HIS HONOUR JUDGE McMULLEN QC
1.
This case is about unfair dismissal. It also touches upon Employment
Tribunal procedure in the presentation of its reasons. It is the Judgment of
the court, to which all members appointed by statute for their diverse,
specialist experience have contributed. We will refer to the parties as the
Claimant and the Respondent.
Introduction
2.
It is an appeal by the Claimant in those proceedings, against a Judgment
of an Employment Tribunal sitting at Ashford, Kent, under the chairmanship of
Employment Judge Guy Sutton, registered with Reasons on
31 August 2010. The hearing took two days, written submissions were
presented and the Tribunal met on 4 August 2010, in private, to
consider its Judgment. The Claimant had been represented by a consultant and
today is represented by Ms Melanie Court, also a consultant, the
Respondent throughout being represented by Ms Natasha Sethi of counsel.
3.
The Claimant claimed unfair dismissal and race discrimination. The
Respondent contended it dismissed him fairly for gross misconduct, having
followed a fair procedure, and the decision was nothing to do with his race or
his activities in a minority ethnic group.
The issue and appeal management
4.
The essential issue before the Employment Tribunal was to determine the
fairness of the dismissal. It dismissed the claim for unfair dismissal (and
the race relations claim was dismissed on withdrawal). The Claimant appeals.
Directions sending this appeal to a full hearing were given at a preliminary hearing
conducted by the Underhill P and members where, unusually, there was some input
from Ms Sethi, orally, she having presented written submissions in
accordance with earlier directions of HHJ Pugsley.
5.
We will refer to the transcript of the President’s Judgment because this
expresses the concerns, ventilated to both sides on the day, about the reasons
of the Employment Tribunal. The President said this:
“2. Our primary concern is about the adequacy of the Tribunal’s
Reasons. The Notice of Appeal makes a number of detailed criticisms of the
Respondent’s investigation of the allegations against the Appellant, which are
either not mentioned at all in the Reasons or, if they are, are mentioned only
in the most general terms and without any indication of why the Tribunal did
not accept them. Paragraph 29 of the Reasons, which contains the Tribunal’s
decision on the adequacy of the investigation, amounts to no more than single
sentence.
3. That would not necessarily be a good ground of appeal if either
the criticisms in question were not made at the hearing or if they were
so obviously groundless that they did not need detailed rebuttal.
4. As to the former, we are told that the criticisms in question
were made. That is borne out, at least to some extent, by the Claimant’s
representative’s written submissions below, of which we have been given a
copy. Indeed it is also borne out to some extent by Ms Sethi’s
submissions lodged for the purpose of this hearing: these tacitly accept that
some of the points relied on, though certainly not all, were made but go on to
contend, in effect, that the Tribunal was entitled to dismiss them on the basis
of points which the Tribunal itself does not make. It will be therefore an important
question at the full hearing to analyse just how the case was put and what
points were made, so that the Tribunal can carry out a proper assessment of
whether the Employment Tribunal’s Reasons were adequate or not.
6. As a footnote to this aspect, we ought to say also that we
were rather surprised by the bald and wholly unreasoned findings of paragraph 7
and 8 of the Reasons that the Appellant was guilty of the sexual harassment
alleged against him. The issue for the Tribunal so far as section 98(4) was
concerned was simply whether the Respondent’s belief that he was guilty was a
reasonable one; and, other things being equal, the Tribunal did not need to
express a view on that point (although there are cases where such a finding
might need to be made, typically for reasons relating to remedy). But given
that the Tribunal did take the course of expressing its own view, it is
troubling that it thought it appropriate to do so without any discussion of the
Appellant’s evidence or other points in rebuttal.
7. That is the reason why we think this appeal needs to proceed
to a full hearing. A makeweight point - which would of course be inadequate if
the Tribunal’s decision were otherwise unimpeachable - is that this is clearly
a very important appeal for the Appellant in view of the nature of the
allegations against him and their possible effect on his career.”
6.
Directions were then given as to amending the Notice of Appeal for it
was felt to be unfocused, and two points were made about the additional material
which would be provided, in accordance with paragraph 6. The effect of the
order, therefore, was that all of the bundle before the Employment Tribunal has
been produced before us. It runs to 343 pages.
7.
An application was made by the Respondent for the Employment Judge’s
notes. That was refused at the preliminary hearing and, instead, an order was
made for the parties to seek to exchange notes if this was to be relevant. No
further steps were taken pursuant to that direction.
The legislation
8.
The relevant provisions of the legislation and the law are not in
dispute, for the representatives before us agree that this is correctly set out
by the Employment Tribunal in the following paragraphs:
“24. Section 98 of the Employment Rights Act 1996 sets out how a
Tribunal should approach the question of whether a dismissal is fair. There
are two stages.
