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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fleming & Ors v. Diosynth Ltd [2004] UKEAT 0034_04_1312 (13 December 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0034_04_1312.html Cite as: [2004] UKEAT 0034_04_1312, [2004] UKEAT 34_4_1312

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APPEARANCES

 

 

For the Appellant	Mr B Napier, Queen's Counsel Instructed by- Messrs Allan McDougall & Co Solicitors 3 Coates Crescent EDINBURGH EH3 7AL
For the Respondent	Mr A Cowan, Solicitor Of Messrs Simpson & Marwick WS Solicitors Albany House 58 Albany Street EDINBURGH EH1 3QR

SUMMARY
UNFAIR DISMISSAL


 


LORD JOHNSTON:

1. This is an appeal at the instance of three employees against determination of the Employment Tribunal sitting at Edinburgh that they had all been unfairly dismissed from their employment with the Respondents.
2. The Respondents are chemical manufacturers. Included in their industrial process is a procedure called 'inerting' which is not necessary for this Tribunal to discuss or understand to any extent save that it involves a particular process designed to uptake certain flasks called either vessels or dryers of oxygen in part of the manufacturing process and it is considered to be an extremely important safety issue. The background to the matter was the fatality with one of the vessels in fact a dryer blew up.
3. The appeals of Fleming and Watts raised the same identical issues. The position of Mr Thomson is a different position and we will deal with them separately.

Fleming and Watts

4. The relevant findings in facts which gave rise to their dismissal are set out in the form of criteria starting at page 40 the decision:

"Both sides were agreed that in case's where a distinction was drawn between cases which it is argued should have been treated consistently the question the tribunal must ask is whether the distinction drawn was such that it was irrational and accordingly one which no reasonable employer could have drawn - Securicor LId v Smith (supra). It was the applicant's position that each of the criteria applied by the respondent which formed the basis of the distinction made was irrational.

1. Vessel/Dryer: Dealing first with the distinction which was made between vessels and dryers (such that it was decided that no one who had failed to inert a dryer :> only should be dismissed) the thrust of the applicant's position was that it was not relevant or rational to take account of the fact that there appeared to be a different level of understanding amongst operators about the need to inert dryers, given that the respondent made no distinction at the 1998 briefing or in its training programme between vessels and dryers; both required to be inerted. They also founded on the fact that the respondent acknowledged that the possible consequences of failing to inert a dryer were the same as those arising from failure to inert a vessel. in fact, it was not entirely clear that the same emphasis had been given to dryers at the 1998 briefing as vessels but in any event the factors which led the respondent to make this distinction were more complex. It was noted from a number of the interviews, including that of Mr Watts, that whatever the message the respondent sought to deliver through training, there appeared to be, a lower level of understanding of the need to inert dryers. It was also noted that there was a distinction between the 8BPR8 in relation to stream 1 and stream 2 used to make a particular product. One sheet required a dryer to be inerted at a certain stage while the other did not. There was a recognition by Dr Ingram and Mr Ivinson that could have led to some confusion. There were also some suggestions that team leaders might have condoned or turned a blind eye to non inertion of dryers. Indeed this was one of the possible conclusions that could be drawn from Mr Watts' interview. Dr Ingram and Mr Ivinson were also aware that inerting of dryers had been a requirement for a shorter time than vessel~;. They also noted, and this arose during the course of a number of the interviews, that teams tended to be involved with dryers whereas vessel operation tended to be one man work. In light of the foregoing they concluded that no one should be dismissed for a dryer failure alone and indeed that to some extent some of the blame for the confusion which appeared to surround dryer inertion lay oat the door of the respondent. The tribunal considered that the distinction made between vessels and dryers on the foregoing basis was not irrational; it was such as a reasonable employer could make. Indeed, had the respordent not taken account of the foregoing it might well have been subject to welf founded criticism that it had failed to consider all relevant matters when dealin£1 with the situation.

2. Attendance at the 1998 briefing: It was the applicant's position that this was an irrelevant factor, given that the respondent's training regime was such that everyone would have been avvare of the importance of inertion. While it is true that the training regime was such that employees would be told about inertion and its importance that would be in the context of learning about a whole range of matters, many of which would be important for one reason or another. The falsifying records and the possible consequences of doing it. The respondent could be certain that those who attend'ed that briefing would have been left in no doubt at all about the importance of inerting and the potential consequences of not doing .it. While this was not a disciplinary meeting in 1998 it took place at a time and in a context (given Mr Mackay's; dismissal) which would have led to a very clear message being delivered to those present. The tribunal was satisfied on balance that it could not be said to be irrational to take account of whether or not a person had attended this briefing amj that the respondent was entitled to weigh this in the balance when assessing the circumstances overall in respect of each of the individuals who had failed to Inert.

