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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> NORLAND MANAGED SERVICES LTD v MR L R HASTICK (Unfair Dismissal : Reasonableness of dismissal) [2012] UKEAT 0005_12_1409 (14 September 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0005_12_1409.html Cite as: [2012] UKEAT 5_12_1409, [2012] UKEAT 0005_12_1409 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
HIS HONOUR JUDGE DAVID RICHARDSON
MRS L S TINSLEY
NORLAND MANAGED SERVICES LTD APPELLANT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Instructed by: Sherrards Employment Law Ltd 4 Albourne Court Henfield Road Albourne West Sussex BN6 9DB
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(Solicitor) EMW 1 Seebeck Place Knowlhill Milton Keynes MK5 8FR |
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The Tribunal did not apply the objective test of the reasonable employer - the “range of reasonable responses” test - when considering whether the employer operated a fair procedure. In particular the Tribunal did not address itself to this test when considering whether the employer should have required someone other than the employee’s line manager to chair the disciplinary proceedings against him.
The Tribunal did not start from the findings of the employer when considering whether dismissal was a reasonable sanction. It discounted from the employer’s findings even though (1) it had found the employer to have carried out a reasonable investigation and (2) the employer’s findings were patently reasonable in the light of the investigation.
HIS HONOUR JUDGE DAVID RICHARDSON
Introduction
2. The Tribunal upheld a claim of unfair dismissal brought by Mr Hastick subject to a 20% reduction for contributory conduct and a 10% uplift pursuant to section 207A of the Trade Union and Labour Relations Consolidation Act 1992. It declined to reduce the award under the principal Polkey v A.E Dayton Services Ltd [1987] IRLR 503.
The background facts
13. Mr Nicoletti dismissed him. The letter dated 21 January reads as follows:
“Taking into account all items discussed at the meeting I have decided that the incident constitutes gross misconduct in line with our disciplinary policy and therefore your employment is terminated with Norland Managed Services with immediate effect.
The points raised by you in mitigation were duly considered. However, we arrived at our conclusion for the following reasons:
· You were fully aware of the Norland Managed Services Code of Practice and Rules for Low-Voltage Working and that there is no live working.
· You failed to isolate a live circuit before working on it, even though you were aware that the said circuit had been reported as potentially live.
· You attempted to work on the circuit even though you had no test equipment to prove dead.
· You operated a reported live switch and received an electric shock, endangering yourself.
· You had two previous informal discussions regarding the need to follow due process when working on electrical equipment, with the second time necessitating a hazard report.”
The Tribunal’s reasons
“5.3 The things that have concerned us much more are as follows:
5.3.1 We are concerned by the fact that the claimant did not receive written notification of the disciplinary hearing until some 24 hours before it was held. He was told of it slightly earlier, but still not within the 48 hours set out within the respondent’s own procedure. While Mr Nicoletti was aware of that procedure, he did not mention it to the claimant or ask for his consent for time to be shortened. What is more, when we consider paragraph 11 of the ACAS we do not consider that this has allowed ‘reasonable time to prepare their case’. There was no particular urgency in this matter, the claimant being on suspension. The shortness of time was something that concerned the claimant. Whilst we understand that he said he was ready to proceed, much onus lies on the employer to ensure a fair process for employees coming to what are, in any case, very difficult meetings.
5.3.2 We are also concerned by the fact that the claimant did not have the same documents as Mr Nicoletti had access to at that hearing. In particular, he did not have access to the emails, particularly that from Mr Ames, which set out a range of opinions and a range of options for consideration. It seems clear to us that, if the claimant had seen those at the time, he would have been able to put his point of view and perhaps find some things within what Mr Ames says to support his case. Whilst we do nor believe that failure to hand over those documents falls squarely within the ACAS code so as to render it a breach of the code, we do believe that it is not within the spirit of the ACAS code or, indeed, in accordance with good industrial relations practice.
