Appeal No. UKEAT/0205/07/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 August 2007

Before
HIS HONOUR JUDGE McMULLEN QC
DR B V FITZGERALD MBE LLD FRSA
DR K MOHANTY JP

OCS LTD	APPELLANT

MR D W PULLEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR BENJAMIN UDUJE
(of Counsel)
Instructed by:
Messrs Weightmans Solicitors
India Buildings 
Water Street
Liverpool
L2 0GA	
For the Respondent	MS BETSAN CRIDDLE
(of Counsel)
Instructed by:
Messrs Pattinson & Brewer Solicitors
71 Kingsway
London
WC2B 6ST	

SUMMARY
Unfair dismissal – Reasonableness of dismissal
The Employment Tribunal did not err in finding that a window cleaner was unfairly dismissed and 50% to blame for his dismissal when a co-worker was fairly dismissed for engaging in an unsafe practice while doing work on a ledge. The tribunal did not substitute its own judgment to that of the management or treat like cases differently.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the dismissal of a window cleaner, set against the splendid background of Waddesdon Manor, Bucks, a grand Victorian chateau built by the Rothschilds and now a museum displaying fine furniture, pottery and an outstanding wine cellar.  The judgment represents the views of all three members.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal sitting over 4 days and 2 in chambers at London South, Chairman Mrs F Spencer, registered with reasons on 23 November 2006.  The parties were legally represented and today are represented respectively by Ms Betsan Criddle and Mr Benjamin Uduje.  

3.	So far as is relevant to the issues on appeal, the Claimant with his workmate Mr Atkins claimed ordinary unfair dismissal, other claims were dismissed.  The Respondent contended it dismissed both of them for gross misconduct and was reasonable in so doing.  The essential issues as defined by the Employment Tribunal were to determine the reason for dismissal - as to which there was a number of candidates including Trade Union and health and safety activities - and to decide whether or not the decision to dismiss was fair.  The Tribunal decided against Mr Atkins and in favour of the Claimant.  It concluded that the Claimant was 50 percent responsible for his own dismissal and slashed the compensatory award accordingly.  The Respondent appeals against the judgment in Mr Pullen’s case.  

4.	Directions sending this appeal to a full hearing were given at a Rule 3 hearing conducted by HHJ Peter Clark.  The appeal had previously been held by Bean J to have no merit while at the same time paying tribute to the skilful skeleton argument of Mr Uduje.  

The legislation
5.	The relevant provision of the legislation is not in doubt: Section 98 of the Employment Rights Act 1996.  The Tribunal directed itself according to it and the relevant authorities to which we will return for it is common ground that the Tribunal’s self-direction is unimpeachable.  

The facts
6.	The Respondent is a large employer engaged, amongst other things, in cleaning.  The Tribunal introduced the parties in this way:

“11.	Mr Atkins (‘TA”) and Mr Pullen (“DP”) are both long serving window cleaners who began employment with the predecessor to the Respondent, Mr. Atkins commencing in 1969 and Mr. Pullen in 1971. There was an issue between the parties as to the date that DP commenced employment to which we revert later.
12.	Both Claimants were window cleaners. For several years prior to the incidents leading up to their dismissal they had worked in a teem of 3 consisting of DP, who was the leading hand, TA and DP’s brother Michael Pullen. On 28 July 2005 Michael Pullen, whilst working on a job on his own, fell from a ladder and suffered serious injury.  He was some rime in intensive care and bas not worked since. After Michael Pullen’s accident the Claimants carried on working in a team of 2.
13.	The Claimants were pieceworkers. The team leader for each team would be paid a fixed amount for each job. It was up to the team leader how to split the amount payable for the job amongst the team. The Respondent allocated jobs to its various teams, some of which were regular (i.e. to be done on a periodic basis) while others were: one off jobs. The team leader was responsible for organising the work, deciding on the size of his team and would book in, direct with the client, those jobs that did not have to be done at a specific time.
14.	The team leader was also responsible for all paperwork. Each job had a work bill setting out the job to be done and the method of work to do it. The Team Leader was required to sign to confirm that a pre-work safety check .had been done -(though the Tribunal noted, from examples provided in the bundle, that the requirement for a signature in relation to the pre work checks was not rigorously enforced). The pre work safety check consisted of a visual check of the premises to ensure that the site conditions had not changed since the last visit. Once the job was completed the work bill had to be signed off by the client (136). The Respondent also provided each Team leader with a site specific “risk assessment” for each job (158). Each team leader was responsible for ensuring that the work was carried out to the specification required in accordance with the risk assessment and in the manner specified on the work bill. The team leader was required to refer to the method statement and risk assessment when performing the pre-work check. It was his responsibility to ensure that that the equipment to be used was suitable and in a satisfactory condition. It was also for the team leader to ensure that any changes which he considered should be made to either the method of work or specification were brought to the attention of their line manager so that these changes can be made and implemented on the method statement, risk assessment or work bill prior to the work being performed again.
15.	The Tribunal was satisfied that the Respondent took seriously its duties in respect health and safety.”

