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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Masterfoods (A Division of Mars UK Ltd) v Wilson [2006] UKEAT 0202_06_0708 (7 August 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0202_06_0708.html Cite as: [2006] UKEAT 202_6_708, [2006] UKEAT 0202_06_0708 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR C EDWARDS
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Mr I Scott (of Counsel) Instructed by: Messrs Lovells Solicitors Atlantic House Holborn Viaduct London EC1A 2FG |
For the Respondent | Mr S Catherwood (of Counsel) Instructed by: Messrs Dawbarns Pearson Solicitors Chequer House 12 King Street King's Lynn PE30 1ES |
SUMMARY
Unfair dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Practice and Procedure – Amendment
Employment Tribunal's conclusion of unfairness could not be criticised and was correct, especially as unappealed findings would make the dismissal unfair in any event by reason of the manager's closed mind and failure to conduct proper investigations. Claimant wished to appeal internally but because he did not comply with Respondent's policy requiring grounds to be submitted, it was refused. This is a breach of Step 3 and makes the dismissal automatically unfair under s 98A of the Employment Rights Act 1996. The Employment Tribunal refused an application to amend and add a new disability claim and its discretion was correctly exercised.
HIS HONOUR JUDGE McMULLEN QC
1. This case is about unfair dismissal and Employment Tribunal procedure in dealing with an amendment to a claim of unlawful disability discrimination. The Employment Tribunal in this case expressly applied its experience of dealing with mental illness cases. At the express invitation of the parties we have applied our industrial relations knowledge and our experience of workplace reality to at least two points of law, and we are particularly helped by Mr Edwards' professional experience of nursing and mental illness. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.
Introduction
2. This is an appeal by the Respondent and a cross-appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting over four days, and a day in chambers, at Norwich, Chairman Mr D R Crome, given on 7 November and registered with reasons on 20 December 2005. The Claimant and Respondent were represented respectively, as here, by Mr Shaen Catherwood and Mr Ian Scott of Counsel. The Claimant claimed unfair dismissal and unlawful disability discrimination. The Respondent now accepts he was disabled, but contended that he was fairly dismissed for dishonesty. The Employment Tribunal decided in the Claimant's favour on unfair dismissal and that he was disabled by reason of mental impairment. His dismissal was not the result of disability discrimination, and he was not allowed to expand his claim by a late amendment to it. Both sides appeal against that judgment. Directions sending this appeal to a preliminary hearing were given in chambers by Mr Justice Elias (President). At that preliminary hearing (attended by both Counsel) I, with members, ordered a full hearing of the appeal and cross-appeal.
The legislation
3. The relevant provisions of the legislation are first, the Employment Act 2002 s29. This introduces statutory dispute resolution procedures. These take effect by schedule 2, which provides for the standard procedure:
"Step 1: statement of grounds for action and invitation to meeting
1.—(l) 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.
Step 3: appeal
3.—(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision."
In addition to this there are two general requirements:
"Timetable
12. Each step and action under the procedure must be taken without unreasonable delay.
Meetings
13.—(1) Timing and location of meetings must be reasonable."
Regulations were made under the Act and these are the Employment Act 2002 (Dispute Resolution) Regulations 2004, which provide in relevant part as follow:
"3 Application of dismissal and disciplinary procedures
(1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee."
A definition is provided:
"2 …
(1) 'relevant disciplinary action' means actions, short of dismissal, which the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issuing of warnings (whether oral or written);"
A failure to follow one of these procedures is dealt with by Regulation 12 which says this:
"Failure to comply with the statutory procedures
12
(1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.
(2) Except as mentioned in paragraph (4), where the parties are to be treated as complying with the applicable statutory procedure, or any requirement of it, there is no failure to comply with the procedure or requirement.
(3) Notwithstanding that if regulation 11(1) applies the procedure that would otherwise be the applicable statutory procedure does not apply, where that regulation applies because the circumstances in sub-paragraph (a) or (b) of regulation 11(3) apply and it was the behaviour of one of the parties that resulted in those circumstances applying, that party shall be treated as if—
(a) the procedure had applied, and
(b) there had been a failure to comply with a requirement of the procedure that was attributable to him.
(4) In a case where regulation 11(2) applies in relation to a requirement of the applicable statutory procedure because the circumstances in sub-paragraph (a) or (b) of regulation 11 (3) apply, and it was the behaviour of one of the parties that resulted in those circumstances applying, the fact that the requirement was not complied with shall be treated as being a failure, attributable to that party, to comply with a requirement of the procedure."
Where the procedure is not complied with, s31 applies to increase or reduce as appropriate any compensation due, according to which party has failed to complete the procedure. Disciplinary action, in the form of dismissal, is dealt with by s98A of the Employment Rights Act 1996 which provides as follows:
"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 I 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.
(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 it he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this section, any question as to the application of a procedure set out in Part I of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act."
4. In addition, two provisions have not yet been brought into effect dealing with this new dispute resolution machinery, for s30 provides:
"30 Contracts of employment
(1) Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.
(2) Subsection (1) shall have effect notwithstanding any agreement to the contrary, but does not affect so much of an agreement to follow a particular procedure as requires the employer or employee to comply with a requirement which is additional to, and not inconsistent with, the requirements of the statutory procedure."
