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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sakharkar v Northern Foods Grocery Group Ltd (t/a Fox’s Biscuits) [2011] UKEAT 0442_10_0803 (8 March 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0442_10_0803.html Cite as: [2011] UKEAT 0442_10_0803, [2011] UKEAT 442_10_803 |
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At the Tribunal | |
On 27 January 2011 | |
Before
HIS HONOUR JUDGE RICHARDSON
MR D BLEIMAN
SIR ALISTAIR GRAHAM KBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ALEXANDER MODGILL (of Counsel) Instructed by: Messrs Stachiw Bashir Green Solicitors 499 Great Horton Road Bradford BD7 4EG |
For the Respondent | MR STEFAN BROCHWICZ-LEWINSKI (of Counsel) Instructed by: Northern Foods plc Legal Services 2180 Century Way Thorpe Park Leeds LS15 8ZB |
SUMMARY
UNFAIR DISMISSAL – REASONABLENESS OF DISMISSAL
The Respondent made an error in the application of the third stage of its absence policy and procedure: but for the mistake it would not have moved the Claimant on to the fourth stage of the procedure, where he was dismissed. The Tribunal held that the dismissal was for some other substantial reason; that the mistake by the Respondent's manager was a reasonable one; and that the dismissal was fair. The appeal was allowed. The Tribunal was correct to hold that the dismissal was for some other substantial reason: Wilson v Post Office [2000] IRLR 834 applied. However, the Tribunal ought to have had regard to the responsibility of the Respondent's personnel department for providing support to the manager to ensure the fair and consistent application of the policy, this being a relevant resource for the purposes of section 98(4). Moreover the Tribunal was entitled to take into account that the issuing by the Respondent of a warning at the third stage was manifestly inappropriate having regard to its own procedures: Stein v Associated Dairies Ltd [1982] IRLR 447 and Tower Hamlets HA v Anthony [1989] IRLR 394 and Co-operative Retail Services v Lucas [1993] UKEAT/145/93 discussed. Appeal allowed. Decision substituted that the dismissal was unfair.
HIS HONOUR JUDGE RICHARDSON
The absence policy
"Responsible for auditing of absence levels and providing advice, support and training to Line Managers to ensure the fair and consistent application of this policy" (paragraph 4.3)
Secondly, the procedure specifically provided that at final review and dismissal stages a personnel officer or personnel manager must be present in all cases (paragraph 10.2).
The background facts
"3.4.10 The Third Stage hearing took place on 26 May 2008, when the Claimant was given the Third Stage warning. That has been the difficulty. We now know that it had been agreed that the 56 days with stress and depression would not be counted. That meant that the Claimant could only properly be given a Third Stage warning on 26 May 2008 if he had triggered two periods of absence within twelve months of the Second Review period. In fact, the second of those individual days, 9 May 2008, was slightly outside that period. No-one realised when the Third Stage warning was given that it should not be counted – not the person giving the warning, or the Claimant, or his Union Representative. This is because the position was somewhat obscured, partly by discussions about the 56 days off, and partly by the fact that the Second Stage warning itself had been outside of the usual ten days as a result of the Claimant having insisted on being represented by one particular union Representative who had been unavailable for a number of weeks. It is clear that everyone 'took their eye off the ball' when the Third Stage warning was given. However it was given and there was no appeal against it."
"We have considered the Claimant's submissions on this, but we prefer Mr Smith's evidence that he made a genuine mistake at this meeting, as he believed that both of the absences counted towards the Stage Three Review. Clearly he should not have made such a mistake. One of the things we had to consider is whether it was a reasonable mistake to make. We note that the same mistake was made by the Claimant and his Trade Union Representative, and that although the file and the dates had been reviewed later by a Trade Union Official, by the Claimant's legal advisors, and by the Respondent, no-one at all spotted this error until the case was listed for Pre-Hearing Review, for a potential strike out, before Employment Judge Burton earlier this year. Given that list of people who made the same mistake, it would be difficult in our view for us to say that the mistake was not a reasonable one to make. They cannot all have been acting unreasonably."
The Tribunal's reasons
"5.1 Under Section 98 of the Employment Rights Act 1996 it is for the employer to show the principal reason for dismissal. The potentially fair reason in this case could be capability or some other substantial reason.
5.2 If the employer can show a potentially fair reason we have to decide whether dismissal is in fact fair in accordance with the substantial merits of the case under Section 98(4). In accordance with the guidance in BHS v Burchell this means that we may consider such matters as whether, at the time of dismissal the Respondent believed that the claimant was guilty of the misconduct alleged or that there was some other reason which justified dismissal, and if so whether it had reasonable grounds for that belief, and if so at the time it formed that belief, had it carried out as much investigation into the matter as was reasonable in the circumstances. That in turn can involve determining whether the process carried out by the Respondent fell within the range of reasonable investigative procedures open to an employer in such circumstances.
5.3 After considering the Burchell test the final question is whether the decision to (summarily) dismiss the Claimant was within the range of reasonable responses open to an employer in the circumstances.
