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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tai Tarian Ltd v Christie (Unfair dismissal –- reason for dismissal –- fairness) [2020] UKEAT 0059_19_0303 (3 March 2020) URL: https://www.bailii.org/uk/cases/UKEAT/2020/0059_19_0303.html Cite as: [2020] UKEAT 0059_19_0303, [2020] UKEAT 59_19_303 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE EADY
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR GERAINT PROBERT (of Counsel) INSTRUCTED BY Hugh James 2 Central Square Cardiff CF10 1FS |
For the Respondent | MR GEORGE POLLITT (of Counsel) INTSTRUCTED BY Slater and Gorden Haywood House Dumfries Place Cardiff CF11 OJH |
SUMMARY
Unfair dismissal – reason for dismissal – fairness
The Claimant was dismissed for making homophobic remarks to a tenant ("T") of one of the Respondent's properties. In upholding the Claimant's complaint of unfair dismissal, the Employment Tribunal ("ET") found that, having accepted that other evidence demonstrated the Claimant was not in fact homophobic, the Respondent had not established a genuine belief that he was guilty of the conduct alleged. In any event, considering the question of fairness, the ET concluded that the Respondent had acted unreasonably in accepting T's account, when she had refused to provide further evidence. The ET further found that the Respondent's investigation was unreasonable, and it had been outside the range of reasonable responses to have dismissed an employee with 14 years' service. The ET also considered whether there should be any Polkey reduction, but found there was no likelihood of dismissal if a fair procedure had been followed. The Respondent appealed.
Held: allowing the appeal
In finding that the Respondent had not established the reason for the Claimant's dismissal, the ET had failed to explain why it rejected the evidence given as to the decision-taker's stated belief in the Claimant's misconduct. The ET had inferred that acceptance that the Claimant was not in fact homophobic necessarily meant that the decision-taker could not have believed that he had made homophobic remarks; that, however, treated evidence going to propensity to be determinative, something the decision-taker had expressly rejected. There was no proper evidential basis for the ET's conclusion on the question of reason.
As for the issue of fairness, the evidence did not go so far as to establish that T had simply refused to give further evidence; merely that she had declined to do so due to personal circumstances. More generally, in its assessment of T's account, the ET had failed to demonstrate good reasons for rejecting the view adopted by the Respondent. There was no proper basis for concluding that T's account had been embellished; the ET itself having only found there to be "slight differences" in the evidence she had given in her two interviews. On this, and its view as to T's potential ulterior motive, the ET had impermissibly substituted its view for that of the Respondent in terms of T's credibility and/or had reached a perverse conclusion. The ET had further fallen into the error of substitution, in finding the Respondent had acted unreasonably in failing to further investigate whether an anecdote T said had been shared by the Claimant might have been brought to her attention by another tradesperson. The Respondent had considered this possibility but rejected it, as it could not explain why T would have known that the Claimant was involved in the incident in question; the ET had failed to apply the band of reasonable responses test to the decision taken by the Respondent on this point, preferring its own view as to the further steps required. The ET's finding on sanction revealed a similar error of substitution, failing to recognise the particular issues facing the Respondent as a social housing provider. In the alternative, the ET's Polkey finding also revealed an inconsistency of reasoning.
Although the appeal would be allowed, it could not be said that the ET's findings meant there was only one answer to this claim. The case would be remitted to a differently constituted ET for re-hearing.
THE HONOURABLE MRS JUSTICE EADY
Introduction
The Facts
"'6.7.1 We will challenge and address discriminatory behaviour or acts of harassment by or towards customers, staff, board members, service users or contractors. If such behaviour is encountered, we will take appropriate action which may include dismissal….'"
"'…Tai Tarian will not tolerate direct or indirect discrimination or harassment…against any person with a protected characteristic as described in the Equality Act 2010……It is the responsibility of all staff in their daily actions, decisions and behaviour to comply with all relevant legislation and to ensure that they do not discriminate against colleagues, customers, suppliers or any other person associated with Tai Tarian.'"
"25. P134 records an "Interview by Jamie Greig 4th July 2017" during which someone gave the following account "when [the claimant] first arrived at her property she felt he didn't really want to undertake the work….on the doorstep he made a comment "What am I going to do here then".
Jamie Grieg's note of this interview goes on to record, "[Redacted – presumably T's] statement started by me asking a few questions on how [the claimant] had come to discuss with her his pet hate against homosexual people.
