Appeal No. UKEATS/0020/11/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 23 September 2011
Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MRS A HIBBERD
MR M SIBBALD
RODGER (BUILDERS) LTD APPELLANT
MR A N MACDONALD RESPONDENT
Transcript of Proceedings
JUDGMENT
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
1.
The Appellants are a family-owned plant hire business based at Earlston
in Berwickshire. Among the plant that they hire are cranes. The Claimant, the
Respondent to this appeal, was employed by them as a crane driver.
2.
On 21 July 2009 the Claimant was asked to go with a crane to a
customer’s site on a farm. He attended what he understood to be the correct
site. It was a site which the Appellants had served before, and where they
knew there were no access difficulties. However, when he got there it was
plain that it was not the right place; there was nobody there and no steel work
or other materials for the job that he understood had to be done. He
telephoned his line manager, Mr William Rodger, who gave him the
customer’s telephone number. He telephoned the client and was given a
different, though nearby, location. He attempted to reach that location. It
involved driving the crane up a narrow lane, with hard wheel tracks but grass
in the middle and grass verges. In the course of his doing so, the crane came
off the track and toppled over. Very extensive damage was done to the crane
itself. Beyond the cost of repair, the Appellants suffered a serious revenue
loss from it being out of action. The Claimant himself, fortunately, was not
seriously injured.
3.
After an investigation, of which we will give some further details in
due course, the Claimant was on 4 August 2009 dismissed for gross
negligence “in that you drove the crane without sufficient care, nor in the
correct steering mode.” He appealed, but the dismissal was upheld by
Mr Charles Rodger. It is convenient to say here, though it is
somewhat out of order, that in the subsequent Tribunal proceedings it became
clear that the criticism that the Claimant was not using “the correct steering
mode” could not be sustained. The real gravamen of the charge against him was
that he was driving without sufficient care and, as will appear, too fast.
4.
The Claimant brought proceedings for unfair dismissal. The case was
heard in Edinburgh before a Tribunal chaired by Employment Judge Bolland QC.
The Claimant appeared as a party litigant. The Respondents, the Appellants before
us, were represented by Mr Richard Woods of Law at Work Limited. Regrettably
the hearing was split into three parts. The first day was 1 March; the
second day was over seven weeks later, on 21 April; and there were then two
consecutive days in early August. The evidence was completed by the first of
those last two days. It was intended that the Tribunal would hear oral
submissions on the following day. Unfortunately the Employment Judge sustained
an injury to his hand on the morning of the second day, and it was agreed that
the hearing could not proceed but that the parties would submit their closing
submissions in writing.
5.
We should pause to say that hearings that are split in this way are
always undesirable, though sometimes alas it is inevitable; and it is
particularly undesirable to have a short case of this kind heard in three tranches.
We were told that the particular reason why that occurred in this case, and why
it may be that the evidence took three days rather than two, was that the
Tribunal asked to hear a tape recording of the appeal hearing before
Mr Charles Rodger. There was a transcript of that hearing, which both
parties regarded as accurate; but the Tribunal said that it nevertheless wanted
to hear the tape itself in order to hear the “tone” of the hearing. Since this
meant that equipment for playing the tape had to be brought, and we were told the
tape itself lasted over two hours, we are bound to say that we doubt whether
that was a proportionate use of Tribunal time.
6.
Following the conclusion of the hearing there was a further period of no
less than six months before the promulgation of written Reasons, which were
sent to the parties on 17 February 2011. We have to say that a delay
of that extent is unacceptable in any case, absent very exceptional
circumstances. The present case presented no special difficulties: indeed the
Reasons eventually received consist only of some five pages. It is not
mitigated by any apology or explanation being offered either in the text of the
Reasons themselves or, as we have ascertained, in correspondence to the
parties. The delay is all the more to be regretted, in view of what are, as we
shall be explaining in due course, serious defects in the Reasons.
7.
The decision of the Tribunal was that the Claimant had been unfairly
dismissed. He was awarded compensation in the sum of £8,112.
8.
The appeal before us was initially on the issues both of liability and of
remedy. However, Mr Woods has withdrawn the ground of appeal relating to
loss, save only that there remains an issue, which we will briefly explain in
due course, about contributory fault. The primary matter before us, however,
concerns liability.