3. Single/Multiple inertion - it was the applicants' position that it was irrational to make a distinction between one and more than one failure. They pointed to the fact that the potential consequence of failure was the same whether it was singular or multiple and that ~Jiving people the "benefit of the doubt" was not warranted when the respondt9nt itself laid emphasis on the deliberateness of the action, given the completion of the SBPRS. While the tribunal could understand that another employer in the position of the respondent might not have made a distinction it could not conclu.de that it was irrational to do so. It accepted that the respondent was entitled to form the view that someone who had failed once only might well have had an isolated lapse of judgement but the same could not be said for someone who had failed more than once. The benefit of the doubt they were prepared to give was to the effect that it was an isolated lapse; the tribunal concluded that they were entitled to weigh that in the balance as a feature which distinguished some cases from others and indeed this reflected the approach they had taken in the past.

4. Seniority -it was the positiortl of Mr Fleming and Mr Watts that operator~ and TL/STLs were expected to be 100% compliant with regard to inerting and comp!etion of SBPRS and that accordingly it was irrational to make a distinction between these groups in relation to compliance with these requirements. While they accepted that as TLs they had influence over others it was their position that senior operators (like Mr Henry) did too since they carried out training of new operators. The allegations against Mr Fleming and Mr Watts did not specify breach of their duties as team leaders as a separate act of misconduct. However, their status and what their role entailed in terms of setting an example did feature at the disciplinary hearing stage and was referred to in each case in the letter of dismissal. The Respondent in fact made this distinction not on the basis that it was entitled to expect more from its TL/STLs than 100% compliance (clearly impossible) but on the basis that TL /STLs had specific training and duties such that their failure to.comply was an even more significant breach of the trust the respondent had placed in them than it was for operators. Despite the fact that they knew they were required to lead by example they failed do that. Their status as TUSTL was treated as an aggravating factor in each case. This was not a point the tribunal found straightforward to decide but ultimately it concluded that the respondent was entitled to expect that TUSTLs in particular would do their utmost to maintain the level of trust placed in them (which by the nature of their role was higher), that they would take particular account of their position of responsibility and the need to lead by example in carrying out their duties as operators. In so concluding it decided that the distinction made by the respondent in this regard was not an irrational one. When one considers the position of the other TL/STLs in the group of 17 (Messrs Philip, McDougal1 and Colson) their circumstances were all distinguishable from those of the applicants.

Having reached the conclusion that none of the foregoing criteria were irrational and that indeed they were such that in each case a reasonable employer was entitled to take them into account in assessing the whole circumstances of each case and whether dismissal or some other lesser sanction should be applied in each case the tribunal reminded itself of the need to step back from detailed scrutiny of each individual point in relation to the consistency issue and reconsider the test which is set down in section 98(4) in relation to Mr Fleming and Mr Watts' cases; were the dismissals fair or unfair? That will depend on whether in the circumstances the respondent acted reasonably or unreasonably in treating misconduct: as a sufficient reason for dismissal. Putting it in the language of Iceland Frozen Food was dismissal in these two cases within the band of reasonable responses?

While the tribunal had considerable sympathy with Mr Fleming and Mr Watts it concluded unanimously that in the foregoing circumstances dismissal in each case was 20 within the band of reasonable responses and that the dismissals were therefore fair."

5. Mr Napier QC appearing for the Appellants argued essentially that the criteria that had been applied by the employer as enumerated and discussed by the Tribunal were irrational and insufficient to base a decision to dismiss for reasons which are unclear. We simply refer to his written submissions to this respect.
6. The grounds of appeal presented to this Tribunal in this respect however related to a comparison of the way that these two Appellants were treated compared with a man called Phillip. This, it was said alleged to comparative injustice and therefore they also are to be treated the same way. Phillip was not dismissed.
7. In approaching this aspect of the matter we have two general observations to make.
8. The grounds of appeal to this Tribunal are stepping stones and may be amended if sufficient notice prior to the hearing is given and this Tribunal considered it is fair to allow that to happen. What however should not happen is that on the morning of the hearing or indeed in the course of it an Appellant ceased to argue a wholly separate ground of appeal or additional grounds of appeal without lodged. This is manifestly unfair to the other side the process being designed to avoid such an 'ambush'.
9. The attack by Mr Napier upon the four criteria is a radically different approach from that contemplated in the grounds of appeal. Although Mr Cowan valiantly responded that is nothing to the point. We consider that they are manifestly unfair to allow the appeal to proceed on the basis of those arguments. In these circumstances this Tribunal will approach the appeals on behalf of these two Appellants purely on the basis of the comparator in question.
10. What should happen if the Appellants wish to amend grounds of appeal is that notice should be given well in advance of the hearing, the fairness of whether they will be admitted can be debated at the start of the actual hearing but by that time the other side will be under notice of what they might have to meet.
11. In these circumstances given that the only ground of appeal relates to the comparator we consider that he was in a different position from these two Appellants. The evidence finally discloses probably only one failure to inert and he did not falsify the records. We therefore consider that the treatment of him was justifiably different from that of these two Appellants.
12. In these circumstances given that this is the only ground of appeal we are prepared to entertain. We consider the Tribunal reached a decision they were entitled to reach and we will not interfere with it.

