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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Royal Mail Group Ltd v Kelly (Practice and Procedure : Delay in ET judgment) [2011] UKEAT 0001_11_2106 (21 June 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0001_11_2106.html Cite as: [2011] UKEAT 0001_11_2106, [2011] UKEAT 1_11_2106 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
MR R LYONS
ROYAL MAIL GROUP LTD APPELLANT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Instructed by: Eversheds LLP Kett House Station Road Cambridge CB1 2JY
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(of Counsel) Instructed by: Messrs Edwards Duthie Solicitors 292-294 Plashet Grove East Ham London E6 1EE
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SUMMARY
PRACTICE AND PROCEDURE – Delay in Employment Tribunal judgment
UNFAIR DISMISSAL – Reasonableness of dismissal
Inexcusable delays in promulgating the Reserved Judgment and Reasons 18 months after the evidence caused a factual error but not an error of law justifying the setting aside of the badly constructed Reasons.
The Employment Tribunal did not hear a complaint that Steps 1 and 2 were not completed and should not have ruled against the Respondent on this. In any event as a matter of construction of the materials given to the Claimant, Steps 1 and 2 were met. Finding of automatic unfair dismissal set aside.
The finding of procedural and substantive unfairness was upheld as at a meeting said to be an appeal the panel interviewed all the complainants and witnesses in the absence of the Claimant and he did not know what they said. It followed that the failure of the Employment Tribunal to make a finding on Respondent’s case under s98A(2) while an error of law did not vitiate the unarguably right decision.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
“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.”
“(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.”
“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.”
6. There is also provision for Step 3 appeal, but no point has been taken about this.
“(6) Written reasons for a judgment shall include the following information—
(a) the issues which the tribunal or chairman has identified as being relevant to the claim;
(b) if some identified issues were not determined, what those issues were and why they were not determined;
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and
(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated.”
The issue
The decision
9. Since the majority Judgment of the Court of Appeal in Brent London Borough v Fuller [2011] ICR 806 it has become clear that generosity has to be extended to Employment Tribunal Judgments. Mummery LJ, said the following:
28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.
10. He was following what he had said in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, which is this:
“43. It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”
“Dismissal is admitted in this case it follows therefore that pursuit to the Employment Rights Act 1996 it is the Respondents who have the burden of showing the reason for the dismissal and that it is one of the potentially fair reasons contained within that section. In this case the reason alleged is a reason related to conduct. This is a case to which the statutory dismissal procedures apply and breach of those provisions by the Respondent renders this dismissal automatically unfair.
The 1st step of the statutory procedure is for the Respondents to put in writing to the Claimant the reason why they are contemplating dismissal. It is a mute [sic] point in this case whether or not that step has been complied with on balance we have concluded that the vague reference to the abusive behaviour and the need for investigations mentioned in Mr Kenyans [sic] and Mr Newell’s letter are sufficiently vague so is [sic] not to apply, however, the point falls away in the fact of the very clear breach of step 2 the 2nd step requires the employer to call a meeting with the Claimant and provides that the meeting should not take place until such time as is explained to the employee the grounds for concluding in the statement his reasons on contemplating dismissal and until such time as the employee has had an opportunity to prepare. It is quite evident that Mr Beddy [sic] did no such thing. Our findings in this regard are of course confirmed by report in finding of the National Appeal Panel. It follows therefore that we find this dismissal to be automatically unfair.
We then turn our minds to the question as to whether this was a mere procedural failings [sic] or whether the dismissal was also substantively unfair. And we remind ourselves of the principal [sic] in British Home Stores v Burchell [1980] ICR 303. It is for the Respondents to satisfy us that they had both a genuine and reasonable belief that the Claimant was guilty of the alleged acts of misconduct. A genuine belief has its ordinary meaning of a fair and reasonable investigation. That investigation is required to be impartial and at the disciplinary hearing it is necessary for the accused employee to be able to address the question of his guilt or innocence. It is clear from Mr Beddy’s evidence and the documents which record his conduct of his dealings with the Claimant that is [sic] important feature was never within his contemplation it is clear that he did not recognize that there was not any scope for the Claimant to do other than advance what we would recognize as mitigation. Accordingly he was never afforded the opportunity to either question his accusers in person or have questions put to them by Mr Beddy. The subsequent appeal did not satisfy the test of reasonableness when measured against the standard of the reasonable employer the panel embarked upon its task by questioning the Claimant first. It was not a process which rested on evidence either to available [sic] and the panel set about gathering evidence afresh. The Claimant was not present throughout that process and did not hear that evidence and thus was denied the opportunity of dealing with it we have found the appeal to be manifestly unfair accordingly we find this dismissal to be both procedurally and substantively unfair.”
