claimant now appeals to this Appeal Tribunal, contending that the
Employment Tribunal erred in law.
Essential facts
2.
The Respondent company is contracted to provide hospitality services at
the Fleet Street premises of Goldman Sachs, and they have done so since
September 2008. The Claimant was their hospitality manager. He became employed
by the Respondent when it took over the contract to provide the services at
Goldman Sachs, and he had worked for the previous contracted provider since
1995. On 11 September 2009 the Respondent suspended the Claimant on full pay.
It did so as a result of two matters. First, the receipt of a complaint from a
senior official of Goldman Sachs, a Ms Pingerra, arising from the arrangements
that had been made for a breakfast meeting that she had booked and hosted on
the morning of 10 September. In particular, there had been a failure, it was
said, by the Claimant to check the booking sheet for that event, which led then
to the difficulties with it. We shall call that “the Pingerra matter”.
3.
The second matter which contributed to the suspension arose from the
disruption of a lunch which took place on the following day, 11 September.
That was a lunch being enjoyed by two officials described as events hosts, who
had had to be moved from their lunch because the Claimant had seated them in an
auditorium which had been pre-booked by others. We will call that “the
auditorium matter”.
4.
In relation to each matter, the misconduct alleged was failure to follow
appropriate procedures for checking that the arrangements for the events were
in full and proper order. Although a good deal further detail is given in the
Employment Tribunal’s Judgment, we need not descend into that detail for the
purposes of this appeal.
5.
An investigatory meeting was held to consider these two matters on 2
October 2009, and a disciplinary hearing was convened on 20 October 2009.
Between those two dates it emerged that another official of Goldman Sachs had
earlier in 2009 asked that the Claimant should not be assigned to an event or
function that she was hosting. That request was put on the basis that the
Claimant was not enthusiastic enough, did not show the right level of interest
in the particular function and did not have the respect of his staff. We will
call that matter “the client request matter”. That matter was considered by
the Respondent to be a third instance of the Claimant’s conduct bringing the
reputation of the Respondent, with its client Goldman Sachs, into disrepute.
6.
At a reconvened disciplinary hearing on 26 October, Mr Toole of the
Respondent reviewed all three matters and found that they were all made out.
He was satisfied that gross misconduct had been established in relation to each
of them. He explained, as the Tribunal record at paragraph 6.23 that his decision
was, “not based on the Claimant’s previous record”, but on the three incidents
themselves. He it was who dismissed the Claimant.
7.
Having been dismissed on 26 October 2009, on 15 January the Claimant
lodged his claim with the Employment Tribunals Service. However, the Claimant
had also lodged an internal appeal against his dismissal and that was
considered by Mr Payne of the Respondent. In its response to the claim made to
the Employment Tribunal, which was filed before the outcome of the internal
appeal was known, the Respondent advanced and recounted exclusively those three
matters on which it had relied in dismissing for gross misconduct.
8.
Returning to the chronology, having considered the internal appeal, Mr
Payne of the Respondent wrote to the Claimant on 9 April 2010, notifying a
decision that the appeal was dismissed. Mr Payne had, the Tribunal found, put
aside the issue of the auditorium matter because his investigation had
established that the Claimant had been misled by another employee into
believing that the auditorium room was not double booked. Mr Payne appears
also to have left out of the count the client request matter, as we have called
it. He relied exclusively on the Pingerra matter, which he found sufficient on
its own to amount to gross misconduct and to justify the earlier decision to dismiss
because the Claimant’s failures in respect of that matter had brought the
Respondent’s reputation into disrepute.
The Employment Tribunal Judgment
9.
For its part, the Employment Tribunal was satisfied: firstly, that the
Claimant had been dismissed; secondly, that the Respondent had shown that the
reason for that dismissal was the Claimant’s conduct; thirdly, that the
Respondent had engaged in a procedurally fair process in investigating the
complaints against the Claimant; and, fourthly, that Mr Toole, the dismissing officer,
had had reasonable grounds for believing that the Claimant had been guilty of
the misconduct alleged. It remained for the Employment Tribunal to decide
whether the Respondent’s decision to dismiss the Claimant, as opposed to deploying
a lesser sanction or no sanction, was within the range of responses that a
hypothetical reasonable employer might have made to the circumstances that were
before the Respondent. That required the Employment Tribunal to apply section
98(4) of the Employment Rights Act 1996 (ERA). That subsection reads as
follows:
“Where the employer has fulfilled the requirements of subsection
(1), the determination of the question whether the dismissal is fair or unfair
(having regard to the reasons shown by the employer)—
(a) depends on whether in the
circumstances (including the size and administrative resources of the
employer’s undertaking) the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance
with equity and the substantial merits of the case.”
