Appeal No. EAT/212/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 4 September 2001

Before
MR RECORDER LANGSTAFF QC
MR D CHADWICK
SIR GAVIN LAIRD CBE

REGENT INNS PLC 	APPELLANT

MS N SHAH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 
Revised

	APPEARANCES

For the Appellant	S RAHMAN
(of Counsel)
Instructed by:
Messrs Levenes 
Solicitors
125-132 Camden High Street
London NW1 7JR	

MR RECORDER LANGSTAFF QC

1	This is an appeal from the Employment Tribunal sitting at Croydon, whose Reasons were given in extended form, on 21 December 2000.  By that Decision the Tribunal held that the employee’s complaint of unfair dismissal was well founded and they ordered a sum of compensation subject to recruitment.  

2	The essence of their Decision is contained in paragraph 30 of their Decision.  The Tribunal there say that at the date of dismissal, Ms Shah was not in fact refusing to comply with an Order which had been made to her.  They continue:
“She made it clear to the Respondents that she was still considering it.  We further find that at that point, she had not had a reasonable time in which to consider her position.  Therefore she had not committed an act of misconduct and dismissal was not justified.  In any event, dismissal was a wholly unreasonable response.”

The background was that the employee had, since the age of 16, worn facial jewellery, including, it seems, a nose-ring.  

3	Wearing such jewellery, she had been recruited for a post in the public house operated by the Respondent.  Wearing a nose-ring, she had been promoted within that employment.  Some several months after being engaged and promoted, the question first arose as to whether or not jewellery in general posed an unacceptable health and hygiene risk.  

4	That question was raised specifically with the employee in the course of a staff meeting; the employee was assured at that staff meeting, so the Tribunal found, that disciplinary action would not apply in her particular case.  Matters then proceeded swiftly.  On the findings of fact made in paragraphs 10 and 12 of the Employment Tribunal’s Decision, it appears that on 31 January 2000, the employee was asked to remove her piercings, but when she indicated unwillingness to do so she was, contrary to the assurances which the Tribunal had found she had been given, suspended on full pay.

5	Four days later on 4 February, she attended an investigatory hearing which was followed, again, within a very short space of time - 8 February  - by a disciplinary hearing.  The Tribunal found that at that hearing the employee asked for time to consider the employee’s requirement that she should remove her nose-ring; at that point, the Tribunal observed, the meeting adjourned.  

6	When it resumed, the employer stated that what had been said was taken on board; it would be a long time before the employee would be able to comply and therefore her contract was terminated.  There was a rider to that which suggested that if the employee felt able to comply she could be reinstated.  That was emphasised again, following an appeal on 28 February, with which the Tribunal deal at paragraph 14.  

7	The essential findings that the Employment Tribunal made were that there had been a change in the working practices applicable to the employee, that a requirement that the employee conform to such a change as was required, involving as it did the use of personal jewellery which was familiar to the employee, and for which it had been asserted there were personal and cultural reasons, required reasonable notice before an employee could be said to be committing an act of gross misconduct, such as would justify a dismissal.  The Tribunal pointed out that there had been no question within the disciplinary procedure here of there having been a warning or a final warning.   There was simply a dismissal.  

8	In the light of that the Tribunal concluded at paragraph 30 (in the words I have already recorded).  That Decision is attacked before us by Mr Rahman on behalf of the employer.  In the Notice of Appeal he raises essentially two lines of argument, although these two lines of argument are contained in no less than seven sub-clauses.  They are essentially that the Employment Tribunal substituted its own decision for that of the employer, and secondly, that the Tribunal was in error in finding, it is suggested, that the Appellant had not carried out a reasonable investigation, and finding, it is suggested, that the Appellant did not have a reasonable belief in the Respondent’s conduct, and therefore in not applying appropriately the British Homes Stores v Burchell approach.  

9	Before us, two further arguments have been advanced with which I shall deal.  So far as the latter of the two grounds of appeal advanced in the Notice of Appeal is concerned, we consider it to be entirely misconceived.  The Employment Tribunal did not approach this case by reference to British Homes Stores v Burchell, but the Notice of Appeal assumes that they did, and assumes findings of fact which, so far as we can see, the Tribunal did not make.  

