The letter did not state what possible sanction the appellant might face. Ms MacDougall had thought about whether the letter should warn the appellant that he could face dismissal but decided not to do so lest it appear that she had prejudged matters. The respondents' Code of Conduct was not enclosed and the appellant was not in possession of a copy. The Tribunal found, in any event, that no parts of it were of particular relevance. A copy of the respondents' disciplinary procedures was enclosed. At paragraph 7.4.1 of that document, reference is made to possible summary dismissal on the grounds of gross misconduct which is said to be "normally restricted to very serious offences, e.g. physical violence, theft, fraud, gross negligence of duties". In these circumstances the Tribunal found that the appellant was not aware that the respondents might contemplate dismissal if the complaints were upheld.

[10] A disciplinary hearing took place on 22 April 2005 before Ms MacDougall. The claimant did not, again, tell the "full story". One reason was the continuing advice of his representative, Mr Crawford. The Tribunal also found that,

"another significant factor however is this. The claimant was not on notice from his employer that he might be dismissed and accordingly did not put those matters forward for that reason either. He did not consider it worth risking the intimidation and ostracism in the workplace ... by telling the truth and incriminating his colleagues who had threatened him".

[11] The appellant's position at the hearing was that he thought that he could take a break at the relevant time, and that he had expected his crew to make their own way back to the depot.

[12] Ms MacDougall was the decision-maker in this process. She adjourned the hearing to reach her decision and then reconvened it to announce that decision, which was of summary dismissal on the grounds of gross misconduct. She stated that she was of the clear opinion that the appellant's actions on 5 April 2005 were deliberate and wilful, with significant impact on service delivery. She did not feel that the incident was premeditated, but was of the opinion that he (seeing and using an opportunity) was aware of the implications of not operating the new procedures, (albeit he was confused as to how to "work to rule") and that his decision to drop off his crew and then take a lengthy unauthorised break was a deliberate and wilful act to cause, and which resulted in, significant service disruption.

[13] On 27 April 2005 a formal letter of dismissal was issued to the appellant which stated inter alia

"The reason for your summary dismissal on the grounds of gross misconduct is that you were found to be in breach of the Council's Code of Conduct for Employees by deliberately and wilfully on 5 April 2005:

· taking an unauthorised break;

· not completing your daily task;

which resulted in service disruption within refuse collection activities during the period of service changes, of which you were fully aware".

[14] The Tribunal found that the reason for dismissal differed to a significant extent from the complaints which the appellant expected to face as set out in the letter convening the disciplinary hearing. In the letter convening the disciplinary hearing, there was no mention of an allegation that the appellant had deliberately and wilfully carried out the acts in question with a view to causing service disruption. The letter did not state that the appellant had identified and seized an opportunity to cause disruption. No allegation was contained in the letter that he had decided to drop off his crew. The Tribunal thus found that the appellant was not aware that these were matters which Ms MacDougall would consider and take into account. They found that had the letter convening the disciplinary hearing contained the matters referred to the appellant would have recognised the necessity of putting forward what had actually taken place.

[15] The appellant was utterly shocked by the outcome. He had been expecting, at worst, a final written warning. He had had no notice from his employer that he might face dismissal, and the charge for which he was dismissed was significantly more serious than that put to him.

[16] The appellant appealed, and an appeal was heard on 9 June 2005 before a panel consisting of certain elected members of the respondents. The convenor was Councillor Murrin. The panel allowed the appellant to put forward the explanation of what had happened which he had withheld from both the investigatory meeting and the disciplinary hearing. On hearing this explanation, the panel instructed Ms MacDougall to instruct an officer to investigate and Mr Elder, Assistant Amenity Services Manager was charged by Ms MacDougall with this task. For this purpose he met the appellant and his partner, Ms McCrea. In the report which he prepared he reported a full account of what had happened, as told to him by the appellant and Ms McCrea, who had been able to confirm aspects of the appellant's position, including confirmation of a threatening telephone call. He referred to the appellant being told by his Union representative to keep his answers to a minimum as he was going to strike a deal. As it was originally drafted, Mr Elder stated in the report that he believed that the claimant was genuine in his account and felt that he was being threatened and harassed. He stated, however, that he could not substantiate this further, in that the other crew members had been dismissed and were unlikely to co-operate. Mr Crawford, the Union representative was off on leave, sick. Mr Elder, however, was directed to take out these latter comments by a senior personnel officer who was also involved in clerking the appeal hearing, being told that he should stick to the facts and not express any opinions.

