Appeal No. UKEAT/0299/04/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 2004

Before
THE HONOURABLE MR JUSTICE MITTING
MR M CLANCY
MRS A GALLICO

HILLCREST CARE LTD	APPELLANT

MR N MORRISON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARCUS PILGERSFORFER
(Of Counsel)
Instructed by:
Qdos Consulting Ltd
Qdos Court
Rossendale Road
Earl Shilton
Leicestershire  LE9 7LY	
For the Respondent	MR NEVILLE MORRISON
IN PERSON	

SUMMARY

Employment Tribunal decided dismissal unfair because comparator not dismissed.  Failed to direct itself in accordance with Hadjioannou v Coral Casinos Limited guidelines.

THE HONOURABLE MR JUSTICE MITTING

1.	Hillcrest Care Limited, the Appellants appeal against the decision of the Employment Tribunal at a hearing held at London South on 19 November 2003 with Extended Reasons entered in the Register and sent to the parties on 21 January 2004 that Mr Neville Morrison, the Respondent had been unfairly dismissed.

2.	The findings of fact of the Tribunal are clearly set out in its Extended Reasons and can be summarised as follows.  The Appellants carry on the businesses of a foster care agency and a provider of residential homes for adults with learning difficulties and of children’s homes for the support and education of children, with emotional or behavioural problems.  The Respondent was employed at Hillcrest Norwood, one of their children’s homes.  It had the capacity to house 8 children but on the evening in question there were only 5 residents.

3.	The Respondent started work for the Appellants in November 2000 and became a permanent employee on 24 July 2001.  He was a residential social worker.  The Tribunal found that whatever the legal niceties the Respondent well knew as a matter of common sense that drugs were not permitted at the children’s home and that he was to promote a drugs free environment.  The events which gave rise to his dismissal were as follows.  On the evening of 14 February 2003 the Respondent was off duty.  He had arranged to meet a colleague Justin Augustus who was on duty at the time at about 10 pm.  The Applicant drove to the home and in the car park or street outside was joined by Mr Augustus.  On the findings of fact of the Tribunal based at least in part on admissions made by the Respondent what then occurred was that the Respondent’s cousin smoked a spliff of cannabis.  The Respondent stated that he told him to hold it down by which he meant put it out.
 
4.	There was a factual issue as to whether or not Justin Augustus had himself smoked cannabis in the car.  The Tribunal made no express finding about that but it clearly found that he had been smoking in the car because it went on to record what had occurred later on that evening.  It noted that when Justin Augustus went back into the home, Ullfson Arvidsson, a fellow residential social worker had seen him and had concluded by reason of his appearance and behaviour that he was under the influence of drugs.  Nevertheless he, Mr Arvidsson had gone to bed that night without making any report of that to a superior.  He did however, report it the next morning but only after Justin Augustus had admitted to him that he had been under the influence of drugs the previous evening.

5.	The Respondent was suspended on his return to work.  A disciplinary procedure was undertaken which the Tribunal held to be procedurally fair.  There is no challenge to that finding.  The Chairman, Mr Livie concluded that the Respondent had seen Justin Augustus smoking cannabis in the car.  He considered that he should have reported the incident promptly as Justin Augustus was about to return to work.  He concluded that his failure to report the matter promptly amounted to gross misconduct because as he put it the action could have brought the Appellants into disrepute because of the proximity of the Police Station nearby and the obvious fact that the home was for young and vulnerable children.  He decided to dismiss both the Respondent and Justin Augustus for that reason.

6.	Mr Arvidsson had himself been guilty of a failure in Mr Livie’s view, a failure to report the matter promptly that night.  Nevertheless Mr Arvidsson had made a report the following morning.  Consequently he was not dismissed but merely warned or reprimanded informally.  Mr Livie’s view was upheld on an internal appeal.  The Tribunal reached unanimous conclusions.  They are set out in paragraph 11 of its decision and fall into two broad categories.  First of all it expressed itself to be satisfied that a proper investigation was carried out and that after a full and proper hearing Mr Livie genuinely believed on reasonable grounds that Justin Augustus was returning to the home under the influence and had smoked cannabis in the Respondent’s car and that the Respondent was aware that he had done so.  They further concluded that he had not taken any step to inform more senior management of any of those facts.

7.	The Tribunal also concluded in relation to what occurred in the car that:

“There was no evidence that the Applicant had initiated condoned or actively permitted the smoking of cannabis in his motorcar.  There is some evidence that he took steps to cause the other occupants of the car to cease smoking cannabis.  The Applicant was not in a position to control the activities of the other occupants in the motorcar.”

