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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> ASDA Stores Ltd v Raymond [2018] UKEAT 0268_17_1312 (13 December 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0268_17_1312.html Cite as: [2018] UKEAT 0268_17_1312, [2018] UKEAT 268_17_1312 |
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At the Tribunal | |
On 27 September 2018 | |
Before
THE HONOURABLE LADY WISE
MS K BILGAN
MR T STANWORTH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS RACHEL BARRETT (of Counsel) Instructed by: Addleshaw Goddard LLP 3 Sovereign Square Sovereign Street Leeds LS1 4ER |
For the Respondent | MR GARY LEE (Solicitor) Premier Solicitors LLP Premier House Lurke Street Bedford MK40 3HU |
SUMMARY
UNFAIR DISMISSAL: DISABILITY DISCRIMINATION: REMEDY
The Claimant was dismissed for urinating in a loading yard, the Respondent employer alleging that this was a breach of (unspecified) Health and Safety Regulations and serious and wilful neglect of company property. The Tribunal found that the dismissal was unfair and that the dismissal arose from the Claimant's disability. A subsequent Judgment in relation to Remedy ordered re-instatement. The Respondent appealed both Decisions.
Held:
(1) The Tribunal was entitled to conclude that the evidence, including the CCTV evidence, did not establish that the Claimant had urinated on the pallets and so the arguments on perversity and substitution mindset failed.
(2) The Respondent's fall-back position of objective justification for section 15 discrimination had been addressed adequately by the Tribunal in the Remedy Judgment, the matter having been initially overlooked. The decision on this was not perverse.
(3) The Tribunal had not erred in its approach to re-instatement. It had considered the particular circumstances of the Claimant and found that the operative cause of the dismissal was his disability but that he considered trust and confidence could be restored. The Respondent's contention that trust and confidence had broken down was not rationally based.
Appeal dismissed.
THE HONOURABLE LADY WISE
The Liability Judgment
"2. On the 29th March 2016 the Claimant had driven to the Respondent [']s shop at Harlow and parked his lorry close to the loading bay in the adjacent yard. On leaving his lorry he felt an urgent need to urinate and relieved himself in what he describes as a discreet part of the yard. It appears that a security guard at Harlow had telephoned a Mr Norton (a transport manager at the Respondent's Bedford Depot) to say that Mr Raymond had done this. No statement was taken from this witness and no verbatim record of the telephone call was ever made.
3. In due course Mr Godliman was assigned to investigate the matter. He was provided with a copy of the CCTV footage taken on the day in question. He approached the Claimant on the 4th April 2016 without prior warning and commenced an investigation meeting. On learning that the Claimant wished to have a representative present he adjourned the meeting to the 8th. The minutes of that meeting are at pages 112-115 of the bundle. Mr Godliman has, as is entirely proper and conventional in cases of this nature been cross examination [sic] on the question of how he approached his task. His answers to those questions have led us to conclude that he did not conduct a fair and impartial investigation of the kind prescribed in Sovereign Business Integration Ltd v Trybus EAT0107/07. He did not consider himself to be under any duty to carry out any investigations from the Claimant's perspective. He admits that he did not consider it necessary to look into the reasons why the Claimant had urinated and he didn't consider it necessary to obtain any medical evidence despite the relevance of the Claimant's diabetes being urged upon him by the Claimant's representative Mr Hall. He did not visit the scene of the incident and carried out no investigation into the question of the distance between the yard and the nearest available toilet. We can conclude this point by quoting his answers to two questions put to him in cross examination; 'All I did was get the CD with the E-Mail and interview Raymond. I did no further investigation. He admitted urinating that is gross misconduct.' Although the notes purport that the e-mail was from the security guard it appears to have been the one from Mr Norton at Page 110.
4. The Claimant gave his account in terms that he has maintained throughout. He said he had urinated in the yard. He was desperate he had to he said he was really sorry and had just got caught short and desperate.
5. On the 13th April 2016 the Respondent wrote to the Claimant requiring him to attend a disciplinary hearing on the 13th April 2016, the date having been brought forward by 1 day to accommodate the Claimant's representative. The letter is at page 123 of the bundle. It frames the charge in these terms: -
'At the hearing you will be asked to respond to the allegation that on the 29th March you were witnessed urinating in the Harlow shopping centre's yard outside the Asda loading area. This is a serious breach of trust and confidence resulting in a breakdown in working relationship. A deliberate and serious breach of H&S (Health and Safety Regulations) that could endanger self or others or bring the Company's name into disrepute. A serious or willful neglect to Company property. These are all deemed to be a gross misconduct offence and if proven may result in your summary dismissal.'
