Appeal No.	 EAT/0441/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 2001

Before
THE HONOURABLE MR JUSTICE WALL
MR P A L PARKER CBE
MR R SANDERSON OBE

MR C NESS	APPELLANT

EXEL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR MARK GALBERG
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

THE HONOURABLE MR JUSTICE WALL

1	This is the Preliminary Hearing of an appeal by Christopher Ness against a decision of the Employment Tribunal sitting at Bury St Edmonds promulgated on 13 February 2001.  Mr Ness claimed that he had been unfairly dismissed from his employment by the Respondent, Exel Logistics.  The unanimous decision of the Tribunal was that Mr Ness was not unfairly dismissed.  Mr Ness appeals to the Employment Appeal Tribunal.  His Grounds of Appeal contain two points as follows:

“1	The Employment Tribunal failed to make proper consideration to the Employer failing to fully and properly investigate the original reason for my dismissal, had the Employment Tribunal made proper consideration of this fact then they would have laid fuller weight to the reason for my dismissal and found in the circumstances the dismissal was unfair.
2	The Employment Tribunal failed to take proper consideration to the fact that the Employer did not take any disciplinary proceedings or equivalent action resulting in dismissal against either Spence or Greenfield, thus the Employer showed an extreme lack of consistency.”

2	The facts are not set out in any detail in the Tribunal’s Extended Reasons.  We have accordingly to take them from the various witness statements in our papers.  From these it appears, shortly, that Mr Ness was originally employed in 1978 as a driver by one of the Respondent’s predecessor companies and in 1991 had progressed to be the International Freight Operations Manager based in Ipswich.  He says that in March 1998 there was a meeting, as a consequence of which, what Mr Ness asserted was his excessive workload was divided between himself and Mr Greenfield.  The latter thereafter was to be responsible for the administrative side of the operation whilst Mr Ness’ role was confined to the management of the operational side of the business only.  We were told today by counsel, on Mr Ness’ behalf, that Mr Greenfield was superior to Mr Ness in the organisation.  It was also agreed, the Appellant says, that an assistant would be employed who would be trained by Mr Greenfield in relation to administrative matters, and by Mr Ness in relation to the operational side of the business.  In November 1998 a Miss Parcell was employed as the assistant.  Mr Ness wrote to her (the letter is in our papers) setting out her duties and the division of responsibilities between himself and Mr Greenfield.

3	In April 1999 a Mr Spence, also superior to Mr Ness in the organisation, was installed as Business Manager.  According to the Appellant, Mr Spence admitted his lack of knowledge of the international transport operation but stated that he would spend at least two days a week in Ipswich to enable him to gain knowledge and understanding of the business.  The Appellant says he did not do this.  The Appellant also says that he was concerned about the state of the Ipswich operation and in August 1999 wrote to the business unit director drawing his attention to the lack of development and the lack of support from the financial team.  He says he received no reply to that communication.

4	The main events which led up to Mr Ness’ dismissal appear to have been, a failure on the part of Miss Parcell to insert a substantial number of invoices into the company’s computer system thereby bringing about a false picture of the trading position, something which, it was said, Mr Ness should have known about.  Also there was the discovery of a large number of tachograph irregularities.  In his statement Mr Ness says he was suspended on 11 February without any prior warning.  Thereafter he was unwell and unable to attend a disciplinary hearing on 17 April.  He was still unwell on 5 May, but on that day the disciplinary hearing went ahead without him.  He was then told that he had been dismissed for gross misconduct:

“In relation to tachograph irregularities and the mismanagement of the Ipswich site.”

An internal appeal hearing on 12 June 2000, chaired by the Managing Director of the company, upheld the dismissal.

5	Mr Ness’ case was that his record in relation to the tachographs (of which he gives details in his statement) did not justify a finding of gross, or any, misconduct on his part.  Mr Ness also relied on the fact that he was not responsible for the administrative side of running the Ipswich operation.  He also complained that others were treated more leniently. Mr Greenfield was allowed to return to work.  Mr Spence was exonerated.  Miss Parcell tendered her resignation prior to her disciplinary hearing.

6	Remedies for unfair dismissal are contained in Part X of the Employment Rights Act 1996 and the relevant parts of Section 98 read as follows:

“(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 –
(a)	relates to the capability of qualifications of the employee for performing work of the kind which he was employed by the employer to do,
	(b)	relates to the conduct of the employee, ……

(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.”

It is against that background that we have to look at the findings made by the Tribunal and their application of the law to those findings.

