Appeal No. UKEAT/0023/09/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 September 2009
	            Judgment handed down on 6 November 2009

Before
HIS HONOUR JUDGE ANSELL
MR R LYONS
MR M WORTHINGTON

METROPOLITAN POLICE COMMISSIONER AND OTHERS	APPELLANTS

MR L EIOYACCU	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MISS LUCINDA HARRIS
(of Counsel)
Instructed by:
Metropolitan Police Legal Services
New Scotland Yard
Broadway
London
SW1H OBG
	
For the Respondent	MR LEON EIOYACCU
(The Respondent in Person)	

SUMMARY
UNFAIR DISMISSAL
Reasonableness of dismissal

Tribunal wrong to find unfairness in failing to give proper consideration to employee’s possible mental health issues, where employers had previously given consideration to these issues.

HIS HONOUR JUDGE ANSELL
1.	This has been the hearing of an appeal from a decision of the London (Central) Employment Tribunal, chaired by Employment Judge Snelson, who found that a claim for unfair dismissal was well-founded but dismissed claims for discrimination and victimisation.  The Tribunal refused to order either reinstatement or re-engagement but awarded total compensation of £10,896.

2.	The Tribunal found that there was unfairness in two respects; firstly, the letter inviting the Respondent to a disciplinary hearing did not contain any warning as to the possibility of the hearing ending with dismissal.  Secondly, that the Appellants had failed to take reasonable steps to ascertain the Respondent’s state of mind at the time of the alleged misconduct and failed to consider the possibility of a medical suspension.

3.	However, the Tribunal did determine that it was likely that the Respondent would have been fairly dismissed after a period of six months and awarded compensation on that basis and made no order in respect of contributory behaviour.  Leave to appeal was given on the sift by HHJ McMullen QC on 22 January 2009.

4.	Meanwhile the Respondent sought firstly to review the decision on re-employment and compensation.  That review was refused by the Tribunal on 19 December 2008.  The Respondent’s cross appeal was initially refused on sift and that refusal was confirmed following a rule 3(10) hearing before HHJ Peter Clark on 11 March 2009, the judgment being delivered on 28 April 2008.  The Respondent appealed that decision and on 30 July 2009 Buxton LJ refused leave to appeal.

5.	The background facts are that in December 2005 the Respondent commenced employment with the Appellants as a Police Community Support Officer (PCSO) having failed to qualify as a police officer.  Following three weeks’ training he took up his duties which consisted largely of patrolling specified beats in the city of Westminster.  In March 2005 the Appellants received a complaint from Camden Council that the Respondent had introduced himself to a member of the Council staff as a police officer and made a complaint that aliens were beaming messages into the heads of residents via satellite dishes.  He asked for the dishes to be removed.  A complaint was investigated by Police Sergeant Foster.  The Respondent denied saying anything about aliens or messages being beamed into the residents’ heads but the officer found that the Respondent had difficulty in focussing on the subject in hand and claimed that the Council were conducting a hate campaign against him.  Sergeant Foster formed the view that the Respondent was affected by “mental health issues”.  A subsequent referral to the Metropolitan Police Occupational Health Service resulted in a conclusion that the Respondent had “a few eccentricities” but was not suffering from ill health, mental or physical.  A referral to a psychiatrist was unsuccessful because the Respondent did not attend the appointment.

6.	On 4 August 2006 two fellow PCSOs complained about the way in which the Respondent had enforced a by-law concerning public drinking.  It was alleged he had executed his duties in a needlessly aggressive and rude fashion.  No action was taken in respect of these complaints.

7.	On 1 October 2006 a further incident occurred in Whitehall.  The Respondent had become agitated when a member of the public who he had approached declined to give him his details.  Ministry of Defence Police became involved; one of whom instructed the Respondent to leave the man alone and continue his patrol.  This caused the Respondent to become more agitated and he appeared not to have complied with the instruction and then had to be physically moved away by a PCSO colleague.  This led to a disciplinary process which was resolved some five months later when the Respondent was given words of advice concerning the incident but informed that no formal disciplinary action would be taken.

8.	In November 2006 the Respondent issued a grievance under the Metropolitan Police Fairness at Work Procedure complaining that police equal opportunities and diversity policy were not being satisfactorily implemented.  In particular that he was experiencing discrimination and racism at his home police station, Charing Cross.