The letter goes on to explain that the purpose of the hearing was to: -
(1) Explain the allegation and present all the available evidence.
(2) Allow the Claimant to respond to the allegation and provide any mitigating circumstances.
(3) Allow the claimant to put forward any suggested questions for Mr Carter (the author of the letter who was to conduct the disciplinary hearing) to explore with the relevant witnesses.
(4) Decide what disciplinary action might be appropriate in accordance with the company disciplinary procedure.
6. The notes of the hearing are at pages 125-131. Those notes do not indicate compliance with the terms of the letter. On page 125 we can see that Mr Carter announced the purpose of the meeting as being 'To go through the main points of your investigation listen to your responses and make points if any[']. We are in no doubt as to what he meant by his reference to investigation since he explains that it was Mr Godliman's efforts on the 4th April 2016. It is also clear that there was no explanation of the multifaceted charge. The notes and his evidence show that Mr Carter simply read or quoted them as written in the letter. His evidence at paragraph 10 of his witness statement that he discussed the terms of the ASDA health and safety policy with the Claimant is not true. He made no mention of the policy's terms other than to ask the Claimant if he had breached it. To that question he received the reply that the Claimant did not know what the policy was on urinating. He did not produce a copy of any policy and has not referred to the terms of any such policy either then or before us. In terms of a review of the evidence Mr Carter confirmed in cross examination that the only evidence he had was the Claimant's and Mr Halls (The Claimant's representative who did not give evidence but did advance arguments on the Claimant's behalf). The notes indicate that in fact the substance of the hearing was Mr Carter questioning the Claimant. The Claimant's version was consistent with his earlier account that upon stepping out of his lorry he was overcome with a desperate urge to urinate. He admits that the question of the Claimant's diabetes was raised with him but that he neither had nor sought evidence to inform the question of whether the Claimant's diabetes was relevant. He accepted that if the diabetes had had an effect it would have been mitigation.
7. At pages 132 and 133 we have a typed note of Mr Carter's decision. In the second paragraph he recognises the Claimant[']s point that it was only when he stepped out of his cab that he felt the sudden urge to urinate and yet one of the grounds he finds against the Claimant was that he had waited in his cab for 20 minutes before deciding not to go to the store[']s toilet. This we find to be inconsistent with the evidence before him. He was exercised by the belief that the Claimant's action was illegal. This appears not to have been the product of any research since he has not explained the basis of this belief. The notes of the hearing show that when the Claimant asked (through his representative) Mr Carter to explain the policies he was referring to his reply was 'It comes under Health and Safety'. He was asked again for specifics and replied 'It's the general policy included in the contract - it's an illegal act by law, you can be arrested for it unless you're pregnant'. We are satisfied that he had not acquainted himself with the specific terms of the regulations referred to in the charge or the policies or contractual provisions he latterly referred to and did not know what they were. That position has prevailed and he has not addressed them before us. He found that the Claimant had urinated on trays stored in the yard and relies on the security video to support this contention. That idea evidence has been played to us and we find it to support the Claimant[']s contention in that that it does not establish this at all. It shows that the Claimant did seek a spot that was relatively (screened partially by his lorry a wall and what we were told were pallets) but it does not show him urinating on any specific object. He relied on the fact that colleagues had told him that the store[']s toilets were two minutes away, he had not obtained statements to that effect and whilst the subject of why the Claimant did not use the store toilets did feature in his questioning of the Claimant he did not explore the Claimant's contention that staff toilets could only be accessed through locked doors and that public toilets were further away. He has not given a rationale of how this point relates to the Claimant[']s contention that his urge was sudden and urgent.
8. At page 134 we have the letter of dismissal which Mr Carter sent to the Claimant on the 19th April 2016. Again he correctly records the Claimant[']s case; that the sudden urge overcame him when he left his cab, that he went to the back of the lorry to open the doors but was unable to control his bladder any longer, that he could not wait long enough to reach the facilities and that he thought this might be instrumental in his predicament. There was no evidence before Mr Carter capable of rebutting the Claimant[']s contentions. There had been no investigation into the Claimant's medical position. Mr Carter found that it was not relevant on the ground that the Claimant had said he had not experienced such a sudden uncontrollable urge before. We have concluded that a reasonable employer would have made appropriate enquiries and would have recognised that in respect of any symptom of a medical condition there has to be a first time. He repeats his finding that the Claimant had waited in his cab for twenty minutes but neither at the time or before us has he been able to indicate what this was probative of given that the only evidence before him was of the Claimant suffering an urgent need to urinate later in time than this. He has not addressed the details of the charge or correlated the evidence to them. He has simply recorded that the main points of the allegation are proven and that this is regarded as a gross misconduct offence. Neither then nor before us has sought to rationalise why summary dismissal was reasonable and we conclude that he regarded it as a fait accomplish [sic] and did not turn his mind to the question. We do not find him to have held a genuine or reasonable belief that the Claimant was guilty of the alleged misconduct. We address this point further in our conclusions.
