Appeal No. UKEAT/0471/06/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2007

Before
HIS HONOUR JUDGE PETER CLARK
MR A HARRIS 
MR T STANWORTH

HONDA MOTOR EUROPE	APPELLANT

MR J MCMILLAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr A Nawbatt
(of Counsel)
Instructed by:
Messrs Denton Wilde Sapte Solicitors
One Fleet Place
London
EC4M 7WS	
For the Respondent	Mr P Dean
(of Counsel)
Instructed by:
Clarks Legal LLP Solicitors
One Forbury Square
The Forbury
Reading
Berkshire 
RG1 3EB	

SUMMARY
Unfair dismissal – Reasonableness of dismissal
Reasonableness of dismissal under s.98(4) ERA. ET took into account irrelevant factors and failed to take into account relevant factors when considering whether employer carried out a reasonable investigation.  Finding of unfair dismissal reversed.

HIS HONOUR JUDGE PETER CLARK

1.	This is an appeal by Honda Motor Europe Ltd (“Respondent”), first Respondent to a claim brought by the Claimant, Mr McMillan, of unfair dismissal.  That claim was upheld by a Tribunal sitting at Reading by a reserved judgment promulgated with reasons on 25 July 2006.  The Claimant’s further claim of sex discrimination, bought against the Respondent and two named individuals, was dismissed.  There is no cross-appeal against that ruling.

Outline
2.	The Claimant commenced employment with the Respondent on 7 July 1986.  Following a series of internal promotions he was appointed Area Sales Manager in the Marine and All Terrain Vehicle Division.

3.	In that capacity he attended the Southampton Boat Show in September 2005.  The Respondent was an exhibitor.  The last day of the show was 24 September.  That evening he attended a function at a restaurant organised by the Respondent.  Other employees of the Respondent, together with agency staff connected with the Respondent’s stands at the show also attended.  One present was a female employee, JC, who had been with the Respondent for about 6 months.

4.	During the course of that evening an incident allegedly occurred which led to the Claimant’s dismissal.  JC said that he had grabbed her breast and held it for a few seconds before she forcibly removed his hand.  In subsequent disciplinary proceedings the Claimant denied that allegation.  The Respondent believed JC’s account.  They dismissed him.  His internal appeal against dismissal was rejected.

5.	The Employment Tribunal accepted that the Respondent had a genuine belief in the misconduct alleged and that dismissal for such behaviour following a reasonable investigation was a reasonable sanction.  However, they found that the Respondent failed to carry out a reasonable investigation.  On that basis dismissal was unfair applying s98(4) Employment Rights Act 1996 (“ERA”).  They also considered s98A ERA, but found that had a reasonable investigation been carried out there was only a 20% chance of dismissal.  Thus the dismissal was not rendered fair under s98A(2).  An alternative contention by the Respondent that the Claimant contributed to his dismissal by his own conduct is not dealt with in the Tribunal’s reasons.

Reasonable Investigation
6.	We had some debate before us as to the precise meaning and effect of the form of order made by a division presided over by Langstaff J, which included Mr Stanworth, permitting this appeal to proceed to a full hearing at a preliminary hearing held on 12 December 2006.  In the event Mr Dean took no objection to the way in which Mr Nawbatt puts the appeal in the respects which we now consider. 

7.	First, the correct legal test.  As the Court of Appeal made clear in Sainsbury v Hitt [2003] ICR 111, the range of reasonable responses test applies as much to the reasonableness of an employer’s investigation in a Burchell misconduct case as to the sanction of dismissal.

8.	We prefer Mr Dean’s submission that this Tribunal sufficiently identified the correct test in their reasons (paras 35 and 36).  The real question is whether they properly applied it to the facts of this case.

9.	Our starting point is s98(4) ERA, given that the Respondent established a potentially fair reason for dismissal, namely the Claimant’s conduct in sexually assaulting JC.  Did the Respondent act reasonably or unreasonably in treating it (the employer’s reason) as a sufficient reason for dismissing the Claimant?  In deciding that question the Tribunal should consider all the circumstances including the size and administrative resources of the employer.

