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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sunshine Hotel Ltd (t/a Palm Court Hotel) v Goddard [2019] UKEAT 0154_19_1510 (15 October 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0154_19_1510.html Cite as: [2019] UKEAT 154_19_1510, [2019] UKEAT 0154_19_1510 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE GRIFFITHS
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR NICHOLAS SINGER (of Counsel) Instructed by: Peninsula Business Services Ltd The Peninsula Victoria Place 2 Cheetham Hill Road Manchester M4 4FB |
For the Respondent | MR MICHAEL SMITH (of Counsel) Instructed by: S O Legal Solicitors 15 Gildredge Road Eastbourne East Sussex BN21 4RB |
SUMMARY
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
A fair dismissal compliant with section 98(4) of the Employment Rights Act 1996 requires "as much investigation into the matter as was reasonable in all the circumstances of the case" British Home Stores v Burchell [1978] ICR 303. The decision of the Employment Judge identified the correct principle and had to be read as a whole. On that basis, there was no error of law. The decision, read as whole, was not based on a suggestion (which would be erroneous) that a separate investigatory hearing and disciplinary hearing is required in every case by right. It was based, rather, on a conclusion that on the facts of the case there had been a lack of proper investigation and a lack of opportunity to prepare for a disciplinary hearing which rendered the dismissal procedurally unfair.
THE HONOURABLE MR JUSTICE GRIFFITHS
"4….
(a). depends on whether, in the circumstances, (including the size and administrative resources of the employer 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.
…."
"…. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case…"
Examining the decision of the Employment Judge in the light of that law and that guidance, one sees that, in paragraph 2, the Employment Judge said:
"2. The dismissal was by reason of conduct, so, the issues for the tribunal were whether the Respondent had a genuine belief in the Claimant's guilt, based upon reasonable grounds and following a proper investigation. It was of particular relevance in this case whether the procedures followed were fair and also whether the Claimant contributed to the dismissal through his actions and, in the event of the dismissal being unfair, if there was a chance that the Claimant would have been dismissed in any event."
"12. On 14 April, the Claimant was invited to an investigation meeting to take place on 16 April. The letter said that that, if there was any substance to the allegations of breaching company rules by sleeping whilst on duty, there would be a disciplinary hearing. In fact the meeting on 16 April was the disciplinary hearing; there was no investigation meeting."
The Decision goes on at paragraph 17 to say this:
"17. Plainly there was a serious procedural failing, because there was no investigation hearing. The Claimant was therefore never given the opportunity of providing a full explanation before any disciplinary hearing. That is a basic employment right, just as it is a basic right that an employee knows the case that they are facing and can prepare for a disciplinary hearing. That did not happen here. Mr McCabe said that the Respondent was relying upon its legal advisers, but whether or not that is the case, it does not alter the position."
"5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing."
"24. I cannot agree that it would have made no difference if a fair procedure had been followed. A proper investigation might have made some difference. For example, Mr McCabe could have walked the patrol of the hotel with the Claimant, which would have allowed him to see how long it took and whether, as the Claimant maintained, he would not have been seen by the CCTV. There might have been some investigation into his migraine."
All of those were cogent reasons for deciding, as the Employment Judge did, that there had not been a fair procedure and that there had not been, in particular, a proper investigation.