·
First the employer must show the reason for the dismissal and
that it is only of the five potentially fair reasons set out in s98(1) and (2).
·
If the employer is successful in the first stage, the Tribunal
must then consider whether the employer acted reasonably in dismissing the
employee for that reason under s98(4).
·
Conduct is a potentially fair reason for dismissal.
25. Once an employer has shown a potentially fair reason for
dismissal the Tribunal must decide whether that employer acted reasonably or
unreasonably in dismissing for that reason. This finding has to be determined
in accordance with equity and the substantial merits of the case.
26. An important point to note about the reasonableness test is
that it is the employer’s conduct which Tribunals have to assess, not the
unfairness or injustice to the employee.
27. It is a clear principle of law that Tribunal must not put
themselves in the position of employers and consider what they themselves would
have done in the circumstances. They must not usurp the function which is
properly that of management. What a Tribunal must decide is not what it would
have done if it had been management but whether the employer acted reasonably.
28. Employers often have a range of reasonable responses to the
conduct of an employee at their disposal, the range may be from summary to
dismissal down to an informal warning. It is inevitable that different
employers will choose different options. In recognition of this fact, and in
order to provide the standard of reasonableness that Tribunals can apply, the
band of reasonable responses approach was formulated. This requires the
Tribunal to ask:
28.1 Did the employer’s action fall within a band of reasonable
responses open to the employer in the circumstances.
28.2 In the case of a misconduct dismissal, it is
also necessary for the employer to have carried out a reasonable investigation,
for the employee to have had a proper opportunity to present his case, and for
the employer to have had a reasonable belief in the employee’s guilt and for
the penalty to be appropriate.
28.3 It was suggested in the recent case of Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 that
there is a particular responsibility on a Respondent where the Claimant’s
profession is at risk to ensure that the proper procedures are followed.
However in that case there was no (or very little) evidence to provide
corroboration of the alleged misconduct.”
9.
The reference in paragraph 26 above, is plainly to London
Ambulance Service NHS Trust v Small [2009] IRLR 563, CA, to which we
will return.
The facts
10.
As we have decided that this appeal will be allowed, and the matter
remitted to a differently constituted Tribunal, we will say only the minimum
about the facts to decide the appeal. The Respondent is an NHS Trust, the
Claimant is a staff nurse grade 5, who had been provisionally promoted to Deputy
Ward Manager. He joined the Respondent on 24 January 2005 and was
dismissed on 12 June 2009. The events in this case occurred during
2008 and the early part of 2009.
11.
EK is a healthcare worker who was, in December 2008, aged 18. She
made a complaint on 2 December 2008 in the following way:
“7.1 [He] told her some time previously that he was attracted to
her, and tried to give her his mobile number. She had made it clear to him
that she was not interested in his approaches. However she had not made a
formal complaint.
7.2 In May 2008 after she had moved to Emerald Ward where
the Claimant was working as a Staff Nurse. He had asked her a few times to
meet him out of work, but she had made it clear to him that she was not
interested. Nonetheless he persisted in suggesting that she should have sex
with him.
7.3 After his wife had given birth to a child, the Claimant had
approached her in the kitchen and had told her that his wife could not have sex
for three months, could she help him out with this? She told him to “eff off”;
the conclusion of the incident had been witnessed by a colleague,
Sylvia Verrall. She had previously reported the telephone number incident
to Matt Gardiner and had been advised to report the Claimant, but had
decided not to as she did not want to be seen causing trouble.
We find that these incidents did take place.
8 EK also complained that a further incident had occurred in
November when the Claimant had put his arms around her and tried to kiss her.
She also mentioned that she believed Emma Lambkin, another colleague and
Angela Harvey who was a domestic head also received unwelcome approaches
from the Claimant. We find that this incident did take place.”
12.
As can be seen, the Tribunal made substantive findings of fact, in
holding that the incidents complained of took place. The complaints were
investigated, a number of statements were taken from EK and the Claimant was
also interviewed, following which further questions were put to EK.
13.
The investigating manager was Elaine Gorrie, who gave evidence
before the Employment Tribunal, and she took statements from about six or seven
people. She formed the view that what she had heard justified a formal
disciplinary hearing under the Respondent’s policy for dignity at work. At the
same time as a disciplinary hearing was convened, the Claimant was told that a
second complainant, JM, had not attended and complaints made by her would not
form part of the enquiry.
14.