9. The Claimant appealed and the appeal was heard by Mr Mackay on the 7th June 2016. The Claimant submitted a letter from his General Practitioner with his grounds of appeal (P139). That letter confirms in unambiguous terms that the Claimant suffered from uncontrolled Diabetes Mellitus and that this condition increases hunger, thirst and the passing of urine. Patients could experience sudden urges to urinate and suffer stress incontinence. We note that this accords with the Claimant's consistent account of his experience on the day in question. Mr Mackay was aware that a Ms Knight a 'people co-ordinator['] had e-mailed an occupational health consultant Kwasi Opoku. The Respondents have been unable to say whether this person has any medical qualifications but insofar as their input is concerned they are entirely consistent with Claimant's GP's account. We do not accept Mr Mackay[']s assertion at paragraph 17 that it did not support the Claimant's contention. The e-mail in question is at page 153, it expressly confirms that frequency of urination is one of the key symptoms of the Claimant's condition, that if the condition was poorly managed nerve damage and a propensity to urinary tract infections could add to this problem. There can be no doubt that Mr or Ms Opoku is saying that he or she cannot associate a sudden urge to urinate with the side effects of Metaformin (medication taken by the Claimant) [Tribunal's emphasis]. It does not contradict the assertion that such an urge could arise from the Claimant[']s condition. The brief not also contains a reference to the fact (perhaps a matter of common sense and common knowledge) that a sudden and urgent need to urinate is part of the human condition and may be experienced by anyone for any number of reasons not necessarily medical.
10. Mr Mackay found that the Claimant could have avoided the situation by going to the toilet earlier. This finding was contrary to the only evidence on the point which was that the Claimant suffered an urgent need only when he stepped out of his lorry. He has stated that there were obvious contradictions between the account that he gave to Mr Carter and himself. As we have observed the Claimant was subjected to questioning by Mr Carter it was not a situation where he was advancing his account in the manner of someone giving their considered account. In any event it was one of his grounds of appeal that Mr Carter had misunderstood his evidence on the particular point in question. It related to the fact that the Claimant is noted as saying that he had never suffered an urgent need to urinate prior to the event in question. The point he raises is that he does suffer from an increased need to urinate both at work and in his private life but that he had never before been forced into the position of having to urinate in a delivery yard before. Mr Mackay did not conduct any investigation into the matter and appears to have proceeded on the assumption that Mr Carter was not mistaken. He conducted no further enquiries into the facts of the matter. His conclusion that the Claimant had breached health and Safety Regulations by urinating on trays was, like Mr Carter[']s earlier finding not established by evidence. He has not, in the course of his evidence been able to specify the terms of any regulations that featured in his conclusions. We do not find the appeal to have remedied what we find to have been an inadequate investigation into the facts of the matter."
"13. Mr Godliman questioned the Claimant who admitted that he had urinated in the yard on the day in question, showed him the CCTV footage and concluded that he was guilty of the act in question. On his own admission he did no more."
"17. I It [sic] is well established that before the disciplinary hearing commences the employee must know the full allegations against him[.] Disciplinary charges should be precisely framed and evidence used during [the] hearing should be confined to those charges. (Strouthos v London Underground Ltd (2004) IRLR 636 CA) Charges must be squarely put London Ambulance v Small (2009) UKCA Civ 22 [sic]. The Claimant was not charged with simply urinating in the delivery yard. The charge against him was that by doing so he had breached certain regulations, policies and his contract of employment. We have found as a fact (paragraph 7 of our findings) that Mr Carter embarked on the task of determining these allegations of breaches of policies without knowing what those policies said and whilst unable, when asked by the Claimant, to do so. This we find to be evidence that he approached his task with significantly less than a reasonable degree of care. He chose instead to substitute his own view that the Claimant could be arrested for an illegal act as he was not pregnant. If he was charged with the mere act of urinating in the yard the charge should have made this clear, if he was suspected of a criminal act this should have been squarely put and if it stood as drafted the referred [sic] to regulations should have been made known to the claimant and of course Mr Carter and examined carefully and considered at the hearing. We have found the hearing to be unreasonable and manifestly unfair. Given the lack of reasonable investigation we find Mr Carter not to have held a reasonable belief in the Claimant's guilt and given his failure to address the subject matter of the charge and the fact that he was influenced by his own opinion that the claimant had committed a criminal offence we are not persuaded that he had a genuine belief that the claimant was guilty of the charge.