[17] The appeal panel reconvened on 29 June 2005. The appellant was not invited to make any further representations. The report was read through by those present. Ms MacDougall indicated that it would not have made any difference to her decision. She could not accept the appellant's account absent corroboration. The panel, apparently strongly influenced by her position, considering that there must have been collusion and that the action was pre-meditated, dismissed the appeal.

[18] There was no further examination by the panel of the processes followed at the disciplinary stage. The Tribunal found this to be significant because Councillor Murrin was influenced in his assessment of the new evidence by his own view that he would not himself have kept his answers to a minimum if he knew that he faced dismissal. He was not, however, aware that the appellant did not know that he faced dismissal when he appeared at the disciplinary hearing or that the reasons for dismissal differed from the complaints set out in the letter convening that hearing. It was Councillor Murrin's position also that he would have been influenced by the view of Mr Elder, an experienced and highly regarded officer of the authority, as to the appellant's credibility. He, and the panel, might have considered a lesser sanction in the circumstances if they had known of Mr Elder's view.

[19] The Tribunal further concluded that the appeal panel was not impartial, in that the members were significantly influenced by Ms MacDougall's views.

[20] In paragraphs 55-61 of their determination, the Tribunal recorded the legal framework within which they required to make their decision. They recorded in particular that it was for the employer to show the reason for dismissal (the reason here founded upon being conduct) and that it was for the Tribunal then to determine whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. This was to be determined in accordance with the equity and substantial merits of the case. They reminded themselves of a number of well known and established authorities including in particular British Home Stores Ltd v Burchell 1978 I.R.L.R. 379 and Iceland Frozen Foods v Jones 1982 I.R.L.R. 439. It was, they recorded, for them to determine what the employer believed and whether that was a reasonable belief following a reasonable investigation. They required to determine that the dismissal was within the range of responses open to a reasonable employer. It was not for them to substitute their own view for that of the employer. It was for the employer to follow a fair procedure. The basic rules of natural justice applied. The employee required to know the case he was to face and have an opportunity to put his case. He should normally be allowed a right of appeal.

[21] On the basis of their findings in fact, the Tribunal determined, in the first place, that the original decision to dismiss was not fair, the respondents not having acted reasonably in treating the appellant's conduct as a sufficient reason for dismissal. They expressed their reasoning as follows:

"65. At the disciplinary stage the claimant was not notified that he might face dismissal, and accordingly did not put forward all of the facts and matters which were relevant. This was because he was prepared to accept a warning rather than risk further harassment from co-workers. Had he known that he faced dismissal he would have told the whole story.

66. Further, the reason for dismissal was significantly more serious than the charges as framed in the letter convening the disciplinary hearing, there being no suggestion until he was dismissed that he had deliberately taken the actions alleged with a view to disrupting the service in the context of a work to rule. It was unjust and inequitable to dismiss this employee on grounds which were significantly more serious than the complaint he expected to face at the disciplinary hearing.

67. Matters explored in the forum of the disciplinary hearing are properly to be regarded as part of the overall investigation.

68. We find that the dismissing officer did not have a reasonable belief following a reasonable investigation in these circumstances. Nor was dismissal within the range of responses open to a reasonable employer in respect of the complaint as framed against the claimant."

[22] The Tribunal further determined that the defects at the stage of original dismissal were not cured on appeal; rather, they determined, the unreasonableness of the respondents was compounded. Their conclusions were expressed as follows:

"70. The respondents had a key observation removed from Mr Elder's report, which meant that the panel did not have available to it the views of the officer charged with investigating the complaints as to the claimant's credibility which might well have made a difference to the outcome. Further, Councillor Murrin's view and that of his colleagues was influenced by the fact that an employee would be expected to put these matters forward if he knew that he faced dismissal at the disciplinary Hearing. Councillor Murrin and his colleagues were not aware that the claimant did not know that. Finally, they were unduly influenced by the views of the dismissing officer and did not act impartially."