"3A Meaning of "discrimination"
(1) For the purposes of this Part, a person discriminates against a disabled person if—
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply,
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled.
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."
6. The relationship between these new provisions was described in a judgment I gave in High Quality Lifestyles Ltd v Watts [2006] IRLR 850 on behalf of the EAT where in paragraph 9 we said this:
"As can be seen, this consists of what can be conveniently be divided into disability-related discrimination, s3A(1), discrimination by not making reasonable adjustments for a disabled person, s3A(2) and direct discrimination s3A(5). Only the first is qualified by the justification defence."
"4.29 In general, direct discrimination occurs when the reason for the less favourable treatment in question is the disability, while disability-related discrimination occurs when the reason relates to the disability but is not the disability itself. The expression 'disability-related discrimination' therefore distinguishes less favourable treatment which amounts to direct discrimination from a wider class of less favourable treatment which, although not amounting to direct discrimination, is nevertheless unlawful."
The facts
"53 We remind ourselves that the respondent is a large multi-national company from whom the highest standards of good industrial practice can be expected. We were impressed by the respondent's dismissal and appeal procedures. There was the initial investigation, followed, albeit the next day, by a disciplinary hearing. That hearing resulted in a recommendation for dismissal which was referred to a consultation with the Human Resources Department which, when resulting in confirmation of the decision, was itself referred to a review meeting, following which there was an appeal. Whilst we do not find that this careful process does not in itself meet the statutory requirements, plainly appeal is a separate issue to a reconsideration and review. Nevertheless the procedure is to be admired."
"1 The claimant commenced employment with the respondent's predecessor on 3 June 1991 and that employment was transferred to the respondent on 13 July 1992. The terms and conditions of employment were regulated by a written contract, pages 28 to 34 of the bundle. In due course an attendance management policy was incorporated into the Company Handbook which was part of the claimant's terms and conditions of service including obligations on both sides, on the one hand the employer to monitor and conduct health enquiries from time to time and from the point of view of the employee to report changes in condition and particular at paragraph 7 the parties recognise that whilst limited social and recreational activities were permitted during absence,
'With regards to other employment whilst an associate is in receipt of company sick pay they are required to abstain from all other forms of employment, voluntary or paid, until such time as they are fit enough to return to work at Mars. Once an associate is fit for work, the company will endeavour to find suitable work to enable an associate to return as soon as possible'.
2 The procedure allows for reviews of sickness absences, at paragraph 10 at page 39 and following, and in particular provides at paragraphs 10.5 and 10.6, for the possibility of alternative employment termination, or the payment of a disability pension. There are also provisions giving the employer the right to require an occupational health physician to review of the situation."
"In my letter dated 18 October 2004 I set out the allegations against you. Briefly, these were that that you have dishonestly reported your reasons for absence and your fitness to work and that you have fraudulently obtained Company Sickness benefit. At the disciplinary hearing on 19 October 2004, which was reconvened on 1 November 2004 you were given the opportunity to put your case to both Gillian Caroe and me and to provide any explanations."
"In accordance with the Company's disciplinary procedure you have the right to appeal against my decision. You must set out the grounds of your appeal in writing to Marc Turcan, Plant Manager within 5 working days of the date of this letter."
A reminder was sent on 13 November 2004. The Claimant wrote back (the text is important):
"I want to appeal the decision of my dismissal.
I am consulting with my solicitor about the grounds of the appeal and these will be sent separately as soon as possible."
"12 Various rumours had come to the knowledge of Mr Vingoe that the claimant was the source of cheap cigarettes and alcohol, probably imported from the continent. Mr Vingoe gave credibility to these rumours, though it is right to say that the source of the rumours was never disclosed to the claimant, though the fact of the rumours was made known to him in the disability process which we are about to describe.
13 As a result of the rumours and upon the suspicion held by Mr Vingoe that the claimant was not being entirely frank about his condition or its consequences, a firm of investigators called Xl 4 Investigations were commissioned to observe the claimant who, by all the medical reports, was virtually unable to leave his home. The investigators reported by letter of 16 October 2004, that on 14 October they had observed the claimant in his Volkswagen Passat motorcar drive from his home address to the address of his mother and then travelled on the A47 and subsequent roads as far as junction 11 of the M20, apparently going to Calais. The claimant was said to be driving at very fast speeds from time to time and indeed it was because of the speed of his motorcar that the surveillance team did not pursue him any further along the M20. He was observed crossing the Dartford Bridge and using the Dart Tag vehicle toll booth. The investigator indicated to the respondent that the booth required the driver to hold prepaid tickets for multiple crossings for regular users, and Mr Vingoe himself caused an enquiry to be made on the internet which tended to support the view that the Tart [Dart] Tag channel was only available to persons holding a Dart card. The investigator also reported that the claimant had driven at speeds in excess of 100 mph so that the investigator had to give up the chase at some point on the M2.
