![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Compass Group UK & Anor v. Baldwin [2006] UKEAT 0447_05_0501 (5 January 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0447_05_0501.html Cite as: [2006] UKEAT 0447_05_0501, [2006] UKEAT 447_5_501 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR B BEYNON
MR T STANWORTH
T/A ESS SUPPORT SERVICES WORLDWIDE |
APPELLANTS |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR R MARVEN (of Counsel) Instructed by: Messrs Gregsons Solicitors St Christopher's House Tabor Grove Wimbledon London SW19 4EX |
For the Respondent | MR D PANESAR (Of Counsel) Instructed by: Messrs Worthington Solicitors 28 Cheriton Gardens Folkestone Kent CT20 2AS |
SUMMARY
Unfair Dismissal: Reasonableness of Dismissal & Compensation
Employment Tribunal correctly applied the objective test of the band of reasonable responses to the facts it found. Appeal against liability dismissed.
On the basic award of compensation, it did not err when it did not reduce the award by 50% as it had for contributory fault in respect of the compensatory award. It was aware of the different statutory provisions. Employn1ent Rights Act 1996 s 122(2) is not regulated by loss as s 123(1) is but reflects redundancy pay. It was open to the Employment Tribunal to exercise its discretion not to reduce the award in the light of the possibility of redundancy had the dismissal not occurred. There is no restriction on what factors the Employment Tribunal hold to be a just and equitable reason for refusing to reduce. Impending redundancy at the time of the unfair dismissal cam10t be said to be an error of law.
The Employment Tribunal did not err in holding that had a fair procedure been adopted, as the employer accepted it was not, the employee would not have been dismissed, and there was an apt direct comparator for this purpose.
The Employment Tribunal erred in failing to apply its findings on the prospect of redundancy when considering Polkey v A E Dayton Services Ltd [1987] IRLR 503. This aspect is remitted to the Employment Tribunal and it will be at liberty to reconsider its finding as to the prospect of the employee obtaining new employment.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"1. By his Claim lodged with the Tribunal on 10 February 2005, the Claimant who had worked for the Respondents and their predecessors at Dungeness Power Station as a cleaning supervisor from 9 April 1996 to 12th November 2004, claimed that he had been unfairly dismissed. The circumstances of his dismissal were that he had been found to have assisted a fellow employee, Mrs Mandy Pickup, in removing clients' property, namely a 5 litre container of disinfectant, from Dungeness."
2. By their Response lodged on 28 February 2005, the Respondents claimed that the Claimant had been suspended and subsequently dismissed for allowing unauthorised removal of company stock by a member of staff in breach of company policy, following which he was dismissed for gross misconduct, his conduct having justified his summary dismissal.
8. The issues which the Tribunal was called upon to determine were :
8.1 Whether on the facts (which were largely not in dispute) the Claimant's conduct merited summary dismissal.
8.2 Whether the Respondents carried out a reasonable investigation and had a genuine belief in the Claimant's gross misconduct.
8.3 Whether the Respondents' decision to dismiss was within the band of reasonable responses".
The Tribunal decided in the Claimant's favour and awarded him £31,472.50 after a deduction of 50% for his contributory fault. The Respondent appeals against that judgment in respect of liability and in the assessment of compensation.
The law
"11. Once an employer has shown a potentially fair reason for dismissal, the Tribunal must decide whether that employer acted reasonably or unreasonably in dismissing for that reason. Section 98(4) of the Employment Rights Act 1996 provides that
'…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.'
12. In other words, it is not enough that the employer has a reason that is capable of justifying dismissal. The Tribunal must be satisfied that, in all the circumstances, the employer was actually justified in dismissing for that reason.
13. In the case of a dismissal for misconduct there is a threefold test which requires the employer to show that:
13.1 He believed the employee was guilty of misconduct.
13.2 He had in his mind reasonable grounds on which to sustain that belief;
13.3 At the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.
14. When assessing whether these tests have been met, the Tribunal must ask itself whether what occurred fell within a 'range of reasonable responses" of a reasonable employer".
There is no dispute that those are correct self directions as given by the Employment Tribunal here.
"118. - (1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of-
(a) a basic award (calculated in accordance with sections 119 to 122 and 126), and
(b) a compensatory award (calculated in accordance with sections 123, 124, 126 and 127).
122. – (1) ….
(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly
123 (1) Subject to the provisions of this section and sections 124 and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer
(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding".
The basic award is almost always the same as a redundancy payment and is based upon length of continuous service, age and pay.
The facts
"9.2 He reported to Gilbert Turner until August 2004, when Mr Turner went on sick leave. At the time of his dismissal he reported to Mr Ray Murray.
9.3 There were no complaints about the Claimant's work and or his record.
9.4 The Tribunal accepted evidence from several witnesses, including Mr Turner, Mrs Blake and Mrs Pickup and the Claimant himself, that there was a practice at Dungeness allowing company equipment and materials to be used privately for the most part by employees of British Energy, but occasionally by employees of the Respondents.
9.5 This practice did not take place regularly. It usually occurred when special circumstances arose, e.g. when someone's home was flooded (Mr Grice).
9.6 This practice was known to middle management, but was not known to senior management, who were relatively uninvolved operationally.
