Appeal No. UKEATS/0021/13/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 11 July 2013

Before
THE HONOURABLE LADY STACEY
MR P PAGLIARI
MRS G SMITH

HCL SAFETY LIMITED	APPELLANT

MR BRIAN FLAHERTY	RESPONDENT

JUDGMENT

	APPEARANCES

For the Appellant	MR MARTIN FODDER
(of Counsel)
Instructed by:
Maclay Murray & Spens LLP
Quartermile One
15 Lauriston Place
Edinburgh
EH3 9EP	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
UNFAIR DISMISSAL – S.98A(2) ERA

Unfair dismissal. The Appellant appealed against a finding that it had unfairly dismissed the Respondent. The Employment Tribunal had found that the dismissal was unfair but that in light of section 118, 119, 122 123 of ERA 1996 the Respondent was not entitled to any monetary award, basic or compensatory. The reason for dismissal was gross misconduct, consisting of working at height on a roof without wearing a harness, despite instruction not to do so. The misconduct was admitted. The ET held that dismissal was an appropriate response but found that the Appellant had failed to establish overall that its decision to dismiss was fair. Held: the ET misdirected itself in law by putting the onus on the Appellant to show that the dismissal was fair. Appeal allowed and finding that the dismissal was fair substituted.

THE HONOURABLE LADY STACEY 

1.	In this case the Appellant is the employer and the appeal concerns a finding by the Employment Tribunal (ET) that the Respondent, Mr Flaherty, was unfairly dismissed.  We shall refer to the employer as the Respondent and to Mr Flaherty as the Claimant as they were in the ET.

2.	The Respondent employs about 110 people in Great Britain and operates from more than one site. Its primary business is the installation of height safety systems. The Claimant was employed from a site at East Kilbride.  The Claimant was employed to work at heights installing equipment in a variety of premises. His employment began on 28 October 1996 and ended on 23 January 2012.

3.	On 18 January 2012 the Claimant was working as a team of three men in premises owned by B & Q in Belfast.  The Claimant had worked at height on the roofs of B & Q stores elsewhere on previous occasions, as part of the same three-man team.  The Respondent’s installation supervisor, Mr Jonathan Pitt, had taken the Claimant to the store and had shown him drawings of the roof, the means of access, and had generally discussed the job with him.  The Respondent had undertaken the preparation of a “Method Statement” which included a site-specific risk assessment.  It had been approved by a company called 4-See Risk Management Limited who were health and safety consultants instructed by B & Q.  The ET found at paragraph 53 that the Claimant was provided with sight of a method statement in respect of the Belfast store and that he read it on a daily basis as part of his normal working routine.  At paragraph 54 they found that the statement included the following: – “installation will be progressed using “hand over hand” method using harness and adjustable lanyards, always attached to previously installed Man Safe systems/Posts; that temporary Man safe posts will be fixed as and when necessary” and that “works are to be progressed in restraint only at all times.”

4.	At paragraph 60 the ET found that on the day of the incident for at least part of the morning the Claimant and the other members of the team had been working on the roof without restraint.  They each had harnesses and lanyards made available by the Respondent but they had reached a consensus, an understanding amongst themselves, to remove the harnesses and to work with no safety protection. They did so despite that being in breach of the Respondent’s internal rules, in breach of statutory regulations made under Health and Safety legislation, and being in disregard of the B & Q zero tolerance policy for working at height. 

5.	They were observed working unrestrained by an environmental health officer employed by Belfast City Council, who went into the store and alerted management.  She telephoned to the local branch of the Health and Safety executive (HSE) and the Respondent was notified.

6.	The ET found that the dismissal was unfair because the Respondent did not have proper procedures in place or at least did not follow proper procedures.  The ET also found that the Claimant had contributed to the extent of 100% by his actions and therefore made no award either basic or compensatory to him.

