Appeal No. EATS/0074/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 25 March 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MR J M KEENAN
MR M G SMITH

 

WILLIAM GRANT & SONS LTD	APPELLANTS

 

JOSEPH DEVLIN	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr E Smith, Solicitor
Of-
Messrs McGrigor Donald
Solicitors
Princes Exchange
1 Earl Grey Street
EDINBURGH   EH3 9AQ

 
For the Respondent

 

 

 	 
Mr W Devlin, Representative
89 Mellow Purgess Close
Laindon
BASILDON   SS15 9XT

 	 	 	

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employer against a finding of the Employment Tribunal sitting in Glasgow that the respondent employee had been unfairly dismissed.  The matter was continued for the purpose of remedy.
 
2.	The respondent is profoundly deaf.  He has been employed by the appellants for almost 20 years.  The only blemish on his record occurred when he received a final written warning in July 1998 consequent upon allegations which were sustained that he had touched female team members in intimate places.  That warning was said to run for a period of one year.
 
3.	According to the findings of the Tribunal, a complaint was made by a female member of the respondents’ team in February 2001, that a similar incident had occurred.  An investigation was undertaken, and, in due course, the decision to dismiss was made and this was sustained on appeal.
 
4.	Mr Smith, appearing for the appellants, did not challenge the decision of the Tribunal in respect of procedural issues and concentrated purely on the substantive issues of the case.  The reasoning of the Tribunal in this respect was as follows:-
 
“We must say at the outset that this case has caused some considerable anxiety.  There are a number of different aspects to that and we will deal with these in turn.
 
a.	What facts were established to support the dismissal?
 
Ms Orr stated in evidence that she was satisfied that Ms Hanlon was more likely to be telling the truth about the touching which had allegedly taken place.  In our view, she was perfectly entitled to reach that conclusion.  Although Mr Devlin argued on behalf of the applicant that the respondents were not entitled to reach that view, we think that that proceeds on a misunderstanding of the law.  In cases of this type, there is no requirement to prove allegations beyond reasonable doubt by corroborating evidence.  The question is whether the respondents were reasonably entitled to conclude on the balance of probabilities that the misconduct complained of (i.e. intimate touching) had in fact occurred.  Ms Orr gave reasons why she preferred the evidence and we have no hesitation in accepting her evidence in that respect.
 
The other important factual issue was the state of the applicant’s knowledge.  We had considerable concerns about the weight that was apparently attached to the final written warning.  Given the word “disregarded” which appears therein and the date of the hearing, we conclude that it was improper for any weight to be attached to it in any connection.  We therefore conclude if the written warning had been left out of account, as it should have been, the respondents’ conclusion that the applicant had a clear appreciation that what he had done was “wrong” becomes harder to sustain.
 
This directly impacts on the decision to categorise the conduct as gross misconduct and the action to dismiss.
 
We also think that the mere existence of warning itself played a greater part in informing Ms Orr’s decision to categorise the conduct as gross misconduct and/or to impose the sanction of dismissal than she was prepared to concede.  It is to these two matters that we will now turn.
 
b.	Why was this conduct categorised as gross misconduct?
 
A curious aspect of Ms Orr’s evidence is that she ultimately said that the breast touching was not critical to the issue of dismissal.  For her, it seemed to be more relevant that there had been unwanted physical contact which had persisted in the fact of the request to stop it.
 
As it is, we were left with a lingering doubt as to the precise finding that she was relying on as amounting to misconduct.  On balance, we are prepared to hold that when she said that the breast touching was not critical to her decision, she was nevertheless meaning that she was satisfied that the applicant had touched Ms Hanlon in an intimate and unwanted way,  had been told on more than one occasion to stop it and he knew that this conduct was wrong.
 
We are prepared to hold that, looked at in isolation, such conduct could normally be categorised as gross misconduct.
 
c.	Was she correct to impose the sanction of dismissal?
 
This is the issue that has caused us most difficulty of all.  We think there are special circumstances in this case which require to be taken into account in relation to sanction.
 
There was clear evidence of previous and mutual physical contact between the applicant and Ms Hanlon – the respondents do not seem to have attached any weight to this.
 
