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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Airways Plc v Valencia (Unfair Dismissal : Reinstatement or re-engagement) [2014] UKEAT 0056_14_2606 (26 June 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0056_14_2606.html Cite as: [2014] ICR D29, [2014] IRLR 683, [2014] UKEAT 56_14_2606, [2014] UKEAT 0056_14_2606 |
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At the Tribunal | |
On 30 April 2014 | |
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS LYDIA BANERJEE (of Counsel) Instructed by: DLA Piper UK LLP 1 St Paul's Place Balm Green Sheffield S1 3JX |
For the Respondent | MR MICHAEL SPRACK (Representative) Free Representation Unit 60 Grays Inn Road London WC1X 8LU |
SUMMARY
UNFAIR DISMISSAL – Reinstatement/re-engagement
Claimant a cabin crew member held to have been unfairly dismissed but to have contributed to a high degree to his dismissal (80%) and Tribunal held that a fair dismissal might well have occurred in any event so that a Polkey reduction of 50% was made.
At a remedy hearing, the Claimant sought reinstatement or re-engagement which was contested on the basis that it was not practicable given the Respondent's belief in the Claimant's misconduct and not just. The Tribunal decided both were practicable, but reinstatement would not be just in light of the high level of contribution. It held that re-engagement would be just because the contributory conduct could be reflected by making no arrears of pay award, thus obviating injustice to the Respondent.
Held: allowing the appeal. To make an order described as a re-engagement order but reinstating the Claimant to his former role on the same terms as previously held was wrong in principle where the Tribunal had decided that reinstatement would not be just. Further, had the Tribunal considered whether re-engagement was just as required by the statute, it would inevitably have reached the same conclusion.
THE HONOURABLE MRS JUSTICE SIMLER DBE
Introduction
a. The Tribunal considered the Claimant's application for re-instatement and concluded both that the Claimant's wish was to be re-instated and contrary to the Respondent's evidence as to their concerns over the safety of the Claimant returning to work, it was practicable for the Respondent to re-instate him.
b. However, it was not just to order re-instatement 'because there was a high level of contribution'
c. The Tribunal considered re-engagement and concluded that it was practicable to order re-engagement for the same reason as was given for re-instatement. Further it would be just to order re-engagement because the Claimant's contributory conduct could be reflected in the award for arrears of earnings between the date of dismissal and the date of re-engagement; the ability to reduce any award for loss of earnings in this way obviated any injustice to the Respondent.
d. The terms of re-engagement ordered by the Tribunal required the Claimant to be re-engaged in the same role and on the same terms as he was on prior to dismissal.
The statutory provisions
Section 113:
An order under this section may be –
1. an order for re-instatement (in accordance with section 114), or
2. an order for re-engagement ( in accordance with section 115),
as the Tribunal may decide.
Section 114: Re-instatement Order
(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.
(2) On making an order for reinstatement the tribunal shall specify –
(a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement.
(b) any rights and privileges (including seniority and pension rights) which must be restored to the employee and
(c) the date by which the order must be complied with.
(3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.
(4) In calculating for the purposes of subsection (2) (a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of –
(a) wages in lieu of notice or ex gratia payments paid by the employer, or
(b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.
Section 115: re-engagement order
(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.
(2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including –
(a) the identity of the employer,
(b) the nature of the employment,
(c) the remuneration for the employment,
(d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement,
(e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and
(f) the date by which the order must be complied with.
(3)…"
Section 116: guidance re whether to order reinstatement or re-engagement.
(1) In exercising its discretion under section 113 the Tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account –
(i) whether the complainant wishes to be reinstated,
(ii) whether it is practicable for the employer to comply with an order for reinstatement, and
(iii) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2) If the Tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3) In so doing the Tribunal shall take into account –
(a) any wish expressed by the complainant as to the nature of the order to be made
(b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
(4) Except in a case where the tribunal takes into account contributory fault under subsection (3) (c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.
(5) – (6)…"
"in this case it is not practical to order re-engagement against the background of the finding that the employer genuinely believed in the substance of the allegations… when allegations of this sort are made and are investigated against a genuine belief held by the employer, it is difficult to see how the essential bond of trust and confidence that must exist….can be satisfactorily repaired by re-engagement or upon re-engagement. We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest cases where there is a breakdown in confidence as between the employer and the employee."
"21. The Tribunal ordered re-engagement and are criticised by the Appellant employer for what they submit is a wholly perverse decision upon all the facts of this case. It is a possible view of that decision, but we do not seek nor do we need to go that far. An essential finding in the present case was that the authority had a genuine belief in the guilt of the applicant. It is said with accuracy that this is the largest education authority in the country and that it has a vast area to cover and a vast variety of posts into which the applicant could be fitted. It is, however, a common factor in any of those posts that the applicant would have the care and handling of young children of both sexes. Bearing in mind the duty of care imposed upon the authority and the very real risks should they depart from the highest standard of care, we take the view that this Tribunal failed adequately to give weight to those factors in the balancing exercise carried out in order to reach their decision on re-engagement."
The Employment Tribunal's decisions on liability and remedy
(a) The Claimant was employed as cabin crew on 7 February 2005. In December 2010 he was disciplined and given a final written warning for behavioural conduct issues. The warning was not appealed and was extant at the time of his dismissal (and although not stated, it was therefore capable of being relied on).
(b) On 8 April 2012 there was an incident on a flight to which the Claimant was assigned as a result of which the flight was delayed and the Claimant was required to leave the flight and his duty and suspended.
(c) Misconduct allegations were investigated including conduct prejudicial to BA's good name and to safety, and breaches of the JPM crew responsibility (by leaving his position unattended without informing anyone else) and JPM chain of command rules (by using his mobile phone to contact the DOMS.
(d) The allegations relating to conduct prejudicial to safety and the breaches of the JPM were found proved by Mrs Barrett. She concluded that these matters taken on their own justified a final written warning. However, in light of the final written warning for behavioural issues that were relevant to the current misconduct, she decided dismissal was the appropriate sanction.
(e) The Claimant had two levels of appeal, but both were unsuccessful.
(f) The Tribunal found that Mrs Barrett was entitled to conclude that the Claimant breached the Respondent's procedures but not that his conduct was prejudicial to safety. It found that she took into account a matter not put to the Claimant (that his attitude towards BA was negative and would continue to affect his flying); and that she failed to take account of information in his personnel file that was to his credit. For these reasons the dismissal was substantively unfair. There were also procedural failings, including delay.
(g) Nevertheless, at paragraph 62 the Tribunal found that the Claimant was guilty of conduct which contributed to his dismissal:
"The Claimant's conduct on the 8 April was, even by his own account, in breach of the Respondent's procedures. The conduct contributed to the dismissal. We consider that the Claimant's conduct contained a high level of contribution and we assess that at 80%."
(h) The Tribunal also found that a fair dismissal might have occurred and assessed this as a 50% chance, so that a Polkey reduction of 50% was determined.
(i) The Tribunal did not address the claim of wrongful dismissal in its findings or conclusions.
"it would be just to order the Claimant's re-engagement. What would make it just would be to reflect the level of contribution in any award for loss of earnings that we are required to specify when making an order of re-engagement. To reduce the award to reflect the level of contribution in our view obviates any injustice to the Respondent. We consider that the Respondent has been able to show that there was a failure …to mitigate his loss during the period between his dismissal and our order. Justice between the parties can be met by making the financial element of any order reflect the failure to mitigate as well as the level of contribution."
The grounds of appeal in relation to re-engagement
Additional issues