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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Draper v. Mears Ltd [2006] UKEAT 0174_06_0509 (5 September 2006)
URL: http://www.bailii.org/uk/cases/UKEAT/2006/0174_06_0509.html
Cite as: [2006] EAT 869, [2006] IRLR 869, [2006] UKEAT 0174_06_0509

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BAILII case number: [2006] UKEAT 0174_06_0509
Appeal No. UKEAT/0174/06

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 29 June 2006
             Judgment delivered on 5 September 2006

Before

HIS HONOUR JUDGE J BURKE QC

MR D EVANS CBE

MR J HOUGHAM CBE



MR A DRAPER APPELLANT

MEARS LTD RESPONDENT


Transcript of Proceedings

JUDGMENT

© Copyright 2006


    APPEARANCES

     

    For the Appellant MR PAUL HAINSWORTH
    Free Representation Unit Representative
    6th Floor
    289-293 High Holborn
    London
    WC1V 7HZ
    For the Respondent MR ANDREW ALLEN
    (Of Counsel)
    Instructed by:
    Messrs BPE
    Solicitors
    St James's House
    St James's Square
    CHELTENHAM
    GL50 3PR


     

    SUMMARY

    The employee was found in a company van about to drive after consuming alcohol. The Tribunal found that to his knowledge, the company had a zero tolerance rule as to driving after consuming alcohol. He was dismissed for misconduct, principally on the basis of his breach of that rule. His unfair dismissal claim was rejected.

    Held an appeal that:

    1) the Tribunal had given sufficient reasons for their decision.
    2)(i) the Tribunal were entitled to and correct to conclude, in the light of EAT decisions such as Shergold and Alexander, that the employers had complied with Stage 1 of the Standard Dismissal & Disciplinary Procedure by providing the employee with a letter which set out in bald terms the conduct complained of, in particular in relation to the breach of rule saying "conduct which fails to reasonably ensure Health and Safety of oneself and others."
    (ii) the Tribunal had to consider but had considered compliance with Step 1 separately from compliance with Step 2
    (iii) the letter, in the light of Shergold and Alexander was sufficient compliance with Step 1
    (iv) if the words of what is put forward as a Step 1 letter are ambiguous or the Tribunal are doubtful as to whether they are sufficient, the Tribunal are entitled to look at the whole context, including whether the employee knew what the allegations against him were, in deciding whether there had been compliance with Step 1.

    HIS HONOUR JUDGE BURKE QC

    The Appeal

  1. This is an Appeal by Mr Draper against the judgment of the Employment Tribunal, sitting at Stratford, chaired by Mr Leonard with Mrs Conwell-Tillotson and Mr King as lay members and sent to the parties with written reasons of 25 January 2006. By that judgment the Tribunal rejected Mr Draper's claim that he had been unfairly dismissed by his employers, Mears Ltd ("Mears").
  2. The Facts and the Tribunal's Conclusion

  3. Mr Draper was employed by Mears as a plumber from 2 December 2002 until his dismissal on 3 November 2004. It was not in dispute that the reason for his dismissal was conduct.
  4. Mr Draper had been allocated a company van which he was entitled to drive to and from home; but he was not otherwise allowed to use a company vehicle for private purposes or to exchange vehicles with a colleague without permission. The Tribunal found, at paragraph 21 of their judgment, that Mr Draper knew of Mears' rule that company vehicles should not be driven after the consumption of alcohol. That finding is not challenged in this appeal. We will return to it later in this judgment.
  5. On 21 October 2004, as the Tribunal found at paragraph 15 of their judgment, Mr Draper swapped his usual vehicle for a larger one in order to enable him, on his way home, to pick up some furniture for a relative. He had not sought permission either to swap vehicles or to use a company vehicle in that way; the Tribunal concluded, however, that if Mr Draper had asked for permission he would have been granted it and that any breach of the company's rules arising from those actions was in the nature of a technical breach and would not have attracted any sanction beyond a reminder of the need to observe the company's rules and a caution as to the risk associated with any further breach.
  6. After his work for the day had finished at about 5.00 pm, Mr Draper parked the company vehicle he had been driving close to a public house which was itself close to his work place. Mr Hainsworth told us that, before he went into the pub, he had been invited by telephone to join a colleague there for a drink; the Tribunal said, at paragraph 17:
  7. "…The reasonable employer is likely to have concluded that the purpose of the visit by the claimant was to consume alcohol with a group of colleagues before proceeding to drive the company vehicle home."

    That conclusion of the Tribunal was not challenged by Mr Hainsworth in this appeal.