Thomson

13. This case is in a different position and the findings of the Tribunal are as follows:

"So far as Mr Thomson was concernl9d the respondent undoubtedly took into account that he had received a written warning for failing to inert a vessel and falsification of the SBPRS around 17 months before it was discovered that he had failed to inert a vessel on three separate occasions over a short period. That written warning had expired around 5 months before these events and yet it was this warning which was the crucial factor which led to Mr Thomson being dismissed. Had he not received it he would not have been dismissed. The central issue in his case was whether the respondent was entitled to take it into account for any purpose given it had expired. On this issue the tribunal was divided.

All members of the tribunal were tribunal about the fact that the warning issued could have been without limit of time, as happened in the case of the 14 employees who were not dismissed. Mr Ivinson admitted frankly that with hindsight he should have issued a warning without limit of time. Howevl9r, the majority considered that it was important to note that -this warning was not being used in the traditional sense of forming the basis upon which further disciplinary action was taken of a more severe kind than might have been taken had there been no warning on record. Rather the fact that this warning had been issued in the past, together with a suspension without pay for three days, was part o of the overall context in which Dr Ingram, in discussion with Mr Ivinson, had to come to a conclusion about how to deal with Mr Thomson. The majority considered that it was relevant to consider the nature of the respondent's undertaking; this was a business in which safety risks were high and it V\'as part of Dr Ingram's responsibilities as Managing Director to do what he could to manage those risks. What the respondent had in Mr Thomson was an experienced employee who had been well trained to do his job. The same could be said of all the others who failed to inert. However, he was someone who had failed to inert and falsified the S13PRS before and he had been given the benefit of the doubt on the basis that he had a'5sured the respondent that he would always inert in ; the future. He had been told specifically and individually in writing by a senior manager that as from 20 July 2000 (the date of the warning) he was expected, throughout the remainder of his employment, to "adhere in detail to all Safety, Health and Environmental procedures". The seriousness of what he had done was reflected not just in the fact that he had been warned but in the fact that he was also suspended without pay and yet around 17 months later he was found to have failed to inert a vessel and falsified the SBPRS not once but three times. The majority were of the view that in these circumstances Dr Ingram was entitled to conclude that warning Mr Thomson again would unlikely to have the desired effect on his behaviour and that given his history it was more likely in his case than that of others that he would reoffend because he appeared unwilling or unable to take on board the necessity of inerting. Dr Ingram's belief, based on Mr Thomson's history, that Mr Thomson was more likely than others to pose a risk to himself and other employees was something which the majority concluded he was entitled to take into account in deciding on whether or not Mr Thomson should remain in the respondent's employment. In these circumstances, with a degree of hesitation and considerable sympathy for Mr Thomson, the majority concluded that this was one of the rare cases in which was reasonable to take account of the fact that a warning had been issued in the past, even although it had since expired, as part of the relevant history of events and that the dismiss of Mr Thomson was within the band of reasonable responses.

The minority view (Wing Member dissenting) was that the respondent had not been entitled to take account of the fact that Mr Thomson had previously received a warning for failing to inert and falsifying the SBPRS given that this warning had expired. It was her view that if the respondent had wished to use the warning for any purpose then it 5 should have issued it for an unlimited period (as it had done in the case of the employees who were not dismissed). She also noted that the warning which had been issued was a written warning rather 1han a final written warning. It was her view that by doing this the respondent itself had flailed to communicate the seriousness with which it viewed failing to inert. A reasonable employer would not have dismissed Mr Thomson in ) these circumstances but instead would have given him the opportunity to show that he could learn the message about the need to inert by giving him a final written warning, if .need be supplemented by enhanced supervision. She concluded that having given a written warning rather than a final written warning the respondent could not reasonably conclude that Mr Thomson was unwi11ing or unable to learn the "inerting message". In these circumstances she concluded that the respondent had not behaved in the way that a reasonable employer would in dismissing Mr Thomson and that his dismissal was unfair"

14. This passage must be looked at against the background of a finding by the Tribunal on page 27 that the existence of the final to the effect that the existence of a warning was determitive of the matter.
15. Here Mr Napier's position was simple. Against the background of a decision of this Tribunal William Grant & Sons Ltd v Devlin EAT 25 March 2004, following a warning which was said to have a limited time span was of no effect when the time period expired. In this case the warning in question was said to lie on the employee's record for 12 months only.
16. In these circumstances Mr Napier submitted that it was plain that the Tribunal uphold that the employer had been influenced is not completely motivated by the warning notwithstanding it had expired. Mr Cowan tried valiantly to suggest that in reality the reason for the dismissal was that in the context of the warning with more than that the employer lost confidence as to whether or not this employee will continue to apply safety measures including inerting.
17. This argument though very ingenius was not open to him having regard to the way the case has been determined by the Tribunal.
18. We therefore agree with the reasoning of the minority number in this respect. We consider that decision to dismiss Mr Thomson which took into account substantially the warning which by that time elapsed was unfair and indeed told otherwise would be perverse.
19. In these circumstances the appeals of Fleming and Watts should be dismissed. The appeal of Thomson will be allowed and the finding of fair dismissal will be quashed and the case remitted back to the same Tribunal to consider the question of remedy. We are satisfied the same Tribunal to consider this question since they have a full knowledge of the extent of the misconduct which undoubtedly took place albeit not sustained by sufficient ground for reasons given in supporting Mr Thomson's dismissal.