7.	The Respondent had what we will call a rulebook consisting of a number of documents all propping up the policy of giving priority to health and safety.  The rulebook contains a number of matters but, so far as we have been shown, only one indicates that breach will lead to a dismissal.  

8.	The Respondent received a complaint from Waddesdon Manor about the way in which work was being done by the Respondent’s employees in Waddesdon’s stables.  It indicated an unsafe system.  It was investigated.  It was found that Mr Atkins was on a ledge without proper harnessing. That is dangerous and in breach of the rules.  Both men were charged on slightly different terms.  At a proper hearing conducted by the relevant manager Mr Thrupp both men were dismissed.  Mr Pullen was represented by Mr Lewis, an officer of the Transport and General Workers Union as it then was.  An appeal was conducted without success.  It seemed to take quite a long time.  

9.	The Tribunal considered the law relating to unfair dismissal for misconduct as set out principally in BHS v Burchell [1980] ICR 303 and upheld the Respondent in respect of the three stages in Burchell,. It found that the Respondent had a genuine belief in the misdeeds of the Claimant.  It was formed on reasonable grounds after as much investigation as was reasonable.  The question arose therefore as to whether or not the sanction of dismissal was within the band of reasonable responses.  The Tribunal held it was not.  First it determined the reason for dismissal in narrower terms than the charges put, for it said this:
“However Mr Thrupp accepted, before us that DP’s dismissal was not because he had “allowed” TA to walk the ledge. Mr Thrupp concluded however that he had not done the pre-work check, had not shown the paperwork to TA and had not ensured that he had the right equipment with him when he went to the stables.”

The Tribunal noted that those charges as proved were significantly less serious than those which were proved against Mr Atkins.  

10.	Helpfully before us Mr Uduje accepts that there is no appeal against the finding by the Tribunal as to what was the real reason for the dismissal by Mr Thrupp and that the Tribunal’s construction of the charges is correct.  The Tribunal noted that the evidence of the Claimant was inconsistent but it went on to make finding relating to the band of reasonable responses applying correctly the law as set out in British Leyland (UK) Ltd v Swift [1981] IRLR 91.  The Tribunal said this:

“54.	The charges against DP were significantly less serious than those against TA. He had worked with TA for seven years. They had done the jab at Waddesdon Manor together for some five years. TA was an experienced window cleaner. We did not find credible the Respondents evidence that a failure by the Team Leader to show the members of the team the method statement and risk assessment each time a job was done even if it was a regular job which had been unchanged for some time was a job which was viewed so seriously by the Respondents that any Team Leader would have been aware that it was a dismissible offence. Equally we did not accept their evidence that DP’s failure to personally walk round the stables before allowing TA to commence work was conduct so serious that DP would have known that a breach of this rule was likely to cost him his job.
55.	TA had been a window cleaner for nearly 40 years. He had worked with DP for seven of those years. He knew the stables and would have been able to see for himself if there were obstacles in the way that prevented a safe clean of the premises. Although the work bill had not been signed it was clear from other work bills on the bundle that these frequently were not signed by leading hands. OP had not shown TA the paperwork but given that DP and TA had done the job on a regular basis for some time we think it most unlikely that the Respondent would have considered this to be such a serious breach if it had not been for the fact that TA had walked the ledge. We remind ourselves that these were window cleaners and that they had worked together a long time As to checking if TA had the right ladder at the stables we do not accept the Respondents evidence that they required DP to supervise TA to the extent that they said was required and that any failure by TA to take the correct ladder must also be seen to be equally serious misconduct on the part of the Team leader.
56.	For these reasons we are not satisfied that dismissal was within the band of reasonable responses.”

The Respondent’s case
11.	The Respondent contended that the Tribunal had committed the error which it had instructed itself not to commit by deciding what it would do: the heresy of substitution of judgment for that of management.  This Respondent placed great stock in its commitment to safety, had a rulebook to that effect and the Claimant had been guilty of not following it.  The Tribunal carried out its own assessment of the gravity of the offence and did not apply the objective standard.  This case was one of perversity: see Post Office v Foley [2000] IRLR 827 at paragraph 49.  The only correct conclusion was that the judgment of the Tribunal should be set aside and then there should be substitution by us of a finding that the Respondent did not unfairly dismiss the Claimant.