9.
The approach to the issue of liability in a case of this kind is one
which should have been second nature to the Employment Tribunal, exposed as it
will inevitably have been to repeated citation of the decision of this Tribunal
in British Home Stores v Burchell [1980] ICR 303
– to which Mr Woods had indeed referred in his written submissions. The
Claimant had been dismissed for, in effect, negligent driving. It does not
matter for present purposes whether that is characterised as misconduct or
incompetence. Reversing the traditional Burchell formula, but
without affecting its substance, the questions for the Tribunal were – first,
whether the Appellants had carried out a reasonable investigation into the
alleged negligence; secondly, whether, if so, it was reasonable on the basis of
that investigation for them to believe that the Claimant was indeed guilty of
negligence; and thirdly, if so, whether they did in fact believe in his guilt.
(There is of course an additional question, though not one in which we have to
become involved for the purpose of this appeal, about whether dismissal was a
reasonable sanction for the misconduct or incompetence found. We only record
that the Claimant’s case was that even if he was reasonably found to have been
at fault to some extent a written warning would have been a sufficient
sanction.)
10.
The Tribunal, unfortunately, did not approach the issues in that way.
It did not in fact refer to British Home Stores v Burchell
at all. The only case to which it referred in its Reasons was the decision in Iceland Frozen Foods
Ltd v Jones [1983] ICR 17. That is indeed an important case
and not inappropriate to be referred to here, since it reminds tribunals of
their duty not to substitute their own view for that of the employer as long as
the view of the employer was reasonable; but it is of less specific relevance to
a case of this kind.
11.
It is in those circumstances necessary for us to identify what the
particular issues were in relation to each of the three “Burchell
questions”.
12.
We start with the question of reasonable investigation. The Appellants’
case before the Tribunal – of which we have, of course, a good record, since we
have Mr Woods’ closing submissions – was as follows. Mr Rodger
attended the scene of the accident as soon as it was reported. He inspected
the area and then, or shortly afterwards, took photographs. He asked a
mechanic to check the crane to see whether there was any mechanical fault that
may have accounted for the accident. The width of the track, and the crane,
were measured. He then asked the Claimant to produce a report giving his
account of how the accident occurred. That was duly produced. We need only
read the first paragraph:
“During driving up the farm track at
approx. 10-15 mph the road collapsed away causing the crane to slide into the
ditch and roll onto its off side. I tried my best to stop the crane slipping
but could not stop it from tipping over due to the road giving way on the offside.”
There then followed an investigation meeting on 27 July and
a disciplinary meeting on 29 July, both conducted by
Mr William Rodger. Following the latter, the Appellants obtained
short opinions from two of the crane hire companies that had been involved in
the recovery of the fallen crane. These were supplied on 3 August. They
were brief but both, though they expressed it somewhat differently, put the
cause of the accident down to driver error. It was on the basis of all those
materials that Mr Rodger formed the view that the Claimant was indeed
guilty of negligence. The particular points were that the track was wide
enough for the crane to have been driven up it safely; that there was evidence
that the Appellant had been, in his words, “meandering”; and that there was no
sign of the track having “collapsed”. The speed at which he himself said he
had been driving was also, in Mr Rodger’s opinion, excessive. It was the
Appellants’ case that that constituted a reasonable investigation.
13.
The Claimant’s case, in his written submissions, was that the
investigation was not reasonable. He made a variety of points, including that
it was too rushed, that it was not in accordance with the ACAS code, that the
Appellants did not follow their own disciplinary procedure and that the reports
from the mechanic and the statements from the two crane hire companies were
based on investigations for the purpose of recovering a crane, and were not
reliable as investigations into the cause of the accident.
14.
It was the Tribunal’s job to assess the parties’ respective cases, as
summarised above, on the adequacy of the investigation and to decide whether it
was indeed fair and reasonable. To anticipate, that is not a question that it
expressly addressed.
15.
Turning to the second question, namely whether on the basis of the
investigation there were reasonable grounds for believing that the Appellant
had driven negligently, the question for the Tribunal was whether the matters
shown by the investigation sufficiently justified the conclusion that the
accident was indeed the result of driver error. In particular, was it
reasonable to conclude that the Claimant was driving too fast and/or
“meandering”? Or was the only reasonable conclusion that the track had
collapse? There would, on the facts of this case, be considerable overlap with
the previous question though it remains conceptually distinct.
