Appeal No. UKEAT/0514/07/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 May 2008

Before
HIS HONOUR JUDGE McMULLEN QC
MR P GAMMON MBE
MRS L TINSLEY

LONDON UNITED BUSWAYS LIMITED	APPELLANT

MR B SALIM	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR I McCABE
(of Counsel)
Instructed by: 
Messrs Moorhead James Solicitors
Kildare House
3 Dorset Rise
London  EC4Y 8EN	
For the Respondent	MR B SALIM
(The Respondent in Person)	

SUMMARY

UNFAIR DISMISSAL:  	Reasonableness of dismissal
JURISDICTIONAL POINTS:	2002 Act and pre-action requirements

The majority judgment of the Employment Tribunal that the Respondent dismissed the Claimant unfairly in breach of the EADR 2004, Steps 1 and 2(ii)(b), and if necessary, Employment Rights Act 1996 s98(4), was set aside.  It was made without explanation as to why it rejected the unchallenged evidence of the Claimant and his TU rep that he knew he was at risk of dismissal and agreed he had adequate time to prepare, in the 48 hours between the suspension and the disciplinary meeting.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about automatic and ordinary unfair dismissal.  The judgment represents the views of all three members.  We will refer to the parties as the Claimant and the Respondent.  

Introduction
2.	It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Zuke sitting over three days at London South registered with reasons on 15 August 2007.  The deliberations cannot have been easy as the Employment Tribunal divided in different majorities in four parts of the judgment.  The Claimant was represented by Mr Rahman an advice worker and represents himself today; the Respondent by Mr Irvine McCabe of counsel.  The Claimant made nine claims under various strands of the anti‑discrimination canon and of unfair and wrongful dismissal.  The outcome was his claim of unfair dismissal succeeded and all the rest were dismissed.  The unfair dismissal finding was by a majority which was constituted as Mr JS Rao and Mr JR Geleit with the judge in the minority.

3.	The Tribunal went on to find that the Claimant contributed to his dismissal to the extent of 100 per cent and insofar as the finding was automatically unfair, no order was made.  The essential issues were set out by the Employment Tribunal as relevant to this case and have not been disputed:  

“Unfair Dismissal
2. Was the Claimant’s dismissal necessarily unfair contrary to section 98A ERA?
The Claimant accepted that step 1 of the statutory dismissal procedure set out in the schedule to the Employment Act 2002 was complied with.  His case was that the Respondent did not comply with step 2(2)(b), because he was not given a reasonable opportunity to consider his response to the allegations against him.  It was also his case that the Respondent did not comply with step 3(3), because he did not accept that he was invited to attend his appeal against dismissal.
3. If the dismissal was not unfair contrary to section 98A, the Claimant did not admit that the reason for his dismissal was related to his conduct, and put the Respondent to proof that his dismissal was for that potentially fair reason. 
4. If the Respondent showed that his dismissal was for reason relating to his conduct, it was the Claimant’s case that dismissal was unfair contrary to section 98(4) ERA, i.e. that the decision to dismiss was outside the range of reasonable responses for reasonable employer.”

4.	The Claimant appealed against all of the findings.  It is not necessary to set out the complicated history of the appeals by the Claimant and by the Respondent in the EAT.  It is sufficient to note that although the Claimant was debarred by order of the Registrar from defending the appeal of the Respondent, I have this morning allowed his appeal from her, without opposition.  He has attended and his written skeleton argument has been adduced before us and he has made submissions in relation to the appeal.  He has not been permitted to raise submissions in relation to his cross‑appeal which will be dealt with in a different way.  So, the focus of our case has been the unfair dismissal finding alone.

5.	Directions sending this case to a full hearing were given in Chambers by HHJ Serota QC.

The legislation
6.	The relevant provisions of the legislation are not in dispute.  Section 98 Employment Rights Act 1996 deals with unfair dismissal.  Section 98A deals with procedural fairness and automatic unfair dismissal.  The procedure to be followed in the case of a dismissal is set out in the Employment Act 2002 and the Regulations thereunder.  The Tribunal summarise these and we cannot improve upon it.:  
“Unfair dismissal
69. The Tribunal first considered whether the Claimant had been unfairly dismissed contrary to section 98A ERA.  Section 98A(1) provides that:-
‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if – 
one of the procedures set out in Part 1 of Schedule 2 to  the Employment Act 2002 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,
the procedure has not been completed, and
the non-completion of the procedure is wholly or mainly attributable to failure be the employer to comply with its requirements.

70. The material parts of the dismissal procedure in Part 1 Schedule 2 to the Employment Act 2002 are as follows:-
‘(1)	(i) the employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary actions against the employee and invite the employee to attend a meeting to discuss the matter.
 (2)	(i) The meeting must take place before action is taken, except in the case where the  disciplinary actions consists of suspension.
	(ii) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(i) the ground or grounds given in it, and 
(b) the employee has had a reasonable opportunity to consider his response to that information …
	
 (3)	(i) If he does wish to appeal, he must inform the employer.
	(ii) If the employee informs the employer of his wish to appeal, the employer must invite  him to attend a further meeting …’ ” 

Although the Tribunal did not cite it, Regulation 12 says the procedure is to be taken with no unreasonable delay. It did not cite the compensation provisions but pursuant to Sections 122 and 123, compensation may be reduced by conduct of the Claimant or by contributory blameworthy fault, the two tests for basic and compensatory awards being slightly different but, generally speaking, the practice is to reduce both by the same if the step is to be taken.