7.	In the grounds of appeal the Respondent asserts that the ET erred in law in relation to the following: –

(1)	The burden of proof, in that the ET regarded the Respondent as having to show that the dismissal was reasonable in all the circumstances.
(2)	The ET took the wrong approach to procedural imperfections and fairness.
The Respondent argued that the EAT should substitute its own decision that the dismissal was fair.

8.	Mr Fodder, counsel for the Respondent, helpfully produced a skeleton argument.  Dealing with his first ground of appeal, he argued that the ET misdirected itself because it put the burden of proof on the Respondent not only to show that the reason for dismissal was misconduct but also to show that the dismissal itself was fair in all the circumstances.  Counsel clearly appreciated that even if he were correct in that assertion it was necessary to show that the misdirection made a difference.  His position was that the ET had proceeded in the wrong mind set. He argued that the judgment showed that despite a number of findings from which one would expect a conclusion that the dismissal was not unfair, the ET applied a misunderstanding of the onus of proof and found that the dismissal was unfair. He argued that the ET concluded that it was reasonable for the Respondent to decide that the vital question was whether the Claimant had been working on the roof unattached and in contravention of his instructions and statutory regulations.  They also concluded that the Respondent had reasonable grounds for a belief that the Claimant had acted in such a way.  The ET found, unsurprisingly, that in such circumstances summary dismissal was the only appropriate response.  The conclusion which the ET reached, which was that the dismissal was unfair, was based on their taking the wrong approach by separating out procedural aspects and concentrating inappropriately on them. Not only did the ET proceed to put the onus of proof on the Respondents; it also applied too high a standard in considering the procedural aspects and did not ask itself if the way in which the procedures were carried out was within the reasonable range of behaviour of an employer; rather it decided that the procedures were inadequate on the basis of its own standard.

9.	The ET set out the facts in detail. It is clear from the judgment that many matters were led before it which it found to be irrelevant. The judgment is very long and at times hard to follow. 

10.	The Claimant had been employed by the Respondent for 15 years and his work had always been in the installation of height safety systems, on customers’ premises.  On 18 January 2012 the Claimant was carrying out work which was normal for him.  He worked in a team of 3 men.  He was the most experienced person, although he was not the leader of the team. He had worked on premises belonging to B & Q before and he had worked on the particular roof before.  He therefore knew the layout of the roof and he knew the system which B & Q employed.

11.	The Respondent’s disciplinary policy provided that “flagrant failure to comply with the Company Safety Standards and Procedures” could result in summary dismissal.  As the Respondent’s business involved men working at height the ET found that the regulations in respect of health and safety were binding both on Respondent and Claimant.  It made reference to the Work at Height Regulations in some detail.  It found that the Claimant had been made aware of these provisions at paragraph 31 and it described the training which he had been given at paragraphs 31 to 33.  At paragraph 34 the ET noted that B & Q had a “zero tolerance” policy in relation to non- observation of the regulations for working at height.  There had been two fatal accidents involving people working on roofs at B & Q in previous years.  The ET found at paragraph 35 that the Respondent had insisted to its workers including the Claimant that they should never at any time work on a B & Q roof without being anchored, that is, in restraint.  The ET found that the Claimant had been trained and that there were no reasons to doubt that he had understood the points made to him in training.

12.	The ET found that a “method statement” set out the way in which the work was to be carried out at the particular roof on which the Claimant was asked to work.  All work was to be done in restraint, which meant that the men doing the work had to be attached to harness at all times.  The ET found that the Claimant was aware of this instruction.

13.	At paragraphs 60 to 62 the ET found that the Claimant and the other members of the team worked on the morning of 18 January 2012 without restraint.