16.
The third question, whether the employer believed in the Claimant’s
guilt, was not really an issue in the present case. This is not a case, for
example, where it was suggested there was some ulterior motive for the
dismissal.
17.
As we have already trailed, the Tribunal did not approach the case in
that way. Paragraphs 1-26 set out the findings in fact. These included some
passing observations on issues relevant to the investigation, and/or the
reasonableness of the grounds of the decision, but these are random and not
reasoned. Some at least are contentious. To take one example of particular
importance, the Tribunal found, at paragraph 8 of the Reasons, that the
Claimant proceeded along the track at “roughly a walking pace”. That is of
course inconsistent with him travelling at 12 to 15 miles an hour as he had
said in his own statement. The Tribunal said baldly, at paragraph 11, that the
Claimant “overestimated his speed at the time of the accident”. That is an odd
finding to appear without any explanation, in view of the centrality of the
issue. It transpires from what we have been told, though the Tribunal does not
say so, that the Claimant did in fact give evidence that what he had said in
his statement was an overestimate. But the Tribunal needed to explain why it
preferred his subsequent evidence to what he said at the time. More to the
point, however, the question with which the Tribunal was concerned was not what
speed the Claimant was in fact travelling at, but what speed it was reasonable
for the Appellants to believe that he was travelling at; and in that regard it
is hard to see how they could be blamed for accepting his own account in his
statement, unless he corrected that in the course of the investigation or
disciplinary meeting, which there is no finding that he did. Likewise there is
a bland finding at paragraph 9 that “the right hand verge subsided”; but there
is no indication of the basis of that finding, which was inconsistent with the
Appellants’ belief, and, which is what really matters, no consideration of
whether that question had been adequately investigated by the Appellants.
18.
We have to say also that the drafting of the findings in fact generally
does not inspire confidence. There are many oddities and loose ends –
including, at paragraph 4, two consecutive sentences which give different
widths for the crane.
19.
Having completed its findings in fact, the Tribunal, under the heading “Conclusion”,
says this, at paragraphs 27 and 28:
“27. The Tribunal acknowledged the
difference between the two types of hire – straight hire and contract lift.
With the attendant different practices in relation to responsibilities for the
preparation of the risk assessment. However, the point was that someone
prepared a risk assessment. The only point in doing so would be to inform the
crane driver so that he might be better equipped to carry out his task safely.
In this case there was no risk assessment – certainly none that was shown to
the claimant. William Rodger knew that the site the claimant had been sent to
and located on the map he had been given was not the correct site by the
claimant’s telephone call at about 0650. His response had been to issue the
claimant with the customer’s telephone number in the knowledge that he was
aware of the possibility that the customer had another site but not necessarily
aware of its location or access provision. Essentially, the claimant was left
to his own devices – minus a risk assessment.
28. Having been referred to Iceland Frozen Foods Ltd v Jones [1982] IRLR 459 EAT
we bore in mind the five questions identified by the case in addressing s98(4)
of the Employment Rights Act. We took account of the expense and the public
embarrassment of the accident but felt that weighted against the complete
failure of the respondent to ensure that their crane driver was adequately
briefed in view of the possible consequences meant that the respondent was
largely, if not totally, responsible for its own misfortune. William Rodger
was perfectly aware, or ought to have been aware following the telephone
conversation with the claimant at the first site that he was at the wrong site,
and had no risk assessment for any site. Although mindful of our duty
not simply to substitute our decision for that of the respondent in light of
the above the decision to dismiss fell outwith the band of reasonable responses
that a reasonable employer would have adopted. We noted that the email from
Forsyth of Denny (31) mentioned their policy of examining location access of
this type prior to hire date and when this was not possible having their
drivers telephone if they had concerns. The same email mentions that they
would have expected access and agrees with slow careful driving and that two of
their cranes gained access but one of them had a banksman.”
20.
Unpacking what the Tribunal is there saying, its reasoning appears to
have been as follows.
(1) The site
was one for which no risk assessment had been carried out by the Appellants.