5.4 We have been referred to Devis v Atkins, heard in the Court of Appeal in 1977 which quoted Lord Denning's Judgment in Abernethy which clarified that the reason for the dismissal must be a reason is [sic] existence at the time when the employee was given notice, and be the principal reason which operates on the employer's mind at the time the decision to dismiss is made. Devis v Atkins also disapproves an earlier case Da Costa v Optolis, and held that evidence of irregularities unknown to the employer at the time of the dismissal have no bearing on the fairness of the dismissal. This is because things the employer does not know cannot affect the question of whether the employer acted reasonably in concluding that the reason it had was sufficient to justify dismissal.
5.5 There is other authority to the effect that a genuine but mistaken belief can be grounds for a fair dismissal. Bouchaala v Trust House Forte Hotels Ltd, heard in 1980, found that a genuine but mistaken belief that the employment of the Claimant, a Tunisian national, was in breach of immigration rules, was sufficient to justify dismissal, even though to continue the employment would not in fact have been such a breach."
"6. The question of whether this particular dismissal was fair or not, has not been easy to answer, and has taken us some time.
6.1 We are satisfied that the principal reason for the dismissal was the number of the Claimant's absences, and not the assertion of any statutory right to be paid overtime. We think the correct categorisation of a dismissal for such absences is 'some other substantial reason'. It was not the Claimant's ill health in itself which caused the dismissal, but the fact that he could not meet the employer's attendance procedure. In similar cases concerning the Post Office, which has a similar strict procedure, the Court of Appeal has concluded that some other 'substantial reason' was the appropriate categorisation.
6.2 We are satisfied that this Respondent, at the time it decided to dismiss, believed that the Claimant had, during the currency of a Stage Three warning, incurred two further periods of absence. Therefore under the procedure, dismissal was an appropriate sanction. Whilst it is clear that the Claimant ought not to have been given the Stage Three warning, we nevertheless find that the principal reason which operated on Mr Smith's mind was that the Claimant had received that warning and then had two subsequence absences. That was the set of facts known to employer, or belief held by him, which caused Mr Smith to dismiss the employee. Given that on the day that Mr Smith decided to dismiss he did not know or appreciate that there was an irregularity, and no-one brought it to his attention, we conclude that it should be ignored when determining the fairness of his decision.
6.3 Mr Smith clearly held a reasonable belief at the time the decision was taken that the Claimant had hit the point of the procedure where he should be dismissed. It was a genuinely held belief and, albeit that it was a mistaken belief, we still conclude that it was fair for him to dismiss for 'some other substantial reason'.
6.4 This finding seems harsh. We have considerable sympathy with an employee who is dismissed in these circumstances; which he clearly thinks is unfair. However Devis v Atkins itself states that the test directs our attention to the conduct of the employer, and not to whether the employee in fact suffered any injustice. Given that the Claimant did not appeal the Stage Three warning, he is in a similar position to a person dismissed for misconduct, who argues at a dismissal hearing that he should not have been given an earlier written warning for misconduct a year ago. We do not routinely expect the employer to reopen the earlier disciplinary procedures. The Claimant had been given the warning, mistakenly, but in good faith, which was not appealed. Moreover the Respondent was not aware of its error at the time the decision to dismiss was taken. We are satisfied from what the employer has told us, and from what it has done since, that had the Claimant raised the error in the dismissal hearing, he probably would not have been dismissed. In the absence of it being raised, we do not conclude that it would have been reasonable to expect the employer to trawl back through its records just in case there had been an earlier mistake. There was no breach of the procedure leading to the dismissal. Therefore we conclude, applying the tests in Sections 98 and 98A(2) of the Act, that the dismissal was fair."
Submissions
The statutory provisions
"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.
(2A) Subsections (1) and (2) are subject to sections 98ZA to 98ZF.
(3) In subsection (2)(a)-
(a) 'capability', in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality…
(4) In any other case 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."
Reason for dismissal
Mistake and reasonableness
"In our judgment, where the conduct relied on by the employer is the employee's refusal to obey an instruction, the question as to whether that instruction is lawful ... is a relevant but not decisive question when considering the reasonableness of the dismissal under section 98(4)..."
We consider that the same principle applies when a dismissal is the sanction for breach of an absence policy. The essential question is whether the employer acted reasonably in dismissing the employee. That an employer was in some way in error in the operation of the procedure is relevant to the question whether the employer acted reasonably in dismissing, but it is not conclusive. The Tribunal correctly proceeded upon this view of the law.
Reasonableness of dismissal
The Burchell [1978] IRLR 379 case remains, in circumstances akin to those that were under consideration, a most useful and helpful guideline; but it can never replace the soundness of an appraisal of all the circumstances of each particular case viewed in the round way that [s.98(4)] requires them to be viewed"
"There is, however, an important qualification to that general rule. The Tribunal is entitled to satisfy itself that that final warning was issued in good faith and that there were prima facie grounds for following the procedure of a final warning. That appears from paragraph 6 of the Stein case. There is an important passage in paragraph 8 where Lord McDonald said:
'Certainly if there was anything to suggest that the warning had been issued for an oblique motive or if it was manifestly inappropriate that is a matter which a Tribunal could take into account.'
If a Tribunal is entitled to take into account the matter whether a final warning has been given in 'manifestly inappropriate' circumstances or without prima facie grounds, the Tribunal must consider the factual background to and the circumstances in which the final warning was given, including the employers' own procedures for the issuing of oral warnings, written warnings and final warnings."
Conclusions