14.	An environmental health officer, employed by Belfast City Council happened to be in the vicinity of the B & Q store and saw the 3 men on the roof without restraint.  She notified the local HSE office and notified the store management.  Mr Clarke, managing director of 4-See Risk Management Limited was notified. He got in touch with Mr Davies of the Respondent. Mr Clarke’s company acted as consultants to B & Q, and at all times he acted on behalf of B & Q, not as an agent, but as a consultant to that company. Mr Davies attempted to get in touch with Mr Pitt, who was in Belfast, and left a message for him relating what Mr Clarke had told him, that is that men had been found working without restraint. When Mr Pitt got the message he spoke to the Claimant and the Claimant explained to him that it would be quicker to carry out the work if they were unrestrained. Mr Pitt allowed them to work, but only if restrained. When Mr Davies was able to speak to Mr Pitt, he spoke once more to Mr Clarke who ordered him to have the men removed from the roof. Mr Davies got in touch with Mr Pitt and instructed him to instruct the men to get off, and stay off, the roof. They were instructed to do ground work instead. Mr Davies and Mr Clarke flew to Belfast.  They met with HSE Inspector Mulhearn. He agreed that so long as he had it confirmed by email that the Respondent’s works at the site had been stopped and would not be resumed without prior notification to him, the HSE would take no further action at that time. 

15.	Mr Clarke and Mr Davies met with the Claimant on 19 January 2012 and Mr Clarke carried out an interview.  The Claimant admitted that he had been unattached to any safety system while on the roof.  Mr Davies who was present at the interview became very angry.  The 3 workers were sent back to Scotland.  

16.	Mr Davies met others within the Respondent and told them about the incident.  A management meeting was held on 20 January 2012 in Cirencester and the incident was prioritised on the agenda. It was decided that the Claimant (and his colleagues) would be subjected to a disciplinary process.  The consequences of the incident were also discussed, to the effect that the Respondent’s reputation would be damaged.  The Respondents expected to be excluded from further B & Q contracts.  The Claimant was told to attend a disciplinary hearing on 23 January 2012.  

17.	At the hearing, the Claimant tried to persuade the person taking it, Mr Devlin, Regional Manager for Scotland, Northern Ireland and North East England, that it was impractical to do what he and his colleagues were expected to do but he did admit that he had not expressed this concern at any stage prior to his doing the work in that fashion.  He admitted that he knew that had he done so it was not likely that he would have been allowed to continue with his work.  He did not deny at any time that he had been in breach of the company instructions; the B & Q zero tolerance policy, and the provisions of the regulations. Mr Devlin was supplied with notes taken by Mr Davies at the interview conducted by Mr Clarke. Mr Davies also sent his notes of that interview to Mr McTiernan, HR Manager, and Mr Le Cornu, the Respondent’s managing director. Mr Davies explained that the interview had been carried out by Mr Clarke with Davies as an observer, offering only the occasional question or prompt. He added comments of his own which are listed at paragraph 126 of the ET judgment. The admission of working without restraint is in the list, as is the Claimant’s explanation that they could not fit a temporary system because they did not have enough posts, they did not have enough rivets, and a temporary system would have resulted in a perforation of the roof.  Mr Davies noted that:-

“[Mr Clarke] asked him if he understood the M S.  If he understood about fitting temporary posts or systems?  If he agreed that it was fairly standard procedure to use temporary posts or systems?  [The claimant] answered affirmative to all points, [the claimant] said that fitting perimeter systems using ropes was always unsafe and that you couldn’t do it safely, so they had just got on with it working up and down from the higher, flatter roof with him placing out and David fixing, whilst Billy completed the other roof.
[Mr Clarke] then asked him if he had raised the issue regarding temporary systems with anyone, [the claimant] said that he hadn’t.  [Mr Clarke] then asked him whether he realised that when they had been given the all clear to proceed and had gone back up with ropes that they were still working unsafely, [the claimant] said yes he did.”

18.	The ET found that the papers provided to Mr Devlin and the others were not copied to the Claimant.  They found, at paragraph 135 that by the time the Claimant was told that he was going to be subject to disciplinary procedures the Respondent’s senior management in particular Mr Devlin Mr McTiernan and Mr Le Cornu had already decided that the probable, if not certain, outcome of the hearings would be that the Claimant and his colleagues would be dismissed.

