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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Premier Foods Plc v. Garner [2007] UKEAT 0389_06_2003 (20 March 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0389_06_2003.html Cite as: [2007] UKEAT 389_6_2003, [2007] UKEAT 0389_06_2003 |
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At the Tribunal | |
On 24 November 2006 | |
Before
HIS HONOUR JUDGE RICHARDSON
MS K BILGAN
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JOHN SAMSON (of Counsel) Instructed by: Messrs Steeles (Law) LLP Solicitors 3 The Norwich Business Park Whiting Road Norwich Norfolk NR4 6DJ |
For the Respondent | MR SHAEN CATHERWOOD (of Counsel) Instructed by: Messrs Dawbarns Pearson Solicitors Chequer House 12 King Street King's Lynn Norfolk PE30 1ES |
SUMMARY
Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair dismissal and section 98A(2). No error of law in the Tribunal's reasons. In particular, Tribunal entitled to conclude that where the employer, having decided to impose a final written warning and not to dismiss the employee, later again contemplated dismissing the employee, it should again have complied with the standard DDP.
HIS HONOUR JUDGE RICHARDSON
The facts
The statutory provisions governing unfair dismissal
"98 General
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it—
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
(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.
(6) [Subsection (4)] [is] subject to—
(a) sections [98A] to 107 of this Act ….
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."
"Standard Procedure
Step 1: statement of grounds for action and invitation to meeting
1(1) 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."
"..when an employer contemplates dismissing or taking relevant disciplinary action against an employee .."
By virtue of Regulation 12(1) of those Regulations –
"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 …. the non-completion of the procedure shall be attributable solely to that party and neither party shall be under any obligation to comply with any further requirement of the procedure."
The Tribunal's reasons
"33. The Tribunal does not think that this whole matter can be looked at as one continuous process. Once the claimant appealed against the final written warning and the employer decided that the new information which came out of the three appeals led it to consider dismissal, then it is this Tribunal's conclusion that that led to the standard procedure for dismissal and disciplinary procedures set out in Schedule 2 to the 2002 Act, being engaged again. Considering the words of the Regulations, the employer had contemplated dismissing or other disciplinary action. It was required under the standard procedure to set out in writing the employees' alleged conduct or characteristics or other circumstances which led him to contemplate dismissing the employee. The employee should have been invited to discuss the matter. The meeting must not take place under step 2 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
(b) the employee has had a reasonable opportunity to consider his response to that information"
"36. The Tribunal finds that the employer had not complied with steps 1 and step 2 of the standard procedure. When the employer knew it was contemplating taking further disciplinary action against the claimant other than the final written warning, it should have started with the step 1 process and invited the claimant to a meeting once she had had all the information communicated to her that led the employer to contemplate dismissing."
37 The Tribunal is also critical of the appeal hearing on 14 November 2005. The respondent chose not to interview Dawn Appleton, Willem Ray and Agatha with regard to what had been said in the factory, which was that Willem had contaminated the drink. This was even though the claimant had told them that Tracey Bromley had felt pressurised to say that she, the claimant, had done it, and that she had suffered stress and depression after the appeal.
38 As a result of the above failing with regard to the appeal, the Tribunal cannot be satisfied that when it made the decision to dismiss, the employer had conducted a reasonable investigation. The claimant's liability for the incident had, in the Tribunal's view, been thrown into doubt. Indeed the one person who had been consistent in their version of events, was the claimant, in stating that she had not contaminated the drink.
"43 ….the Tribunal does not find that if the procedural defects had not occurred, ie the respondent had spoken to the named people mentioned by the claimant, that dismissal would necessarily have occurred in any event. In fact, to the contrary; if the employer had spoken to those individuals and this had cast doubt on whether the claimant had been responsible for the contaminated drink, then dismissal may not have occurred."
"Doing the best it can from all the evidence, it assesses this at a 33% chance that the claimant would also have been dismissed and that must be a deduction from any compensatory award. It arrives at that percentage on the basis that if it had spoken to the others and this had shed doubt on whether or not the claimant had been responsible, then there were other alternatives open to the employer, namely some other disciplinary action, or even they may have found that someone else was responsible"
Automatic unfair dismissal: section 98A(1)
Unfair dismissal under section 98(4)
Section 98A(2)
Conclusions