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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Corus UK Ltd v A M Mainwaring [2007] UKEAT 0053_07_2206 (22 June 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0053_07_2206.html Cite as: [2007] UKEAT 0053_07_2206, [2007] UKEAT 53_7_2206 |
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At the Tribunal | |
Judgment delivered on |
Before
HIS HONOUR JUDGE BURKE QC
DR K MOHANTY JP
MS N SUTCLIFFE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR PETER WALLINGTON (of Counsel) Instructed by: HR Law Services Corus UK Ltd Port Talbot Works Port Talbot South Wales SA13 2NG |
For the Respondent | MR PHILIP MEAD (of Counsel) Instructed by: Leo Abse & Cohen 40 Churchill Way Cardiff CF10 2SS |
SUMMARY
Unfair Dismissal:
Reasonableness of dismissal / Contributory fault / Constructive dismissal
The Claimant was dismissed for misconduct, namely pretending that he was unfit to return to work when video footage showed that he was not so unfit. The Employment Tribunal found that the dismissal was unfair. The Respondent's appeal was allowed; the Employment Tribunal had erred in law in:
(i) omitting to refer to the full investigatory meeting before suspension and concluding that the Respondent had a "mindset" to dismiss because they had gone straight from receiving a tip off about the Claimant to suspension; on the evidence they had not done so.
(2) criticising the Respondents for not taking a statement from the informant when, on the evidence, the tip off was no more than a trigger for their investigations.
(3) criticising the Respondents in relation to the medical evidence on a false basis of fact.
(4) failing in the light of Taylor v OCS Group, to consider the effect of the internal appeal hearing.
Remitted for rehearing by fresh Tribunal.
HIS HONOUR JUDGE BURKE QC
The Facts
"16 March
Following the consultation on this date, I confirmed that Mr Mainwaring was still suffering from tenderness in his upper thoracic spine. He was, however, showing signs of improvement so therefore was able to return to work within a fortnight on alternative duties.
On the 22nd March 2006, I was asked to give a statement to Miss Cath Atherton within the HR Department to examine and give my professional opinion of the surveillance video of Mr Mainwaring undertaking various tasks during a period between 9th & 16th March.
9th March
Mr Mainwaring is shown in the video to be placing various bags into a car and then later removing them, this included bending and reaching into the car. If he were suffering with back pain, he would not be capable of undertaking these tasks as they would have caused him considerable discomfort and pain.
15th March
Mr Mainwaring is shown walking freely down the street; he showed no obvious signs of back pain, which I would expect in his condition. Following the consultation on the 16th March, his condition was improving however; he should not be moving as freely as he as [sic] shown in the video.
16th March
Mr Mainwaring is shown shopping at a local supermarket and then later removing various bags from the boot of his car. He is showing no signs of pain. He should not been [sic] carrying these bags even though his condition had improved. On the video, he is shown undertaking a three-point turn in his car. He would have been capable of undertaking this task; if he had power assisted steering in the car.
In my opinion if Mr Mainwaring had informed me on both dates when he saw me at the Works Medical Centre at Trostre, that he was capable of undertaking these tasks. I would have recommended that he be fit for work with no restrictions being placed on him with immediate effect."
"The above named has been consulting his GP and the practice physiotherapist since January this year with low back pain. He has had a course of physiotherapy and been taking anti-inflammatory medication. He has been advised to keep mobile and do light exercise to strengthen his back. He is currently fit for light duties. I trust this information is helpful to you."
"On both consultations of the 9th & 16th March, he demonstrated poor movement and was in pain. He led me to believe that he was unfit to return to the workplace due to these poor movements and I based my assessment on this information. However on seeing the video, his movement is not restricted, therefore there was no reason why he could not have returned to his workplace during this period.
I did advise Marshall on the type of medication he should be taking. He then spoke to his GP who prescribed this medication accordingly. I have no evidence to prove whether he was taking this medication or not. However, if he was taking this medication, he would still not have been able to undertake the tasks shown in the video with the back issues he presented to me on the 9th & 16th March."
The Tribunal's Judgment
"Firstly, it is not for the Tribunal to impose its own views. Secondly, it is for the Tribunal to consider the test in British Home Stores –v- Burchell coupled with Sainsbury's supermarkets –v- Hitt. We consider in general terms whether we agree with the submission that the Respondent makes that there was genuine belief after a reasonable investigation. We have to assess whether the reasonable investigation was within a reasonable range of response for an employer."