10.
On that question, the material parts of the Employment Tribunal’s Judgment
are those set out in paragraphs 7.11 to 7.13. We shall read those three short
paragraphs:
“7.11 We then turn to consider what impact, if any, that has on
the test of whether the decision to dismiss fell within the band of reasonable
responses and whether section 98(4) is satisfied. We have asked ourselves
whether, if this Claimant had had an unblemished record or a record of minor
but unrelated issues, the outcome would have been the same. In such
circumstances we consider the decision would have been outside the band of
reasonable responses, since, if we disregard the auditorium issues (given that
the evidence against the Claimant was retracted) and the client request issue
(given that it was not properly investigated) we consider that no reasonable
employer would dismiss for a one-off failure to check a booking sheet, no matter
how serious the consequences for the Respondent.
7.12 This, however, is not that sort of situation. In this case
the Claimant did have a live warning on exactly the same issues as those for
which he was dismissed. He also had a second warning on which appeal was
pending, but his conduct during the holding of the hearing into that matter had
been such that a decision had had to be reached in his absence, which we find
telling. Even though the Respondent distanced itself from his record, we as a tribunal
are required by statute to consider the circumstances, but we must do so
without substituting our own view.
7.13 Taking in account all those circumstances, and, again, as
we are required to, considering equity and the substantial merits of the case,
we consider that the decision was not outside the band of reasonable responses,
and, accordingly, that it was reasonable for the Respondent to treat the
Claimant’s conduct as a sufficient reason for dismissing him.”
11.
The Tribunal then went on to record, at paragraph 7.14, that even if
they were wrong to hold that the dismissal had been a fair dismissal, because
it could not have been within the range of reasonable responses, the Claimant’s
own conduct would have inexorably led to his dismissal in any event, and
therefore it would not be just and equitable to have awarded him any
compensation. To use their own words, the Tribunal say this in 7.14:
“In any event, the Tribunal is of the view that if the reason
had not fallen within the band of reasonable responses, the Claimant’s own
conduct inexorably led to his dismissal and therefore we would have found 100
per cent contribution, such that it would not have been just and equitable to
award him any compensation.”
The grounds of appeal
12.
The grounds of appeal as lodged initially with this Appeal Tribunal were
two-fold. First, it was said that the Employment Tribunal had erred in its
application of the band of reasonable responses test; and second, that the
Employment Tribunal had erred in finding that any fault of the Claimant had amounted
to gross misconduct. Mr von Berg, appearing for the Claimant on this appeal,
expressly abandoned the second of those grounds. We therefore need say nothing
further about it. He instead sought permission to introduce a new and
alternative second ground. The new ground relates to that part of the
Employment Tribunal’s Judgment which deals with the question of the
contribution, if any, of the Claimant to his own dismissal. We granted that
application for permission to amend, and it is right that we should briefly
state our reasons.
The application to amend
13.
Mr von Berg submitted, in summary, that the amended ground raised a
short point, required no new facts to be found, was plainly arguable, was
closely related to the first ground, and would cause no prejudice to the
Respondent, who had had some ten days’ notice of the intention to make the
application to amend. He very properly drew our attention to the general
disinclination of appellate courts to allow a new point to be taken,
particularly a new point not developed below. He took us to the decision in Miriki
v The General Council of the Bar [2001] EWCA Civ 1973. That is
reported at [2002] ICR 505. Having reminded us of that authority, he drew our
attention to the fact that the issue of contributory conduct on the part of the
Claimant had, in fact, been in play before the Tribunal, as is reflected both
by a passage in the Respondent’s written submissions and by the fact that the
Tribunal addressed it in paragraph 7.14.
14.