Mr Peter Marsh, an associate director not previously involved,
had been appointed to chair the disciplinary hearing on 10 June and the
statement of case was as follows:
“In light of the statements attached and after hearing all the
witnesses’ accounts I have reasonable belief that Noah Kantoh acted in a
wholly unprofessional manner. I have reasonable belief that he used his
position of power and seniority unethically and abused his position within the
Trust to carry out persistent unwanted conduct of a sexual nature.
I therefore believe that there is a disciplinary case of gross
misconduct for the panel to consider.”
15.
The Tribunal noted that the Claimant asked to be given to be given
access to 5 witnesses, and authority was so given. He put in a detailed
defence statement. The hearing took place. Witnesses were examined and
cross-examined. Mr Marsh adjourned the hearing and then returned and made
a statement, which was as follows:
“I have heard a lot of evidence today. Some of which has been
subjective and some hearsay which I have disregarded. There has also been a
desire to link this case with perceived inequality in relation to promotion
opportunities and to demonstrate racist undertones. I do not believe that any
of the evidence I have heard today supports either of these beliefs.
The defense has clearly been unprepared. The witness statements
were uninformative and were presented more as character references than
disproving the allegations made by management.
While much attention has been given to the kitchen incident, in
my opinion more telling has been the evidence of three separate witnesses all
of whom have reported receiving unwanted attention from [the Claimant] and his
failure to appropriately respond to their rejection indicating a failure to
work within acceptable social boundaries.
EK presented as a credible witness her vulnerability to a
situation that she had not previously encountered was in stark contrast to the
more pragmatic approach of Emma Lambkin and Angela Harvey. This does
not make their evidence any less compelling as nobody should be subject to
unwanted attention in the workplace.
I therefore find you guilty of gross misconduct and summarily
dismiss you of employment as of today without notice. You are entitled to
appeal against my decision. Details of my decision and your right to appeal
will be sent to you within 5 working days.”
16.
The dismissal was confirmed. He appealed. He criticised the
disciplinary process and it is plain from the appeal itself, although not from
paragraph 22 of the Tribunal’s reasons, that this was a challenge to the
finding, and not simply a plea in mitigation. The Tribunal said this:
“23. The appeal was heard by Mr Paul Godwin and was in
the Tribunal’s finding properly carried out. The appeal was unsuccessful and
the outcome was notified to the Claimant in a letter at page 342 which
confirmed the outcome which had been the unsuccessful outcome of the appeal
which had been notified to the Claimant at the conclusion of the appeal hearing
on 7 September. We find that the appeal was properly and carefully
carried out by the Respondents.”
17.
Having addressed the law, the Tribunal made its conclusions in the
following way, and we will include the whole of them:
“29. Applying the law to the facts in this case,
the Tribunal is satisfied that there was a reasonable and careful
investigation, and that witnesses corroborate the evidence by EK.
30. The misconduct in question was serious, and it did not
relate to an isolated incident. The Claimant was over 30, whereas on the first
occasion when he made the advances, Miss Kent was aged 17 and he was in a
far more senior position.
31. Furthermore the Trust would have exposed itself to very
substantial criticism, if not potential claims, had the Claimant not been
dismissed, and there had been a recurrence of his behaviour. Accordingly the
Tribunal finds that the Respondent’s decision to dismiss summarily was
justified and fell within the reasonable band of responses even though there is
a possibility that the Claimant’s professional career is at risk as a result of
his dismissal.”
The Claimant’s case
18.
The Claimant submitted that the Employment Tribunal’s Judgment should be
set aside principally for want of reasons. Throughout the internal proceedings
and before the Employment Tribunal, the Claimant denied the substance of the
allegations made by EK. It will be recalled that these occurred at some stage
while the complainant, EK, was 17, and occurred in oral form on a number of
occasions, and then resulted in what the Tribunal found was a sexual assault on
EK.
19.
In deciding that the Claimant had indeed committed the offences which EK
had described, the Tribunal gave no reasons and provided no account of the
Claimant’s case about these. In addition to what is essentially a complaint
that the Tribunal failed to give reasons for what it had decided, the Tribunal
erred in failing to give reasons for its general acceptance that the action of
the Respondent had been to conduct a reasonable enquiry.
20.
The Claimant made a number of points about the procedures and about what
ought to have happened. He contended that the Tribunal had failed to pay attention
to his complaints that all of this was a conspiracy, promotion inequality was
in place, there were racist undertones, he did not have access to witnesses,
and that the Tribunal failed to deal (or deal adequately) with discrepancies in
EK’s account, as supported by others.
21.
The effect is that the case should be heard again. The Claimant cannot
understand from the reasoning why it is the Tribunal upheld the management’s
case. The finding by the Tribunal as to his guilt was not a necessary finding
and should not have been made in this case, or at least should not have been
made without full reasons being given.