10	The basis for the argument as we see it is that this was a case of dismissal by reason of misconduct.  That would normally bring into play, as a gloss upon the statutory requirements, what was said in British Homes Stores v Burchell [1978] IRLR 1978.  However, it ignores, as we see it, the fact that the approach enjoined in that case depends, as it must, on the circumstances.  

11	In most cases in which misconduct is alleged, and the nature of the conduct about which complaint is made is disputed or unclear, it would normally be necessary to go through the tests suggested in that decision.  However there is a minority of different cases which involve allegations of conduct or misconduct.  Mr Rahman himself advanced in argument the view that this case was unique and we think that he is right so to describe it.  The issue here is not one of disputed conduct, where British Homes Stores v Burchell would be applicable.  There was no doubt about the conduct.  

12	The test which the Employment Tribunal had to address was that set out in Section 98 of the Employment Rights Act 1996, which is at 98(4)
“the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)”

and I interpose to say that in this case it is common ground that that reason was conduct.
“(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason  for the dismissing the employee, and
(b) shall be determined in accordance with equity and substantial merits of the case.”

That is the statutory test.  It does not in terms require that the elements in British Homes Stores v Burchell each separately be addressed; this is one of those cases in which it would not have been appropriate to do so.  We see no evidence that the Employment Tribunal have failed to address the requirements of Section 98(4).  

13	The second submission and ground is that the Employment Tribunal substituted its own decision for that of the employer.  In one sense, they did, in that the employer came to the conclusion that it was the proper response to dismiss, whereas the Employment Tribunal came to the conclusion that dismissal was a wholly unreasonable response.  Section 98(4) requires an Employment Tribunal to form a judgment as to the employer’s response; it does not permit, as is well established now by authority, the Employment Tribunal to decide what it would have done and resolve the case on that basis.  Here the Employment Tribunal at paragraph 27 state in terms that they proceeded to consider whether the decision to dismiss was within the range of reasonable responses of a reasonable employer and referred to appropriate authority.  

14	Within the two paragraphs that followed they set out the factors which indicated to them whether or not the decision to dismiss was a reasonable response and concluded in the words that I have already quoted from paragraph 30, that it was not.  The thought process, which is set out in those paragraphs, is that of asking whether the employer’s response was reasonable and not that of saying what the Tribunal itself would have concluded, although there can as I have pointed out, be no doubt that the Tribunal, if left to itself, would have come to that same conclusion.  

15	Accordingly, it seems to us that this Tribunal evaluated, as they were bound to do, the reasonableness of the decision of the employer.  They did so in accordance with Section 98(4) and there can, short of one further argument that Mr Rahman has advanced, be no basis for arguing that there was an error of law here.  

16	That further argument is that the Employment Tribunal were perverse in the decision to which they came.  Mr Rahman sought to say that that indicated that they had indeed substituted their own judgment because his submission was, in effect, that there was only one answer to the question whether or not dismissal in these circumstances was, or was not, within the range of reasonable responses.  It could, he submitted to us, only be reasonable where there were health and safety considerations, and a health and safety policy, and an employee refused to comply with it, that dismissal would be the only option available to the employer.  

17	Perversity, as such, is not clearly indicated by Notice of Appeal, although it does come within ground 6.4.  We remind ourselves that in order to say that a decision is perverse, this Tribunal must be able to say that it is wholly impermissible.  Having listened to what Mr Rahman has to say we are not able to do so.  We think that it was open to this Tribunal to come to the conclusion it did; that the decision they made was not one which was impermissible.

18	That leaves one final matter only and that is that Mr Rahman has submitted that the decision of the Employment Tribunal does not clearly indicate, as it should, the reasons for accepting the Applicant’s case and rejecting that of the employer.  He has asked us, ancillary to that, to order that the Chairman’s Notes be made available so that it can be seen whether or not this Tribunal, indeed, substituted its own judgment for that of the employer.  This is an additional ground for which he acknowledged, frankly in argument, leave would have to be sought if he were to argue it.  We refuse leave to raise this additional argument.  In any event, we should say that we think that if raised, it would have no force.  We think that this decision of the Employment Tribunal is entirely clear as to why it was that the Employment Tribunal found in favour of the Applicant, and against the Respondent.  

19	It follows that the consequential relief in terms of ordering the Chairman’s Notes falls. For the reasons which we have given, there is no merit in this appeal and it must be dismissed.