19.	Disciplinary hearings for all 3 men were heard, separately, on 23 January.  The Claimant’s two colleagues’ hearings were before his and they were both dismissed.  He knew before he went into his hearing that they had been dismissed.  The hearing was chaired by Mr Devlin.  Mr McTiernan was present.  The Claimant was accompanied by a colleague, Mr McMahon.  Mr Devlin explained that Mr Davies had sat in on the meetings on 19 January and Mr Devlin told the Claimant that he had a statement from Mr Clarke.  He said he had an email from Mr Davies.  The Claimant asked to see that.  The ET found at paragraph 147 that at the disciplinary hearing the Claimant sought to persuade Mr Devlin and Mr McTiernan that the nature of the section of the store roof on which he had been working was such that he had inappropriate pieces of safety equipment supplied by the Respondent and so he and his colleagues decided to work on the roof unattached to any safety system.  He admitted that neither he nor his colleagues had taken any steps to alert the line manager or any other member of the Respondent’s management team to their concerns.  Mr McTiernan asked the Claimant what he would normally do if a method statement was considered by him to be unworkable and the Claimant said that he should phone the office.  The Claimant said that what had happened was “common practice to get the job done” and that “using ropes, it would take forever.”  Mr McTiernan asked the Claimant why, having identified an issue, he took no steps to “flag it higher up” and the Claimant responded that “he did not want to get people into trouble.”  During the course of the disciplinary hearing the Claimant frankly admitted that he had worked on the roof unattached to any safety system, in contravention of the Respondent’s health and safety policy and ignoring his years of training and the B & Q zero tolerance policy.

20.	The ET found that the Respondents (Mr Devlin and Mr McTiernan) adjourned the disciplinary hearing and discussed what had been said.  They decided that the allegations against the Claimant, which had been admitted, showed that he had committed gross misconduct and they decided that he should be summarily dismissed.  A letter to that effect was written, on 26 January 2012.

21.	The Claimant appealed, writing two letters dated 2 February 2012 and 15 February 2012.  The appeal was heard by Mr Le Cornu.  He upheld the decision and refused the appeal, writing to the Claimant on 3 April 2012.

22.	The ET found at paragraph 163 that the disciplinary process which led to the Claimant being summarily dismissed did not comply with the ACAS Code of Conduct.  They found that the Respondent did not carry out the necessary investigation to establish the facts of the case, did not ensure that the Claimant was provided with copies of any written evidence, including any witness statements, with the notification of the disciplinary hearing and did not ensure that the Claimant and his accompanying person were allowed to see any statements made by witnesses and question them.

23.	The Claimant appealed against his dismissal.  In his first letter intimating that he wished to appeal he asked for all documents relating to the disciplinary process.  The Respondent provided him with Mr Davies’ notes and all the statements, statements from Mr Clarke, an email from Mr Pitt which set out a timeline, a copy of the letter inviting him to attend the disciplinary hearing, a copy of the disciplinary hearing result, the method statement for the job in question, drawings for the roof, photographs of the store, and a further email from Mr Pitt relating to the contents of the van.  The Respondent did not send minutes of the disciplinary hearing.  The Claimant wrote a further letter of appeal on 15 February in which he set out what he described as extenuating circumstances.  These included an assertion that Mr McTiernan had conceded that the method statement was unworkable and unclear regarding the safety procedures that should have been followed.  An appeal hearing was arranged for 29 March, to be taken by Mr Le Cornu.  Prior to that date he had discussions with Mr Davies, Mr McTiernan, Mr Devlin and others and was satisfied from those discussions that there had been a full investigation on behalf of the Respondent before the disciplinary hearing.