[23] Before us, counsel for the appellant submitted that the proper approach of this court was to be found in certain well known passages in Melon v Hector Powe Ltd 1981 S.C. (H.L). 1 (at pp 6 and 7) and Vento v Chief Constable of West Yorkshire Police [2003] I.C.R. 318 (at paras. 25 and 31). As to the determination of the Tribunal, it could not be said - given the legal framework which they had correctly set out - that they had at any stage misdirected themselves. Reference was made, in addition to the cases referred to by the Tribunal, to Hollister v National Farmers Union [1979] I.C.R. 542, Jones v Mid Glamorgan CC [1997] I.C.R. 815 and Gilham v Kent County Council [1985] 1 I.C.R. 233. It could not be said that it was not reasonably open to the Tribunal to find that the reason for dismissal was significantly more serious than the "charges" as framed in the letter convening the disciplinary hearing, or that the appellant was not aware that he faced the prospect of dismissal. The critical finding was the reason for dismissal expressed by Ms MacDougall at the end of the disciplinary hearing. The letter of dismissal, construed in the light of that finding, was consistent with that. The letter requiring the appellant to attend the disciplinary hearing did not suggest that the appellant had deliberately and wilfully carried out the acts in question with a view to causing service disruption. There was no indication in the letter that the conduct would be treated as gross misconduct. The background was (and this was not disputed by counsel for the respondents) that the appellant had hitherto had a good disciplinary record and had not before received any warnings. The fact that he was represented did not mean that he must have known that he faced possible dismissal, not least in circumstances where Mr Crawford was not led in evidence as a witness. The contrary opinion of the Appeal Tribunal in relation to these matters could not be supported.

[24] Against that background, it could not be said that the determination that the decision to dismiss was unfair was not one reasonably open to the Tribunal. In essence, the Tribunal had found inter alia that the respondents' procedures could be said to have been unreasonable; that, in effect, they had not asked the right questions. The apparently contrary view of the Appeal Tribunal could be said to have been based on a misapprehension as to the nature of the conduct which led, in the eyes of the respondents, to dismissal. The Tribunal could also be said to have found that the respondents failed to follow the principles of natural justice. This required the detail, or at least the gravity, of the charges to be spelled out. Reference was made to Strouthos v London Underground Ltd [2004] I.R.L.R. 636, and Alexander v Brigden Enterprises Ltd [2006] I.C.R. 1277.

[25] Further, it could not be said that it was not reasonably open to the Tribunal to find that the defects were not cured at appeal stage - in particular given their finding that the convenor, and by inference other members of the panel, were not aware that the appellant did not know that he faced dismissal when he appeared at the disciplinary hearing or that the reasons for dismissal differed from the complaints set out in the letter convening that hearing. It was reasonably open to the Tribunal in the circumstances to find the deletion from Mr Elder's report of his views to have been unreasonable. The contrary opinion of the Appeal Tribunal could not be supported. Although the Tribunal's finding that the panel was impartial was less easy to justify, it could be said to relate to a perceived difference of approach relative to the views of Mr Elder on the one hand and of Ms MacDougall on the other. In any event their reasoning in this matter could not be said to vitiate the decision as a whole.

[26] Counsel for the respondents submitted that the appeal should be refused, essentially for the reasons given by the Appeal Tribunal in paragraphs 39-45 of their decision. The Tribunal's finding that the appellant did not know that he faced potential dismissal could not be supported. It would have been obvious that taking an unauthorised break and not completing tasks could be regarded as serious. It would have been obvious that this could cause disruption. This was made plain at the hearing, as was apparent from the minutes (although it was accepted that in certain respects it could be said that there were "mixed messages"). Further the appellant had had representation. The disciplinary procedures referred to potential dismissal for gross misconduct. It was not ordinarily necessary to spell out potential consequences in a letter calling a disciplinary hearing. It was further not reasonably open to the Tribunal to find that the reasons for dismissal were significantly more serious than the charges as framed in the letter convening the disciplinary hearing. On a reasonable construction the letter of dismissal did not refer to a deliberate intent to cause disruption. It was not reasonably open in any event to the Tribunal to find that if it had, the appellant would have recognised the necessity of explaining what had in reality taken place. Further, the Tribunal's determination in relation to the appeal process could not be supported. They continued to approach that matter on the erroneous basis that the appellant had not been aware that he was facing dismissal or of the full nature of the charges. It could not be said the decision to delete the relevant part of Mr Elder's report was unreasonable. Although the Tribunal found that the appeal panel were heavily influenced by the views of Ms MacDougall, it did not follow that they could be said to have been impartial. The decision in that respect could not be supported.

