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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mars UK Ltd (t/a Masterfoods) v Parker [2006] UKEAT O412_05_1801 (18 January 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/O412_05_1801.html Cite as: [2006] UKEAT O412_5_1801, [2006] UKEAT O412_05_1801 |
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At the Tribunal | |
On 24 October 2005 | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
SIR ALISTAIR GRAHAM KBE
MR D NORMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAVID GRIFFITH-JONES QC and MR ANDREW BURNS (Of Counsel) Instructed by: Messrs Lovells Solicitors Atlantic House Holborn Viaduct London EC1A 2FG |
For the Respondent | MR SIMON DEVONSHIRE (Of Counsel) Instructed by: Messrs Ratcliffe Duce & Gammer Solicitors 49 & 51 London Street Reading Berkshire RG1 4PS |
Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of s.98 of the Employment Rights Act 1996. Whether on the facts it substituted its own view of the occurrence and quality of misconduct for that of the employer. Whether it was appropriate to determine an issue between the parties as to whether the conduct of the claimant had contributed to his dismissal by simply saying it had not done so, without giving any further reasoning to support that view.
THE HONOURABLE MR JUSTICE LANGSTAFF
The Basic Facts
"in evidence Mr Jenkins stated the only matters of conduct he relied upon in deciding to recommend dismissal were the evidence from an external driver of an unhelpful response by the claimant, the evidence from Mr Raynham of hearing the claimant swear and the evidence from Mr Peel who he claimed had been asked not to tell the whole truth."
"The purpose of Miss Neeve considering the matter was to consider whether Mr Jenkins recommendation to dismiss was reasonable. Notwithstanding that the allegations with regard to the processing of samples, the refusal to drive a fork lift truck and his contacting Mr Peel during the period of his suspension were dismissed by Mr Jenkins, they were including in the matters considered by Miss Neeve as relevant matters when considering whether Mr Jenkins had made the right recommendation. Miss Neeve considered the recommendation to dismiss was correct. She conceded in evidence she did not consider any other sanction"
The Appellant Employer's Case
"We had to decide whether the Respondent" (that is, the respondent before the employment tribunal namely Masterfoods) "had established the reason for the dismissal was conduct, whether they were reasonable in their belief in his misconduct, and whether the decision to dismiss was fair and reasonable in all the circumstances of the case".
"In unfair dismissal cases it is for the respondent to show the reason for the dismissal and that it was one falling within section 98 of the Employment Rights Act 1996. [Masterfoods] relied on section 98 (2), conduct. [Masterfoods] had to show, therefore, that conduct was the reason for the dismissal. The conduct does not have to be gross, but it does have to be substantial in relation to the employee and his job and the surrounding circumstances. It has to be conduct justifying dismissal."
"6.2 We first had to decide whether there was conduct within the meaning of section 98 i.e. conduct justifying dismissal. For the definition of "conduct" we looked at Neary and Neary the Dean of Westminster. Conduct is behaviour sufficient to undermine the trust and confidence which is inherent in the employment relationship so that the employer should no longer be required to keep the employee in his employment. If we found the employer was reasonable in his belief that the claimant was guilty of conduct falling in that category, we then had to decide whether the dismissal was then within the band of responses of a reasonable employer and fair in all the circumstances of this case."
"6.8 It is not for us to substitute our own view for that of the respondent and we have taken pains not to do so. However it seems to us that to justify the dismissal of an employee with such long service, some acts or admissions by him of a serious substance needed to have been established. Ultimately, the question for the tribunal is whether in a particular case dismissal is a reasonable response to the misconduct proved. Doing the best we can for all of the reasons stated above we do not find the conduct established to the tribunal's satisfaction and relied up by [Masterfoods] was, either individually or cumulatively, conduct sufficient to justify dismissal in all the circumstances of this case."
He emphasised the Tribunal's reference, repeatedly, to proof to its own (the Tribunal's) satisfaction. It should properly have referred not to its own response, but rather to the employer's response to that which had been proved to its, the employer's, satisfaction. Thus the act or omission which "needed to have been established" led on to the question whether the dismissal was a reasonable response to "the misconduct proved"- which, though it might as so expressed appear to be neutral as to whom it was proved, links with the next sentence where there is reference to conduct established "to the Tribunal's satisfaction and relied upon by the respondent", thus suggesting that it was for the Tribunal to determine whether misconduct was proved to it, and not to inquire what misconduct had been proved to, or accepted by, the employer.
The Respondent's Answer
The Law
"The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for ……just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so should they not uphold a decision which has failed in its basic task, whatever its other virtues."
Thus the task for us is one of substance. It is not to be answered by a pedantic analysis of a tribunal's decision, as though it were a statute or trust deed, although if, in substance, the right questions have not been addressed we must not be shy to uphold an appeal.
"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground that the misconduct in question…..entertained a reasonable suspicion amounting to a belief of the guilt of the employee of that misconduct at that time."
Those words are almost exactly the words used by the Employment Tribunal in paragraph 1.1 of its decision here. The Appeal Tribunal continued:
"That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. The employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of it being "sure", as it is now said more normally in a criminal context, or, to use the more old fashioned term, such as to put the matter, "beyond reasonable doubt". The test and the test all the way through is reasonableness….."
This links with the last sentence in paragraph 6.2:
"if we found the employer was reasonable in his belief that the claimant was guilty of conduct falling in that category, we then had to decide whether the dismissal was within the band of responses of a reasonable employer and fair in all the circumstances of this case."
We think that the Tribunal here was saying no more than that determination of the question whether a dismissal is fair or unfair depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as sufficient. The Tribunal had plainly in mind the sufficiency of the reason; that the employer has to have a reasonable belief of guilt and misconduct (an adaptation of Burchell) and that dismissal was an appropriate response by an employer (a question to be answered by asking whether the actions of the employer were reasonable or unreasonable, and not by asking whether the tribunal would think it reasonable itself to take a different course: hence the "range of reasonable responses" test now well established as summarising the proper meaning of section 98 (4)).
Contributory Fault