“…The record of this appeal commencing (sic) at page 231 of our bundle. The panel was chaired by Mr Roy Lewis who was accompanied by a Mr Kavannah (sic) and a Mr Buckley. None have (sic) been called to give evidence before us.”
“The Tribunal did hear evidence from Mr Buckley there is a typographical error in the Judgment which was overlooked it was Mr Lewis and Mr Kavannah [sic] from whom we did not hear. Mr Buckley gave evidence of the appeal process. Whilst I do not have a clear recollection of the nuances of our discussion it is clear that we considered his evidence since notes made during the course of our discussion contain verbatim references to his evidence during cross examination. In reference to Mr Kelly he said ‘He could not have been given a lawful order whilst not on duty’ and ‘I don’t think Cottingham should have encroached on Kelly’s space’. Manager was not a perfect model, he was stupid – no evidence that Cottingham sought to diffuse [sic] the situation.”
The Respondent’s case
23. Secondly, the Tribunal is so wrong in many respects that it cannot be relied upon. Thirdly, the Tribunal made a decision without seeking the parties’ submissions. This relates to the statutory procedure under section 98A(1). Mr Naughton contends, without opposition from Miss Smith, that there was no point raised by anyone as to the breach of the statutory procedures, and the Tribunal should not have gone on to make the finding that there was a breach of Step 2. If it were an issue it should have been raised with the representatives and submissions made, and therefore the Respondent was taken aback by this decision. The finding that there was a breach of Step 2 precluded a finding in its favour on section 98A(2), which is the reverse Polkey [1988] ICR 142 HL and which entitles an employer on evidence being put forward where there has been merely a procedural error (by itself, as the statute says) to say that the dismissal would have occurred anyway and it would have been fair. It turns an unfair dismissal into a fair dismissal, and the Employment Tribunal failed to cite the schedule in which the Steps appear: it misunderstood the language used and made some elementary errors. On the material available here there was clearly compliance with Steps 1 and 2, and the Tribunal was wrong even if it were properly seized of this matter to make the decision which it did.
24. Finally, as in the majority of cases which come before this court and others, there is a Reasons challenge; it is said the Reasons are inadequate (see Meek v City of Birmingham [1987] IRLR 250). This is focussed upon the failure by the Tribunal to say what it found to be the substantive unfairness in this case, because the Tribunal in its conclusion of paragraph 11 cites both procedural and substantive unfairness. The decision should be set aside and sent to a fresh Tribunal.
The Claimant’s case
The legal principles
27. The legal principles to be applied in this case emerge from the following authorities. A Tribunal is obliged to give Reasons; it need not follow slavishly the sequence set out in rule 36, but it must give as much of this material as is necessary (see the Judgment of the EAT, HHJ Hand QC and members, in Greenwood v NWF Retail Ltd [2011] ICR 896). When a delay arises, the central question is whether there has been such delay as to set up a procedural irregularity. That in itself is a question of law; see Bangs v Connex South Eastern Ltd [2005] EWCA Civ 14. It is plain that absent some irregularity a delay is a question of fact and therefore not a question of law.
28. When considering the statutory procedures, the Judgment of Elias P (as he then was) in Alexander v Brigden Enterprises Ltd [2006] ICR 1277 provides instructive guidance, and is as follows:
“37. It must be emphasised that the statutory dismissal procedures are not concerned with the reasonableness of the employer’s grounds, nor the basis of those grounds, in themselves. It may be that the basis for a dismissal is quite misconceived or unjustified, or that the employer has adopted inappropriate or vague criteria, or acted unreasonably in insisting on dismissing in the light of the employee’s response. These are of course highly relevant to whether the dismissal is unfair, but it is irrelevant to the issue whether the statutory procedures have been complied with. The duty on the employer is to provide the ground for dismissal and the reasons why he is relying on that ground. At this stage, the focus is on what he is proposing to do and why he proposing to do it, rather than how reasonable it is for him to be doing it at all.
[…]
39. It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met.”
“34. In our judgment s98A(1) of the Employment Rights Act 1996 is part of the essential fabric of unfair dismissal law as presently enacted by Parliament. Whether there is an applicable procedure, whether there has been "non-completion" of that procedure, and whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements, are matters which the Tribunal should have in mind in every unfair dismissal case. It is not necessary for a claimant to raise s98A(1) explicitly; the Tribunal should have the matter in mind as an issue.
