Appeal No. EAT/0827/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 March 2003

Before
THE HONOURABLE MR JUSTICE KEITH
MR D NORMAN
MRS R A VICKERS

MR B RAJPRA	APPELLANT

TIMET UK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR KEVIN J O’DONOVAN
(Of Counsel)	
For the Respondent	MR JAMES LADDIE
(Of Counsel)
EEF
Broadway House
Tothill Street
London
SW1H 9NQ	

MR JUSTICE KEITH

1.	The Applicant, Bhupendra Rajpra, was dismissed by his employers, Timet UK Ltd (“the Company”).  He presented a complaint of unfair dismissal.  An Employment Tribunal held at Birmingham decided that his dismissal was not unfair.  He now appeals against the dismissal of his complaint.

2.	The Company manufactures titanium mainly for the aerospace industry at its Wilton plant.  Production is continuous, 24 hours a day, 7 days a week, and the need for employees to observe shift patterns is therefore important.  However, holiday arrangements are flexible, and to keep track of when employees take time off the Company has a computerised time and attendance recording system.  It calculates the balance of an employee’s holiday entitlement at any particular time, and employees can obtain a print-out of it.

3.	Mr Rajpra had been employed by the Company since 1977 and he worked as a production shift operator.  He took a day’s holiday on Sunday, 23 September 2001.  The shift manager noticed that as a result of that day’s holiday, Mr Rajpra owed 2½ hours of holiday time taken and 4 hours of time taken off in lieu.  He therefore asked Mr Rajpra’s line manager to speak to Mr Rajpra.  On the following day, Monday 24 September, Mr Rajpra requested a print-out showing his current holiday entitlement.  The shift manager gave it to Mr Rajpra, but the Company’s case was that he explained to Mr Rajpra that as the system is only updated on Tuesdays the print-out would not show the day which he had just taken off, and that he had no further holiday entitlement.

4.	At midnight on the following Saturday, 29 September, Mr Rajpra telephoned the team leader in the section in which he worked saying that he wanted to take the next day, Sunday 30 September, as holiday.  His reason was that his wife was ill and that he had to look after her and the children, though he did not mention that at the time.  On Monday 1 October, Mr Rajpra’s line manager told him that he had not been entitled to take a day’s holiday on the previous day.  The Company’s case was that Mr Rajpra had said that he had made a mistake and suggested either that the Company should deduct a day’s pay from his wages or that he would work an extra day over Christmas.  He was told that disciplinary action might be taken against him, and later that day he was suspended on full pay pending a disciplinary hearing.

5.	On Tuesday 2 October, an investigatory meeting took place under the Company’s disciplinary procedure.  At that meeting Mr Rajpra denied (a) that he had been spoken to by his line manager on 24 September about his holiday entitlement at all, let alone that he had been told that he had no further holiday entitlement left, or (b) that he had known on 30 September that he had not been entitled to take that day as a holiday.  On Thursday 11 October a disciplinary hearing took place.  The Company’s case was that Mr Rajpra only admitted having been spoken to by his line manager on 24 September about his holiday entitlement when he was confronted with evidence from other employees who had overhead his conversation with his line manager.  At the conclusion of the hearing he was told that he was being dismissed because management concluded that Mr Rajpra had been aware on 30 September that he had not been entitled to take that day as a holiday.

6.	An internal appeal hearing took place on Tuesday 16 October.  The Tribunal found that at that hearing Mr Rajpra’s representative had not denied that Mr Rajpra had known that he had not been entitled to take 30 September as holiday.  Instead he had argued that dismissal was too severe a sanction for a man with almost 25 years’ service.  Mr Kevin O’Donovan for Mr Rajpra says that that finding was wrong.  He says that the contents of the witness statement of the Company’s works manager who chaired the appeal hearing show that Mr Rajpra had still been saying at the appeal hearing on 16 October that he had not been aware on 30 September that he had not been entitled to take that day as a holiday.  Be that as it may, the decision to dismiss Mr  Rajpra was upheld despite his long service because his disciplinary record had not been perfect, and because it was the Company’s invariable practice to dismiss an employee when gross misconduct on his part was established.