  8. Mr Draper sought to explain his visit to the pub as due to an urgent need to visit the lavatory; the Tribunal said, of that explanation, that it was not consistent with the fact that Mr Draper was still at the pub approximately one hour later and that a lavatory was available at Mears' nearby office.
  9. At about 6.10 pm Mr McDermott, Mears' manager responsible for the relevant work area, went to the public house with Mr O'Sullivan, his operation manager, and discovered Mr Draper sitting in the passenger seat of a different company van; another employee, Mr Sears, was in the driver's seat. Mr Sears, Mr Hainsworth told us, was the colleague who had invited Mr Draper to meet him in the pub. It was Mr McDermott's opinion that Mr Draper was the worse for drink, based on the smell of alcohol and his untypically aggressive behaviour. It was common ground that Mr McDermott challenged Mr Draper as to his drinking and his proposed use for private purposes of another employee's van and that Mr Draper reacted aggressively, referring to Mr McDermott as the police or the mafia and swearing in front of Mr McDermott about Mr O'Sullivan. The Tribunal concluded at paragraph 22 that Mr Draper had thus displayed a marked lack of respect and an attitude that could fairly be described as insurbordination. Mr McDermott required Mr  Draper to see him in the morning.
  10. When Mr Draper and Mr McDermott met on the following morning Mr Draper put forward the untrue explanation that he had only decided to have an alcoholic drink in the pub after his wife had called him telling him that there was no longer any need for him to pick up the furniture and therefore to drive home. The Tribunal found, however, that Mr Draper did not seek to maintain that deception beyond the early part of the disciplinary hearing.
  11. After the first meeting on 22 October, Mr McDermott and Mr Draper met again at a further investigatory meeting on 25 October. Mr Hainsworth accepts that, as a result of those two investigatory meetings, Mr Draper knew that Mears were concerned about his intending to drive a company vehicle after consuming alcohol, his unauthorised use of another employee's vehicle and his intended private use of that vehicle and his insurborninate attitude towards Mr McDermott. At paragraph 13 the Tribunal found:
  12. "13 In the course of those discussions, it was made plain to the claimant what the respondent's concerns were."

  13. In the course of the investigation Mr Draper said that he had drunk a pint. At the subsequent disciplinary hearing on 3 November he said the same. His evidence to the Tribunal was that he had drunk three quarters of a pint of lager top.
  14. The disciplinary meeting which followed the investigatory meeting to which we have referred was held on 3 November. It was chaired by Mr Cast, Mears' operation support manager. Mr Draper was required to attend that meeting by a letter dated 29 October 2004 which said that the question of disciplinary action would be considered with regard to:
  15. "Using a vehicle for Social Purposes
    Conduct which fails to reasonably ensure Health & Safety of oneself and others
    Insubordination
    A breach of the Company Vehicle Regulations and Procedures"

    At the end of the disciplinary hearing Mr Draper was dismissed; the reasons for his dismissal were set out in writing on the following day; they were that he intended to drive a company vehicle after drinking alcohol, that he had borrowed another operative's vehicle for his own private use without permission and had been guilty of insubordination in his use of foul language towards Mr McDermott.

  16. We have already spelt out the Tribunal's view of the reaction of a reasonable employer to the first and last of the four charges against Mr Draper, of course if they stood alone. As to the insubordination the Tribunal said, at paragraph 22, that a reasonable employer, considering this aspect of the matter standing on its own, could not decide upon summary dismissal, nor did Mr Cast consider that it could.
  17. As to Mr Draper's intended driving of a company vehicle after he had consumed alcohol the Tribunal said:
  18. "19 Mr Cast, who conducted the meeting with the claimant at which to consider the allegations, did not think the quantity of alcohol consumed was a material factor. He took the strict view that no alcohol should be consumed before driving a company vehicle in public roads. As he accepted, in response to a question from the Chairman during the course of his evidence, there could be circumstances in which discretion must be exercised. An example offered was of the merest sip from a champagne glass, when called upon to respond to a toast to some important occasion.
    20 Reference has been made to the respondent's 'zero tolerance' policy towards consumption of alcohol. Where, in considering any rule or policy, the employer proposes to allow no tolerance, that fact should be made clear to employees, so that they can be aware of the likely consequence of any breach. The rules do, however, make clear that company vehicles should not be driven after consuming alcohol; making the well-known point the ability to drive becomes adversely affected after relatively small quantities, well below the level at which a criminal offence would be committed. The point is such as well-know and obvious one that it should not require stating."

    The Tribunal found at paragraph 21 that Mr Draper was well aware of the 'zero tolerance' rule identified by the Tribunal in the proceeding paragraph. Mr Hainsworth told us that the basis for that finding was the uncontested evidence of Mears that all new employees were told of the rule at their induction and Mr Draper's acceptance in his evidence that he had been so told when he joined Mears.