24.	The ET found that at the appeal the Claimant referred to his letter and also submitted that the company had been inconsistent in that other members of staff had been found guilty of offences which he considered to have been worse, and had not been dismissed.  The ET found that Mr Le Cornu had regard to the letter, that he asked the Claimant whether he was aware of the fundamental requirements of health and safety legislation, that he referred to the Claimant’s 15 years of working for the Respondent and to the extensive training and experience which he had gained.  He told him that his mention of other sites and other wrongdoing by other members of staff had no bearing on his own gross misconduct; he also went on to explain to the Claimant that other experienced members of staff had in fact been dismissed for unsafe working.  The ET found that Mr Le Cornu felt that the Claimant’s service record was such that his actions on the day must have been deliberate; that the Claimant’s assertion that his actions were common practice indicated that he had done it before; and that it was inevitable that he would eventually have been caught doing so and would have been dismissed sooner or later.  Mr Le Cornu refused the appeal and wrote a detailed letter explaining his decision.

25.	The ET, at paragraph 207, identified the issues before them.  Mr Fodder argued that they correctly paraphrased s.98 ERA.  He argued that the ET appeared to appreciate that the Respondent had to show the reason for dismissal but thereafter there was no burden of proof on either party in relation to fairness.  However in paragraphs 231, 239 and 268 Mr Fodder argued that the ET misdirected itself as to the burden of proof because it approached the case on the basis that it was for the Respondent to prove that the dismissal was fair.  He made reference to the case of Sheffield Health and Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09 ZT, in which the ET summarised correctly the test set out in the well-known case of Burchell but overlooked apparently that the case had been decided before the alteration in the burden of proof made by s.6 of the Employment Act 1980.  He referred also to the case of Boys & Girls Welfare Society v McDonald [1996] IRLR 129 in which the same point is made.  As stated above, Mr Fodder appreciated, with reference to the case of West London NHS Trust v Sarkar [2010] IRLR 508 (CA) that such misdirection may not be fatal to the judgment of the ET if there is “what appears to be a correct application of the law to the facts.”  He argued, however, that the ET had approached the exercise in the present case with a “mind-set” which was plainly wrong as it had imposed too much of a burden on the Respondent.

26.	Counsel subjected the judgment to rigorous analysis.  He argued that as the ET had found that the Respondent did have a reasonable belief that the Claimant had acted in contravention of all safety instructions, and had found that dismissal was fair in the sense that it was within the band of reasonable responses which a reasonable employer might come to, then it should have found that the dismissal was fair.  The ET stated in paragraph 231 that the Respondent “has to meet” that it had reasonable grounds upon which to form the belief that the Claimant was guilty, and also that it had to ensure that it had carried out as much investigation into the matter as was reasonable in all the circumstances.  It found that Mr Devlin “should still have considered the extenuating circumstances that the claimant attempted to put forward as explanation for what he had done”, at paragraph 234.  Counsel argued that the ET then considered matters in great detail and eventually at paragraph 244 came to the following conclusion: –

“Having heard that evidence and taken the claimant’s opposing point of view into account, the tribunal was satisfied that summary dismissal was an appropriate sanction which fell within the band of reasonable responses open to the respondent and it would be quite wrong for the tribunal to reach any contrary finding by putting itself into the position of the respondent at that disciplinary hearing.”

27.	Mr Fodder argued that by making that finding, the ET must have decided that Mr Devlin had given adequate consideration to the extenuating circumstances.  However at paragraph 260 the Tribunal found that there was no point in the disciplinary hearing because there was no outcome likely other than that the Claimant would be found guilty of gross misconduct and would be summarily dismissed.  They found that the appeal hearing at the same characteristic.  The ET therefore found that the dismissal was unfair.

28.	Counsel argued that despite the ET referring to the case of Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 the Tribunal in fact applied a test more appropriate in a court of law rather than the proper test in a case of unfair dismissal.  He noted at paragraph 268 that the ET found that “the respondent has failed to establish that, overall, its decision to summarily dismiss the claimant was fair.” That, he argued, illustrated the error in law relating to the burden of proof.