Ms Mellon, appearing for the Respondent, opposed the application. She
very fairly accepted that no prejudice to the Respondent could be relied on to
resist it. But she reminded us of the decision of this Appeal Tribunal in Khudados
v Leggate & Ors [2005] ICR 1013 that had set out the principles to
be applied on an application to amend. Most particularly, she emphasised the
importance of the promptness of such an application and drew our attention to
the fact that this application was made very late. Further, she drew our attention
to the fact that there had been breaches of the Practice Direction as to the
time in which and the form in which application to amend must be made.
15.
Having considered those respective submissions and having had regard to
the principles in the authorities cited to us, we turned to exercise our
discretion as to whether or not to allow the amendment. We were focussed, of
course, on the overriding objective as now included in the Employment Appeal
Tribunal’s Rules. We were satisfied that the application to amend, although
made significantly late, did introduce a new ground which raised a short point
requiring no new evidence and which was closely related to the existing
ground. There was, as had been conceded, no question of prejudice to the
Respondent, and, as importantly, there was no prejudice to the Employment
Appeal Tribunal or other users of the Employment Appeal Tribunal because this
Appeal Tribunal could comfortably deal with the new point in the time already
allocated to the appeal and it was plainly a new point which was at least
arguable. It is for those reasons that we allowed the application to amend.
The first ground of appeal
16.
The first ground of appeal is that:
“The Tribunal misapplied the law under section 98(4) of the
Employment Rights Act 1996 by substituting its own view for that of the
employer.”
17.
That ground or case was pithily restated in the skeleton argument of Mr von
Berg for the Appellant in these terms:
“22. The simple facts of this case are that the Claimant was
dismissed for a one-off incident. The Tribunal found that did not fall within
the band of reasonable responses. The Tribunal then introduced further factors
relating to the Claimant’s past conduct, which had not formed part of the
reason to dismiss. It also substituted its own view for that of the employer
by according these factors relevance to the decision to dismiss when the
employer expressly had not.”
18.
That neatly encapsulated the thrust of ground 1.
19.
As developed in oral argument, Mr von Berg’s submission was that the
Employment Tribunal had lost sight of section 98(4). Their task under that
subsection, he submitted, was to focus on the reason for dismissal as shown by
the employer. To that extent he, relied in particular, on the words in
parenthesis. He reminded us that the reason for the dismissal is not the
reason that, subsequently, a tribunal might think was the reason but the reason
that was operative at the relevant time in the mind of the employer. He took
us to a short passage of the judgment in Foley v The Post Office
in which Mummery LJ at page [2000] ICR 1292H said this:
“The Employment Tribunal must not substitute their decision as
to what was the right course to adopt for that of the employer. Their proper
function is to determine whether the decision to dismiss the employee fell
within the band of reasonable responses ‘which a reasonable employer might have
adopted’.”
20.
In Mr von Berg’s submission, the reason in this case related to
initially three and latterly one specific matter. The Employment Tribunal had
found in terms that on that one matter a dismissal was outwith the band of
reasonable responses and on that basis the Employment Tribunal should have
upheld the unfair dismissal claim. It had gone wrong by introducing earlier
issues relating to the Claimant’s capability, which had led to previous
warnings but which had formed themselves no part of the reason for this
dismissal.
21.
For her part, Ms Mellon, for the Respondent, contended orally and in her
skeleton argument that the Employment Tribunal’s judgment should be upheld.
She reminded us that the Employment Tribunal had identified section 98(4) as
the applicable provision. It had recounted the terms of the subsection in its
judgment. It had expressly stated that it was applying that provision, and it
had reached a decision that the dismissal in this case was within the band of
reasonable responses that was open to the employer on the facts. In discussing
the proposition that an employee with an unblemished record would not have been
reasonably dismissed on the basis of the one specific matter of misconduct, the
Pingerra matter, the Employment Tribunal were only considering a hypothetical.
She submitted that in the instant case, the Tribunal were finding that the
Claimant did not have an unblemished record and that the Employment Tribunal
had been entitled to proceed as they did.
22.
In our unanimous judgment the appeal on ground 1 must succeed and does
succeed. The plain fact, as found by the Employment Tribunal and as confirmed
by Ms Mellon in her submissions before us, was that the reason and the only
reason for the dismissal was the single matter that remained extant at the time
of the appeal; that is to say, the Pingerra matter. That was itself an
instance of failure to check a booking form. That was the reason for the
dismissal and the reason for the dismissal was not anything else.
23.