7.	The Tribunal’s approach to the evidence was unusual.  A conventional approach in line with British Home Stores Ltd v Burchell [1980] ICR 303 would have been to consider whether the Company’s management on 11 October could reasonably have concluded that Mr Rajpra had been aware on 30 September that he had not been entitled to take that day as a holiday.  Instead of doing that the Tribunal decided for itself whether Mr Rajpra had been aware of that and therefore whether he could not have been telling the truth in the course of the disciplinary proceedings when he had said otherwise.  Paras 10 and 11 of the Tribunal’s extended reasons cannot be interpreted in any other way.  They read:

“10	We find as a fact that Mr Rajpra was aware that he was not entitled to one day’s holiday when he rang in on midnight [29] September to arrange to take the [30th] off as a day’s holiday.  This is established because he could not otherwise have known that he was mistaken when challenged on the morning of 1 October by his line manager about his having taken the [30th] off.

11	We also find as a fact that Mr Rajpra in denying that he had been told that he had no entitlement to take the [30th] off could not have been telling the truth during the early parts of the disciplinary hearing.”

8.	This was not a legitimate approach.  The Burchell test is not simply a permissible approach to allegations of misconduct.  It is the only permissible approach.  Having stated what the Tribunal’s approach should be at p304C-D, Arnold J said at p304E:

“It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.”

The reason for that is because the focus of what is now section 98(4) of the Employment Rights Act 1996 is on “whether the employer acted reasonably or unreasonably in treating [the reason for the employee’s dismissal] as a sufficient reason for dismissing the employee.”  Once it is appreciated that the focus is on whether the employer had reasonable grounds for believing that the employee had been guilty of the misconduct alleged against him, it should be apparent that the Tribunal’s own view becomes irrelevant.  In deciding for itself whether Mr Rajpra had been guilty of misconduct, the Tribunal apparently fell into error.

9.	We say “apparently” because the position could have been otherwise if what the Tribunal had been doing was to reach its own conclusion on the basis of the material which had been before the Company’s management as to whether Mr Rajpra had been guilty of misconduct in order to assess whether the Company’s management’s conclusion that he had been guilty of misconduct was reasonable.  But that is not what the Tribunal did.  There is nothing in its extended reasons which indicates that its findings in paras 10 and 11 were merely a step on the way to a conclusion about whether it had been reasonable for the Company’s management to conclude that Mr Rajpra had been aware on 30 September that he had not been entitled to take that day as a holiday. 

10.	Mr James Laddie for the Company told us that his instructions were that whatever may have been the issues for the Company’s management at the disciplinary hearing on 11 October or at the appeal hearing on 16 October, the issue before the Tribunal itself was a very limited one.  It was not being contended at the Tribunal on behalf of Mr Rajpra that it had not been open to the Company’s management reasonably to conclude that Mr Rajpra had known on 30 September that he had not been entitled to take that day as a holiday.  The only point taken on Mr Rajpra’s behalf was that in view of Mr Rajpra’s very long service with the Company the ultimate disciplinary sanction of dismissal was too harsh, i.e. that it was not within the range of reasonable responses open to a reasonable employer in the light of what it reasonably believed Mr Rajpra had done.  Mr Laddie’s instructions came directly from the Company’s representative at the hearing in the Tribunal.  If his instructions are correct, the error which the Tribunal made could, so he submitted, be put to one side because it could not be said, if error it was, that the error infected the Tribunal’s view as to whether dismissal was an appropriate sanction.
 