10.	In considering the question of reasonable investigation the Tribunal identified a number of factors which led them to conclude that this Respondent, of considerable size and with a substantial dedicated HR function, did not carry out a reasonable investigation.  Those factors are set out at paragraph 36.1-36.4.  They may be divided into failure to follow their own procedures and investigation into the circumstances of the alleged incident.

11.	As to procedures, the Tribunal found:-

(1)	that no proper statement was taken from JC
(2)	the Respondent failed to follow its own procedures under its Bullying and Harassment Policy
(3)	the decision to dismiss was taken jointly by the Claimant’s line manager, Mr Haynes and the head of HR, Mrs Wiseman whereas the policy required that the decision be taken solely by the line manager.

Dealing with each of those points, we accept Mr Nawbatt’s submission that each factor was irrelevant to the reasonableness of the Respondent’s investigation because:-

(1)	A statement was taken down in writing, first by Mr Lambourne of HR; subsequently, JC was re-interviewed by Mrs Anscombe, the investigating officer, as the Tribunal found.  The mere fact that no signed statement was obtained from JC seems to us immaterial where there is no suggestion that her account was mis-represented.  
(2)	The criticism of the Respondent for not properly presenting the outcome of JC’s grievance to her seems to us irrelevant to the investigation of the Claimant’s conduct in his disciplinary proceedings.
(3)	As Mr Dean accepts, a joint decision to dismiss when the Respondent’s procedure provided for the line manager to be the sole decision maker has no bearing on the quality of the investigation leading up to that decision.  

As to the investigation into the incident itself the Tribunal observe that Mrs Anscombe was inexperienced and ought not to have led the preliminary investigation. However, the real criticism is that in carrying out that investigation Mrs Anscombe failed to investigate:

(a)	a suggestion that there had been ‘banter’ in the restaurant that evening
(b)	that an agency worker had made an inappropriate remark to JC on the stairs, and
(c)	the time at which the alleged incident took place, the evening being “drink-fuelled”.

These matters might have given “a very different overall flavour to the events of that evening” said the Tribunal.

12.	We are at a loss to see how these matters bear on the critical question, did the Claimant sexually assault JC?  If he did, as the Tribunal found, dismissal was an appropriate sanction.  No amount of banter, lewd comments by others present or the amount of alcohol consumed during the evening would alter that simple fact.

13.	What Mrs Anscombe’s investigation did consist of, material to the object of that investigation was:-
(1)	interviewing all relevant witnesses she obtained a statement corroborating JC’s account from a manager present, Mr Hebditch and some further corroboration from a Mr Walker.  The Claimant described Mr Hebditch’s account as “quite damming” at the internal appeal hearing before Mr Strangway, General Manager European Car Sales.
	(2)	interviewing both the Claimant and then JC
(3)	interviewing a witness put forward by the Claimant, a Mr Schofield, who was at a different table and unable to assist.

Thereafter the Claimant was given a full opportunity to state his case, both at the disciplinary and later appeal hearings.

14.	In these circumstances we are quite satisfied that, in taking into account irrelevant factors and failing to take into account relevant factors (the actual investigation results) the Tribunal fell into error.  The decision cannot stand.

Disposal
15.	We are further satisfied that this is a case in which we should reverse the Employment Tribunal’s decision and find that this was a fair dismissal.  First, because the Respondent plainly carried out a reasonable investigation applying the principle in Sainsbury v Hitt and secondly, because any relevant minor procedural failing, such as the joint decision to dismiss, was (a) not such as to render the dismissal unfair under s98(4), (b) of such a nature that the appeal hearing cured the defect, even although it took the form of a review, in the light of the Court of Appeal decision in Taylor v OCS Group Ltd [2006] ICR 1062 and (c) rendered fair by the proper application of s98A(2) ERA; the chance that the Claimant would have been dismissed had a proper procedure been followed was higher than 50%; see Alexander v Bridgen [2006] IRLR 422.

16.	We should add that Mr Dean has brought to our attention the Claimant’s unfortunate medical episode in January 2007 which has left him incapacitated.  In these circumstances Mr Dean, like Mr Nawbatt, has asked us to deal with the matter ourselves.  We are, for the reasons given, content to do so.