That that was so was plain from at least four different indicia. First,
no other matters had been referred to in the dismissal letter or in the appeal decision
letter as reasons for the dismissal. Secondly, there was no reference in the
evidence of Mr Toole, the dismissing officer, to his having had anything else
in his mind at the time. That is made plain by the Tribunal’s finding at
paragraph 6.23 in which they record:
“Mr Toole also confirmed that in his view these matters did meet
the charge of bringing the company into disrepute and explained that this was
not based on the Claimant’s previous record.”
24.
In this respect also it is right to note that there was no evidence at
all from Mr Payne, the appeal’s officer, beyond the terms of the appeal decision
letter itself.
25.
The third indicia, that the reason for dismissal was restricted to the
single Pingerra matter, was that the Respondent had not developed any other earlier
matters as having formed part of the reason for dismissal. The employer’s
response to the Employment Tribunals Service, the form ET3, had ignored those
earlier matters altogether. Further, as the Employment Tribunal itself
recorded in paragraph 7.12, from which we have already read, the Respondent had
“distanced itself from the Claimant’s record”. Fourthly, the Employment
Tribunal had found that the earlier matters which had led to warnings related
to capability and not to conduct (see paragraph 7.1 of the Judgment).
26.
Yet despite all that, in determining whether the Respondent’s decision
to dismiss for the single reason related to the Pingerra matter was fair or not
the Employment Tribunal built back into the equation matters which the
Respondent had not had in mind as part of the reason for dismissal. Mr von
Berg reminded us in the course of submissions, as we have already indicated, of
authority for the proposition that the reason for dismissal as referred to in section
98(4) is the reason which was extant and operative in the mind of the employer;
that is to say, the reason for the purposes of the earlier sub-paragraphs of
section 98. He relied in particular on the decision of the Court of Appeal in Orr
v Milton Keynes Council [2011] ICR 704 and that passage of the Judgment
in which the court says:
“The reason for the dismissal of an employee is a set of facts
known to the employer, or it may be a set of beliefs held by him, which causes
him to dismiss an employee.”
27.
Applying section 98(4) properly in those circumstances, the Employment
Tribunal had been driven to confine themselves to the employer’s reason and
were not entitled to import or substitute their own reason for dismissal and
then to apply the section 98(4) test to that substituted reason. In our
judgment, that is precisely what they did. For those reasons, ground 1 of the
grounds of appeal succeeds, and the appeal will be allowed on that ground.
The second ground of appeal
28.
The new and second ground of appeal is as follows:
“The Tribunal erred in law in finding that the Claimant
contributed to his own dismissal by 100% in that there was no evidence to
support such a finding.”
29.
In support of that ground, Mr von Berg reminded us of the statutory
terms of section 123(6) of the ERA. That subsection provides:
“Where the tribunal finds that the dismissal was to any extent
cause or contributed to by the action of the complainant, it shall reduce the
amount of the compensatory award by such proportion as it considers just and
equitable having regard to that finding.”
30.
As is plain from the statutory language, that “finding” refers to the
finding that the dismissal was to any extent “caused or contributed to” by any
action of a particular Claimant. Having taken us to the statutory provision,
Mr von Berg then invited our attention to the short passage in paragraph 7.14
in which the Tribunal had given its reasons and conclusion on this point. He
invited us to infer, in our view, correctly, that where in paragraph 7.14 the
Tribunal were referring to the conduct of the Claimant, they were there adding
to the matters which were, in fact, taken into account in dismissing him, the
facts or matters which had led to or were related to the earlier warnings.
“But,” he asked rhetorically, “how can those earlier matters have causally
contributed to the Claimant’s dismissal, when there was no evidence that they
had played any part in the events that led to dismissal and certainly none in
the minds of the dismissing officer or the appeals officer?”
31.
In response, Ms Mellon submitted that the Employment Tribunal were
entitled to approach the matter as broadly as they had. She acknowledged that
it may have been more helpful for the Tribunal to have included a specific
statement as to what “own conduct” the Tribunal were referring to in paragraph
7.14. But she invited us to infer that the Tribunal must have been taken to
have been referring to all of the facts and matters that they had set out in
their factual findings earlier in their Judgment.
32.