  19. The Tribunal continued as follows:
  20. "23 When considering his response to a finding of misconduct, the reasonable employer will take into account a variety of circumstances; some will serve to explain or mitigate the offence, others to exacerbate it. A prime example will be the employee's reaction to being confronted over his conduct. The reasonable employer is certain to be influenced by an employee's readiness to recognise his fault, to display some insight into his behaviour and to offer some basis for confidence that rules will be adhered to in the future. That confidence is unlikely to be present when the employee behaves in an aggressive, confrontational manner, when he displays a lack of frankness when called to account and displays no recognition that his conduct fell short of the standard required.
    24 The approach adopted by Mr Cast was to take account of the three allegations, two he regarded as less serious that the one relating to the intention to drive after consuming alcohol, and his conclusion that Mr Draper had not been frank during the disciplinary process.
    25 Mr Cast was wrong to conclude that the quantity of alcohol consumed was of no relevant to him. That failing should have no impact on the overall fairness of the process because, had he fully and fairly considered the issue, his conclusion would have been that there had been material consumption of alcohol such as to represent a material breach of the rules.
    26 Mr Draper was proposing to drive the company vehicle from the depot in East London, across Central London to his home in Paddington. That is, on any view, a hazardous activity and the reason employer would be bound to take account of the consequences to his business of some serious mishap occurring. Nothing said by this Tribunal should undermine the importance of an employer's duty to ensure that those driving his vehicles about the streets of the capital are fully fit to do so. That employer is entitled to reach the conclusion that a material breach of such an obligation is, on its's own, so serious as to warrant summary dismissal. In addressing a breach, the reasonable would find no mitigation in the fact that the breach was threatened rather than realised, where it was intervention by one of his managers that had prevented it. In the circumstances, had Mr Draper been frank from the very outset, the conclusion would have been the same."

  21. Mr Draper appealed against his dismissal. Between the dismissal and the hearing of his appeal by Mr Miles, Mears' Managing Director, a further event occurred which is briefly described in paragraph 27 of the Tribunal's Judgment and involved a further deception on the part of Mr Draper. Mr Miles rejected the appeal, concluding that the principal allegation, relating to the intention to drive after consuming alcohol, was sufficiently serious to justify summary dismissal.
  22. The Tribunal's overall conclusion was set out at paragraph 30 in these terms:
  23. "30 It is the conclusion of the Tribunal, therefore, that it is satisfied by the respondent that the claimant was dismissed for a reason related to his conduct, that the belief formed as to his conduct was a reasonable one, based on an investigation sufficient for the purpose, and that the sanction of summary dismissal was within the range of responses open to the reasonable employer."

  24. Earlier in their judgment the Tribunal addressed the contention advanced on behalf of Mr Draper that there had not been compliance with the relevant statutory procedure. We will consider the Tribunal's findings on that issue when we come in this judgment to deal with the appeal on that issue.
  25. The Issues

  26. Two issues arise on this appeal. The first is whether or not the Tribunal erred in law in deciding that there had been compliance with the requirements of the standard dismissal and disciplinary procedure set out in Chapter 1 of Part I of Schedule 2 to the Employment Act 2002 and that therefore the dismissal of Mr Draper was not automatically unfair by reason of the provisions of Section 98A(1) of the Employment Rights Act 1996. The second is whether the Tribunal gave sufficient reasons for their conclusion, at paragraph 25 of their judgment, that there had been material consumption of alcohol on Mr Draper's part such to represent a material breach of the Mears' rules.
  27. We propose, simply because it is less complex, to address the latter issue first.
  28. The Reasons Issue

  29. Mr Hainsworth put forward two submissions on this issue. He submitted firstly that the Tribunal gave no reasons for their conclusion that there had been a material consumption of alcohol on Mr Draper's part in a context in which there was a conflict of evidence as to how much alcohol Mr Draper had consumed. Secondly, he submitted that the Tribunal did not identify what rule it was that Mr Draper had broken or how he had broken it.
  30. The law as to the obligation of the Tribunal to set out their reasons for their conclusions is familiar and is not in dispute in this appeal. Meek v City of Birmingham District Council [1987] IRLR 250 established that a Tribunal's judgment must set out a summary of their factual conclusions and the statement of the reasons which have led the Tribunal to reach the conclusions that they do on the basic facts so as to show the parties why they have won or lost. In English v Emery Reinbold v Strick Ltd [2003] IRLR 710 the Court of Appeal said, in relation to judgments generally, at paragraph 16 that justice will not be done if it is not apparent to the parties why one has won and the other has lost and continued, at paragraph 19:
  31. "It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not meant that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."