55 The conduct relied upon, we have already referred to in our findings of fact, the alleged trading in illegal goods imported from Calais and the driving activity observed on 14 October. The respondent was saying that it believed the claimant was "swinging the lead" and was perfectly fit to work as was demonstrated by his activity on 14 October and that therefore he was wrongly claiming benefit within the sick pay provisions.
56 In order to satisfy a Tribunal that a dismissal relating to conduct was fair, an employer must first of all show that at the time it took the decision to dismiss, it had conducted a sufficient investigation, disclosing credible facts in which, it did in fact believe and that in dismissing it adopted a fair procedure. The supporting evidence was that obtained by the private investigators and was certainly enough to cause any reasonable employer to blink, and to make further enquiry. As Dr Rix said in his report he found it unusual for a patient affected by the mental illness affecting the claimant, to drive a car in that manner. The respondent relied upon several pieces of supporting evidence other than the driving."
"62 We also consider the question of procedure. It seems clear to us that the investigative meeting preceding the disciplinary meeting by a day, started out as a medical interview with Mrs Wood present for that purpose and during the course of that meeting it developed into an investigation. In this sense the claimant was duped into a false understanding of why he was present, although by the end of the meeting it was clear to him that he was being investigated because of course he was suspended. We believe the claimant when he told us that before the commencement of the disciplinary hearing on 19 October, whilst the chairs were being assembled in the room, that Mr Vingoe said to the claimant in an aside, 'The game is up". We also bear in mind that Mr Vingoe had Dr Deacon's letter of 5 February 2004, in his pocket. We have referred to that letter in the findings of fact and find it odd that the letter does not seem to have been referred to by anybody else in this case until the hearing. Dr Deacon was the company's Occupational Health physician and had made a diagnosis of disability and in particular given a positive opinion that the claimant was disabled within the meaning of the Disability Discrimination Act 1995 and on course to qualify for a company retired sick pension."
"66 We are troubled by the fact that Mr Vingoe conducted the investigation, presided at the disciplinary meeting and in fact personally took the decision and then instructed the other echelons of the company in the various stages of the dismissal process. He was too closely involved and in his evidence to us came across as being too firmly committed to the view the claimant had committed misconduct and was intransigent in his attitude.
67 For those reasons we find that the investigation was incomplete and the procedure flawed in that Mr Vingoe was driven to dismiss the claimant from his opening remarks "It's all over" to the decision to dismiss and the refusal of .the appeal on the very technical ground that has been referred to."
"65 In the view of the Tribunal and having regard to what was in the letter, it was incumbent upon Mr Vingoe to approach the disciplinary meeting in a rather different manner. The information the Company had by 19 October, was that the claimant was disabled by reason of mental illness and had been behaving, particularly in regard to the driving, in a way inconsistent with his stated condition. Since the medical people were already involved, it seems to the Tribunal that a reasonable employer would have referred the facts from the investigators back to Dr Deacon so that he could have had an opportunity of considering those facts and reviewing the decision he had taken in February. That may well have resulted in the claimant still being dismissed for misconduct. On the other hand we are not to know what Dr Deacon would have said. We know what Dr Rix has said, but Dr Deacon had known the claimant over a longer period of time at an earlier stage of the illness. In our view the company's investigation was defective in failing to involve the health advisers in the dismissal process when the claimant's health was plainly at the centre of the claimant's defence to the allegations."
Thus, the conclusion of the Tribunal (para 67) is:
"…that the investigation was incomplete and the procedure flawed and we also hold that Mr Vingoe, being driven by his first statement to the Claimant at his disciplinary hearing had a closed mind."
The Respondent's case
The Claimant's case
"The Respondent further denies that it directly or otherwise discriminated against the Claimant on the grounds of his alleged disability by dismissing him."
Mr Catherwood contended that this was simply a re-labelling exercise which should have been allowed by the Tribunal. If this were a new claim and he, by the end of his argument, accepted that it was, then the matter should have been allowed by the Tribunal's exercise of discretion to extend time. There was no prejudice to the Respondent.
The legal principles
"The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason."
"35
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."
"21
(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account a//the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
22
(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:
The nature of the amendment
Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action."
Conclusions
Unfair dismissal.
"61 …there were defects in the investigation and a reasonable employer would have widened the basis of the investigation and structured its case against the claimant in a more precise and open way, in the manner we have described."
"65 …it seems to the Tribunal that a reasonable employer would have referred the facts [that is, of the medical matter] back to somewhere else [i.e. to Dr Deacon? as per quote?]."
Thus, in two places this Tribunal applies the correct test. The fact that it occasionally uses language in the first person does not in any way contaminate that finding, but if it did it would be rescued, see Jones. The Tribunal is to be acquitted of the charge that it went about the examination of the matters before Mr Vingoe in a way which showed itself to have been taking that role. The Tribunal made clear where it saw investigations falling short of what was required to be done to meet the standard of a reasonable employer. We have illustrated this by Mr Vingoe's failing to ask the correct question in relation to the Dartford crossing, but it is also clear in respect of the reliance on rumours which did not go through the elementary guidance set out in Linfood. Similarly the way in which Mr Vingoe dealt with the medical material and his failure to get further material on this is a criticism made by the Tribunal and we consider it valid.
Automatic unfair dismissal.
The amendment.