Appeal No.	 EAT/541/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2000

Before
MR RECORDER BRIAN LANGSTAFF QC
MRS J M MATTHIAS
MR S M SPRINGER MBE

MR CHRISTOPHER JOHN WEBB	APPELLANT

THE COMMISSIONER OF POLICE OF THE METROPOLIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR PETER O'BRIEN
(of Counsel)
1 Stonecross
St Albans
Hertfordshire
AL1 4AA	

	MR RECORDER LANGSTAFF QC:	This matter comes before us by way of preliminary hearing. Mr Webb seeks to appeal a decision of the London (North) Employment Tribunal, which was promulgated on 28th February 2000. In that decision the Employment Tribunal dismissed his claim for compensation for unfair dismissal.

1.	Briefly the facts, that the tribunal found, were these: Mr Webb was a Civil Enforcement Officer in the employment of the Metropolitan Police. He was dismissed on 23rd November 1998 for what was said to constitute gross misconduct.

2.	The allegation of gross misconduct centred on his activities when he went to serve a warrant on a Ms Moore. After spending an hour in her flat during only the latter part of which did he serve the warrant, he moved to her give a kiss. She moved her head away to indicate that she did not wish to be kissed. The tribunal also note in paragraph 8 of their extended reasons that various other discussions and acts had taken place within the hour which they there recite.

3.	When the employer considered the conduct of Mr Webb on that occasion it took the view that the conduct of Mr Webb was unprofessional. Mrs Deere, who was a senior Human Resources Manager with the Metropolitan Police, found that the conduct was outside the acceptable boundary set by society in the relationship between a warrant officer and someone whom he was there to arrest and as such constituted gross misconduct. That determined Mr Webb’s internal appeal against his dismissal.

4.	When the matter came before the Employment Tribunal it concluded its extended reasons in paragraph 16 with these words:

“In conclusion the Tribunal was of the unanimous opinion that the Respondent had acted reasonably in treating the misconduct, which they found proved, as a sufficient reason for dismissing the Applicant. The Applicant was in a position of trust, high responsibility and power when dealing with vulnerable members of the public. The Respondent was entitled to treat his conduct towards Ms Moore, especially his act in going to kiss her, as gross misconduct. The Respondent had conducted a fair and reasonable investigation into the misconduct and had discounted many of the allegations that Ms Moore had complained. Some of the allegations raised, by Ms Moore, at the disciplinary hearing, had not been mentioned in her statement, such as the Applicant having an erection and putting his fingers in his mouth. In essence the Respondent had given the Applicant the benefit of the doubt on all the unsubstantiated allegations made by Ms Moore and had dismissed the Applicant for what he had admitted doing. The Respondent can not be faulted. Even before the Tribunal the Applicant stated that he saw no difference between kissing a person at the Notting Hill Carnival or when executing a warrant of arrest. The decision to dismiss was well within the band of reasonable responses, which a reasonable employer might have adopted. Accordingly the Applicant’s Originating Application is dismissed.”

5.	If that paragraph had stood on its own, then subject only to a further submission as to perversity in the result, Mr O’Brien, who has appeared today for Mr Webb, would accept that it contains no error of law. He would reserve his position perhaps whether any reference to the range of reasonable responses was in itself against the law, his essential argument being that that is an impermissible gloss upon the words of section 98 of the Employment Rights Act 1996. In any event, upon the law as stated in Midland Bank plc v Madden [2000] IRLR 288, he accepts that that point is one which would be reserved for another occasion, because on the law as it stood, there would be no necessarily wrong finding.

6.	However, the burden of Mr O’Brien’s submissions is that before summarising their findings in those terms the Employment Tribunal were in error. He says this for two reasons. The first is that the tribunal he says applied the wrong test. The second reason is that the decision was in any event perverse.

7.	So far as the test applied is concerned, Mr O’Brien points to paragraph 1 of the extended reasons. In that paragraph the tribunal says this:

“… Employment Tribunals, when deciding the sufficiency of the employer’s reason for dismissal will, in a case such as this, take into account the guidelines established in British Homes Stores Limited –v- Burchell 1980 ICR 303. …”

	The tribunal then sets out the guidelines. Mr O’Brien says that it was a misdirection to focus upon British Homes Stores Limited v Burchell as determining the sufficiency of the employer’s reason for dismissal. The words of the statute, section 98 of the 1996 Act have to be applied, and he submits with considerable force that Midland Bank v Madden identifies that it was an error, perhaps all too frequently indulged in by Employment Tribunals, to regard the entire question posed by section 98 as being resolved by applying and answering the guideline tests which the Burchell case puts forward. He refers in particular to the headnote of the Madden case where it reads:

“However, a tribunal is not free to substitute its views for those of the employer as to the reason shown by the employer once that reason has survived the Burchell test. …”