  32. We must test the Tribunal's judgment in this case according to these principles.
  33. It is convenient to consider the second submission first. Mr Hainsworth correctly submitted that the written documents provided by Mears which contain various rules or recommendations about the use of alcohol in the work place or on Mears' premises do not clearly express a rule that no consumption of any alcohol before or during the driving of a company vehicle would be tolerated, at least in clear and unambiguous terms. However, the judgment makes it clear, at paragraphs 19 to 21 and 25 to 28, that the Tribunal based their decision on Mears' rule or policy of 'zero tolerance' to consumption of alcohol and driving, of which rule Mr Draper was well aware as a result of his induction into the company. That being the undisputed position on the evidence, the Tribunal could not have ignored it, whatever the documents said; and, whether or not they could have ignored it, they were entitled to find as they did that Mears had made it clear that their vehicles were not to be driven after the consumption of alcohol (paragraph 20) and that Mr Draper was aware of that rule (paragraph 21). When the Tribunal's reasons are read as a whole, the basis of their decision as to the relevant rule and as to the material breach of that rule are sufficiently clear to tell Mr Draper and Mears why they respectively won or lost and to satisfy the requirements set out in English v Emery Reinbold.
  34. So far as the first submission is concerned, we come to the same view. The reasons for and the basis of the Tribunal's conclusion that there had been material consumption of alcohol appear clearly from the Tribunal's judgment. The Tribunal had, as Mr Hainsworth accepts, themselves drawn attention to the obvious common sense point that a 'zero tolerance' policy in relation to alcohol could not reasonably be applied on a 100% basis, by suggesting that the consumption of a miniscule amount of alcohol in circumstances in which it might be thought impolite to decline on an important occasion could not be regarded as a breach. The Tribunal plainly meant and could only be taken to have meant that such consumption could only be reasonably regarded as – if we are allowed to use latin - de minimis, or, if not, minimal or immaterial. Consumption which did not fall on the minimum or immaterial side of the line would of course be substantial or material; and, as Mr Hainsworth accepted, it was open to the Tribunal to conclude that the consumption of a pint or ¾ of a pint of lager or lager top in the context of a rule that a vehicle should not be driven after the consumption of alcohol was material and not immaterial or minimal consumption. The Tribunal did not need to determine whether Mr McDermott was justified in his belief that Mr Draper had understated his consumption of alcohol and did not do so; Mr Draper's own evidence to the disciplinary hearing was sufficient evidence of a material breach of the rule; as the Tribunal observed and one of the company documents specifically pointed out by way of advice to their employees, ability to drive becomes adversely affected after the consumption of alcohol. Mr Hainsworth's submission was that the Tribunal did not expressly set out whether they preferred Mr McDermott's evidence about consumption to that of Mr Draper; but it was, on the basis of the Tribunal's approach and conclusion, unnecessary for them to do so.
  35. The Section 98A(1) Issue

  36. Section 98A(1) of the Employment Rights Act 1996, inserted into that Act by Section 34 of the Employment Act 2002, provides as follows:
  37. "98A(1) An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if –
    (a) One of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (Dismissal and Disciplinary Procedures) applied in relation to the dismissal.
    (b) The procedure has not been completed and
    (c) The non-conclusion of the procedure is wholly or mainly predicable to failure by the employer to comply with its requirements."

  38. It is common ground that the standard dismissal and disciplinary procedure, set out in Chapter 1 of Part I of Schedule 2 of the 2002 Act, applied in relation to the dismissal of Mr Draper.
  39. That statutory procedure provides as follows:
  40. "Step 1: statement of grounds for action and invitation to meeting
    1 (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
    (2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
    Step 2: meeting
    2 (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
    (2) The meeting must not take place unless-
    (a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
    (b) the employee has had a reasonable opportunity to consider his response to that information.
    (3) The employee must take all reasonable steps to attend the meeting.
    (4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it."

    The Tribunal addressed the question of compliance with the statutory procedure by acknowledging, at paragraph 3 of their judgment, that if there had not been such compliance the Tribunal would be compelled to conclude that the dismissal was unfair. They were not referred to any authorities; they said that they understood that the Employment Appeal Tribunal had indicated, in considering the statutory grievance procedure, that Employment Tribunals should not adopt an overly strict approach. The Tribunal may have had in mind the EAT's decision in Shergold v Fieldway Medical Centre [2006] IRLR 76, judgment in which had been given a few days before the Tribunal's hearing.