17A. The Claimant's case was not difficult to understand. His contention that he was overcome by a desperate and uncontrollable urge to urinate upon leaving his cab is not a complex assertion. Mr Carter noted that this was the point in issue and yet he did not address it in the terms of his decision; finding that the claimant should have gone sooner or gone in search of a toilet in the store/shopping precinct. We have found the hearing to be unreasonable and manifestly unfair. Given the lack of reasonable investigation we find Mr Carter not to have held a reasonable belief in the Claimant[']s guilt and given his failure to address the subject matter of the charge and the fact that he was influenced by his own opinion that the claimant had committed a criminal offence we are not persuaded that he had a genuine belief that the claimant was guilty of the charge.
18. The two appeals did not remedy the failure to investigate the factual matrix of the case and did not rectify the failure to ascertain the terms of the regulations referred to in the charge or address the question of breach. It is clear that the appeals addressed the question of whether the Claimant could prove that his medical condition caused his sudden and urgent need to urinate. As we have indicated we have concluded that a reasonable employer would address the question of whether he genuinely found himself in that position. Medical evidence was available to them from the Claimant's General Practitioner which established that his condition was capable of resulting in this position and their own evidence from their occupational health adviser both supported this and went further by pointing out that it could be attributable to a great many reasons not just medical ones. Neither of the appeals was a full re-hearing, as we have stated neither addressed the inadequacies of the investigation. We therefore find the dismissal to be unfair. With regard to the Claimant[']s account of the matter we do not find dismissal to fall within the band of reasonable responses. Given that at the request of the parties we have put over all matters pertaining to remedy we have not at this juncture addressed the questions of whether his conduct (as described by himself) was culpable and contributed to his dismissal.
19. We then turn to the question of whether the dismissal was unfavourable treatment arising in consequence of the Claimant's disability. Section 15 of the Equality Act 2010 provides that;-
A discriminates against a disabled person B, if A treats B unfavourably because of something arising in consequence of B's disability. And A cannot show the treatment is a proportionate means of achieving a legitimate aim.
As we have indicated the Claimant had declared his condition to the respondent in official documentation relating to night working and thus the Respondent knew or could be reasonably be expected to have known that the Claimant had the disability. That exemption from liability does not therefore apply in the present case. The question of whether dismissal satisfies the requirement of unfavourable treatment has not exercised the parties in submissions and we are satisfied that it does.
20. The question of objective justification has not featured in the case and thus the principal point is whether the claimant's act of urination which resulted in his dismissal was in consequence of his dismissal [sic]. In Basildon v Thurrock NHS [F]oundation Trust v Weerasingh[e] the EAT advanced a two stage test; we should ask what the something is and then ask if it is because of that that A treated B less favourably. In Hall v Chief Constable of West Yorkshire the EAT address the point in different (but we find not inconsistent) terms that something arises if it is a significant influence on the unfavourable treatment. We accept Ms Barrett[']s point (based on Weerasingh[e]) that we should not adopt the approach of just seeking a link and should bring the facts.
21. Unlike the Claim of unfair dismissal which focuses essentially on the reasonableness of a decision made by the employer at a historical point of time, it is for us to consider whether the complaint of disability discrimination is proved. We are there not only entitled but obliged to take our own view of the medical evidence. We have before us the two documents that were available to the respondent at the time of the internal appeals also the medical report at pages 266-268 of the bundle. We note that all three confirm that urinary problems of the type experienced by the claimant on the day in question are known effects of his condition. The latter report confirms that it is highly likely that any patient (with the Claimant's condition) would have urge incontinence (ie a sudden and immediate need to empty their bladder. The Claimant[']s evidence [(]both to us and to his employer throughout) has been that this was his experience. On a balance of probabilities we conclude his disability placed him in the predicament that he found himself on the day in question. He gave a full account of his uncontrollable urge to his employers and on the strength of that account he was dismissed. Accordingly we find his dismissal to be unfavourable treatment which arose in consequence of his disability."
I note in passing that the Judgment contains two paragraphs numbered 17 and if both are referred to, they will be numbered as 17 and 17A respectively.