The facts
7.	The Respondent is a major bus company operating in South London.  The Claimant was a driver.  He had been employed there since 24 January 2005.  During the course of his career, he was given and signed for a series of documents acknowledging that the Respondent takes seriously its policy against alcohol and drugs used by its drivers and has in place a system for random breath testing.  The Claimant had three relevant documents.  He knew of the procedure and he knew of the sanctions available if he failed or refused a breath test.

8.	On 18 December 2006, shortly after his clocking on at 3.00pm, he was asked to provide breath samples.  About 11 attempts produced failed results.  There may have been more.  The practice is to attempt three breath tests in any reading.  The Claimant failed to produce a valid reading.  They were all void.  In between, a manager tried the tests and they proved valid and negative in his case.  So the position was that upwards of 11 times, the Claimant had placed his mouth upon the apparatus and a test produced a void result.  This led to his suspension that day and the report provided by Mr Virdi.

9.	This Respondent operates a sophisticated disciplinary procedure.  Six steps were taken in this case.  The first is the suspension report.  The second, a suspension review meeting which was conducted by the Chief Controller between himself, the Claimant and his trade union representative, the Claimant having the good fortune to be a member of the Transport and General Workers Union as it then was.  The suspension was continued.

10.	There then was a disciplinary hearing on 20 December 2006 at noon.  There, a different trade union representative represented the Claimant.  He was summarily dismissed by Mr Harris.  He appealed not, it must be noticed, on the ground of unfairness, but as to the penalty, the severity of the award.  The Claimant did not show up at his appeal and it was reconstituted.  When he did not attend again on 3 January 2007, a third trade union representative attended for him.  The appeal was dismissed by a senior officer, Mr Juniper and he was advised in writing.

11.	On 15 January 2007, the Claimant wrote to the Respondent’s HR officer, Ms Fuller, claiming he did not receive any letters notifying him of appeals.  The procedure of the Respondent allows a special review and this took place by Ms Fuller.  She investigated the circumstances and found there were no grounds to overturn the appeal finding.

12.	The sixth and final stage was a grievance submitted by the Claimant on 15 February 2007 and he included material which subsequently found its way into the claim form which was presented on 15 March 2007.  Thus, it can be seen that there is a robust system for discipline within this establishment and there are three formal documents carrying the Respondent’s policy in relation testing for alcohol.

13.	The divided Tribunal came to the conclusion that the dismissal was unfair and the relevant passages setting out the different views are these.  

“72. In our view paragraph 1 of the statutory procedure does not require the employer to explicitly state that dismissal is contemplated.  Whether that omission renders the dismissal unfair pursuant to section 98(4), is a matter we return to below.
73. The Tribunal is not unanimous on this question.  The majority (Mr Geleit and Rao) draw on their extensive experience in the workplace.  In their view the Claimant was not given a reasonable opportunity to consider his response to the allegation against him.  The incident occurred on 18 December.  On 19 December the Claimant was asked to attend a disciplinary hearing the following day.  He duly did so on 20 December, when he was dismissed.  In the view of the majority, this timetable did not allow the Claimant a reasonable opportunity to consider his response to the allegation.  The fact that at the beginning of the disciplinary hearing, Mr Harris stated that dismissal was a possible outcome, and that the Claimant and Mr Doyle confirmed they had sufficient time to prepare, does not amount to giving the Claimant a reasonable opportunity to consider his response because the letter inviting him to the disciplinary hearing did not state the dismissal was a possible outcome. 
74. In the view of the majority this means that neither the Claimant nor Mr Doyle appreciated the seriousness of the matter.  It was too late for Mr Harris to make this clear at the beginning of the disciplinary hearing.  At that point, Mr Harris should have adjourned the hearing for a reasonable period of time, to allow the Claimant to consider his case, in consultation with Mr Doyle.  The majority conclude that the Respondent did not comply with its obligation under paragraph 2(ii)(b), so that the Claimant was unfairly dismissed contrary to section 98A.
75. The minority (the Chairman) is troubled by the short period of time between the incident and the disciplinary hearing.  However, in the Chairman’s view the fact that Mr Harris confirmed at the beginning of the hearing that dismissal was a possible outcome, and that the Claimant and Mr Doyle confirmed that they had had sufficient time to prepare for the hearing, meant that the Claimant did have a reasonable opportunity to consider his response to the allegation.  In the Chairman’s view, the Respondent complied with its obligation under paragraph 2(ii)(b), so the dismissal was not unfair contrary to section98A.
76. The majority judgment of the Tribunal is that the Claimant was unfairly dismissed.”

