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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bah v Berendsen UK Ltd (UNFAIR DISMISSAL, WRONGFUL DISMISSAL) [2020] UKEAT 0256_19_0502 (5 February 2020) URL: https://www.bailii.org/uk/cases/UKEAT/2020/0256_19_0502.html Cite as: [2020] UKEAT 256_19_502, [2020] UKEAT 0256_19_0502 |
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At the Tribunal | |
Before
GAVIN MANSFIELD QC
DEPUTY JUDGE OF THE HIGH COURT
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR AJAY RATAN (of Counsel) Instructed By: Free Representation Unit 5th Floor, Kingsbourne House 229-231 High Holborn London WC1V 7DA |
For the Respondent | MS VICTORIA WEBB (of Counsel) Instructed By: Lewis Silkin LLP 8th Floor Southgate House Wood Street Cardiff CF10 1EW |
SUMMARY
UNFAIR DISMISSAL,WRONGFUL DISMISSAL
Unfair Dismissal: The Claimant appealed against the ET's dismissal of his claim for unfair dismissal. The Claimant had been dismissed for gross misconduct. The ET found that the Respondent had a genuine belief in the misconduct, which had been reached as a result of fair and reasonable investigation and disciplinary process. The Appellant appealed on the basis that the ET failed to address three central points. Appeal dismissed. The Reasons complied with r.62(5) ET Rules, the guidance in Greenwood and the authorities referred to therein. The ET was not obliged to deal with every point raised by the parties. None of the three points could have been material and the ET was entitled to reach a conclusion in the round without specifically referring to them.
Wrongful Dismissal: The ET failed to deal with the claim at all in its Judgment and Reasons. Appeal allowed by consent, remitted to the same ET if possible.
GAVIN MANSFIELD QC DEPUTY JUDGE OF THE HIGH COURT
Introduction
Ground 1
Ground 2
The Facts and the ET's Decision
(1) Mr Duell obtained witness statements, although he did not interview the witnesses himself: an approach of which the Tribunal in its Reasons was in due course critical.
(2) Mr Duell conducted an investigatory meeting with the Claimant. The Tribunal found at paragraph 11 that the Claimant had full opportunity to provide his version of events, which was that Mr Charles, Mr Sesay and Mr Affori had been abusive to him.
(3) A second meeting took place between Mr Duell and the Claimant at which the Claimant played an audio recording from his mobile of an altercation between the Claimant and Mr Sesay, most likely (the Tribunal found) on another occasion (paragraph 12).
(4) Mr Duell viewed CCTV footage of part of the incident after the Claimant had left the office. The footage was not retained, as the Tribunal set out in paragraph 16 of its Reasons. However, at paragraph 15 the Tribunal records that Mr Duell had seen the footage and said it could clearly be seen that the Claimant assaulted Mr Affori. Paragraph 16 goes on to record that Mr Duell met with Mr Affori to clarify his evidence in light of the CCTV footage.
(5) Following the investigatory meeting the matter was put by Mr Duell to the disciplinary hearing which was conducted by Mr O'Donovan.
(6) The Tribunal describes at some length a series of administrative errors relating to the invitation to the disciplinary hearing, which are not material for the purposes of this appeal. (7) The Claimant attended a disciplinary hearing on 8 November. It is relevant to note the Tribunal's findings on a number of matters in relation to the disciplinary hearing. The Tribunal found at paragraph 23 that prior to the hearing the Claimant had received notes of the investigatory meeting, the three statements given by members of the staff and the email from Mr Charles dated 3 July. Although the Claimant's evidence had been that the hearing took place over two days, it having been adjourned on the first day because he was upset, the Claimant had accepted in cross-examination that that was incorrect. The disciplinary hearing took place on one day (paragraph 27 of the Tribunal's Reasons).
"Case law has made clear that I must consider whether the process as a whole was unfair. Ms Webb refers me to the case of Shrestha v Genesis Housing Association [2015] IRLR 399 as authority for the principle that the investigation should be looked at as a whole when assessing the question of reasonableness. I adopt that approach here."
…"Both Mr Duell and Mr O'Donovan had a reasonable basis from which to conclude that the Claimant had behaved aggressively and in a threatening manner to other members of staff on the night of 3 July. Despite a number of defects, the overall investigation was fair and reasonable."
a. The Claimant had the documents prior to the disciplinary hearing of the evidence against him.
b. He was shown the CCTV footage which on the Respondent's evidence, accepted by the Tribunal, showed that he was acting aggressively. At paragraph 51, the Tribunal found that the Claimant did not contradict that but argued that the CCTV evidence was fake.
c. The Claimant's own aggressive conduct at the disciplinary hearing would have confirmed to the Respondent's mind the conclusion that he had been aggressive on 3 July.
d. The Tribunal dealt with an issue where it found that the audio recording taken by the Claimant of his altercation with Mr Sesay did not assist the Claimant's case for the Reasons set out.