35. Now that the statutory procedures under the 2002 Act are becoming well known, it is to be hoped that in most cases an employer will have complied with them. Often, particularly where a claimant is represented, a few moments of discussion at the beginning of a case will establish that it is conceded that the relevant procedure has been complied with by the employer. But in the absence of an informed concession on the question, the Tribunal should regard s98A(1) as an issue and deal with it in its reasons.”
“15. The hearing in this case preceded judgement being given on behalf of the EAT by Underhill J in YMCA v Stewart [2007] IRLR 185. At paragraph 11 of that judgment, Underhill J made clear that although the statutory procedure refers to step 1 and step 2, it is not a requirement that the step 2 events should follow the step 1 letter. It seems to us that the matters set out in step 1 may precede or come at the same time as, or post date, the step 1 letter. Thus when, in paragraph 10 of their reasons, the Tribunal note that the Claimant was provided with nothing beyond the letter of invitation until the case against him was presented at the disciplinary meeting, it seems to us that they fell into error in considering that something must take place between the step 1 letter and the disciplinary hearing.”
“40. The distinction between procedural and substantive matters had not earlier found favour with the Court of Appeal. In O'Dea v ISC Chemicals Ltd [1996] ICR 222, 234‑5 Gibson LJ had in terms stated that he found the distinction ‘unhelpful’, although the concept of ‘procedure’ is now one which will need to be defined since it occurs in s.98A(2).
41. In Lambe v 186K Ltd [2005] ICR 307, para 59, Wall LJ, with whose judgment Butler Sloss and Laws LJJ agreed, whilst sharing the view that it was not helpful to distinguish between substantial and procedural failings, nonetheless approved the passage from Lord Prosser's judgment which we have italicised, saying that it provided a ‘straightforward and sensible yardstick’ for Tribunals.
42. It is pertinent to note that in the Lambe case there were both defects in the process of selection and an absence of consultation, but the Court of Appeal held that the Tribunal was entitled to conclude that the dismissal would have taken place at the end of the consultation period in any event.
43. In Gover v Property Care Limited [2006] EWCA Civ 286; [2006] 4 All ER 69 the Employment Tribunal found that there were fundamental failings in the way in which the employers sought to bring about changes in employment contracts. This led to constructive dismissals and a finding of unfair dismissal by the Tribunal. But it was held that even if proper consultation had occurred, the employees would not have accepted the fundamental changes which the employers were seeking to introduce into their contracts, and that all they had lost was the period during which consultation would have occurred, which the Tribunal found to be four months.
44. In the course of giving judgment Buxton LJ in turn cited with approval the italicised passage in King v Eaton (no.2) [1998] IRLR 681, and added that the fact that the issue was a matter of impression and judgment for the Tribunal ‘indicates very strongly that an appellate court should tread very warily when it is being asked to substitute its own impression and judgement for that of the Tribunal….’ (para 22). He also observed that the Polkey approach - assessing what would have happened had the dismissal been fair - was wholly consistent with the principle of assessing loss flowing from the dismissal on a just and equitable basis, which is the principle underlying section 123. These should be approached as "a matter for the common sense, practical experience and sense of justice of the Employment Tribunal sitting as an industrial jury" (para 14). He also approved the way in which HHJ McMullen QC had described the process in the EAT in that case (para 26) where the judge had said that the Employment Tribunal's task was ‘to construct, from evidence not speculation, a framework which is a working hypothesis about what would have occurred had the [employer] behaved differently and fairly.’”
Discussion and conclusions
32. Applying those authorities, we must first deal with delay. This is quite shocking and inexcusable. From what the Judge has written it is a combination of maladministration by the Employment Tribunal, of poor service by the Tribunal, and poor case management by the Judge. There is no reason why parties should wait so long. The Claimant was dismissed in January 2008 and did not learn his fate until June 2010. The standard practice throughout the country in courts is for three months to be vouchsafed for the presentation of reasoned Judgments following the closure of the oral hearing or, if later, submissions. It is extended by Kwamin v Abbey National PLC [2004] IRLR 516 in the Employment Tribunals and the Employment Appeal Tribunal to three‑and‑a‑half months, taking account of the unique constitution of both of these jurisdictions, consisting as they do in each case of a lay, part‑time majority judiciary. Using whatever yardstick is relevant the delay here is inexcusable.