9.	In February 2007 the Respondent applied to be transferred from team 1A to team 3, this was eventually refused by Inspector McNaughton.  It appears that PC Elaine Crew who was attached to team 3 had raised concerns about the idea of the transfer informing the Inspector of an incident at the Hendon Training School which had caused her to feel uncomfortable in the Respondent’s presence.  In due course the Respondent complained about the refusal to transfer and the matters that had been raised by WPC Crew and on 24 April he issued a second Fairness at Work grievance.

10.	Turning to the events which gave rise to the dismissal; on 31 May 2007 a Miss Sadat, a manageress of a clothing store in Covent Garden made a complaint at Charing Cross Police Station alleging that over a period of two months the Respondent had entered the shop acting in a lewd and inappropriate manner to the manageress and other female members of staff.  He also attempted to dance with her.  As a result the Respondent was suspended on full pay with effect from 6 June 2007.

11.	Not long afterwards the Appellants received a further unsolicited complaint from a Miss Tarasiuk, a shop assistant at the Age Concern shop in Covent Garden.  She alleged that a PCSO answering the Respondent’s description had been a frequent visitor to her shop and had behaved in a way described as “sleazy” towards her and other female colleagues.

12.	On 8 June the Respondent was a subject of an occupational health referral.  By a letter dated 15 July he notified Miss Jan Marshall of Human Resources that he was in good health and did not require occupational health assistance.  However, in due course the Respondent was arrested and interviewed about the allegations.  He dismissed most of them as “rubbish” although agreed that he had demonstrated salsa dance steps at the Script shop.  Papers were there after referred to the CPS for a decision as to whether criminal proceedings should be brought.

13.	On 9 August Miss Marshall again wrote to the Respondent encouraging him to make use of the occupational health services, also suggesting that he should seek support from the appropriate staff association or trade union.  The Respondent did not respond to these suggestions.  However, on 19 September the Respondent was informed that there were going to be no criminal proceedings and soon afterwards Mrs Liz Haddon, Human Resources Practice Manager, was instructed to carry out an investigation under the disciplinary procedure.  An investigatory interview took place on 4 October 2007 and again the Respondent denied the allegations, save that he admitted that he had danced at the shop but maintained that he had done so only “out of sheer politeness”.  There was some conversation about his interest in astrology and he then went on to explain that he had a personal suspicion that there was some sort of secret society, linked to stonemasons, meeting in the Covent Garden area.  This society was composed of doctors, police officers, barristers, astrologers and stonemasons and also that officers of Charing Cross Police Station were members of the society.  Mrs Haddon re-interviewed two of the complainants; Ms Sadat and Ms Pinero who confirmed the evidence they had previously given to the Police.  On 9 October the Respondent wrote a long letter to Mrs Haddon complaining that the original police investigation by Sergeant Staunton and her own investigation had fallen short of the standards of Edgar Allan Poe’s fictional characters Legrand and Dupin and he repeated his concerns that secret societies, particularly involving stonemasons, were operating in the Westminster area.

14.	Mrs Haddon’s investigatory report was completed on 17 October and she offered the opinion that the complaints were plausible.  She volunteered the judgment that the Respondent was affected by some form of personality disorder but noted that earlier in 2007 he had dismissed as unnecessary two attempts to explore his state of health through the occupational health service.  She therefore concluded that there appeared to be no alternative but to proceed with disciplinary action, recommending that the case should be seen as one of gross misconduct.  The letter of 8 November inviting the Respondent to attend a disciplinary hearing set out the allegations in respect of both shops and described them as gross misconduct but did not contain a warning as to a possibility of the hearing ending with dismissal.  Although the Tribunal’s findings did not deal with the point there is no dispute that the letter of 8 November was accompanied by a number of documents including a copy of the Metropolitan Police Gross Misconduct Procedure, which makes it clear that misconduct likely to bring the police service into disrepute or to hinder its effectiveness (the complaints made against the Respondent) could result in dismissal.

15.	At the disciplinary hearing, which took place on 19 November, the Respondent, consistent with his earlier replies, denied all the allegations save that on one occasion he had demonstrated salsa dance steps and he repeated his earlier allegations of a hate campaign.  The panel did not believe him.  They accepted the complainant’s accounts and he was dismissed for gross misconduct.  Against this decision the Respondent appealed by way of a 19 page letter.  He made many references to the state of the moon on various dates and argued that Ms Pinero, one of the complainants, was linked to Arthur Wing Pinero, the playwright and that the entire episode had been designed by someone from Charing Cross Police Station as a play in the style of that dramatist.  That letter also referred to three alleged attempts on his life in 1993 and 1994, a factor which he has mentioned in the documents and submissions before us.