In our judgment, the Employment Tribunal were required to be restrained
by section 123(6) to those matters causally connected or related to the
dismissal. For the reasons we have given in relation to ground 1, the
Employment Tribunal cannot properly have treated the issues or matters that led
to verbal and written warnings as conduct which causally contributed in any way
to the dismissal. That is because in this case the Respondent had explicitly
“distanced” the dismissal from those earlier matters. The Claimant, having
been dismissed by reason of a single instance of misconduct, cannot have been
said to have contributed to his dismissal by reason of other matters of conduct
which were not in play in the employer’s decision to dismiss at all. To have
taken both the earlier warnings and the matters which had led to them into
account would have, in any event, been in error, given that the appeal in
relation to the second warning had still been extant at the time of dismissal.
That is but a minor matter. The major difficulty is that the Tribunal did not
exercise the restraint required by section 123(6) of confining themselves only
to matters of conduct which had caused or contributed to the dismissal. As
illustrated in our reasoning relating to ground 1, there is no such connection
in this case between the earlier warnings given to the employee or the conduct
that led to those warnings and the reason for dismissal in this case.
Conclusion and disposal
33.
It follows that, reluctantly but unanimously, we must allow this appeal
on both grounds. Having done so, it follows that the claim of the Claimant for
unfair dismissal must be taken to have succeeded. We are, in those
circumstances, left with the issue of the remedy and that is a matter which, in
our judgment, must be remitted. We will hear submissions as to the appropriate
order we should make in consequence of this Judgment.
34.
Before leaving the substantive Judgment in the appeal, it is right that
we should deal with important procedural matters which arose in this hearing
and which arise, in our experience, much too often in hearings of full appeals
before the Employment Appeal Tribunal.
35.
This case has come on for hearing before us on 31 May 2012 as a result
of directions made by HHJ Peter Clark in chambers in an order that
was sealed as long ago as 30 January 2012. Paragraphs 6, 7 and 8 of those
directions are in the standard, but nevertheless important, terms used by this
Appeal Tribunal to direct preparations for the appeal. Those three paragraphs
read as follows:
“6. The parties shall co-operate in compiling and agreeing and
shall, by no later than 28 days prior to the date fixed for the hearing of the full
appeal, lodge with the Employment Appeal Tribunal 4 copies of an agreed,
indexed and paginated bundle of material documents for the hearing of the
appeal.
7. The Appellant shall lodge with the Employment Appeal Tribunal
and serve on the Respondent a Chronology and the parties shall exchange and
lodge with the Employment Appeal Tribunal Skeleton arguments for the purposes
of this appeal, not less than 14 days before the date fixed for the hearing of
the full appeal.
8. The parties shall co-operate in agreeing a list of
authorities and shall jointly and severally lodge a list or lists of copies of
such authorities for the purposes of the appeal not less than 7 days prior to
the date fixed for hearing of the full appeal.”
36.
It is our experience that all too often there is failure by the parties
to an appeal to comply with those three directions. The present appeal is a
spectacular example of failure to have regard to the directions given. In
relation to paragraph 6 (bundles) it quickly emerged in the hearing of the
appeal that the content and pagination of the bundle provided to the Tribunal
was not the same as the content and pagination of the bundle provided to the
advocates. Further, the index to the bundle provided to the Employment Appeal Tribunal
identifies at item 12 that it contains a copy of an application for a review.
It does not. It contains at that part something else. Plainly, there has been
non-compliance with paragraph 6.
37.
Then paragraph 7, the exchange and lodging of skeleton arguments. That
is required by the direction to occur not less than 14 days before the date
fixed for hearing of the appeal. That is a stipulation made for good reason.
It allows all parties and the Tribunal to properly prepare for the hearing. We
were told by counsel that in this case skeleton arguments were exchanged
yesterday. They had been lodged at the Tribunal somewhat earlier but certainly
less than 14 days before the date fixed for hearing of the appeal.
38.
In relation to paragraph 8, the direction for the agreement of filing of
authorities, no authorities were filed until the copies of them were delivered
on the very morning of the hearing to the Appeal Tribunal members.
39.
In our judgment, this is a plain case of dereliction and non-compliance
with the directions made by the Appeal Tribunal. Although we were given, to a
limited extent, an explanation of the default and the fulsome apology of counsel
for the Appellant, this sort of non-compliance with the directions given by
this Appeal Tribunal must not be allowed to recur.
