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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Draper v. Mears Ltd  UKEAT 0174_06_0509 (5 September 2006)
Cite as:  EAT 869,  IRLR 869,  UKEAT 0174_06_0509
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|At the Tribunal|
|On 29 June 2006|
HIS HONOUR JUDGE J BURKE QC
MR D EVANS CBE
MR J HOUGHAM CBE
Transcript of Proceedings
|For the Appellant||MR PAUL HAINSWORTH
Free Representation Unit Representative
289-293 High Holborn
|For the Respondent||MR ANDREW ALLEN
St James's House
St James's Square
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 Facts and the Tribunal's Conclusion
"…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.
"13 In the course of those discussions, it was made plain to the claimant what the respondent's concerns were."
"Using a vehicle for Social Purposes
Conduct which fails to reasonably ensure Health & Safety of oneself and others
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.
"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.
"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."
"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."
The Reasons Issue
"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."
The Section 98A(1) Issue
"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."
"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  IRLR 76, judgment in which had been given a few days before the Tribunal's hearing.
"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;
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.
"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."
"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."
"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."
"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."
"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."
"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."
"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."
(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.
"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.