29.	Mr Fodder argued that in this case there was no suggestion that any material which would have made any difference to the outcome of the case was kept from the Claimant. Thus, if there were procedural defects they were not such as to render the dismissal unfair. He made reference to the case of A v B [2003] IRLR 405, in which it was found by the EAT that the procedural failures in that case did render the dismissal unfair. Importantly, Elias P stated that:

“Where procedural challenges are made it will very frequently be the case that the employer can properly and fairly contend that he reached a reasonable decision on the basis of evidence before him. But that is no answer to such a procedural challenge. It does not engage the particular complaint.”

30.	Counsel distinguished the present case on the basis that the ET found, in the paragraphs referred to above, that the Respondent had reasonable grounds for concluding that the Claimant was guilty of gross misconduct, and that summary dismissal was warranted. They did not identify anything that the Claimant was prevented from knowing, or discussing at the hearings, which would have made any difference. 

31.	Counsel also argued that the ET was wrong to consider procedural fairness separately from other issues. He referred to the case of Taylor v OCS Group Ltd [2006] IRLR 613 in which Smith LJ said:

“In saying this, it may appear that we are suggesting that ETs should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that s98 (4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for dismissal as they have found it to be. The two impact upon each other and the ET’s task is to decide whether in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as sufficient reason to dismiss. So for example where the misconduct that they found as the reason is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee…”

32.	Counsel argued that the present case was of the sort referred to in the latter case. He also looked at the extent of investigation needed when there was a confession. He referred to the cases of RSPB v Croucher [1984] IRLR 425 and Boys and Girls Welfare Society v McDonald.  He submitted that where there is a confession, there is less need to investigate. He referred to the case of SSE Energy PLC v Innes UKEATS/0043/10. He also referred to Whitbread v Hall [2001] IRLR 275. He argued that the court of appeal had there found that insufficient investigation had been carried out, even in light of a confession. However, the process had not been fair, and the court found that the disciplining officer had a bad relationship with the claimant. In the present case the ET made findings which were clear, and to the effect that the misconduct happened; it was witnessed by the environmental health officer; it was admitted. It was serious and in light of all of that summary dismissal was a sanction which the employer was entitled to impose.  

33.	Counsel argued that the facts found by the ET were sufficient for a finding of fair dismissal.  He argued that the appropriate disposal would be to allow the appeal and to substitute a finding of fair dismissal.

34.	We were persuaded that the ET had erred in law.  For the reasons given by Mr Fodder, it could be seen that the ET appeared to place a burden of proof concerning reasonability of the dismissal on the Respondent.  That is an error in law.  The findings of fact made by the Tribunal clearly showed that the misconduct was admitted at an early stage by the Claimant.  It was flagrant misconduct, as it was a breach of his employer’s instructions, a breach of the clients’ zero tolerance policy, and a breach of the statutory regulations.  It was a matter of which the Claimant had been trained.  His explanation, that the instruction was not practical, was recognised by him as inadequate as any discussion about the method of working should have been considered with management.  He knew that he was not at liberty to decide to work without restraint.  It was entirely understandable that management discussed the incident amongst themselves and regarded it as extremely serious.  This is one of the perhaps unusual cases where there is nothing that the Claimant could have said, about the misconduct, at the hearing which would have made any difference.  Any procedural defects therefore made no difference to the outcome of the hearing.  Even if we are wrong in that, the appeal hearing did not suffer from the flaws of the first hearing; the Claimant had the full papers and had every opportunity to explain his position to Mr Le Cornu. 

35.	Any procedural failures were cured on appeal. We should make clear that we do not regard the discussions at the management meeting as a procedural failure. This was a relatively small company. The breach of rules and regulations was flagrant and was likely to have dire consequences for the company in terms of its reputation, even if no accident occurred. It was entirely to be expected that management would prioritise it as a matter to be discussed at a management meeting. If the dismissing officer, and the person who heard the appeal, thought that dismissal was almost certain to ensue, that is not a finding that they approached the matter with closed minds. It is simply a statement of the obvious. 

36.	We agree with Mr Fodder that there is sufficient by way of findings in fact to enable us to find that this dismissal was fair.  We therefore allow the appeal and substitute a finding of fair dismissal.