The Respondent’s case
22.
On behalf of the Respondent it is accepted that issues raised at the preliminary
hearing were causes of concern, and Ms Sethi has attempted to address
them. The amended Notice of Appeal raises a number of discrete points. The
defence of this Tribunal Judgment by Ms Sethi is one which invokes
implication. Throughout her address to us, she has invited us to find that
there is to be implied, in this Judgment, the full reasoning of the Tribunal as
to why it rejected the Claimant’s case, preferred the case of the management
and decided that a fair procedure had been conducted.
23.
Ms Sethi accepts that a Tribunal Judgment must be Meek
compliant and that it is appropriate to invoke, by incorporation, documents
without setting them out in full. She accepts, helpfully, that the Tribunal
did not need to make the finding that the Claimant was guilty, and it could
have been argued that this was substitution of the Tribunal’s Judgment but, as
she correctly points out, there is no ground of appeal relating to that. Nor
is it said that the finding is perverse. There was evidence before the
Employment Tribunal in the form of the examination and cross-examination of the
Claimant, of the supportive evidence of Ms Gorrie about what she found,
and of the written material provided by EK.
24.
The Tribunal viewed objectively the massive material which was produced
before it and came to the correct conclusion. As to the specific contentions, she
tells us that the case on conspiracy was raised in cross-examination but in
written closing submissions did not surface. The issue about racist undertones
was expressly not pursued. The Claimant was given access to witnesses and
there is no substantive issue about the witness material. The Employment
Tribunal was alert to discrepancies in EK’s statement and had considered them
to be minor. In short, these reasons pass muster. The parties can tell why
the Claimant lost his case.
The legal principles
25.
The legal principles to be applied appear to us to be as follows: we
accept the joint submission of the parties, that the law on unfair dismissal is
as set out above. As for reasons, generally known as Meek compliant,
following Meek v City of Birmingham District Council
[1987] IRLR 250, the test has moved on and is now found in the employment
jurisdiction in Greenwood v NWF Retail Ltd
UKEAT/0409/09/JOJ, but the gist is the same.
26.
Under the 2004 Regulations rule 30 a Tribunal is
specifically required to make findings and give reasons in an ordered way. The
reasons need not cover every single issue, but should enable the parties who
know the submissions and the evidence (see the postscript in English v Emery Reimbold &
Strick Ltd [2002] EWCA Civ 605) and the appeal court to understand
the reasoning of the Employment Tribunal in making the decision which it did.
27.
A decision of an Employment Tribunal is entitled to a generous treatment
on appeal, and not be subject to a hypercritical critique (see Fuller v
London Borough of Brent [2011] IRLR 414, CA, in the
majority Judgment of Mummery LJ). Essentially the findings of fact are
the unique province of the Employment Tribunal and if the Tribunal addresses
itself correctly on the law, it should not be susceptible on appeal unless
there is a straightforward error.
28.
The brevity in an Employment Tribunal Judgment is a compliment for, as
Mummery LJ said in Towers v Premier Waste Management Ltd
[2011] EWCA Civ 923, judges are not required to be “windbags”. It is appropriate
in certain cases to adopt by incorporation, a submission or a document, into a Judgment
without setting it out in full (see English v Emery).
Conclusions
29.
We prefer the arguments of the Claimant and have decided to allow the
appeal. The only remedy sought is remission and it is not disputed that, were
this to be our view, remission to a different Tribunal would be correct.
30.
First, there was no need for the Tribunal to express itself so strongly
as to the Claimant’s guilt. In the early findings of fact, there is no
description whatever of the Claimant’s account in response to EK’s allegations
of the oral harassment and of the physical assault. The clear findings (see
above at paragraphs 7 and 8) appear without reasons. They are firm and
prejudicial.
31.
The Tribunal goes on to say that the misconduct in question was serious,
as we have said (see paragraph 30 above), and was not isolated. The Tribunal,
as is clear from London Ambulance v Small,
is required to separate its reasoning as to unfair dismissal from that of
culpability, for the purpose of a remedy for unfair dismissal, if it reaches
that stage, and for wrongful dismissal.
32.
Ms Sethi concedes that these findings of guilt not necessary. It
is true that they cannot be said to be perverse, for there was evidence from
the Claimant that he did not commit these incidents, and there was secondary
evidence from EK. Nor is it said that the Judgment was tainted by a
pre-judgment of the Claimant by his guilt. Nevertheless, we do not find it
helpful for this unreasoned ruling to have been made in this case, and we are
not given confidence in the Judgment by a number of other errors.
33.
