Appeal Nos. UKEAT/0138/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

		At the Tribunal
		On 17 August 2011

Before
HIS HONOUR JUDGE PUGSLEY
MRS R CHAPMAN
MR D NORMAN

MR K ALBERT	APPELLANT

VIDIONICS SECURITY SYSTEMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS S COWEN
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	
For the Respondent
	MS L LANSON
(of Counsel)
Instructed by:
Citation plc
Citation House
1 Macclesfield Road
Wilmslow
Cheshire
SK9 1BZ

SUMMARY
CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure
UNFAIR DISMISSAL – Constructive dismissal

At the disciplinary hearing matters were raised of which the Claimant was given no advance warning.  However the matters had arisen after the disciplinary hearing had been arranged.  The Claimant resigned in protest at the way in which the hearing was conducted and claimed constructive dismissal.  Appeal allowed and sent back to a different Tribunal.  There are a number of occasions in which it is difficult to see what findings the Employment Tribunal made.  No finding at all as to whether the resignation was caused by the alleged breach of contract or whether the Claimant had decided to resign rather than be dismissed.  Appeal allowed and sent back to a new Tribunal.

HIS HONOUR JUDGE PUGSLEY
Introduction
1.	I want to begin by paying tribute to the professionalism with which this case has been conducted on both sides.

The facts
2.	The facts of this case can be simply summarised.  The Claimant, Mr Albert, brought an action for unfair dismissal and race discrimination.  There is no appeal against the dismissal of his claim for race discrimination.  The appeal is against the dismissal of the unfair constructive dismissal claim.

3.	The Tribunal defined the issues at paragraph 2 as to whether or not the Respondent acted in fundamental breach of a term of the contract of employment when it took or proceeded with disciplinary action against the Claimant in April and May 2009 in connection with allegations of (a) falsification of timesheets, (b) that the Claimant had failed to take a hoist at two particular call‑outs, and (c) that the Claimant drove his vehicle with defective front tyres.

4.	The ET1 was drafted, it seems, by the Claimant himself.  It is no criticism of him at all to say that it was a document that set out in various forms his dissatisfaction with the way in which he had been treated, and in particular he felt that unjustified or unwarranted disciplinary investigations were taken that were aimed or designed to get rid of him.  The difficulty is that although loss of mutual trust and confidence was put as a ground, it was not particularised as is the position now.  As HHJ McMullen QC said, the arrival of Ms Cowen had a transforming effect on the case.  The original grounds of appeal were numerous and wide‑ranging.  This specific case proceeds on just one ground of appeal, namely that the Tribunal failed to deal with the issue that at the disciplinary proceedings two issues were dealt with, namely the failure to take a hoist to two particular call‑outs and that the Claimant drove his vehicle with defective front tyres, and that those two issues have never been matters of which the Claimant had been given advance notice.

5.	We say this with a degree of circumspection, but the decision of this Tribunal is not one that is a shining example of judicial craftsmanship.  The Tribunal sets out and makes various findings of fact, and narrates the account.  The Claimant was given advance notice that he was being required to attend a formal hearing on Friday, 1 May: 

“The following issue will be discussed:
Your time sheets for February and March 2009
You will be given every opportunity in this hearing to respond to the Company’s concerns in relation to the above issues.  You should be aware, however, that the hearing may result in a formal warning in accordance with the Company’s discipline procedure.”

6.	They went on to say who would conduct the hearing, and of the right to bring a work colleague.  The hearing did not take place on 1 May because the Claimant was unwell, but was reconvened on 11 May.  During the course of that hearing, it is the Claimant’s case that matters were introduced about not just the issue of the timesheets but also about the failure to take a hoist and driving a company vehicle that had bald tyres.

7.	It is very unclear what the findings of the Tribunal were about that meeting on 11 May.  At paragraph 24 the Tribunal said this:

“We have no minutes of this meeting but it obviously went on for sometime and there was a discussion about timesheets for an hour and a half.  We wonder what was said for all that time but also brought up at the same meeting and not identified as a matter for the disciplinary hearing, but raised at the same time, was the question of the Claimant’s alleged failure to have a hoist with him on or about the 8 May and the other matter to do with the defective tyres.  […]”

8.	We are unsure what that actually means.  We think it probably means, apart from the issue of timesheets, these two other matters, the hoist and the tyre issue, but the drafting of the sentence is to say the least ambiguous.

“We wonder what was said for all that time but also brought up at the same meeting and not identified as a matter for the disciplinary hearing, but raised at the same time […].”

9.	We are not sure whether they are saying they are unsure that it was raised, or that they think it probably was.  I am afraid the same lack of precision is unfortunately to be found elsewhere.  The Tribunal narrates that there was an adjournment and during the course of that adjournment the Claimant came in (the letter at page 50), resigning in handwritten form, saying, “This is because I don’t think that you are following your own procedures and therefore are breaking my contract of employment,” followed by a more formal letter on 28 May, which is the resignation letter.  But at the very nub of this case is the finding as to why the Claimant resigned.  Was it because of his belief that he was not getting a fair deal, because of bringing up other matters at the disciplinary hearing of which he had no prior notice, but which in fairness to the employers had only occurred in between the notification of the hearing and the hearing itself, or was it because he had taken a view that he wished to preserve his status as having resigned rather than having dismissed?  That finding is never made.  The nub of the decision is to be found at paragraphs 30 and 31.  I read as follows:

“30. The Claimant submits that the Respondents, by bringing disciplinary proceedings against the Claimant were in breach of the implied term of trust entitling him to resign and confidence, and disability discrimination against the Claimant on the grounds of his race by bringing the proceedings.”