The Appellant's Submissions
"69. Mr Davies's main criticisms were twofold. The first group related to the issue of redundancy. The Employment Tribunal identified the issue as being whether or not the redundancy was a "sham" but confined it to "whistleblowing" when there were other components. He accepted that some of the other aspects had been addressed at paragraph 5 but that failed to refer to, let alone resolve, a number of the contentions made by the Appellant and his witness in their evidence to the Tribunal. Some important issues could be inferred to have been decided against the Appellant. But if it was inferred that his evidence had been rejected, he did not know why the Employment Tribunal had rejected his evidence that the Rivendell Plant Manager had not been seriously ill, why the fact he had not received letters had been rejected, why his challenge to the alleged policy of looking at 4 sites instead of 6 had been rejected and why he was said not to be suitable for the post that had been filled by recruitment.
…
71. We have been prepared to travel as far as we can down Dr Hardy's road. Even though we have concluded that since 2004 a judgment must fulfil the requirements of rule 30(6), we have been prepared to look for the structure of rule 30(6) and, using the approach in Meek, to seek to unearth the substance of the rule even though it might be obscured by the narrative form of the decision. We have reminded ourselves that this Tribunal should not see rule 30(6) as a straitjacket. But having done so, we think this judgment neither articulates the issues as fully as the rule requires nor sets out the facts relating to those issues adequately nor explains its reasons for reaching the conclusions adequately. Ultimately Dr Hardy was constrained to say of facts and matters that were not discussed in the judgment that we must conclude the Employment Tribunal had rejected them. In our judgment when that approach has to be taken, it is a good indication that the judgment does not comply with the rule and is not adequately reasoned. Applying our conclusions on the law to this judgment and, having examined it with care, we are driven to the conclusion that the judgment does not comply with Rule 30(6) either in form or substance and, is inadequately reasoned to the extent that it is erroneous in law."
"I must confess with great respect to some difficulty with the "plainly and unarguably right" test elaborated in Dobie. It is not the task of the EAT to decide what result is "right" on the merits. That decision is for the ET, the industrial jury. The EAT's function is (and is only) to see that the ET's decisions are lawfully made. If therefore the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal."
The Respondent's Submissions
"In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues. Where the judgment includes a financial award the reasons shall identify, by means of a table or otherwise, how the amount to be paid has been calculated."
"Tribunals are required to give reasons for their decisions.
The overriding rule on this subject is in these terms:
"The decision of a Tribunal shall be recorded in a document signed by the Chairman which shall contain the reasons for the decision."
It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.
Nothing that I have just said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] I.C.R. 542, Lord Justice Donaldson (as he then was) said at page 551:
"Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.
This, to my mind, is to misuse the purpose for which the reasons are given."
"As to the adequacy of reasons, as has been said many times, this depends on the nature of the case: see for example Flannery at page 382. In the Eagil Trust case, Griffiths LJ stated that there was no duty on a Judge, in giving his reasons, to deal with every argument presented by Counsel in support of his case:
'When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted…''…
"18. In our judgment, these observations of Griffiths LJ apply to judgments of all descriptions. But when considering the extent to which reasons should be given it is necessary to have regard to the practical requirements of our appellate system. A Judge cannot be said to have done his duty if it is only after permission to appeal has been given and the appeal has run its course that the court is able to conclude that the reasons for the decision are sufficiently apparent to enable the appeal court to uphold the judgment. An appeal is an expensive step in the judicial process and one that makes an exacting claim on judicial resources. For these reasons permission to appeal is now a nearly universal prerequisite to bringing an appeal. Permission to appeal will not normally be given unless the applicant can make out an arguable case that the Judge was wrong. If the judgment does not make it clear why the Judge has reached his decision, it may well be impossible within the summary procedure of an application for permission to appeal to form any view as to whether the Judge was right or wrong. In that event permission to appeal may be given simply because justice requires that the decision be subjected to the full scrutiny of an appeal."
"19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
Discussion and Conclusions on Ground 2
"There were no notes of the disciplinary meeting. I respond to VW's, that is Claimant [sic] for the Respondent's arguments in her submissions. I took the Judge to the relevant paragraph in Vauxhall Motors. I said the whole point of the notes is to provide evidence. This is a problem here when there are different accounts of the meeting. The problem is a fortiori when there is no note of the disciplinary hearing at all."
Disposal