[27] Parties before us were agreed that, in considering the matters raised by this appeal, the court requires to approach its task bearing in mind two important considerations. The first is that since the court is exercising a second appellate jurisdiction in respect of decisions of the Employment Tribunal, the focus primarily requires to be on the soundness of the decision of the Tribunal (see e.g. Vento v Chief Constable of West Yorkshire Police, in particular Lord Justice Mummery at paras. 25-31). The second, and most important consideration, is that, as expressed clearly by Lord Fraser of Tullybelton in Melon v Hector Powe Ltd at pages 6 and 7,

"It is common ground that the appeal from the industrial tribunal to the Employment Appeal Tribunal and thence to the courts is open only on a question of law. The appellate tribunals are therefore only entitled to interfere with the decision of the industrial tribunal if the appellants can succeed in showing, as they seek to do, that it has either misdirected itself in law or reached a decision which no reasonable tribunal, directing itself properly on the law, could have reached (or that it has gone fundamentally wrong in certain other respects none of which is here alleged). The fact that the appellate tribunal would have reached a different conclusion on the facts is not a sufficient ground for allowing an appeal".

[28] The decision of the Tribunal in this case was essentially in two parts - first that the original decision to dismiss was unfair, in that the respondents did not, for the reasons set out at paragraph 65-68, act reasonably in treating the appellant's conduct as sufficient reason for dismissal, and secondly that the defects at that stage could not be said to have been cured on appeal for the reasons summarised at paragraph 70. The primary question for this court is whether it can be said that in reaching these decisions the Tribunal misdirected themselves or made decisions which no reasonable tribunal could have made.

[29] In approaching their task, the Tribunal recorded that they did so on the basis that the legal framework within which they required to make their decision was that set out in paragraphs 57-61 of their determination. Both counsel accepted before us that no issue could be taken with that statement of the legal principles which required to be followed. Counsel for the respondents, however, at one point appeared to argue that it could be inferred that the Tribunal had failed to apply these principles, in particular that they had wrongly substituted their own view of what would have been reasonable. In the event, this argument was not strongly pressed and we are unable to accept it. We can, in particular, see no basis, on a fair reading of the determination, for concluding that having stated the legal principles to be applied the Tribunal then failed to follow them. We remind ourselves further at this point that, absent any misdirection, the question of whether or not an employer has behaved reasonably in dismissing an employee is a question of fact; indeed, a question on which different people looking at the same set of circumstances may reasonably come to different conclusions (see e.g. the observations of Griffiths L.J. in Gilham and Others v Kent County Council at page 240).

[30] Against that background we ask ourselves first whether in reaching the decision that the original decision to dismiss was unfair, the Tribunal could in any material respect be said to have made a decision which no reasonable Tribunal could have made. Since the two important, and related, underlying findings which the Tribunal took into account in this part of their determination were that at the disciplinary stage the appellant was not notified, and did not know, that he faced dismissal, and that the reason for dismissal was significantly more serious than the charges as framed in the letter convening the disciplinary hearing, it became clear in the debate before us that the critical questions were whether these were, as the respondents argued, findings which no reasonable tribunal could have made.

[31] We have come to the clear view that the respondents' contentions in this respect fall to be rejected.

[32] It is plain, in the first place, that the Tribunal found as a matter of fact that the reason for the decision to dismiss (indeed the reason why the respondents regarded the appellant's conduct as amounting to gross misconduct) was that, as stated by Ms MacDougall at the end of the disciplinary hearing, the appellant's actions were deliberately intended, in the context of a work to rule, to cause significant service disruption. Not only did the Tribunal hear from Ms MacDougall in evidence, but they had before them the minutes of the meeting which clearly record that that is indeed what she stated. We see no basis for the suggestion that it was not reasonably open to the Tribunal to make the relevant finding. If it was necessary to look further to the dismissal letter, it may be that it could be said to have been ambiguous and thus unclear as to whether it conveyed that the appellant had deliberately intended to cause disruption, but we think it was plainly open to the Tribunal to construe it as having conveyed (and having been intended to convey) that conclusion, consistent with the clear underlying views of Ms MacDougall. In so far as the Appeal Tribunal considered (at para. 42 of their decision) that this was not open to the Tribunal, we cannot, with respect, agree.