  41. The Tribunal continued as follows:
  42. "6 If the only material available to the Tribunal, upon which to assess compliance, were the letter to the claimant at page 76 of the agreed bundle, all the members would have concluded that compliance had not been made. The letter of 29 October 2004 confirms the earlier suspension and requires Mr Draper to attend a disciplinary interview, at which the question of disciplinary action will be considered with regard to:-
    "Using a vehicle for social purposes;
    Conduct which fails to reasonably ensure Health & Safety of oneself and others;
    Insorbordination;
    A breach of the Company Vehicle Regulation & Procedures"
    7 The concerns entertained by the respondent were that the claimant had been drinking alcohol when intending to drive a company vehicle; that he was abusive to managers when confronted; that he had swapped his own vehicle for one issued o another employee without notice or permission and that he intended using the vehicle for the authorised carriage of goods. Had the claimant known nothing else but what was written in the letter, it would not sufficiently have informed him of the matters of concern he needed to address. As the respondent should have realised, the claimant's literacy is quite limited, to the point that he is unlikely, unaided to have understood the words used or to have discovered what particular acts of misconduct he as to answer.
    8 The Employment Tribunal considers that it must approach the question of compliance by considering all the material circumstances. The relevant part of the schedule is reproduced below.
    9 The Tribunal does not consider it necessary that the various steps be taken in any particular order. Plainly, the meeting cannot take place before compliance has been made with step 1 but 2(2)(a) contemplates the possibility that information will be given the employee by means other than step 1 document and makes clear that the provision of that additional information need not be in the step 1 statement or, necessarily, that it be in writing.
    10 It is commonplace that an employer, before deciding to embark upon a step 2 meeting, will invite the employee to a meeting, often as part of an investigation into an allegation of misconduct. In some, but not all cases, the employee will know in advance of such a meeting what its broad purpose is to be. Very often, at such a meeting, the employee will be informed of the concerns held and he will be afforded an opportunity to comment. In many cases, the employer will consider the employee's comments at such a meeting, together with the results of other steps taken in an investigation, before deciding whether to proceed further. If he decides to do so, step 1 letter is likely to follow that decision.
    11 Whether or not the employer has sufficiently complied with the Schedule must be judged by reference to both the content of the step 1 document and the other information disclosed to the employee before step 2 meeting takes place. The purpose of the statutory procedure is to ensure that an employee is not subjected to the ultimate sanction of dismissal until he has a proper opportunity to know of the concerns held and that he has a meeting with his employer at which he may put his case in answer to those concerns: the Schedule provides that part of that process must be in writing.
    12 In addressing the question of compliance, the circumstances the Tribunal considers to be relevant include the confrontation between the claimant on the evening in question, the meeting with Mr McDermott of 22 October, the day following and the meeting on 25 October.
    13 In the course of those discussions, it was made plain to the claimant what the respondent's concerns were. Thus, when Mr Draper received the respondent's letter of 29 October, he knew full well what those concerns were and, despite the somewhat arcane wording of that letter, we are satisfied that sufficient compliance with the statutory procedure was made."

    29. We propose to consider the relevant authorities as to the approach which should be taken to compliance with the statutory procedures set out in Schedule 2 to the Employment Act 2002. Thus far the decisions of the EAT appear to have involved consideration of the statutory grievance procedures set out in Part 2 of Schedule 2 to the 2002 Act to a greater extent than the dismissal and disciplinary procedures set out in Part 1. However, the general approach to the construction and application of all sets of procedures is likely to be similar. The equivalent in the case of a grievance to Section 98A(1) in the case of dismissal is section 32 of the 2002 Act, which provides, by sub-section 2, that an employee shall not present a complaint to an Employment Tribunal under a jurisdiction to which Section 32 applies if he has not complied with a requirement of the relevant grievance procedure. The two provisions – Section 32 of the 2002 Act and Section 98A of the 1996 Act - are parallel. If the employee presents a relevant complaint, typically one of constructive unfair dismissal, but has not complied with paragraph 6 or 9 of Part 2 of Schedule 2, then his claim is, in effect, barred. If the employer dismisses the employee without complying with the relevant steps set out in one of the dismissal and disciplinary procedures in Part 1 of Schedule 2, he is deemed to have dismissed unfairly. For this reason we regard what is said in authorities as to alleged failure on the part of an employee to comply with the statutory grievance procedure as having relevance to and resonance for consideration of alleged failure on the part of an employer to comply with a statutory dismissal and disciplinary procedure.
  43. In Shergold (see above) the employee appealed against the Tribunal's conclusion that her letter of resignation, in which she set out her complaints about her manager's conduct, was not a sufficient setting-out of her grievance in writing to comply with paragraph 6 of Part 2 of Schedule 2. Her appeal succeeded. The EAT (Burton P presiding) agreed with the judgment delivered by Judge Clark in Thorpe v Poat and Lake [2006] All ER(D) 30 January and by Langstaff J in Galaxy Showers v Wilson [2006] IRLR 83. The EAT continued, at paragraphs 26 and 27 as follows:
  44. "26 Before we give our reasons for disagreeing with the tribunal, and for allowing the appeal, we would wish to say this. It is quite plain that the purpose of this legislation was to encourage conciliation, agreement, compromise and settlement rather than the precipitate issue of proceedings. It is not unlike the system of pre-action protocols in relation to High Court and County Court litigation, although hopefully it is even more likely to succeed because of the relationship, or the immediately preceding relationship, between the parties in an employment dispute.
    27 To that extent, therefore, the need for parties to understand each other's position before proceedings are launched (and the opportunity for resolution short of litigation) is to be welcomed, but what must be guarded against, once such legislation has been enacted, is that it can create its own hostage to fortune and, in fact, introduce an entirely and, we are satisfied, unintended result of creating undue technicality and over-sophistication, which can result in problems for both sides."