10.	I doubt there is a single Judge, however eminent, who has not cringed, and for that matter a single member of the Bar who has not cringed, at what is written in a transcript attributed to them, but really, saying it as gently as possible, it does show a degree of confusion.  It gets no better at paragraph 31, where it says this:

“The constructive dismissal claim - there has been no breach of any term of the Claimant’s contract of employment, leave along [sic] a repudiatory breach entitling the Respondent to bring disciplinary proceedings against the Claimant.”

11.	Quite clearly there are, we imagine, typing errors, and it should be, “let alone a repudiatory breach […].”  They go on to say:

“There were ample grounds for them to do so.  On the face of it, the Claimant has made false claims on timesheets submitted by him and the Claimant has failed to show a non‑black person would have been treated any differently.”

The Respondent’s case
12.	Ms Lanson has conducted this case, as indeed both counsel have, with great care and considerable skill.  The essence of Ms Lanson’s case is this.  The Tribunal had a difficult task.  They were called upon to decide whether the initiation of disciplinary proceedings was in itself a breach of the implied term of trust and confidence.  Ms Lanson is far too able an advocate to have overburdened us with authorities.  Ms Lanson’s submission is more sophisticated and subtle.  That, she says, is a decision the Tribunal had to wrestle with, and they have answered that decision.  They also dealt with a number of other matters, such as the Claimant’s entitlement to petrol on a business card and the like, but, says Ms Lanson, you have there the Tribunal making a finding of fact that goes to the very heart of the case and was a centre of a point that was litigated.

The Appellant’s case
13.	Ms Cowen says, well, no.  This case could have been put with greater particularity by the Claimant at an earlier stage, but she says patent on the Tribunal decision is they had to consider, they said in paragraph 2, the introduction of these two disciplinary matters.  What is totally deficient in this Judgment is the answering to the following questions.  What was discussed at the disciplinary meeting?  At the moment, we only have a sort of a speculative finding of fact.  Secondly, if the tyres and hoist issues were discussed, was that fair, having regard to the fact that the Claimant had no notice of it, but also bearing in mind as far as the employer’s case is concerned these matters had been considered and had arisen since a letter advising the Claimant of the disciplinary matters had been sent?  So, looking at it in the context of the real‑life situation, is an employee who is summoned to a disciplinary meeting about issue A really being treated unfairly if issues B and C, which have only arisen since, are raised?  Is it really right to import into the moving dynamic of an employment relationship the somewhat palsied, sclerotic processes of a legal procedure?  

Discussion
14.	What is required and what is so difficult is the exercise of judgement, and we wish to make it quite clear that we are not saying what the Judgment should be.  We think the question should be asked as to whether it was or was not a breach of implied trust to raise these issues, having regard to the fact a meeting had already been convened.  But, putting the matter as tactfully as we can, paragraph 31: “There has been no breach of any term of the Claimant’s contract of employment,” and, correcting it to read:

“[…] [let alone] a repudiatory breach entitling the Respondent to bring disciplinary proceedings against the Claimant.  There were ample grounds for them to do so.  On the face of it, the Claimant had made false claims on timesheets submitted by him and the Claimant has failed to show a non‑black person would have been treated any differently.”

15.	That might have sufficed, though it could be said it is a case of conclusions becoming reasons, but for the fact that the Tribunal itself defined the disciplinary action taken on the hoist and the defective tyres issues as matters in relation to issues raised at the disciplinary action.  The Tribunal simply has not made a finding on those matters.

Conclusion
16.	We feel we have no alternative but to send this case back.  We have given the parties the opportunity to argue to the contrary, but they have declined, and our very strong view is that it should go back to a differently constituted Tribunal.  We want finally to say this.  At one stage, with crusading zeal, Ms Cowen has suggested we should make a finding of unfair dismissal.  We do not think it is open to us.  It is not a case where we think there is a simple single misdirection of law, and we could alter it and make the decision.  A substantial part of our reasoning is based on the fact the Tribunal failed to answer questions it should have asked itself; therefore it seemed quite appropriate.  But I say this at the express suggestion of the other members of the Tribunal, with which I most emphatically agree: please let no one be under the illusion that because we are remitting this to a different Tribunal we are suggesting that the Claimant’s case is bound to succeed or bound to fail.  We are mindful of the enormous expense, sometimes financial but sometimes emotional, of continued litigation, and we do urge that the parties consider whether there is some range of discussion between them, because we do not want our decision to be given as a hint that the Claimant is going to automatically succeed, or that he is automatically doomed.  Quite simply, we do not think this decision can stand, but we have not reached that on the basis that Claimant will automatically succeed, as is by no means the case, and we do urge the Tribunal to consider the whole issue again.

17.	The final matter is that it really is very helpful when the issues are contained and confined, as they have been in this case, to what the real issue is, rather than a sort of machine gun, scattergun approach on the basis that if you have enough grounds, one of them may hit.  There is no appeal against the dismissal of the race discrimination case; we think that is wholly appropriate.  The issue is one that we think was raised in such a way, given the duties of the Tribunal, that it should have been considered, and I have to say that we are seriously concerned at the absence of a finding of fact on causation, because what has been not offensively put by Ms Lanson, perfectly properly, is the speculation that maybe the Claimant decided to leave while he was on top before he had been dismissed.  That does not feature in any way as a finding, which we consider the Tribunal should have made, as to whether or not the perceived breach was an effective cause of his departure, or whether he just decided he had had enough and wanted to resign for reasons that are unconnected with any breach.  We therefore allow the appeal and remit it to a differently constituted Tribunal.