The first of the grounds of appeal to this Tribunal is that the Employment Tribunal misdirected itself in reaching those conclusions in that it attempted to substitute its own view for that of Mr Livie.  The proposition upon which that was based is that Mr Livie did indeed form the view that the Respondent had initiated, condoned or actively permitted the smoking of cannabis in the motorcar.  A close examination of his witness statement reveals no such conclusion nor is there any suggestion that he expressly stated that he had reached that view in the oral evidence that he gave to the Tribunal.  It therefore seems to us that that ground of appeal is ill founded.  Given the absence of any opinion formed on those matters by Mr Livie, there is no prohibition on the Employment Tribunal reaching its own conclusions about those matters.  It made no error of law in so doing.

8.	The second of the matters canvassed by the Employment Tribunal in reaching its decision that the dismissal was unfair was to compare the treatment of the Respondent with that of Mr Arvidsson.  The Tribunal expressed its conclusions as follows:

“Even if the Applicant had been provided with a copy of the handbook containing the code of conduct and the disciplinary procedure, the Tribunal is of the unanimous view that failing to report Mr Augustus conduct does not justify dismissal.  The Tribunal heard evidence that two other members of staff were with Mr Augustus after he returned to the home.  One of these two members of staff suspected that Mr Augustus was under the influence of drugs yet took no action until the following morning when the effect may well have worn off.  He was given an informal reprimand or warning.  The other employee does not appear to have been the subject of any disciplinary action whatsoever. 

The failure to report circumstances where the care of residents may be at risk could result in disciplinary proceedings.  But having made a comparison with the action taken against Ulfson Arvidsson, the dismissal of the Applicant was disproportionate and outside the range of reasonable responses and unfair.”

That passage demonstrates as the Employment Tribunal set out in earlier paragraphs of its decision that it had in mind the well known rule that the Employment Tribunal must not substitute its own view for that of the employer.  They must consider whether or not the employer’s view fell within a reasonable band. 

9.	However, it is notable that in its self administered reminders of the approach which it should take the Employment Tribunal did not refer to the guidance of this Tribunal in Hadjioannou v Coral Casinos Limited [1981] IRLR 352 as to the approach to be taken when comparing action taken against one employee with taken against a dismissed employee.  The approach of the Employment Appeal Tribunal was considered by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305.  In paragraph 35 the Court of Appeal approved the guidance and stated that it would be wise for any Employment Tribunal considering such a situation to follow it.  The guidance is as follows:

“24
In resisting the appeal, counsel for the respondents, Mr Tabachnik, has submitted that an argument by a dismissed employee based upon disparity can only be relevant in limited circumstances.  He suggests that, in broad terms, there are only three sets of circumstances in which such an argument may be relevant to a decision by an Industrial Tribunal under s.57 of the Act of 1978.  Firstly, it may be relevant if there is evidence that employees have been led by an employer to believe that certain categories of conduct will be either overlooked, or at least will not be dealt with by the sanction of dismissal.  Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. … Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.”

25
We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity.  We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinize arguments based upon disparity with particular care.  It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument.”

10.	In our view the Employment Tribunal should have expressly reminded itself of that valuable guidance.  Clearly the first and second circumstances do not arise here but the third does.  The Tribunal did not expressly ask itself whether or not Mr Arvidsson’s position was truly comparable to that of the Respondent.  The most striking difference of all is that Mr Arvidsson did in fact make the report the following morning whereas the Respondent made no such report at any time and indeed maintained before the Tribunal as before us that Justin Augustus did not smoke cannabis in the car.  It therefore seems to us to be an inevitable conclusion that he would never have reported the matter at all.  

11.	The Employment Tribunal, had it asked itself the question posed in the guidance to which we have referred would it inevitably have considered carefully whether or not the circumstances of Mr Arvidsson and the Respondent were such that their circumstances were truly parallel.  It is not a matter for us to substitute our view on that critical question for the view of the Employment Tribunal.  It is for the Employment Tribunal to pose the question and answer it.  Because it has not in fact posed the question and has not expressly answered it in our view its decision is legally flawed.

12.	We therefore allow this appeal on the second of the two grounds and remit it to the Employment Tribunal for further consideration with the direction that it should apply the guidance to which we have referred.  In applying that guidance it will of course have in mind not merely the obviously significant fact to which we have referred but also all of the circumstances of the case including not merely such questions as the proximity of the Police Station and the obvious need to avoid any adult being in the home under the influence of drugs but also the questions as to whether or not the Respondent could reasonably have been expected to report the matter that night and if so to whom and whether or not he had any intention of reporting the matter at all.

13.	All of those are matters for the Employment Tribunal to consider.  We remit them to the Tribunal with the direction that applying the guidance to which we have referred it must re-visit and re-answer the question posed.