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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pudney v Network Rail Infrastructure Ltd [2006] UKEAT 0707_05_2203 (22 March 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0707_05_2203.html Cite as: [2006] UKEAT 0707_05_2203, [2006] UKEAT 707_5_2203 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR B BEYNON
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR M PILGERSTORFER (of Counsel) Instructed by: Messrs Edwards Duthie Solicitors 292-294 Plashet Grove East Ham London E6 1EE |
For the Respondent | MR J TODD (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW |
SUMMARY
Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal
The failure to disclose new witness statements obtained during the adjournment of an internal appeal against dismissal was a breach of the employer's written procedure, and fell outside the band of reasonable responses. Strouthos v London Underground Ltd [2004] IRLR 636 CA applied. The Employment Tribunal Judgment was set aside and the case remitted to it to decide in the light of this direction, and Employment Rights Act 1996 s98A(2), whether the dismissal was fair or unfair. Polkey v A E Dayton Services Ltd [1988] ICR 142 and Gover v Propertycare UKEAT/0458/05 upheld [2006] EWCA Civ 286 applied.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issue
The legislation
98 General
(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.
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.
(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.
(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 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".
14. The next question is whether the dismissal was fair in accordance with the provisions of Section 98(4). The well-known cases of British Home Stores -v- Burchell and Sainsburys Supermarkets -v- Hitt establish that firstly there has to be a genuine belief in the misconduct. Secondly, that must be a reasonable belief based upon a reasonable investigation. Thirdly, dismissal must fall within the range of reasonable sanctions for that misconduct.
The facts
3.1 Preliminary Investigation
When misconduct by an employee is suspected, the relevant manager will promptly establish the facts and, where appropriate, obtain statements from available witnesses. The manager will keep a confidential written note of the investigation, together with any witness statements taken.
3.2 Notification that disciplinary procedure is to be implemented
lf disciplinary action is to be taken, the employee will be informed clearly, in writing, as early as possible, of the alleged offence, of all relevant evidence and asked to attend a disciplinary hearing which will be arranged within seven days by the appropriate manager. The manager who conducts the hearing will be someone not previously involved in any relevant investigation.
3.3 The disciplinary hearing
The employee involved should, other than in exceptional circumstances, be given a copy of all witness statements and any relevant reports at the time the disciplinary hearing is arranged. If for any reason it is not appropriate to do so the employee should be given a clear outline of the allegations made against them and the nature of the evidence relied on in support of those allegations. The type of exceptional circumstances, which might call for this approach, would be where witnesses are reluctant to have their names known because of a fear of retaliation".
If, following those procedures, the employee is dissatisfied with the disciplinary decision, there is a right of appeal. There is a provision about new evidence.
"Should new evidence come to light during the appeal, the manager may consider the need to adjourn the hearing to investigate or to consider such points as may be raised".
"3 The claimant has worked in the railway industry since 1985, initially for British Rail and thereafter for a number of companies leading to his employment by the respondent as from 2001. At the time of his dismissal he was employed as an infrastructure maintainer based at Stoke on Trent. His immediate line manager was Mr Gary Leeson. As an infrastructure maintainer he worked with teams of three or four maintenance staff and he was normally the most senior member of the staff and, therefore, acted as team leader.
4. The events which led to his dismissal occurred on 20 October 2004. It is not in dispute that on that day there was an incident involving the claimant and Ryan Shaw, a more junior member of his team. In brief Ryan Shaw alleged that after a dispute about the manner in which the claimant had decided maintenance should be carried out that he said that the claimant was just being daft. Following this the claimant picked up a chair and threw it randomly into the air narrowly missing Richard Masterson's head. The claimant then prodded Ryan Shaw in the stomach and then grabbed him by the throat and forced him up against a window. Ryan Shaw then pushed the claimant away but was then grabbed again by the throat and pushed against a window.
5. Subsequently Ryan Shaw left the mess room in which this had taken place, but returned a few minutes later and was again subject to similar treatment. The claimant was shouting and screaming at him, and grabbed Ryan Shaw by the throat and forced him to the floor marking his neck and face.