8.	In paragraph 1 he says the tribunal were taking a view of Burchell as in effect determinative and precluding them from considering further whether the dismissal, having regard to the reason shown by the employer, was fair or unfair, depending upon whether the employer had acted reasonably or unreasonably in treating it as a sufficient reason and had failed to have regard to the words in section 98(4)(b) that that should be determined in accordance with equity and the substantial merits of the case. That which the tribunal said in paragraph 12, he says, compounds that error. Paragraph 12 is central to the proposed appeal and therefore I shall quote it in full:

“In cases of unfair dismissal the starting point is always the words [in] section 98(4) of the Employment Rights Act 1996 which state:
‘(4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) (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 dismissing the employee and (b) should be determined in accordance with equity and the substantial merits of the case.’
In applying the law we direct ourselves that we must consider the reasonableness of the employer’s conduct and not whether we consider the dismissal to be fair. In judging the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. In many, though not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another quite reasonably take another. Our function, as an employment jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses, which a reasonable employer might have adopted. The Tribunal must also have regard to equity and the substantial merits of the case when passing judgement on the fairness or otherwise of the dismissal.”

9.	What Mr O’Brien submits to us is that the first sentence of that which follows the citation from statute contains a frank error of law. Here, he says, the Employment Tribunal is directing itself that it is not to consider whether the dismissal was fair. Yet the opening words of section 98 show that the entire function of the Employment Tribunal in this area is precisely that, to determine whether a dismissal is fair or unfair. Secondly, he argues that that cannot be ignored as an inaccurate and inappropriate use of language because of what follows. He says that the next sentence which states that “an employment tribunal must not substitute its decision as to what was the right course to adopt for that of the employer”, contains another error of law. Here, he says, the tribunal is putting it out of its hands to take any different decision from that which the employer would have taken. It was, in effect, tying its hands to the decision which the employer had made. He argues, persuasively in his skeleton argument, and eloquently, before us, that taking such an approach there could be nothing that would not fall within the range of reasonable responses to which the tribunal then makes reference. Because if the tribunal had put it out of its power to substitute its decision as to what was the right course to adopt, there could be no question of any course falling outside the range.

10.	So far as the range itself is concerned, Mr O’Brien queries in the light of recent case law the appropriateness of applying as a determinative test a test by reference to a range which is not to be found within the express wording of the statute. On this he has the support of the former President in the case of Haddon v Van den Burgh Foods [2000] ICR 1150, although he recognises that on analysing the effect of that decision, the current President of the Employment Appeal Tribunal took the view expressed in Madden at IRLR 295, paragraph 43(5) that “no court short of the Court of Appeal can discard the band of reasonable responses test as a determinative test”. He regarded Haddon as having been right, however, to point to the danger of the band test leading to one of perversity. We think, what he had in mind was that adopting the test may lead one to conclude that what falls outside the range of reasonable responses has to be a response which is perverse and, therefore, anything which is not perverse falls within. He points rightly, in our view, to the danger of stretching a test of the range of reasonable responses to that extent.

11.	The essential questions, therefore, in this appeal on the misdirection argument relate to what we think might properly be made on appeal of the passages within the extended reasons to which we have made reference. 

12.	We recognise in dealing with submissions made to us by Mr O’Brien that the language in paragraph 12 is not felicitous. There is however a danger of over-analysing the decision of any tribunal. There is a particular danger of taking any one sentence out of context of the next and there is a very particular danger of taking those sentences out of context of the facts that were under consideration in the case as a whole. 

13.	We think that there is no such arguable link between paragraphs 1 and 12 of the extended reasons as Mr O’Brien contends. His case in respect of the test as posed in paragraph 1 we think is to focus upon one sentence, which we have already quoted, without taking into account that within the same context at the conclusion of the paragraph the tribunal say this:

“The Tribunal must also have regard to equity and the substantial merits of the case, when passing judgement on the fairness or otherwise of the dismissal.”

	We think, therefore, that it is unarguable but that this tribunal were recognising not only a need to go through the Burchell tests, but also the need to consider the question of equity and the substantial merits of the case. We cannot see that there is any reasonable argument that the tribunal were here restricting themselves to a consideration only of the Burchell tests as determinative. The vice, therefore, to which Madden drew attention was not one which was committed, as we read paragraph 1 of this tribunal’s decision.