The Claimant’s case
12.	On behalf of the Claimant it is contended that there was a gap between the written procedures set out in the rulebook and what happened on the ground.  The rulebook specified only one dismissible event and this is relevant when considering whether an employee knew about the consequences; see Lock v Cardiff Railway Company Ltd [1998] IRLR 358, Morison J (P) and members.  This case being one of perversity, the criticisms did not satisfy the test of an overwhelming case necessary for it to succeed: see Yeboah v Crofton [2002] IRLR 634 CA per Mummery LJ.  The Claimant said when put to him about what he would do if he saw Mr Atkins behaving in the same unsafe way that he would take him aside informally as a mate but that did not undermine the Tribunal’s decision.

The legal principles
13.	The legal principles to be applied in this case, as we have gratefully acknowledged, are not in dispute of this case.  The Tribunal is required to go through the stages in BHS v Burchell and it do so in this case.  The position of an employee who does not know about the consequences of a breach of the rules was set out in Lock (above) where Morison J said this:

“It will be observed at once that nowhere have the employers spelt out the likely consequences to an employee of breaking rules, other than in a general sense. In particular, they have failed to give a clear indication of which type of conduct may warrant summary dismissal. It is not specified in the disciplinary code which offences could be described as gross for which a first breach would justify the disciplinary sanction of dismissal.”
14.	Where two employees are convicted of the same offence against the workplace canon they should be dealt with in the same way. But where different charges are upheld against one as against the other it is only fair that they be treated in different ways although, of course, they could both be dismissed if dismissal were within the band of reasonable responses.  A Tribunal must not substitute its judgment for that of the management and must always consider whether action was within the band of reasonable responses.  When grounds of perversity are advanced on appeal the overwhelming case suggested in Yeboah v Crofton must be made out.

Conclusions
15.	We prefer the argument of the Claimant which we adopt and will dismissed the appeal.  

16.	The important issue in this case related to the Tribunal’s depiction of the difference between what happened in the rulebook and what happened on the ground.  In making the decision that there was a gulf between the two, the Tribunal relied upon the credibility of the Respondent’s evidence.  If there is a rulebook it must be followed but if it is not followed all the time because of differences in its application on the ground, it is a matter for an Employment Tribunal to consider when assessing the fairness of a dismissal.  In this case, the Tribunal made three findings, which we have cited from paragraphs 54 and 55 of its reasons above, all indicating a division between the black letter rule and the application of it in practice. It did so on the basis of rejecting as incredible the Respondent’s evidence on the matter.  We also note that it considered when deciding whether or not the dismissal fell within the band of reasonable responses the absence of signatures on work documents, set in the context of long serving employees experienced in working together over a long period of time on the same sites.  

17.	We can understand that this employer, conscientious as it is to set down in writing what it expects by way of health and safety from its employees, is dissatisfied with the Tribunal's judgment.  After all, reading it in stages it succeeded in defeating the claims made by the Claimants that they were dismissed for anything other than the misconduct with which they were charged. It satisfied the BHS v Burchell test in that its managers had genuine beliefs and carried out a reasonable investigation including a sophisticated appeal machinery with Trade Union representation.  

18.	Why did it lose?  The reasons are clear to us; the Tribunal has set them out.  We discharge the Employment Tribunal of the criticism made on behalf of the Respondent that it substituted its judgment for that of management.  As a matter of language, this simply cannot work. Time and again it assesses the matter against the standard of a reasonable employer and a band of reasonable responses.  Further, why should it do different from that which it set out to do and said it would do in paragraph 10 of its judgment, which was too eschew substitution of its view?  The criticism of the Tribunal that this judgment is perverse does not meet the high standard required in Yeboah v Crofton.  An overwhelming case has not been made.  On the contrary we can clearly see how the Tribunal reached this judgment on the evidence.  We can also see that at some stage the Respondent may be disappointed to have defeated Mr Atkins case and yet to lose to Mr Pullen, but it must be recalled that by the time the decision was made, the charges against Mr Pullen were, as the Tribunal found, significantly less serious than those against Mr Atkins.  

19.	Conformity of treatment is an important element of fairness in unfair dismissal. The more serious offence here was committed by Mr Atkins. The allegation that Mr Pullen allowed Mr Atkins to walk unsupervised on a high ledge was rejected by Mr Thrupp; it did not form part of the reasons for his dismissal.  

20.	The Tribunal had in mind the inconsistency in the answer given by the Claimant during the disciplinary process and also what his approach would have been had he known that Mr Atkins was about to do that.  It yet came to the conclusion which it did.  It was one which was open to it.  We have no doubt that the same balanced approach informed its judgment on remedy, for the reduction of the Claimant’s compensation by 50 percent was a very significant statement about where the responsibility lay. In our judgment there is no error of law in this case, as Bean J correctly diagnosed on the papers at first sift.  

21.	We would like to thank Mr Uduje and Ms Criddle for their very helpful arguments.  The appeal is dismissed