[33] Having found that, we consider it was reasonably open to the Tribunal to conclude that this "charge" (in particular the contention that this was an act intended to cause deliberate disruption in the context of an industrial dispute) was not in any way clearly focused beforehand. The letter convening the disciplinary hearing referred to bare headings without reference to any deliberate or collusive design to disrupt. Further it made no mention of gross misconduct, which alone, in accordance with the disciplinary procedures, might lead to summary dismissal. While counsel for the respondents was able, reasonably enough, to argue that it would perhaps have been clear from the letter (and if not, from the course of the disciplinary hearing) that what was being alleged was the deliberate taking of an unauthorised break and not completing the daily task, all in circumstances where disruption in fact resulted, we are not persuaded that it can be said that it was not reasonably open to the Tribunal to conclude not merely that the reason for dismissal was significantly more serious than the charges as framed but also that the appellant did not know that he faced dismissal. We do not consider there is anything in the disciplinary procedures which would necessarily have alerted him to the fact that he faced potential dismissal. Nor do we think it could be said that he must have known that because he had representation. Mr Crawford did not give evidence before the Tribunal and what he believed was likely is unknown. We must again respectfully disagree with the contrary conclusions of the Appeal Tribunal expressed at paragraph 41 of their decision. The Tribunal's finding that had the appellant known these matters he would have told the full story, must, it seems, have depended on their assessment of him as a witness, which was a matter entirely for them.

[34] If these underlying findings cannot be impugned, we consider that no basis is left for the suggestion that the Tribunal's conclusion as to the fairness of the original decision to dismiss was one which no reasonable tribunal could have reached. At the end of the day, we did not understand counsel for the respondents to argue to the contrary. The only point where the reasoning of the Tribunal may be said to have been expressed without absolute clarity is perhaps the first sentence of paragraph 68. It is, we think, enough to say that on a fair reading of that sentence, the Tribunal were concerned as to the reasonableness of the procedures adopted which led to Ms MacDougall's belief as to what the appellant had done. Although the Appeal Tribunal were critical of the approach of the Tribunal at this point, it appears that they proceeded on the basis that the conduct which led to the appellant's dismissal went no further than that he had been caught red-handed taking an unauthorised break (see paragraph 39). In our view, the overall conclusion of the Tribunal at this point was entirely consistent with the notion that a fundamental principle of a fair disciplinary procedure (as emphasised, for example, in Strouthos v London Underground Ltd) is that an employee should know the case against him.

[35] The question remains as to whether it could be said that the Tribunal's conclusion that the earlier deficiencies were not cured on appeal was one which no reasonable Tribunal could have reached. Although we could not support the Tribunal's reasoning in every respect, we have come once more to the view that that question falls to be answered in the negative. Of particular significance, we consider, is the finding that although an important part of the reasoning of the convenor of the appeal panel was that he would have expected the appellant to have given a full account if he knew that he faced dismissal, not merely did he (and by inference the other members of the panel) not know that the appellant was unaware that he faced dismissal but also that the reasons for dismissal differed from the complaints set out in the letter convening the hearing. The significance of that is that if the Tribunal were reasonably entitled to form their views as to the unfairness of the earlier decision, they were reasonably entitled to find that that unfairness was not cured on appeal. Indeed, we did not understand that to be seriously disputed by counsel for the respondents. The question of whether the Tribunal were justified in their concern as to the reasonableness of the removal of Mr Elder's observations on the credibility of the appellant's "account" is less straightforward, given the explanation put forward by the respondents. The Appeal Tribunal plainly thought the explanation afforded was reasonable (see para. 43 of their decision). The question for this court, however, is whether it could be said that it was not reasonably open to the Tribunal to reach the view they did. We are not, in the particular circumstances of this case, persuaded that that could be said. In particular, only Mr Elder saw and heard the full explanation which was given to him, which included evidence from the appellant's partner, whom no one else had seen. Further it would appear that the appeal panel were content to allow Ms MacDougall to express her own personal opinion of the credibility of the appellant's account, despite the fact that she instructed Mr Elder to carry out the further investigation.

[36] We do not, however, consider that the Tribunal's views as to the lack of impartiality of the appeal panel can be sustained. We would entirely agree with the Appeal Tribunal when they say,

"Moving then to the matter of taking account of Ms MacDougall's views, the fact that the appeal panel was influenced by her views does not mean that they were not impartial. They could, equally, have declined to follow them. The fact that they agreed with her is not evidence of their being partial to or biased in favour of management. It seems to us that the Tribunal have misunderstood the concept".

Nevertheless, this criticism of the Tribunal's decision does not, in our view, undermine their decision as a whole, which, for reasons already given, cannot reasonably be impugned.

[37] In these circumstances, we shall allow the appeal, set aside the order of the Appeal Tribunal dated 3 July 2007 and restore the judgment of the Tribunal dated 5 July 2006.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boyd v Renfrewshire Council [2008] ScotCS CSIH_36 (11 June 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_36.html Cite as: [2008] CSIH 36, 2008 GWD 20-333, 2008 SCLR 578, [2008] ScotCS CSIH_36

Scottish Court of Session Decisions

Lord Kingarth

[2008] CSIH 36