14.	So far as the submissions made in respect of paragraph 12 are concerned, we again have had regard to what we see the tribunal as expressing in the paragraph as a whole. After saying that they had not to consider whether the dismissal was fair they consider the fact that some employers might act reasonably by taking one course, and other employers act reasonably in taking a different course in the same circumstances. What they were recognising therefore was that it is not for the Employment Tribunal to look at the facts as found and to say to itself “what do we think it would be fair to do?” The fairness that they had to judge was not the fairness of their own potential decision in the light of the facts shown to them, but, in the words of the statute, the fairness of the employer’s acts. Because the question they had to address was that in section 98(4)(a), the determination of whether the dismissal was fair or unfair depends on whether the employer acted reasonably or unreasonably. Therefore, their attention had to be directed to the acts of the employer, rather than entitling them to draw their own conclusions without taking into account that which the employer had done. 

15.	The second sentence of that same paragraph would, if taken on its own, undoubtedly constitute, in our view, an error of law. However, we cannot accept that it could possibly or arguably be interpreted in the way in which Mr O’Brien seeks to persuade us it should be. We say that because if the tribunal were here saying that it had no choice but to accept the reason, whatever is was and however bad it was, of an employer, there would have been no point in the tribunal then going on to remind itself that there was a range of reasonable responses which a decision might fall within but might also fall outside and, that, if it fell outside, they would have to find the dismissal unfair. They say, for instance, “Our function, as an employment jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses”. If that is what they regarded their function as being, it is implicit that they regarded it as potentially open to them to take the view that the response of the employer fell outside the range of reasonable responses. It is implicit that had it done so that they would have found that the dismissal was necessarily unfair. 

16.	We are fortified in our conclusion that this is the only possible way of reading paragraph 12 (despite the infelicities of language which we recognise) by the concluding sentence. The tribunal there remind themselves that they must “have regard to equity and the substantial merits of the case when passing judgement on the fairness or otherwise of the dismissal.” That sentence shows that they had in mind that their task was indeed to look at the fairness of the dismissal and puts in context the opening sentence which Mr O’Brien founded so much upon. It also indicates that the tribunal were prepared to take a view different from that of the employer if they thought that, having regard to equity and the substantial merits of the case, they were justified in so doing. 

17.	If there were any lingering doubt in our mind about the way of reading paragraph 12, we have to remind ourselves that a decision has to be read as a whole. In this decision, not only paragraph 1 but paragraph 12 have to be read, but also paragraph 16 with which I began.

18.	In paragraph 16 the very last sentence expresses a view which we can well see an Employment Tribunal was entitled to reach. They say:

“The decision to dismiss was well within the band of reasonable responses …” [Emphasis added]

	It seems to us that they were not here straining against the boundaries of the range of reasonable responses by adopting a test akin to perversity in the way in which Haddon and Madden have condemned. They were here saying that it was in their view reasonable for the employer to have reached the decision which it did.

19.	Accordingly, we think, although we were at one stage troubled by the wording, that there is no arguable point of law which can properly be pursued by Mr Webb so far as the misdirection is concerned. That leaves the arguments that we have heard on perversity. 

20.	Mr O’Brien draws attention to the fact that the conduct, which was treated as gross misconduct, was the attempted kiss, indeed, he emphasises that should be read in a social context and not with any sexual connotation, at the end of an hour’s pleasant conversation in Ms Moore’ flat. He says that it was perverse to treat that as gross misconduct and, secondly, to so treat it as to merit dismissal. There were no guidelines which proscribed that behaviour. There was no regulation which did so. No comment was made by others which suggested to Mr Webb that his conduct was inappropriate. There was no suggestion here of harassment which would necessarily involve repeated attempts to kiss. There was no physical contact, because Ms Moore indicated that she was not inclined to receive the kiss and Mr Webb did not persist. Besides, he points out, Mr Webb’s practice had been, on many occasions, to kiss women with whom he had been in professional contact. None of them had complained about his behaviour. 

21.	We understand the view that Mr O’Brien has given us. We have to determine whether, in the light of considerations such as those that he urges upon us, the decision of this Employment Tribunal was wholly impermissible. Those two words are a distillation of the many that have been used to describe the test of perversity in Stewart v Cleveland Guest (Engineering) Ltd and have been honoured by the Court of Appeal in the case of Williams v Whitbread. We cannot think that it was wholly impermissible for the Employment Tribunal to conclude that the employer’s decision to dismiss was well within the band of reasonable responses and we cannot see, therefore, that there is any mileage in Mr O’Brien’s pursuing his perversity argument.

22.	It follows that we decline permission for Mr Webb’s appeal to proceed to a full hearing of the Employment Appeal Tribunal. This has the consequence that his appeal must be dismissed. We have expressed our reasoning in full so that through Mr O’Brien he, Mr Webb, may understand why we reach the conclusions that we do. 

Application for leave to appeal

23.	Mr O’Brien has applied to us for permission to appeal our ruling. It follows from the decision that we have reached that we think there is no properly arguable point and we reject that application. If the appellant wishes to pursue it he will have to pursue it with the Court of Appeal.