16.	Meanwhile a grievance taken out by the Respondent was investigated by Inspector Cornish.  The Respondent presented his case to the Inspector consistent with his earlier correspondence in relation to the alleged attempts on his life, concerns about secret societies, a hate campaign and his numerous allusions to astronomical and astrological phenomena.  He firmly rejected the Inspector’s remarks that he was paranoid and should consult a doctor.  The Inspector had concluded that the concerns raised had been appropriately dealt with but that this was something with which the Respondent was never likely to agree.  An appeal hearing against dismissal was first fixed for 6 February 2008, which date was vacated at the Respondent’s request and then re-fixed for 17 April although the Respondent attempted to move that date; his reason being that it would be prejudicial in that it fell on a full moon day.  The Tribunal also noted that the Respondent mentioned jury service although before us the Respondent indicated that he was at college.  The Respondent did not attend the appeal hearing, which went ahead in his absence and confirmed the dismissal.

17.	We therefore turn to the grounds of appeal as advanced by Ms Harris on behalf of the Appellants.  We should record that the Respondent, as before the Tribunal, appeared in person and other than submitting that the Tribunal’s decision should stand, had little of substance to say about the appeal, preferring in both his oral and written submissions to deal with general matters of concern to him; namely the atmosphere of racism within the Metropolitan Police, particularly at Charing Cross Police Station, their failure to run an efficient service and in particular to investigate terrorism offences; in particular the alleged attacks on him in 1993 and 1994, and his excellent record as a Police Community Support Officer.

18.	Ms Harris, in presenting her submissions firstly reminded us that the Tribunal in paragraph 79 had found that it was open to the Appellants to conclude that the Respondent had committed the acts of misconduct described.  In an ordinary case the behaviour found proved against him was sufficiently serious to warrant summary dismissal.  The Tribunal firstly found an element of unfairness in the failure of the Appellants to warn the Respondent of the risk of dismissal in the letter inviting him to the disciplinary hearing.  The Tribunal’s conclusions on that aspect were contained in paragraph 78 of their decision:
“We start with the question of process.  We are satisfied that the Claimant was made aware of the allegations against him and given a full opportunity to answer them.  All relevant documents were, as he accepted, made available to him well ahead of the disciplinary hearing.  The procedure was, however, flawed in one material respect.  As we have noted, the Claimant was not advised of the risks he faced.  He was not told that one possible outcome of the disciplinary procedure was the termination of his employment.  This is not a mere matter of ticking boxes.  It is of crucial importance that the degree of jeopardy in which employees find themselves when under disciplinary measures should be carefully spelt out.  If it is not, they will be liable not to appreciate the danger and not to prepare themselves to answer the case in the most effective possible way, with potentially disastrous consequences.  Moreover, the defect in the letter of charge did not infringe only against basic norms of fair employment relations practice; as we have noted, it also violated the Respondents’ own disciplinary procedure.”

19.	Ms Harris submitted that the Tribunal were in error, in failing to identify that the letter of 8 November was accompanied by the gross misconduct procedure and that taken together those documents made it abundantly clear that dismissal was a real possibility.  Further, she contended that the Respondent must have been well aware of the serious position in which he was by reason of the fact that originally he had been arrested as well as suspended.  She then took us to two decisions in connection with the requirements in relation to the step 1 letter under the provisions of the Employment Act 2002, schedule 2(1):
“Whereby the employer must set out in writing the employees alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.”

20.	In Homeserve Emergency Services Ltd v Dixon [2007] UKEAT 1027/07/CEA, HHJ Peter Clark said this at paragraph 13:
“13.	  However, we have considered the alternative submission by Mr Hignett which is that it is implicit in the letter of 24 April calling the Claimant to a formal disciplinary meeting to consider a charge of breach of contractual obligations, that is conducting private business using company property, that the employer, here, is contemplating dismissal or other disciplinary action. 
14.	We accept that submission on the particular facts of this case. Indeed it is interesting that the Claimant, albeit he represents himself, identifies the purpose of step 1 in his Respondent's Answer as a letter informing employees of the allegation against them and that disciplinary procedures are being instituted as a result of the allegations. That, in our judgement, is precisely what the letter of 24 April did. Accordingly, in our view, the Tribunal was wrong in law to find that the Respondent had failed to comply with step 1 simply because the letter did not state that dismissal was a possible outcome.”