  45. At paragraphs 28 and 30 the EAT said:
  46. "28 So far as the employee is concerned, the statutory wording is, so far as para. 6 of Schedule 2, Part II of the Act is concerned, very simple, and we believe that it was intended to be simple. Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal. It is not, in our judgment, the intention of the legislation either that employees should be barred or that employers should unwittingly find themselves liable for automatic unfair dismissal. Those are sanctions, which should be very rarely used; the purpose of the legislation is quite other, as we have described.
    30 First, the statutory requirements, we are satisfied, are minimal in terms of what is required. It is simply that the grievance must be set out in writing. There is not only the distinction, that falls to be drawn between the setting out of the grievance in writing under the standard procedure and the need, under the modified procedure as we have described, not only to set out the grievance in writing but also to set out the basis of it. But that is made even clearer by the provisions of the standard procedure itself, because under the standard procedure, step 1 requires the grievance to be set out in writing, and step 2 is then the meeting and, as we have described by quoting the relevant para. 7, a meeting does not have to take place unless the employee has, prior to that meeting, informed the employer what the basis for the grievance was. Thus, if there is any doubt about what the grievance is, that is the time it can be clarified, namely before the meeting occurs. But the original setting out of the grievance itself does not require to be so particularised."

  47. In Canary Wharf Management Ltd v Edebi [2006] IRLR 416 Elias P resisted the employer's criticisms of the EAT's judgment in Shergold. At paragraph 24 he said this:
  48. "Mr Solomon for the appellants has made a number of criticisms of this decision, and we will return to deal with those shortly. Suffice it to say that we agree with Burton J that in identifying whether or not the complaint is identical to that which has been lodged before the tribunals, one must not approach the issue in a technical way. The law in this area is directed at employees who in many cases – perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner. At the same time, it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim ultimately succeeds. Indeed, if it succeeds he will have to pay additional compensation to the extent of at least 10%. But he cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged.
    It seems to me that the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised. I do not think this formulation is essentially different to that urged upon me by Mr Solomon for the appellant, namely 'how a reasonable employer, with the actual or constructive knowledge of the employer at the time he received the grievance, would have understood it', although I would prefer to avoid concepts of actual or constructive knowledge. Nor do I think that any of the earlier cases to which I have made reference are at all inconsistent with my approach.
    We do not read those words as carrying any such implication in fact. However, we do accept entirely that how regularly the sanction will have to be used will depend simply upon whether the employees comply with the obligations or not. If the statement cannot in context fairly be read even in a non-technical and unsophisticated way as raising the grievance which is the subject-matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it."
  49. In Alexander v Bridgen Enterprises Ltd [2006] IRLR 422 the Employment Appeal Tribunal had directly to consider whether there had been compliance by the employer with the standard dismissal and disciplinary procedure. The facts in outline were that the employers, in a "catastrophic financial position", decided that redundancies were required in their welding department. A presentation was made to the welders at which it was explained that there would have to be 10 redundancies and that, in the absence of sufficient volunteers, there would be a selection exercise. Nine welders, including the 2 Claimants, were subsequently selected for redundancy and were invited to a consultation meeting. At that meeting they were told of the selection criteria but not of the detailed guidelines. They were informed by letter that they were at risk of redundancy. Later they were told that they had been selected for redundancy and informed of the redundancy packages on offer. They were not at any stage given an opportunity to comment on how their own particular performance had been assessed under the various criteria. At the end of the meeting they were given a document identifying their scores criterion without any opportunity to comment upon the assessment.
  50. The employees argued before the Tribunal that the reason for dismissal was not redundancy, that they had been automatically unfairly dismissed because the employers had failed to comply with the statutory standard dismissal preliminary procedure and that they had been procedurally unfairly dismissed. So far as is relevant for present purposes, the Tribunal's conclusions were that the letter to which we have referred above was sufficient compliance with step 1 of the standard dismissal and disciplinary procedure and that the meeting to which the employees were thereafter invited constituted compliance with step 2.
  51. The EAT, Elias P presiding, held that there had been sufficient compliance with step 1 but that step 2 had not been complied with. In the context of the statutory procedures and under their heading "What information is required?" the EAT, at paragraphs 33 to 36, said:
  52. "33 What information is required?
    The issue, therefore, is what information ought to be provided to an employee in order for the employer to comply with the statutory obligation. In answering that question, it seems to us that there are three matters in particular which should inform the answer, although they do not all point in the same direction.
    34 First, the purpose of these statutory procedures is to seek to prevent the matter going to an employment tribunal if possible by providing the opportunity for differences to be resolged internally at an earlier stage, paragraph 24. Hence the reason why these procedures apply at the stage when dismissals are still only proposed and before they have taken effect. However, to achieve that purpose the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss.
    35 Second, these procedures are concerned only with establishing the basic statutory minimum standard. It is plainly not the intention of Parliament that all procedural defects should render the dismissal automatically unfair with the increased compensation that such a finding attracts. They are intended to apply to all employers, large and small, sophisticated and unsophisticated. They are not intended to impose all the requirements breach of which might, depending on the circumstances, render a dismissal unfair. This suggests that the bar for compliance with these procedures should not be set too high.
    36 Third, we think that it is relevant to bear in mind that once the statutory procedures have been complied with, employers are thereafter provided with a defence for failing to comply with fuller procedural safeguards if they can show that the dismissal would have occurred anyway even had such procedures been properly followed. This factor, in our view, militates against allowing the bar for the statutory procedures being set too low."

