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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Silman v ICTS (UK) Ltd [2006] UKEAT 0630_05_0603 (6 March 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0630_05_0603.html Cite as: [2006] UKEAT 0630_05_0603, [2006] UKEAT 630_5_603 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR A J HARRIS
MRS J MATTHIAS
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APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR RICHARD O'DAIR (Counsel) Instructed by: Messrs Hewetts Solicitors 55-57 London Street Reading Berks RG1 4PS |
For the Respondent | MR MARTYN WEST (Representative) Peninsula Business Services Riverside New Bailey Street Manchester M3 5PB |
SUMMARY
Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal &
Practice & Procedure: Case Management
Unfair dismissal. EAT rejected a submission that the Employment Tribunal ought to have found the dismissal to be automatically unfair for failure to comply with the statutory disciplinary procedures. Issue arose as to when, in the course of a disciplinary hearing, new allegations arose so as to trigger the statutory procedures afresh.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
"Overall, we conclude the disciplinary hearing and its conduct was not unfair and the claimant was not prejudiced by the length of hearing or the manner of questioning, and did not fail to do himself justice in the manner in which he dealt with the questions raised."
"The purpose of the reconvened hearing is to discuss with you and to afford you the opportunity to clarify matters that have arisen since the previous disciplinary hearing.
…
All other matters remain as stated in the original letter of invitation to the first disciplinary hearing."
"Having listened to your explanations I consider them to be unsatisfactory because it is company policy that the correct procedures are carried out in completing company records. Furthermore, you have falsified the daily attendance log by stating you were on site from 11:00 until 18:00 as you were not on the Slough site for the duration specified. You also left the Reading site approximately 50 minutes prior to 18:00. We, as a company, require all employees to be able to devote the whole of their time and abilities to company business during working hours to ensure the effective and safe running of our business. This you failed to do by remaining in your vehicle in the car park, as opposed to entering the accepted place of work. You also failed to substantiate your claim that you had spent the time in your vehicle dealing with paperwork. Consequently, your actions have caused the company to lose trust and confidence in your integrity in your management position".
"By leaving blank space above entries in the logbook or by adding to already present entries, there is sufficient doubt for me to draw the inference that you were attempting to conceal the actual times that you entered/left the site from anyone who subsequently checked the Log-Book"
and certain other reasons are given about his not having informed managers when he did not attend work and also leaving the Reading site early.
"98A Procedural fairness
(1) An employee who is dismissed shall be regarded for the purposes 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) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable 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 then requires that a meeting should take place and that the employer must inform the employee of the basis for the ground or grounds given in the statement.
"4.4. We do not accept that the respondents are in breach of section 28A of the Employment Rights Act 1996, in that they failed to follow a standard dismissal and disciplinary procedure. We are satisfied that the letter suspending the claimant (page 158) and the letters inviting him to attend the disciplinary hearing (pages 173/174) adequately identify the alleged conduct and areas of concern giving rise to the disciplinary hearing and the possibility of dismissal. Additionally, and as was not disputed, the claimant was provided with copies of the full witness statements from his four fellow security officers at Slough, which appear at pages 162 -171 of the bundle R3. These identify in considerable detail the conduct allegations that were to be raised against the claimant. Whilst it is correct to say that both the letter of suspension and those calling him to the disciplinary hearing only refer in summary terms to "unauthorised absence and falsification of company records", the claimant was plainly able to deal with all the allegations that arose in relation to events of 11-13 October during a lengthy disciplinary hearing, save insofar as reference was made to his alleged absence from work on 1 October, which matter was ultimately not pursued or relied upon by the respondents. In our judgment, the claimant was not taken by surprise, nor unable to deal with the substantive matters raised in the disciplinary hearing on 20 October. Nor did he request either a postponement, or adjournment, or a further opportunity to find a work colleague to accompany him at such hearing. Whilst it is correct to say that the form that the disciplinary healing took was interrogatory, and occasionally challenging, this course inevitably flowed, at least in part, from the explanations and answers provided by the claimant; and we do not consider that the respondents can properly be criticised for following up those matters at the healing. We are also satisfied that the claimant had and took the opportunity to present his own account of the matters in issue. Following the reconvened disciplinary hearing, the employee was informed of the decision to dismiss him and notified of his right to appeal against the decision, which right he exercised. There was no substantive criticism of the respondents' appeal procedure (not least, no doubt, because the claimant chose not to attend the appeal hearing); and we find no fault with it.
4.5. Overall, therefore, we are satisfied that the requirements of section 98A have been met and that the claimant's dismissal was not unfair as being in breach of that section".
"Finally, we must consider the disciplinary procedure adopted by the respondents. It will have become clear from this Judgment that we have significant reservations about the manner in which the disciplinary process took place. First of all, the claimant was never asked for an explanation or an account of his actions before being suspended, and the suspicions that understandably existed in the minds of Mr Wilden and Mr Kaeda were not put to him. He was therefore denied the opportunity to comment or to explain his actions before being formally suspended and/or invited to attend a disciplinary healing, by which time, it can be said, the battle lines had been drawn. Secondly, the absence of any such opportunity/explanation gave rise to an extended disciplinary hearing, where the claimant's answers and explanations to matters being raised and put for the first time had to be both digested and responded to as they arose; rather than a more ordered and less taxing process. Thirdly, this resulted in the need for a reconvened hearing approximately three weeks later at which the claimant's account would be yet further explored. Fourthly, the claimant was not given the chance to comment on or rebut Mr Kaeda's account concerning the relevant work rosters to Ms Kelly Brown. Fifthly, the respondents cannot prove, by reference to any contractual disciplinary procedure, that what they found the claimant to have done amounts to gross misconduct, thereby enabling them to dismiss him summarily. For respondents was not merely lacking in rigour, but was unreasonable and unfair".
"…There are ample grounds, in our view, whereby a fair dismissal could and would have resulted, had a proper and timely procedure been adopted. Doing the best we can, we consider that the chances of such a dismissal amount to 80%".
"(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure".
"It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the Defendant facing a dismissal should be precisely framed."
The contention here, as with the first ground of appeal, is that to focus on misuse of company time was quite distinct from the allegation that there had been unauthorised absence. This was not just a minor procedural glitch which could be dealt with under section 98(2)A; rather, as Strouthos shows, it was a major error which involved a breach of the statutory procedures themselves.
.