7	In relation to the first question of the reasonableness of the decision.  The Tribunal says this at paragraphs 3, 4 and 5 of its decision:

“3	We deal with the matter shortly, first we are satisfied that the employer has established on the balance of probabilities a potentially fair reason namely, one relating to conduct: gross negligence relating primarily to a large quantity of invoices which were hidden by another employee and not imputed into the accounting system.
4	We are also satisfied that the dismissal is fair applying the well known tests laid down in section 98(4) of the same Act.  First, we are satisfied that there was ample evidence available to the employer upon which the employer could reach the decision that the applicant had been grossly negligent, especially in respect of the invoices.  We are satisfied that a reasonable employer in the position of this employer could, and did form the view, that the applicant did have a management responsibility for the administration of the Ipswich site; he should have realised that there were serious irregularities in the accounting procedures.  We are satisfied that Mr Riddell believed that such was the case.  He suspected that the applicant knew all along that the invoices were being hidden.  However, he could not arrive definitely at that conclusion but only that the applicant should have known what was going on.  We are satisfied that he formed a view, reasonably in our view, that there were a significant number of tachograph offences.
5	The appeal was conducted properly, is accurately recorded and the applicant – and this is important – was represented by a full-time Trade Union Official.  Had it been the case that the applicant was not represented the appeal might be open to challenge but such was not the case here.”

It is accepted by Mr Galberg, inferentially at least, that the passages which I have just set out are sufficient to satisfy the terms of the Section so far as the first ground of appeal of 
17 September 2001 is concerned.  We think that the Tribunal’s reasons could have been more fully expressed.  We also think that it would have been extremely helpful had the Tribunal identified what the “ample” evidence was; but within the terms of the Section we think that Mr Galberg is right in his decision not to pursue the first ground of appeal.  

8	However, he does take a second point, and does so in some detail, in a skeleton argument for which we are grateful.  The relevant passage in the reasons is paragraph 8.  It reads as follows:

“There are matters which disturb about this case.  We are not satisfied that the possible disparity of treatment is sufficient to render this dismissal unfair.  We are satisfied that it is sufficient to make Mr Ness furious.  There seems to have been no proper investigation of the possibly extraordinary conduct of Mr Greenfield in this case or indeed of Mr Spence.  We are careful to take note of Mr Wragg’s proper submission that we do not know all the circumstances surrounding the activities of those employees.  None the less we are left with the impression that Mr Ness in a sense carried the can and that others escaped rather lightly.”

9	As one of my colleagues pointed out in the course of argument, it would appear on the face that this paragraph contains an inherent contradiction, but even if one does not go that far, we think that Mr Galberg raises an arguable point of law in relation to it.  For the purposes of the record I propose to set out part of Mr Galberg’s skeleton argument.  He says that:

“1	If an Employer fails to deal with employees who misbehave in the same way in a consistent manner then any dismissal may be unfair.  Inconsistent conduct falls to be considered under Section 98(4) of ERA 1996 as part of the “… equity and the substantial merits of the case”.
2	Inconsistent conduct on the part of an employer can relate to two or more employees who commit the same type of misconduct at about the same time, just as it can relate to an inconsistent dealing in the present having regard to past handling of the same misconduct.”

10	Mr Galberg relies on two authorities including Eagle Star v Hayward [1981] ICR 860 at 863.  He goes on:

“3	In this the Decision at paragraph 8 [pages 4 and 5 of the bundle] the Tribunal found –
	3.1	The Employer was clearly aware that Mr Greenfield and Mr Spence may have been involved in “extraordinary conduct”
	3.2	The Tribunal concluded, in relation to this “extraordinary conduct” that there had been “no proper investigation” and that they were “left with the impression that Mr Ness in a sense carried the can and that others escaped rather lightly”
	3.3	Nevertheless they also concluded that they were “not satisfied that the possible disparity of treatment is sufficient to render this dismissal unfair” 
4	It is submitted that once an employee is put on notice, during a disciplinary investigation into an employee’s conduct that other employees may have been involved in the same conduct at about the same time, then –
4.1	he is under a duty to carry out a proper investigation into misconduct of employees
4.2	thereafter, having established the facts, an employer may decide to deal with the employees by means of the same or different disciplinary sanctions depending on the facts found, the surrounding and mitigating circumstances, degrees of culpability and past disciplinary records.
5	In cases where there is genuine disparity of disciplinary sanction, comparing like with like then a dismissal may be unfair.
6	The Tribunal is however precluded from reviewing the consistency and fairness of the employer’s conduct where the employer although aware of similar behaviour by other employees at the same time, does not carry out sufficient investigation to be able to carry out the exercise at 4 above.
7	If the decision of this Tribunal is correct then an employer, aware of the similar conduct of other employees, should never carry out any or any proper investigation.  In this way he does not have to carry out the exercise at 4 above and risk a subsequent finding of disparity.
8	It is submitted that this approach works injustice to the employee and that the better view is as set out at 4.1 above.  Only where an employer is unaware of similar conduct potentially meriting a disciplinary sanction is it reasonable for no investigation to take place.”

11	We take the view that the phraseology used by the Tribunal in paragraph 8 of its reasons raises an arguable point of law in relation to the employer’s apparently inconsistent treatment of Mr Greenfield and Mr Spence with Mr Ness, sufficient in our judgment to make it arguable that the dismissal was unfair.  The case will go forward for a Full Hearing on that point.  We also agree with Mr Galberg that it would be sensible for the Tribunal to call for the Chairman’s notes in relation to the investigation by the Respondents into the conduct of Mr Greenfield and Mr Spence.