11.	We agree with the latter part of that submission.  The two critical paragraphs in the Tribunal’s extended reasons on this issue are paras 12 and 13.  They read:

“12	The relevant law is section 98 of the Employment Rights Act 1996.  The reason for dismissal in this case was clearly misconduct.  The question which is at issue is whether the dismissal satisfies the test in section 98(4) of the Employment Rights Act 1996 that the dismissal shall be reasonable in all the circumstances of the case.  The argument, on behalf of Mr Rajpra, was that the penalty was too severe given the facts of the case and in the light of his 25 years service.  However, in the light of our findings that in taking the day off on [30] September, Mr Rajpra knowingly took a day of unauthorised absence and that he compounded this by denying the reality of his actions until confronted by the evidence of other employees, we conclude that there was a breach of trust between Mr Rajpra and the management such as to give rise to gross misconduct.  It is also relevant that where the company has established gross misconduct it is invariably the management practice that the penalty is dismissal. 

13	Our conclusion therefore is that although one needs to look very critically at the dismissal of a man with 25 years service nonetheless the facts of this dismissal are such that they fall within the band of reasonable responses of a reasonable management and that the decision to dismiss was therefore fair.”

It is said that the words “in the light of our findings” in para 12 when coupled with the words “the facts of this dismissal” in para 13 show that even when it came to the question whether the Company’s management could reasonably have concluded that dismissal was an appropriate sanction for what Mr Rajpra had done, the Tribunal was still deciding for itself whether dismissal was an appropriate sanction.  We do not agree.  Para 13 shows that the Tribunal realised that the issue as to whether Mr Rajpra’s dismissal was unfair had to be decided by reference to whether his dismissal for what he had done fell within the band of reasonable responses open to a reasonable management when faced with what Mr Rajpra had done.  This was not a question of the Tribunal substituting its own view for that of the Company’s management on the question of the appropriate sanction, assuming, of course, that it is appropriate to describe a Tribunal’s endorsement of what management has done, rather than disagreeing with it, as a substitution of its own view.

12.	It is said that insufficient reasons were given for the conclusion in para 13 of the Tribunal’s extended reasons.  Again we do not agree.  The reasons why the Tribunal regarded Mr Rajpra’s dismissal as falling within the range of reasonable responses open to the Company were set out in the last two sentences in para 12.  That was a sufficient explanation of why it decided the issue as to whether or not dismissal was reasonably regarded by the Company’s management as an appropriate sanction in favour of the Company.

13.	Thus, the outcome of this appeal depends on whether it was contended on Mr Rajpra’s behalf in the Tribunal that it had not been reasonably open to the Company’s management to conclude that he had been aware on 30 September that he had not been entitled to take that day as holiday.  Mr O’Donovan has no instructions on the issue, and we have concluded that it would be wrong for us to rely simply on the recollection now of the Company’s representative at the hearing without seeking the Tribunal’s views on the topic or the views of the union official who represented Mr Rajpra at the hearing, though we have to say that we would be very surprised if this issue had not been raised because otherwise there would have been no need for the Tribunal’s extended reasons to have been structured in the way that they were.

14.	Accordingly, the course which we have decided to take is to adjourn the further hearing of the appeal so that enquiries can be made of the Tribunal as to whether it was contended on Mr Rajpra’s behalf that it had not been open to the Company’s management reasonably to conclude that Mr Rajpra had known on 30 September that he had not been entitled to take that day as a holiday.  We will not regard the Tribunal’s recollection on the topic as decisive because we are aware of the error which the Tribunal is alleged to have made about the width of the issues being canvassed at the appeal hearing on 16 October.  The Tribunal’s recollection on the topic will be just one of the factors which we will take into account, including the recollection of the representatives.
 
15.	If either side wishes to rely on witness statements from the representatives at the adjourned hearing of this appeal, they may do so provided that copies of the witness statements are served on the other side and lodged with the Employment Appeal Tribunal at least 14 days before the adjourned hearing.  That hearing should be fixed on a date convenient to the three current members of the Employment Appeal Tribunal with a time estimate of 1 hour.  The course we are taking today would not have been necessary if the Tribunal had clearly identified in the course of its reasons what the issues were which it had to decide.  We trust that the Tribunal will bear this in mind in the future.