9.7 On 10 November 2004, Mrs Mandy Pickup, an evening supervisor reporting to the Claimant, had a crisis with her mother who was taken into hospital with a terminal illness from which she died shortly afterwards having left her flat in a deplorable state. The local authority said that it would cost between £500 and £600 to clean the flat up- Mrs Pickup decided to do the cleaning herself and asked the Claimant if she could use disinfectant and other materials from a storage container at Dungeness.
9.8 The Claimant agreed that she could. The two of them were in the process of removing the disinfectant from the storage container when they were seen by two British Energy employees, Della Middleton and Alan Carter. They were reported to Mr Ray Murray.
9.9 Mr Murray obtained an oral statement from Ms Middleton. On the same day he suspended the Claimant with immediate effect. The Claimant's suspension followed a meeting with Mr Murray when he admitted that he had agreed that Mrs Pickup could have the 5 litres of disinfectant, some gloves, and a disposable plastic overall. The reason for his suspension was given as 'the alleged passing of ESS consumable products to another ESS employee for personal use' on the above date at 11.45 a.m. which could constitute an alleged breach of contract or act of gross misconduct.'
9.10 When told that this was in breach of company policy, the Claimant had come out with the full facts and had said that he did not see anything wrong with what he had done. 'He had also said that he was unaware that the property taken (the disinfectant) in fact belonged to British Energy.
9.11 The Claimant admitted that he was aware of the policy of forbidding the removal of client property, and accepted that he should have checked with senior management.
9.12 The letter confirming the Claimant's suspension and informing him of the disciplinary hearing on 12 November (p.25) made no mention of the fact that the Respondents considered the Claimant's action to be theft, nor did it put him on notice that his job might be at risk.
9.13 ….
9.14 The allegation that the Claimant had authorised and assisted a subordinate to remove cleaning materials from site, knowing that she was using them for personal use, was not put to him.
9.15 The Claimant again 'admitted that he had authorised and assisted Mandy Pickup to obtain the disinfectant. In answer to the question 'Were you aware you were breaking company policy?', he replied 'I presume so, I didn't consider the rights and wrongs of doing someone a favour that needed help.'
9.16 At a later stage in the interview, the Claimant made the point that in the past people had borrowed materials and chemicals for British Energy staff, and said that it was a culture that had always been there. "I had always told Gill (Turner) in the past of what had happened and it's a practice that happens on occasions'.
9.17 The statements of Della Middleton and Alan Carter (pp23 and 24) were available to the Claimant for the first time at the disciplinary meeting. These set out the bare facts which had been admitted".
The finding was that the Claimant was guilty of gross misconduct for which the penalty was summary dismissal.
"9.22 He quoted an extract from the company Handbook which states:
'You are not allowed to remove either stock or equipment from your place of work. Removal of stock or equipment without written authorisation will be treated as theft and will result in summary dismissal.'
9.23 Mr Murray took the view that extenuating circumstances were not relevant and that as the statement in the company's Handbook was unequivocal, the penalty of dismissal was almost automatic. He did not make any investigation into the alleged past practice of taking materials other than his conversation with Mr Morgan in which he had been assured that "it was not common practice".
The Claimant was dismissed. The letter of dismissal raised a new point not previously raised against the Claimant, namely that his action had jeopardised the company's relationship with British Energy but there was no direct evidence of that. The Claimant, in due course, appealed. His appeal was not a re-hearing and it was dismissed.
"9.29 The Tribunal accepted the evidence of the claimant's former manager, Mr Gilbert Turner, who was later made redundant, that had he been consulted he would have advised Mr Murray that 'Dungeness was like a family affair and we would help each other out' and that when reporting to him the Claimant was allowed to make decisions of this kind which he approved later, also that he would have approved of the Claimant's action and 'made the decision to help Mandy out'".
"17. The Respondent's investigation was deficient in that:
17.1 It did not take any account of the Claimant's past work record.
17.2 It did not investigate or give sufficient weight to the practice of lending equipment which had grown up.
17.3 It did not make enquiries of Mr Turner, who was on sick leave at the time, but who gave evidence which the Tribunal accepted, that he 'would have taken the decision to help Mandy out'.
18. The Respondents also failed to tell the Claimant that his job was at risk or allow him to speak to witnesses, or to see the witness statements they had obtained until the dismissal hearing.
19 In the circumstances, the Tribunal has come to the conclusion that the Respondents acted unreasonably in dismissing the Claimant for gross misconduct in the particular circumstances of the case, and that their actions were outside the range of reasonable responses".
"(a) The cleaning operations were being re-structured and redundancies were taking place, see Mr Hogland's letter to Ms Pickup page 80 of the bundle.
(b) The Claimant was relatively highly paid and had become an employee of the Respondent's through a TUPE transfer.
(c) Mr Hogland's brief was to deliver profitability (paragraph 2 of his statement page 73).
(d) The Tribunal considered that the Claimant was correct in being concerned that his position was at serious risk of redundancy, eg his statement top of page 44 before the events which led to his dismissal.
(e) The Tribunal considered that if he had been made redundant as a cost cutting exercise he would have received his redundancy payment in full, and that it was not just and equitable that after such long service his basic award should be reduced, notwithstanding his stupidity which led to the reduction in his compensatory award. It considered in its discretion that it was appropriate to apply different percentage reductions to the basic and compensatory awards".
The submissions and our conclusions on unfair dismissal
Compensation
Appeal