"[Redacted – presumably T] was very nervous but started to explain that [the claimant] started by asking her a number of questions and at the time it felt like a world wind of conversations. He asked her questions about who she knows in the area including people from school etc. he made reference to his apprentice who was also from this area. He then made reference to the apprentice and a time they were working in a customer's home who was gay (homosexual), the work involved working on a bedroom door handle that became stuck in the locked position, that lead to apprentice becoming locked in the bedroom with the gay customer. [The claimant] went on to say that he did not rush to free the lock as he found it hilariously funny that the apprentice had to spend time in the bedroom with the gay person….[Redacted – presumably T] also stated that [the claimant] had made it clear that he was married and asked if she had a boyfriend. [Redacted – presumably T] said that he [sic] didn't and then [the claimant] asked if this was by choice or was she swinging the other way….[The claimant] went on to say that is a woman's world and if something was to happen then it would be likely the law would favour the woman….[ Redacted – presumably T] told me that she felt very uncomfortable with him but she was so glad that her brother had not been downstairs to hear the way [the claimant] had spoken about gay people as he had not long come out to the family that he was gay and this would probably have affected him a lot more. She did however advise her brother and he felt confined to his room. She also felt that his safety may be in jeopardy and she felt very insecure. [Redacted – presumably T] was very clear that [the claimant] never returns to her home again to undertake work, she was also a little concerned that her details regarding this complaint are not disclosed to [the claimant] in case of any repercussions that may accrue."
"The tenant's interview on 7th July
28. Sometime around 5th July 2017, Ester Harris was asked to interview the tenant. On 7th July 2017, she attended an interview with T and M that was conducted by Wayne Gwilym, the respondent's Head of Organisation Development. Ester Harris's notes from this meeting were p136 & 137 of the bundle. Wayne Gwilym started this interview by apologising for the employee's behaviour. When asked to explain in their own words what happened, Ester Harris records T gave the following account:
"'the tradesman [the claimant] arrived at the property and just seemed to be talking a lot, much of which they cannot remember the specifics of. T said he was here for an hour waiting for an inspector to arrive….T said the tradesman was talking about who T knew from the area that he might know. [The claimant] talked about lone working and that sometimes he has someone with him but would normally work alone. He suggested that anything could happen because they were alone. He said it's a "woman's world' and T could say he was "coming on to them" and get away with it. If something were to happen it would be alright for the woman as things go in favour of the woman. Asked how T responded, T said she just laughed nervously and folded her arms.
T said the tradesman told her he was married with children and asked whether T was. When talking about his apprentice Junior, the tradesman relayed a story where they were renewing a handle on a door and Junior got locked in a bedroom with a person they thought was gay. The tradesman proceeded to say how he doesn't like gay people, they are a pet hate of his and that he felt it would be funny to leave Junior in the bedroom with him. T said that although Junior did ring him he did not rush to assist.
T explained that the tradesman continued to voice his negative opinion about gay people. T was then concerned about her brother as he is gay and T did not want him to feel uncomfortable so asked him to stay upstairs.
T explained they were due to leave for work and they were concerned leaving the tradesman there with T's brother so T asked their Nan to come. Their nan arrived as the inspector arrived. Wayne apologised again and M explained that T was worried and T does suffer with anxiety. T said they did not want him to lose his job…..
29.Ester Harris's note of this meeting ends with 'I asked M if T was alright as I conveyed how upset I would be if I was T's mother. At this point M became visibly upset and also recalled how the tradesman's attitude was negative from the time he knocked the door saying that he didn't know what he was supposed to be doing.'"
The "M" in that record referred to T's mother, who had left the flat shortly after the tradesman had arrived at T's flat and could therefore only assist in terms of her perception, as recounted at the end of the record of the interview.
The ET's Decision and Reasoning
The Appeal and the Parties' Submissions; Discussion and Conclusions
The Reason for Dismissal
Submissions
Conclusions
"(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...
(b) relates to the conduct of the employee…"
"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee."
(words approved by the House of Lords in W Devis and Sons Ltd v Atkins [1977] AC 931).
Fairness
Submissions
"17. A substitution mindset is all too easy to allege. There is a great danger which is readily apparent to those of us who sit day by day in this Tribunal that employers who do not like the result which a Tribunal has reached, but cannot go so far as to say it is necessarily perverse, seek to argue that the very fact of the result in the circumstances must indicate a substitution. That is not, in our view, a proper approach."
Conclusions
"(4) 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."
"5. If the informant is prepared to attend a disciplinary hearing, no problem will arise, but if, as in the present case, the employer is satisfied that the fear is genuine then a decision will need to be made whether or not to continue with the disciplinary process.
6. If it is to continue, then it seems to us desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information."
"If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that that decision must be based upon logical and substantial grounds – good reasons. Instances might be – that the witness was a bare faced liar, who must have given that impression to the employer at the relevant time; that the witness was clearly biased – provided that such a bias should have been clear at the relevant time; that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer.
However, there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedures. For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view. The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business and the various members of the staff."
Polkey
Submissions
Conclusions
Conclusion and Disposal