(2) The
Appellants knew that the Claimant was going to a site for which they had
carried out no risk assessment. They knew that because it had been the
Claimant’s evidence, which the Tribunal – as in principle it was entitled to –
accepted, that when Mr Rodger had told him to ring the client he had also
said something to the effect that he believed that the client had another site:
therefore Mr Rodger knew, or should reasonably have inferred, that the
Claimant was or might be being asked to attend at a non-risk-assessed site.
(3) In those
circumstances, it was unreasonable of the Appellant to hold the Claimant
responsible for the accident.
21.
We cannot accept that that reasoning is dispositive of the question of whether
the dismissal in this case was unfair, or that it justified the Tribunal’s
failure to address the essential questions that we have indicated above. Even
granted, as we do, that the Tribunal was entitled to accept the Claimant’s
evidence of the conversation between himself and Mr Rodger, this was, as
was common ground, a case of a “straight hire”, where the obligation was on the
client and not the contractor to carry out a risk assessment relating to access
to the site. The client in this case may or may not have done so: it may well
be a reasonable inference that he had not. But even if he had not, and even if
Mr William Rodger was at fault in not checking whether he had, we
cannot see that that necessarily rendered the dismissal unfair, if the Appellant
had after a reasonable investigation concluded that the track was in fact
safely passable and the accident occurred as a result of driver error.
22.
Accordingly we must find that the Tribunal has failed to address the
essential issues in the case, and the appeal must be allowed on that basis. We
do not believe that this is a case in which on the material before us we can
safely reach a conclusion as to what the outcome of a remitted hearing would be,
and the consequence must be that the issue of liability falls to be remitted to
the Employment Tribunal. In the circumstances of this case it plainly should
not be the same Tribunal.
23.
There is a further ground of appeal. Mr Woods, in his written
submissions, expressly raised the issue of what is commonly called contributory
conduct – that is to say, whether the amount of compensation should be reduced
under either section 122 (2) or section 123 (6) of the Employment Rights Act 1996.
The Tribunal was obliged in its Reasons to deal with that question. It
appears, however, to have overlooked it entirely: there is no mention of it in
the Reasons. That is patently a breach of the so-called “Meek
duty” – that is to say, the duty on a tribunal to address and give reasons for
its decision on all substantive issues raised by the parties.
24.
We would add, if only as a learning point for the future, that in
directing written submissions the Tribunal – and we perhaps have to include
Mr Woods in this criticism, though in other respects he has presented the
case, if we may say so, fairly and well – was at fault in not thinking through how
the written submissions would work. Where there are oral submissions, each
party hears the other’s case and can deal with any new points which he has not
seen coming. Here, the parties agreed, and this appears to be what the Tribunal
intended, that their submissions would both be lodged at the same time. This
meant that the Claimant had no opportunity to address the question of
contribution; nor did either party have any opportunity to address what the
other might say on the question of loss more generally. Where it is necessary
to proceed by way of written submissions – which is, we have to say, always
second-best – there ought to be built in a procedure whereby each party can
comment, however briefly and in however short a timescale, on what the other
has said.
25.
The result is that this appeal is allowed. The case, as we have said,
should be remitted to a differently constituted Employment Tribunal to
determine the issues of liability and contribution – though not the issue of the
Appellant’s loss, subject to contribution, (on which the Tribunal’s conclusion
has not been challenged). We would frankly think that this is the kind of case
that could be fairly disposed of in a hearing of no more than two days,
particularly now that the primary loss will not be in issue. However, to avoid
any risk of a repetition of any split hearing, we accept that it might be
prudent for it to be given a three-day listing. In the circumstances of this
case, though this must of course be ultimately a matter for the President and
not for this Tribunal, we would hope that it could be listed quickly: in view
of the delay to date it does not seem fair that the parties should have to wait
any longer than is absolutely necessary to have this claim re-heard.
26.
Finally we would say two things. First, we should make it clear that,
although we have had to say something about the issues – and, in passing, about
the evidence – it will be for the Tribunal re-hearing the case to decide it on
the basis of the evidence and submissions made before it; and it should not be
influenced by anything that we may appear to have said about the factual issues
which it has to decide. Secondly, we express our real regret that the parties
have to go through a re-hearing in a case that should have been properly
disposed of first time around. But in the interests of justice there is no
alternative.