It is a reasonable inference that there had been an escalation in the applicant’s conduct, but that in itself is indicative of conduct which had been consensual moving to a situation where consent was withdrawn.  In ordinary circumstances, it may be that the boundaries of behaviour are clear, but that was not so in this case and was compounded by the applicant’s profound deafness and the communication difficulties associated with that.  The various interviews with the applicant suggest he was having difficulty understanding where he had gone wrong.
 
We formed the view that Ms Orr attached weight to the final written warning and the conduct which had given rise to it in reaching her decision.  In our view, she ought not have done so in any respect, not least because the warning had long since expired.  We conclude that had the previous warnings been ignored, it is unlikely that this matter would ever have become the subject of formal disciplinary proceedings, far less dismissed.
 
We are fortified in that view by the evidence that Ms Hanlon was an unwilling participant in the disciplinary procedure and became distressed when she realised that the applicant was going to lose his job.  In our view, the respondents have reacted disproportionately to the situation.  Ms Hanlon did not like the applicant touching her and wanted it to stop, that was all – see Production R5, page 4, paragraph 8.  While it is not up to an employee to determine the circumstances in which a formal process is embarked on, we think it is clear that in the present case, a firm clarification by Ms Orr to the applicant that he was not to touch Ms Hanlon would have sufficed.
 
This was not a case of sustained pattern of harassment of a bullying nature.
 
Taking all these matters together, we conclude that had the respondents ignored the final written warning and looked at the matter afresh, they could not have reasonably concluded that dismissal was the appropriate sanction for a profoundly deaf man in his sixties with long service.  We therefore conclude that the applicant was unfairly dismissed.
 
Remedy
 
A remedies hearing will now be fixed.  In advance of that we should say that we regard the issue of contribution as looming large in this case i.e. we are satisfied that the applicant was partly to blame for his own dismissal.  This has a bearing on the remedy that is available to the applicant, who according to his IT1 seeks re-instatement.
 
The scope of any remedies hearing should be discussed at a Hearing on Directions.”
 
5.	Mr Smith submitted that the Tribunal had fallen into error in reaching a decision which no reasonable Tribunal could have achieved, and, had, in any event, substituted its own view for that of the employer.  Although he made these separate submissions they really turn on the same aspects.
 
6.	In the first place, Mr Smith submitted that the crucial issue was knowledge that on the part of the respondent that what he did, which was held to happened, was wrong and to this extent he submitted that the final written warning could still be taken into account bearing on that issue even, if it did not apply for disciplinary purposes.  The Tribunal had erred therefore in that respect in concluding that the employer should have ignored it completely.
 
7.	He also submitted, that, in essence, the Tribunal’s decision was contradictory.  They held that in isolation the conduct would be gross misconduct justifying dismissal and then went on to determine it not to be so.  Finally, in essence, he submitted that they had substituted their own view, placing themselves in the place of the employer, rather than reflecting on whether the conduct of the employer in dismissing, was reasonable.
 
8.	The respondent was represented by his brother, who made a short submission merely reiterating that the issue of knowledge was one which was important to the matter, but, it was his brother’s position that he had not known that what he was doing was wrong in the sense of not being acceptable, both generally and to the alleged victim.
 
9.	We see the force of Mr Smith’s submissions but we have come to the view that the proper approach for this Tribunal to take, in respect of the decision of the Employment Tribunal, is to sustain that decision upon the basis, that the employer had taken into account a matter they should not have taken into account, namely, the written warning, and, equally, had left out of account, which they should have taken into account, both the apparent friendship between the two persons and the difficulties in communication that the respondent had because of his deafness his length of service should also have been considered as relevant.
 
10.	In our view, a final written warning, which is given a time limit, becomes null and void at the expiry of that time limit and should not be used for any purpose.  Accordingly, we agree with the Tribunal that the employer should not have taken this into account and undoubtedly did.  We also consider that the general view to be taken of the apparent conduct of the respondent, is mitigated in this case by the other factors which we have mentioned which the employer left out of account but which the Tribunal said they should have considered.
 
11.	We are therefore driven to the view, that, while the matter could be arguable both ways at first instance, the Tribunal reached a decision they were entitled to reach upon the evidence before them, and, we will accordingly uphold it.
 
12.	In these circumstances this appeal is dismissed.  The case will be remitted to the same Tribunal to consider the question of remedy.