  53. Having at paragraph 37 emphasised that the statutory dismissal procedures are not concerned with the reasonableness of the employer's grounds for dismissal, the EAT said, at the end of paragraph 37:
  54. "The duty on the employer is to provide the ground for dismissal and the reasons why he is relying on that ground. At this stage, the focus is on what he is proposing to do and why he proposes [proposing] to do it, rather than how reasonable it is for him to be doing it at all."

  55. The EAT then set out its conclusions as to the obligations imposed on an employer by the step 1 and step 2 requirements, at paragraphs 38 and 39 in these terms:
  56. "38 Taking these considerations into account, in our view, the proper analysis of the employer's obligation is as follows. At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at step one of the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy. That is consistent, we think, with the approach which this Tribunal has adopted in relation to grievance procedures in the Canary Wharf and other cases. Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.
    39 It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met."

  57. Finally, we should set out paragraph 49 of the EAT's judgment, as follows:
  58. "49 We should add that we do not accept a submission of Mr Barnett that what is required to comply with the statutory procedures is entirely a matter of fact for the tribunal. We accept that the question whether, in a particular context, the employer has given, for example, a sufficiently detailed account of why he thinks that the employee has committed misconduct will be a matter for the tribunal to determine. But here we are considering whether a particular category of information should be provided. In doing that we are engaged in an exercise of statutory construction, seeking to give a sensible meaning to language which unfortunately Parliament has left elusively vague. We are having to decide what kind of information falls within the concept of 'the basis for including in the statement the grounds' for contemplating dismissal. In our view it cannot be right that on such a basic question different tribunals throughout the country can reach wholly inconsistent conclusions and all be right. Employers and employees are surely entitled to expect the law to provide some certainty and predictability on a matter of this kind, and to identify at least in general terms what type of information ought to be provided to comply with the terms of the statute."

  59. We respectfully agree with and adopt those passages in the EAT's judgment in Alexander; we do not need or intend to seek to add to or improve on them. They mark out the principles by which we must decide this appeal.
  60. Mr Hainsworth on behalf of Mr Draper did not suggest that the Tribunal erred in concluding, in so far as they did, that there had been sufficient compliance with step 2. He accepted that the Tribunal's views expressed in paragraph 9 of their judgment that the various steps may be taken in any order and that the information required by step 2 need not be given in any particular form were correct. Indeed, in practice, because regularly employers hold investigatory meetings or interviews with an employee whose conduct they are considering before a decision is made whether to go forward to disciplinary proceedings and what charge or charges will be the subject of such proceedings, it seems to us that step 2 is likely often to be complied with before step 1. Mr Hainsworth's case on this issue was put on the basis that the Tribunal had erred in law in relation to step 1. His submissions, in summary form, were as follows:
  61. (1) The Tribunal had not considered compliance with step 1 independently of step 2 but had only considered the question of compliance with both steps as a whole and in so doing had looked at the whole factual context. The Tribunal had thus adopted a "purposive" construction for which there was no authority and which was in error; the duty of compliance with the step 1 requirement in the relevant statutory procedure separately for step 2 was plain and unambiguous.
    (2) The Tribunal accepted that, looking at the letter of 29 October 2004 on its own, there had not been compliance with step 1 and therefore ought to have found that the dismissal was automatically unfair.
    (3) The authorities did not support the Tribunal's approach. The letter did not satisfy the minimum requirements set out in paragraph 38 of Alexander. In particular the words "conduct which fails to reasonably ensure health and safety of oneself and others" were insufficient, when the allegation of misconduct thereby intended was that Mr Draper had consumed alcohol when intending to drive a company vehicle.
  62. Mr Hainsworth accepted that, when Mr Draper attended the disciplinary hearing, he knew and was familiar with the allegations which were to be made against him and which he had to face; but, he submitted, the fact that, in the context Mr Draper knew perfectly well what the letter was referring to in terms of the charges against him before he went to the disciplinary hearing did not enable Mears to escape from the consequences of a failure on their part to comply with step 1.
  63. Mr Allen on behalf of Mears submitted that the Tribunal reached a decision which was consistent with the guidelines set out in the authorities and in particular in Alexander. The Tribunal had, consistently with the purpose of the statutory procedures set out in paragraph 34 of Alexander, considered whether the procedures as a whole had enabled Mr Draper to give a considered and informed response to the proposed decision to dismiss. In considering that question and in considering whether step 2 was complied with the Tribunal were entitled to and indeed obliged to look at the facts as a whole.
  64. As to step 1 he submitted that the Tribunal had not concluded that the obligations thereunder had not been complied with but, on the contrary, had concluded that they had been complied with. They were right to do so. Although, of course, the Tribunal could not have known what was to be said by the EAT in Alexander, the letter did comply with the low level requirement set out in paragraph 38 of the judgment in that case. The letter set out in writing the grounds upon which Mears were contemplating dismissing Mr Draper. Alternatively, if that were not so, he submitted that the Tribunal were entitled to look at the context as a whole and decide whether the letter provided sufficient information in the context of the knowledge of Mr Draper at the time that he received it. It could be enough, for example, for the letter to say no more than 'misconduct' if the nature of the misconduct had already been clearly explained to the employee; for that as a whole would meet the purpose of the statutory requirements. In so far as the EAT in paragraph 38 of Alexander suggested a higher minimal requirement, they were not considering facts such as those of the present case.
  65. Our Conclusions