5.3.3 Thirdly, we have come to the view after serious consideration, that Mr Nicoletti was not an appropriate person to deal with this disciplinary matter. He had clearly had considerable involvement in the investigation at an earlier stage, and then seeking advice in the emails on 17 January. What is more, he had clearly formed a view about the claimant before this hearing. He has told us, in no uncertain terms, that he was considering a competency test and that he had a number of complaints brought to him. He had not mentioned this to the claimant. The claimant was not able to challenge Mr Nicoletti as the decision maker on those grounds, because he was unaware of those particular concerns. In a large organisation such as this, we see no reason why another manager could not have looked at this matter afresh. We understand that it is often the case that those dismissing officers should know and have some involvement, but this is one of those circumstances where, we believe, there was an element of bias on the part of Mr Nicoletti, evidenced by what he told us about his opinion of the claimant and his qualifications and competencies.
5.3.4 Fourthly and lastly with respect to disciplinary process, we have some concerns about the appeal process. In the first place, there was somewhat of a delay before the claimant had the notes from the disciplinary hearing before the appeal. However, apart from that, the method used, on any account, is one which is unusual. It would not necessarily lead to unfairness, in our view, if the claimant had been aware what Ms Tremain was taking into account in her deliberations. The claimant, in essence, had no idea what matters or information Ms Tremain would have in front of her as she did not have them at the appeal hearing. He had no opportunity to comment on the further investigations that she made after she had spoken to him.
5.3.5 Finally, with respect to the appeal, we are concerned that it would appear to be a breach of the respondent’s own procedures, insofar as that suggests that a full re-hearing should ideally take place where there are procedural concerns and there is no doubt at all that the claimant himself was raising procedural concerns. Ms Tremain, whose first appeal it was, may not have appreciated the difference. We are asked, by Mr Hignett not to consider the difference between reviews and re-hearings (Taylor v OCS Group Ltd [2006] EWCA Civ 702) but we are not doing it in relation to whether any previous defect has been overcome but in relation to the process taken as a whole.
In our view, the fact that the claimant lacked information both at the disciplinary and the appeal stages, taken together with the shortness of notice for the hearing and the questionable involvement of Mr Nicoletti as the disciplinary officer, all taken together means we have decided the dismissal was unfair on procedural grounds.”
“5.4 We then turned our attention as to whether the dismissal fell within the range of reasonable responses. This is always a difficult question. We are well aware, and we are reminded of it by Mr Hignett, that we must not substitute our view. We must not consider this is a harsh decision and overturn it on those grounds. We do not do so. What we have to do is look at what is the alleged misconduct and consider, in the light of the evidence before us and, if necessary, our knowledge of good industrial relations and practice, whether a reasonable employer, in these set of circumstances, could reasonably choose to dismiss this employee. The matters that we take into account as follows.
5.5 We considered the following to be relevant: what other people, who were asked to look at this matter by the respondent, mentioned about any possible sanction; what happened about anybody else involved in the incident; the claimant’s evidence about his previous experience at Chiswick Park and the details of the incident. It is, without doubt, a one-off incident. The respondent asked us to find that it was a serious and dangerous incident. However, in our view they did not properly go into the question of whether the claimant received an electric shock or not. They were told that he had. It is disputed whether he said to them, in the early stages, that he had felt a tingle; but certainly, from the outset of the disciplinary hearing, he denied that he had received a shock. They did not appear to go back to Mr Mean for further information on why he believed the claimant had suffered an electric shock. That, therefore, might have impacted on whether they believed the matter was, indeed, as serious as it was at first suggested to be. Clearly, dealing with electrical equipment can be serious and can be dangerous; it is clearly part of the work the claimant was expected to carry out.
5.6 We accept that the claimant should have isolated the switch. He did not do so and that might have had serious consequences, mostly for himself. That amounts to misconduct. However, it was noted by others who looked at the report that Mr Mean may well have left the switch in a dangerous position. Mr Nicoletti chose to take no action at all with respect to Mr Mean. Mr Lewis’s recommendation seemed to relate mostly to training and, although we accept that Mr Dite and Mr Ames both said that the matter could fall into the category of gross misconduct, neither of them suggested dismissal as a sanction. Mr Ames did consider possible sanctions and considered them in relation to the claimant to Mr Mean and, in fact, suggested the same sanction for both. Although we understand he might not have had the whole story, he did have information about Mr Mean’s actions on the day. When considering whether dismissal fell within the range of reasonable responses, we are entitled to consider what action the respondent took with respect to Mr Mean; what notice they took of what other people said and what further investigations they made when the claimant disputed matters which they believed to be the case, for instance, the question of whether or not he had received an electric shock.