21.	Further in Zimmer Ltd v Brezan [2008] UKEAT/0294/08/ZT HHJ Burke at paragraph 23 said this:
“Unless the employee is enabled to understand from the step 1 letter that he is at risk of dismissal, in our judgment the purpose of the step 1 letter in a dismissal case cannot be properly achieved.”

22.	Later at paragraph 25 he said this:
“We accept that on the facts of a particular case it is open to a tribunal to consider that the step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter itself does not expressly say that.”

23.	On the facts of this case it is clear to us that on a reading of 8 November letter in conjunction with the gross misconduct procedure which accompanied the letter, it was clear to the Respondent that the gross misconduct alleged, namely misconduct likely to bring the police service into disrepute or to hinder its effectiveness were within the sort of conduct that was serious enough to result in dismissal.  We therefore cannot agree with the Tribunal’s conclusions as set out in paragraph 78.

24.	
Turning to the Tribunal’s major concern in relation to mental health issues, their conclusions were set out in paragraph 80 as follows:

“80.  This leaves one abiding concern.  It was, for reasons which we do not have difficulty in understanding, apparent to the Respondents well before the complaints of May 2007 that a real question arose as to the Claimant’s mental health.  It is undoubtedly true that he had rejected earlier attempts to have him examined.  Was it, in those circumstances, permissible simply to propel the case down the conventional disciplinary route?  We think not.  They could not properly convict him of serious misconduct without having reasonable grounds for finding him guilty and conducting a reasonable investigation.  Inherent in the disciplinary charges (framed as instances of gross misconduct) was the unspoken assertion that he had committed the acts alleged against him consciously and knowingly, or at the very least recklessly.  Of course, generally speaking it is safe to assume that a person knows the nature and quality of his acts and the possible consequences of them.  But this was not an ordinary case.  In the context of the earlier history which we have sketched, it was, we think, necessary for the Respondents to take reasonable steps to ascertain the Claimant’s state of mind at the time of the alleged misconduct.  Simply to disregard that aspect was not, in our judgment, a reasonable option.  But that, we find, is exactly what happened at the disciplinary and appeal stages.  Under the police staff discipline standard operating procedures, provision is made for suspension on health grounds (p897).  The document stresses the importance of seeking to make use of the services of occupational health advisers.  It points out that suspension can be conditional upon an individual seeking medical help.  It notes that a refusal to do so might then result in the disciplinary machinery being operated.  No reference seems to have been made to the possibility of medical suspension.  It seems to us that the failure to take account of this possibility, or otherwise to explore the question of the Claimant’s mental health, vitiated the fairness of this dismissal.  Put in the context of the case-law, we find that the dismissal offended against the second limb of the Burchell test.  The Respondents did not have reasonable grounds for believing that the Claimant was guilty of gross misconduct when they had not established that he knew the nature and quality of his acts, or even addressed their minds to that question.”

25.	Ms Harris, in her submissions reminded us of the general principles.  Firstly, it is for the employer not the Tribunal to conduct the investigation and the Tribunal’s function is to decide whether that investigation was reasonable in all the circumstances.  Secondly, that the range of reasonable responses test applies as much to the question as to whether the investigation into suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the act of misconduct found by the employer to have been committed; see Sainsbury’s Supermarket Ltd v Hitt [2003] ICR 111.  

26.	She argued that in paragraph 80 the Tribunal substituted its own standards of what it would have done during investigation for the standard it could be objectively expected of a reasonable employer.  She contended that the Respondent’s mental state was an irrelevant factor in the context of this case compounded by the fact that the further investigation the Tribunal suggested would, as they have found, not have been complied with by the Respondent and in any event would not have led to a different outcome, together with the fact that the Tribunal refused to order re-employment.  She argued that the Tribunal were incorrect in stating that it was inherent in the disciplinary charges that they were committed “consciously and knowingly, or at the very least recklessly”, since the relevant consideration was whether the acts complained of were committed, not the mental capacity of the Respondent, or why he committed them since harassment, both in discrimination legislation and under the Protection from Harassment Act 1997 was made out if the conduct complained of had the prescribed effect upon the victim and was to be judged on an objective basis.  We were referred to a passage in Archbold 2009, chapter 19, in the section dealing with harassment, which makes it clear that the test under the “Protection from Harassment Act 1997, section 1 is entirely objective.  The reasonable man is not to be imbued with the particular characteristics of the offender such as his mental illness”.