  66. We agree with Mr Hainsworth that, in a case in which complaint is made that both step 1 and step 2 have not been complied with, it would be an error of law for the Tribunal to consider generally whether the purposes of the statutory procedures, as described in paragraph 34 of Alexander, had been complied with and whether the procedures as a whole had been complied with without considering compliance with step 1 separately from compliance with step 2.
  67. However, in our judgment the Tribunal did not make that error. The terms of paragraphs 9 and 10 of the Tribunal's judgment indicate, as we see it, that the Tribunal were considering step 1 and step 2 separately; they were expressly considering the sequence in which step 1 and step 2 might separately be complied with and the fact that the requirements of step 1 were that there should be a document whereas the requirements of step 2 did not involve anything in writing. Paragraph 13 further shows that the Tribunal considered step 1 and found that it had been complied with.
  68. It follows that we reject Mr Hainsworth's alternative submission that the Tribunal found that step 1 had not been complied with. The Tribunal's words in paragraph 7:
  69. "Had the claimant known nothing else but what was written in the letter, it would not sufficiently have informed him of the matters of concern he needed to address."

    were, in our judgment, directed at the extent to which the letter on its own fulfilled the purposes of step 1 and step 2, those purposes being set out in paragraph 34 of Alexander. It was common ground that the letter on its own did not fulfil those purposes.

  70. We are unanimously of the view that, if and in so far as the Tribunal found that the letter, by itself, was sufficient compliance with step 1, as in our judgment they did, they were right to do so; and – for the question is not one of fact but of construction; (see paragraph 49 of Alexander) – we are entitled to express our own conclusion that the letter satisfies the requirements identified in Alexander. Paragraph 38 of that judgment says that the letter need do no more than state the issue in broad terms and that what is necessary in a conduct case is that it should identify the general nature of the misconduct alleged, such as fighting, insurbordination or dishonesty. It seems to us to be clear that each of the four lines of the relevant part of the letter in this case and in particular the second line (and also the fourth line, which was to a minimal extent only relied on by Mr Hainsworth) satisfied those requirements. The nature in general terms of the conduct relied upon was sufficiently spelt out.
  71. However, it is also our view that a Tribunal which regards the words of the document said to constitute compliance with step 1 as ambiguous or which is doubtful as to whether the words of that document are sufficient to amount to compliance is entitled to look at the whole context in order to resolve any such ambiguity or any such doubt. We repeat that compliance with step 1 must be considered separately from compliance with step 2; a defective document which does not comply with step 1 cannot be regarded as complying simply because the employers have fully complied with step 2. It is, however, legitimate as we see it for a Tribunal, in considering whether a document complies with step 1, to take into account whether the document would have been seen by the employee to have been ambiguous or to have left him in doubt. In so far as the Tribunal adopted that approach in this case, they were entitled to do so; and it being accepted that Mr Draper knew full well of the allegations against him before that letter reached him, only one conclusion would have been open to the Tribunal, namely that there had been compliance with step 1.
  72. It is not necessary for us to decide whether a letter which said no more than 'misconduct', in a context such as that which we have been describing, would suffice. Those are not the facts of this case.
  73. For these reasons we conclude that the Tribunal were entitled to, and in so far as it is a matter of law, correct to find that the statutory procedures under examination in this case had been complied with.
  74. Result

  75. In the circumstances this appeal is dismissed.


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URL: http://www.bailii.org/uk/cases/UKEAT/2006/0174_06_0509.html