The Tribunal then went on by different majorities to decide that the Claimant had not been wrongfully dismissed but that he was guilty of gross misconduct in that he deliberately failed to produce a sample of breath and that same majority, when considering that the Respondent had offered a cheque to the Claimant, had done so by mistake and did not, thereby, acquiesce in the Claimant’s submission that he had not been guilty of gross misconduct.

14.	Other aspects of the case were all dismissed unanimously and we need not deal with them today.  

The Respondent’s case
15.	On behalf of the Respondent, Mr McCabe contends that the Tribunal did not make a finding about the breaches of the procedure, but if it did, there was no basis for the majority to make the finding, and indeed, such finding was contrary to the evidence.  He contends that it is now common ground that the statutory procedure does not require the employer to say that dismissal is contemplated.  As is enigmatically said in paragraph 72, the Tribunal regards that as a matter that might be appropriate for ordinary unfair dismissal under Section 98(4), but it never actually returned to that point.  He contends that the basis of the statutory unfairness here is the distance in time between 18 December when the Claimant was suspended in the middle of the afternoon and noon on 20 December 2006 when the disciplinary meeting occurred.  In support, Mr McCabe drew our attention to three utterances in writing by the Claimant, all to the same effect which is that he was told by his union representative that the Respondent was going to dismiss him and that the minutes of the relevant meeting on 20 December recorded both the Claimant’s and his union representative’s agreement that they had had sufficient time to prepare for the meeting.  They confirmed that everything was understood in relation to the foregoing steps.  It is also Mr McCabe’s contention that if the Tribunal went on to consider Section 98(4) as ordinary unfair dismissal, these technical breaches did not fall below the standards of a reasonable employer and, in any event, the Tribunal has made no finding on what would have happened had a longer gap occurred between suspension and meeting, as to which there was only one answer; dismissal would inevitably have occurred not only as a result of the evidence but also of the finding that the Claimant was 100 per cent to blame.

The Claimant’s case
16.	On behalf of the Claimant, a carefully written skeleton argument has been produced with the assistance of some experienced person which we have read with care.  Essentially, he argues that the majority of the Tribunal was correct on the material put before it and he asserts before us that as a devout Muslim, and he is a Somali, he does not drink nor take drugs and this procedure was offensive to him.

Discussion and conclusions
17.	We prefer the approach of Mr McCabe.  It is right that the Tribunal does not make a formal finding as to the Claimant’s appreciation of the seriousness of the matter.  The expression which we have recorded above at paragraph 74 is an opinion of the majority and it goes against the evidence.  It is plain from the three documents relating to alcohol testing that breaches would be regarded as serious and he knew from his union officer that he was liable to be dismissed.

18.	We cannot accept the submission that there was no time reasonably for him to defend himself.  In the light of his representation by experienced trade union officers, and their and his agreement that they were ready at the disciplinary hearing, this point cannot survive.  It would be open to the Tribunal to have found that what the Claimant is recorded as saying did not represent the facts but that is not a finding.  The statutory requirement to the steps is that there should be no unreasonable delay.  In this case, there was not.  The criticism is that the meeting took place too quickly.  That would normally be a matter for the appreciation of the Tribunal as a matter of degree but the criticism cannot survive the evidence that neither the Claimant nor his union officer complained of the short timescale, nor asked for the matter to be postponed, and further, confirmed that they were ready.  This submission must succeed and that is the sole basis upon which the majority of the Tribunal found in favour of the Respondent.  The judge, in the minority, was himself troubled by the short time but he points out the matters which we have accepted to be correct.  This majority finding cannot stand.

19.	We then consider ordinary unfair dismissal under Section 98(4).  This is not strictly necessary for our decision since the Tribunal has not found ordinary unfair dismissal.  But it has been argued before us and so we will make a decision.  It could not be said that the standard of a reasonable employer was breached by the short timescale.  Unless a more exacting approach is taken to breaches under Section 98(4) than under the statutory regime, where minor technical breaches can be blown up into a finding of automatic unfair dismissal, we are dealing with ordinary unfair dismissal, in the sense fully understood since this jurisdiction descended upon us in 1971.

20.	It is a perverse judgment to say that the dismissal decision fell below the standards of a reasonable employer because it was taken within two days of the suspension and/or because the letter convening the meeting did not specifically cite the possibility of dismissal.  So, for that reason too, if necessary, a decision in favour of the Claimant cannot stand.  The approach of the Tribunal was plain in that by its decision that the Claimant contributed to his dismissal 100 per cent. That indicates that whatever defect there was in the procedure, correction of it would not have prevented this dismissal.  The alcohol policy is plain, the attitude of the management is clear to breaches of the policy; the policy was not breached in the Claimant’s case by requiring him on 11 or so occasions to breathe into the machine.  The finding of 100 per cent contribution means that the dismissal would have occurred in any event, a little later than actually occurred if it were necessary to insert a longer period prior to the disciplinary hearing.  So we accept the submission that the decision cannot stand.  

21.	Applying the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 is not necessary for us to remit this case.  All that could be said is what has already been found in the documents.  So on the material available we are confident that we can make this decision and we do so using the language of the minority judge at paragraph 75.  This dismissal was not unfair. The appeal is allowed.