27.	Ms Harris conceded that the Tribunal might have been entitled to take a view that they did, had the employers not taken up previously the issues of possible mental health problems but she reminded us that the Respondent had failed to attend a psychiatric evaluation in 2005, and two referrals to occupational health in 2007 had not led to further action by the Respondent.  In particular, in July 2007, only a few weeks after the alleged incidents, the Respondent had said that he was in good health and did not require occupational health assistance.  Further, the Respondent had failed to see a doctor when suggested to him in December 2007 by Inspector Cornish and the Tribunal found that he would be likely to refuse to undergo any future psychiatric examination - see paragraph 105.

28.	
Further in their conclusions on the issue of re-employment the Tribunal had said this:

“In our judgment it would not have been practicable for the Authority to put the claimant back on the beat as a PCSO.  He had steadfastly denied the conduct of which, on compelling evidence, he had been accused, and he displayed no self-awareness or insight into how his behaviour was perceived by others.  There was no reason to suppose that, if restored to his position, he would change his ways.  The Commissioner and the Authority owe a duty to the public to entrust PCSO responsibilities only to those worthy of their confidence.”

29.	We agree with Ms Harris’ submissions.  It seems to us that in their conclusions the Tribunal have erroneously stepped into the shoes of the employer.  The employers were entitled to come to the conclusion that serious misconduct had taken place by an employee who was in a responsible and high profile position in the community.  The conduct complained of was harassment of a sexual nature.  An assessment in 2005 had described him simply as having a few eccentricities and two referrals in 2007 had not been pursued.  The Respondent had denied the allegations and had not been believed.  It seems to us that the disciplinary panel were entitled to take the course that they did without exploring further the question of the Respondent’s mental health, which as the Tribunal concluded would in any event have made no difference to the outcome.

30.	Finally, even if we are wrong as to our views concerning the Tribunal’s conclusions as to reasonable investigation, Ms Harris invites us to interfere with the Tribunal’s conclusions in refusing to reduce the compensatory award on the grounds of contributory conduct under section 123(6) of the Employment Rights Act 1996, namely:

“Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of compensatory award by such a portion as it considers just and equitable having regard to that finding.”

31.	The Tribunal’s conclusions on this issue were very much linked to their views that they had taken concerning the Appellant’s failure to take reasonable steps to inquire into the Respondent’s state of health as set out in paragraph 98 of their decision:

“We find that the complainants’ descriptions of the Claimant’s behaviour were accurate, but given our doubts about his mental state, the fact that he behaved as they allege does not persuade us that he is guilty of culpable conduct.  Regrettably, the Respondents failed to take reasonable steps to equip themselves at the time of the dismissal or subsequently with the means of assessing whether he consciously or knowingly misconducted himself.  We have already acknowledged that in the ordinary case an employer, and a Tribunal, will be entitled to assume that a person knows the nature and quality of his acts.  But, to repeat, this is not the ordinary case.  The litany of extraordinary actions of, and statements by, the Claimant over an extended period (of which we have mentioned only the tiniest sample), ranging from the eccentric through the wildly irrational to the utterly bizarre, put the natural assumption very much in doubt.  The burden is upon the employer to prove that the employee caused or contributed to the dismissal, and we find that in this case it is not discharged.”

32.	Ms Harris submitted that the Tribunal misdirected itself on the meaning of culpability by introducing an irrelevant requirement, namely that the Respondent “consciously or knowingly misconducted himself”, and further the premise for their finding was the Tribunal’s own assessment of the Respondent’s mental state not supported by any medical evidence.  She repeated that the Respondent had been found to have committed serious misconduct to such an extent that re-engagement or re-employment was not an option, coupled with the history of refusal to attend for medical examination which the Tribunal concluded would have continued into the future.  It seems to us that there can be no doubt that this employee substantially contributed to his dismissal.  The test is whether he contributed to the dismissal as opposed simply to the unfairness.  Therefore, if the Tribunal were correct in their finding of unfair dismissal we would have thought it appropriate that the award should have been reduced by 75 per cent.