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

APPEARANCES

For the Appellants	MR RICHARD WOODS
(Solicitor)
Law at Work Limited
G1
1 George Square
Glasgow
G2 1AL	
For the Respondent	MR ALEXANDER NEIL MACDONALD
(Respondent in Person)	

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

Employment Tribunal failed to address the issue of the reasonableness of the dismissal in accordance with British Home Stores v Burchell, and in particular failed to consider whether employer’s belief that employee was guilty of serious negligence was a reasonable belief arrived at after a reasonable investigation.

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.