5.7 We believe, having considered the evidence and thought about it with considerable care, that this dismissal does fall outside the range of reasonable responses. The claimant had a clean disciplinary record. The respondent could show no concerns that it had bothered to raise at a formal level at all. We are satisfied that Mr Nicoletti’s consideration of a lesser offence was, if he considered it at all, a very cursory consideration. This employee had only been on the site for a short time and had not been told that there were concerns about his competence.”
Statutory provisions
“98(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)–
(a) depends on whether in the circumstances (including the size and administrative resources of the employer´s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
Submissions
22. On the question of procedural fairness, Mr Hignett, appearing for Norland submits that the Tribunal has not referred to and does not appear to have addressed its mind to the principle in Sainsbury’s Supermarket v Hitt [2003] IRLR 23; namely that for the purposes section 98(4) the range of reasonable responses test applies as much to matters of investigation and procedure as to other aspects of a decision to dismiss. He further submits that the tribunal, insofar as it identified procedural failings, failed to ask itself what, if any, practical impact those procedural failings had. This was an essential element of its task when considering procedural fairness: Fuller v Lloyds Bank Plc [1991] IRLR 336. Mr Hignett took us through each element of the Tribunal’s reasoning from paragraph 5.3, submitting that it did not apply these tests.
23. In dealing with the Tribunal’s reasoning in paragraph 5.3.3 concerning bias on the part of Mr Nicoletti, Mr Hignett submits that the conclusion about Mr Nicoletti’s bias was insupportable. It was his task as line manager to hear the disciplinary hearing; and the fact that a line manager may have formed some adverse views about an employee is no reason why a line manager should recuse himself as if he were a judicial officer. Mr Hignett also makes a submission of a rather different kind. He says that it was no part of Mr Hastick’s case that Mr Nicoletti was biased. Norland was not on notice that the Tribunal was considering this point and had no opportunity to lead evidence or make submissions on it. This, he submitted, was procedurally irregular, a breach of the rules of natural justice.
Appellate approach
27. There is an appeal to the Employment Appeal Tribunal only on a question of law. The role of an appellate court, where this is the question, is therefore limited. In the context of appeals concerning section 98(4) of the Employment Rights Act 1996 the Appeal Tribunal must itself be cautious of substituting its own opinion for that of the Tribunal. This matter has recently been discussed by Mummery LJ in Fuller v London Borough of Brent [2011] IRLR 414 at paragraphs 27 to 30, a passage which we keep carefully in mind.
27. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.
28. We begin with the Tribunal’s approach to the question of procedure. It is well established that section 98(4) requires the objective test of the reasonable employer to be applied to every aspect of the decision to dismiss including procedural aspects. Thus in Whitbread v Hall [2001] IRLR 275 Hale LJ said that there were:
“Procedural and substantive elements to the decision to both of which the band of reasonable responses test should be applied.”
And in Sainsbury’s Supermarket v Hitt Mummery LJ confirmed that it was:
“Necessary to apply the objective standards of the reasonable employer to all aspects of the question whether the employee had been dismissed.”
“We have decided that the dismissal was unfair on procedural grounds.”
31. It is, in our collective judgement and experience, entirely normal for a line manager to deal with a disciplinary matter of the kind in question in this case. It must frequently be the position that a line manager will have formed views about the qualifications and competencies of an employee. This, however, is not a reason why the line manager should not deal with a disciplinary matter where the employer’s normal disciplinary procedure provides for this to be the case. Even if the Tribunal members thought that they would have recused themselves from hearing the disciplinary matter, they should have recognised that many employers in these circumstances would reasonably have taken a different view.
40. There are two final points which we should mention.