The Remedy Judgment
"1. The Respondents invited us to reconsider our judgment asserting that we had not considered the question of objective justification. Our unanimous conclusion was this was not a matter which featured in the case we heard. It is correct to say that the point is mentioned in the pleadings but none of the Respondent's witness turned their attention to the point in their evidence.
2. The point pleaded at paragraph 49 of the particulars was that they had discriminated because of a legitimate aim of maintaining good conduct, preserving the Respondent[']s reputation and Health and Safety reasons. We found their belief that the Claimant had committed misconduct to be wholly unreasonable. There was no reasonable investigation and material facts were not established.
3. There was no evidence before us to show that the Respondent's reputation was or was likely to be damaged. We found that a disabled man, by reason of his disability found himself in the unfortunate circumstance of needing to urinate urgently.
4. There was no evidence of a Health and Safety risk. There was no evidence that the Claimant urinated on the Respondent's pallets and in any event they were stored in an open yard accessible to animals."
"8. The second factor is practicability. The Respondent closed their advertisement for lorry drivers on the 22nd April having heard it confirmed that the Claimant sought re-instatement on the 21st April. They say that they have made offers and filled all vacancies. However Ms Dwerryhouse confirmed during her evidence that there were vacancies for drivers at certain depots, there were vacancies for retail drivers and widespread use was made of agency drivers. We were not persuaded that the Respondent's manager had reasonably lost trust and confidence in the Claimant. Ms Dwerryhouse accepted that he had been honest and straightforward throughout the disciplinary process. We found the Respondent's belief that the Claimant was guilty of misconduct to be unreasonable and the Claimant is willing to put the Respondent's culpability behind him.
9. There is no evidence before us of conduct on the part of the Claimant that would amount to a contributory factor in his dismissal. He did apologise in interview, but we accept that it is commonplace for people to apologise in embarrassing circumstances notwithstanding that they arose from an involuntary act.
10. S:116(5) requires us to disregard the fact of a permanent replacement. The Claimant (Respondent?) has not shown that it was not practicable for the Claimant's work to be carried out without employing a replacement. Indeed in the light of Ms Dwerryhouse's evidence about the regular use of agency drivers we are satisfied that it was entirely possible for them to have done so.
11. We are satisfied that it was practicable to make the order. The sum of money ordered in conjunction with the reinstatement order was the sum calculated and agreed between the parties."
The Respondent's Arguments on Appeal
The Pallets Issue
Objective Justification
Reinstatement
The Claimant's Submissions
The Pallets Issue
Objective Justification
Reinstatement
Discussion
The Pallets Issue
"12. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge. "
"...the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc v Hall [2001] IRLR 275 CA; and whether the pre-dismissal investigation was fair and appropriate: see Sainsbury's Supermarkets v Hitt [2003] IRLR 23 CA."
Objective Justification
"(1) A person (A) discriminates a disabled person (B) if -
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
"28. The concept of proportionality contained in section 15 is undoubtedly derived from European Union law, which is the source of much of our anti-discrimination legislation. Three elements were explained by Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, at para 165:
"First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?
. However, as Lord Reed explained in Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39, [2014] AC 700, para 68 et seq, this concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them ."
Reinstatement
"10. Loss of the necessary mutual trust and confidence between employer and employee may render re-employment impracticable. For example, where there is a breakdown in trust between the parties and a genuine belief of misconduct by the employee on the part of the employer, reinstatement or re-engagement will rarely be practicable: see Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680 at [10] (Lord Johnston) in the context of misconduct involving drugs and clocking offences:
'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.'
11. Similarly in ILEA v Gravett [1988] IRLR 497 (albeit on very different facts) the EAT accepted that a genuine belief in the guilt of an employee of misconduct, even if there were no reasonable grounds for it, was a factor that had to be weighed properly in deciding whether to order re-engagement:
'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.'
12. So far as contributory conduct is concerned, this is relevant to whether it is just to make either order and in the case of a re-engagement order, on what terms. In cases where the contribution assessment is high, it may be necessary to consider whether the level of contribution is consistent with the employer being able genuinely to trust the employee again: United Distillers & Vintners Ltd v Brown UKEAT/1471/99, unreported, 27 April 2000, at paragraph 14."
"42. The tribunal was thus entitled to scrutinise whether the trust's stated belief was genuinely and rationally held, tested against other factors the tribunal considered relevant. It was, however, still a question to be tested from the perspective of the trust, not that of another employer, still less that of the tribunal: was it practicable to order this employer to re-engage this claimant? "