6. The claimant's account is diametrically opposed to this in that he suggests that whilst the incident began with a discussion of the way in which he had carried out the maintenance he was the subject of serious verbal abuse from Ryan Shaw accusing him of being thick and swearing at him. The abuse carried on for some time whilst the claimant tried to put his point of view over and ended with the two of them squaring up to one another with Ryan Shaw pushing his face into the claimant's and with the claimant then pushing Ryan Shaw away. At this point in the dispute the two other occupants in the room, Richard Masterson and Matthew Pettit, left the room having not intervened. A short time later, matters were sorted out between Ryan Shaw and the claimant and he believed that the incident was over".
11 That appeal took place on 26 January 2005 which the claimant attended, on this occasion being represented by his union representative, Mr Raynor. During the course of that appeal hearing Mr Whitehurst obtained from the claimant his version of events. Having heard from the claimant he decided to make further enquiries before coming to a conclusion. He accordingly interviewed Mr Leeson, and again Mr Shaw and Mr Pettit although he did not interview Mr Masterson. Having interviewed those three men the appeal hearing was reconvened and Mr Whitehurst conveyed to the claimant his conclusion that he was guilty of gross misconduct in that he assaulted Mr Shaw and that he upheld the decision to dismiss. None of the three records of interview were given to the claimant prior to that decision being taken".
"21. The next matter of substance about which the claimant complains is that at the adjourned appeal hearing, Mr Whitehurst interviewed Mr Shaw and Mr Pettit and in addition Mr Leeson and self-evidently took into account in deciding whether or not to dismiss what he had been told in those interviews. In this regard the claimant points to a passage in the transcript of the appeal hearing which was recorded surreptitiously by the claimant in which Mr Whitehurst and Ms Bahl, the claimant's HR representative were discussing what had occurred and Mr Whitehurst expressed the view that in light [of] what he had heard until that point he would be obliged to reinstate the claimant. It self evidently follows from the alleges the claimant that what caused him to decide to dismiss the claimant was what was he heard from Mr Shaw, Mr Pettit and Mr Leeson and in the absence of that having been disclosed to the claimant that the decision to dismiss is unfair.
22. In our view there is some force in this criticism and it is accepted on behalf of the respondent that it would have been better had those statements been disclosed before Mr Whitehurst reached his final conclusion. The question for us at this stage is whether that failure so tainted the investigation that no reasonable conclusion could be drawn from it. We accept the evidence of Mr Whitehurst that having spoken to Mr Shaw and Mr Pettit he had reached the conclusion that Mr Shaw was telling the truth and that he had been the victim of an assault by the claimant rather than one the other way round. It follows that in our view even had the claimant been invited at that stage to comment on those statements that it would not have altered Mr Whitehurst's view that Mr Shaw was telling the truth about the incident". [There appears to be an error in paragraph 21 and we will correct the word "the Claimant's" to "the Respondent's"].
"24. The final question is whether dismissal fell within the range of reasonable sanctions for that misconduct. In relation to that the respondent points to the fact that physical violence is included specifically in the matters which constitute gross misconduct and which may result in dismissal. The claimant makes the point that Mrs Bayliss failed to take into account his long service. Although Mr Whitehurst said that he took it into account that his word should be doubted on that point. In our view it was open to the respondent to find that the use of this degree of physical violence by a team leader in respect of a junior member of his team was conduct so serious that whatever the length of the claimant's previous good service that dismissal was a reasonable sanction. Again, in our view it certainly fell within the range of reasonable sanctions available to the respondent".
"25. The provisions of Section 98(a) of the Employment Rights Act 1996 have been drawn to our attention by Counsel. For the reasons given above our view is that the procedural irregularities we have identified do not so fundamentally undermine the fairness of the dismissal so as to render it unfair. However, had we concluded that they did so fundamentally undermine that fairness we would have considered the provisions of Section 98(a)(ii) which provides that: "Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose 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.
26. ….. In our view had those constituted breaches of procedure, for the reasons we have given above this is essentially a simple case and we have no doubt that given that Mr Whitehurst accepted the truth of what Mr Shaw and Mr Pettit had to tell him about this matter that he would have come to the same conclusion even had those documents been disclosed".
The Claimant's case
"15. At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be allowed to ask questions, present evidence, call witnesses and be given an opportunity to raise points about any information provided by witnesses".
The Respondent's case
The legal principles
"there is no need for an 'all or nothing' decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment"
Conclusions
"(6) … the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case".