The Tribunal correctly set out the substance of the Claimant’s claim and
that of the response, although it is right to say that there is a factual error
in respect of the number of colleagues involved (see paragraph 3) and the
Tribunal was of the view that the Respondent’s case was:
“The Claimant was found to have repeatedly harassed two members
of staff asking for sexual favours.”
34.
That is plainly incorrect, for the allegations made by another member of
staff, JM, were expressly not proceeded with. It is said by Ms Sethi that
everybody understood that that was the case, and therefore it is inexplicable
that the Tribunal should get this wrong. It is plainly inconsistent with its
finding about JM being not pursued in paragraph 15 of the Judgment.
35.
Ms Sethi made some forceful points about what we have described as
the specific areas of complaint by the Claimant, which were as to conspiracy.
We consider that she is correct about this. We have looked at the way in which
the written submissions were made on behalf of the Claimant and there is not a
word of the conspiracy, which was alleged in the claim form, and we deduce that
this matter fell away during the course of the hearing. It was not pursued,
there can be no error about that.
36.
Similarly, in respect of what is described as the “racist undertone”,
this must fall in the light of the Claimant’s abandonment of his race
discrimination claim. Furthermore, the complaint about witness availability
cannot be sustained in the light of the making available with the Respondent’s
authority of the relevant witnesses.
37.
What has concerned us, however, is the issue about discrepancies in the
account of EK. It is for an Employment Tribunal to assess weight, and the
Tribunal does consider the Claimant’s case about discrepancies, but it regards
those as minor. With respect, the Tribunal ought to have examined this matter
more carefully, and we are grateful to Ms Court for setting out the way in
which the matter should have been developed. There was a hardening of EK’s complaints
in each of the four iterations when statements were taken from her, and the
Tribunal was required, in the light of the submission made to it about the
discrepancies, to say more than simply that these were minor. With respect, a
reasonable Tribunal could not conclude that these were minor without a further
explanation being given which, at the moment, is absent.
38.
The real problem with the case, to which we now turn, is the absence of
proper reasons, which complaint we uphold. This Judgment does not comply with
the central obligation, which is to provide reasons. These are not reasons
which have to be understood to everybody who opens it. The Tribunal is
addressing the parties, primarily, and the appeal court, secondarily, but the
way in which it presents the material is, in our judgment, inadequate.
Ms Sethi has done the best she can to try and uphold the architecture of
this Judgment but she is in a brick-making process without access to straw.
39.
The Tribunal uses what can only be described as shorthand. It cites
page numbers from the massive number of documents in the bundle. In our
judgment it is not adequate, when saying that an investigation was reasonable
in the circumstances, to say that Ms Gorrie took statements from a list of
named people. Nor is it adequate to say that there was a reasonable and
careful investigation when there are several challenges to it.
40.
As to the fact that witnesses corroborated the evidence of EK, we do not
understand the use of that word in the context of civil proceedings. Being
generous, it probably means that there was supportive evidence in writing of
others, but the central linkage of the material available to Mr Marsh and
Mr Godwin with the statutory test is missing here. There is no finding as
to the genuineness of the belief of the Respondent, and the reasonableness of
that belief, having carried out as much investigation as was reasonable. This
reasoning is jejune.
41.
We appreciate that it is not for us to approach the reasons of a
Tribunal with a fine-tooth comb. However, what we are asked to do,
effectively, is to utilise the services of a fork-lift truck. The many
important implications which Ms Sethi invites us to draw require us to
read some 342 pages in order to be satisfied that the Tribunal had before it
the relevant pages, and that its conclusion was sound in the light of all those
pages. That, with respect, is not what an Employment Tribunal’s function is.
It is to be concise, to cite the passages in the relevant documents and the
evidence given by the witnesses, and to draw its conclusions. It is telling in
this case, that there is not a single word about the evidence which the
Claimant gave to it.
Disposal
42.
In our judgment, this case cried out for more detailed treatment than
was given by the Employment Tribunal, and so it will be remitted to a
differently constituted Tribunal for a hearing. The case will be shorter for
there are now no race relations aspects. We make clear that we have not
decided the guilt, or otherwise, of the Claimant. We have not decided the
Claimant’s name is cleared. That is not our function, nor of the Employment
Tribunal.
43.
It will be recalled that there were very firm findings made by the
relevant managers in this case, and the central question for the Employment
Tribunal which hears this, is whether a reasonable management in the circumstances
of this particular Trust, with this particular evidence, could have formed the
view that the Claimant was guilty of the misconduct put against him. He is
certainly not out of the woods, but he is entitled to fair treatment and proper
reasoning by the next Employment Tribunal.