10…"Here the Respondent consulted and saw the Claimant as part of the disciplinary investigation before deciding whether or not to start disciplinary proceedings. That of course in itself was completely correct. The Respondent did not see or did not take a statement from the original complainant who worked in the Claimant's team and that statement could have been done on an anonymous basis. It was outside the range of reasonable response for that not to have been done because the Respondent should have considered whether or not there was a reason why this complaint had been made. Were there sour grapes, was there ill-feeling or some other factor? That was not done. What then happened is that the Respondent suspended the Claimant. Mr Williams who represents the Claimant says that the very act of suspension rather than seeing the Claimant at any early stage before the covert surveillance was actioned indicates that there was a mindset in place to consider getting rid of the Claimant. The evidence does support that that is right. The Respondent also in our view acted outside the range of reasonable response in failing to get the Claimant's written permission to approach his GP to obtain a report. It is outside the range of reasonable response not to have considered obtaining the advice of a consultant where the only medical evidence upon which they relied was a GP and not a specialist back doctor.
11. The failure to act within a reasonable range of response in the enquiries that could have been made result in the conclusion that this was not a reasonable investigation and that therefore if there is a failure to have a reasonable investigation it must follow that there cannot be a genuine belief at the end of it. As a result it follows that although the Claimant does not make much criticism of the subsequent procedure the underlying problem as far as the Respondent is concerned is that they were embarking on a course of action which no reasonable Respondent would have embarked."
Accordingly they found the dismissal to have been unfair.
Grounds of Appeal
(1) The Tribunal failed to give proper and sufficient reasons for their decision.
(2) The Tribunal took into account an irrelevant consideration, namely the failure of Corus to obtain a statement from the informant whose allegations lead to the investigation of Mr Mainwaring.
(3) The Tribunal erred in relying on the suspension of Mr Mainwaring as supporting their conclusion that the dismissal was unfair.
(4) The Tribunal erred in law in holding that Corus's decision not to seek a report from Mr Mainwaring's GP and/or from a consultant was outside the range of reasonable responses.
(5) The Tribunal failed to consider the effect of the appeal on the fairness of the dismissal.
6) The Tribunal's finding that there was not a reasonable investigation was as the result of a substitution of their own view.
(7) The Tribunal erred in law in finding that because the investigation was not reasonable Corus did not have a reasonable belief in the misconduct.
(8) The Tribunal's decision was perverse.
Insufficient Reasons
The Informant
"From all the investigations that took place our understanding of relevant events are as follows."
The Suspension
"What then happened is that the Respondent suspended the Claimant"
and then based their finding that:
"There was a mindset in place to consider getting rid of the Claimant"
on the recorded assertion on the part of Mr Mainwaring's solicitor that suspending Mr Mainwaring rather than seeing him at an early stage before the covert surveillance was indicative of that mindset.
The Medical Evidence
(1) Corus did not fail to obtain the views of Mr Mainwaring's GP; on the contrary they were provided with and had before them at the disciplinary stage the letter from the GP dated 28 March 2006 and, at the appeal stage, the fuller letter from the GP dated 13 April 2006; but although they were before the Tribunal and referred to in Corus's witness statements, the Tribunal referred to neither. It was not open to the Tribunal, on the material before them, to reach the first of the above conclusions.
(2) There was no suggestion that Mr Mainwaring had seen his GP since January 2006 (see the second GP letter); but he had seen Dr Bevan on 9 and 16 March (two of the three days of the video surveillance). Although it was Mr Mainwaring's case before the disciplinary hearing and before the Tribunal that there was a conflict of medical evidence, that was not the case; the GP had expressed no views about the impact of the video surveillance; and Mr Mainwaring was only seen by Dr Bevan in the relevant period.
(3) There was, further, no basis for the conclusion that it was outside the range of reasonable responses for Corus not to seek a consultant's opinion. GPs and occupational health physicians deal with back problems on a day-by-day basis; Mr Mainwaring had never been referred by his GP to a consultant. Dr Bevan knew Mr Mainwaring well; he was an external advisor in occupational health; there was no evidence that his skills in comparing what Mr Mainwaring had said to him that he could or could not do with what the video footage showed him to be capable of doing was in some way insufficient.
The Appeal
"47 Although, as we have said, both Whitbread and Adivihalli contain a correct statement of the law, it would be advisable for Whitbread not to be cited in future. The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that ET's will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ET's realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.
48 In saying this, it may appear that we are suggesting that ET's should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that section 98(4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the ET might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. The dicta of Donaldson LJ in Union of Construction, Allied Trades and Technicians v Brain [1981] IRLR 224 at page 227 are worth repetition:
"Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity -and that, of course, means common fairness and not a particular branch of the law -and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane."
Further Issues
Conclusion