Appeal No: UKEAT/0630/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 6 March 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR A J HARRIS
MRS J MATTHIAS

MR M SILMAN	APPELLANT

ICTS (UK) LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR RICHARD O’DAIR
(Counsel)
Instructed by:
Messrs Hewetts Solicitors
55-57 London Street
Reading
Berks RG1 4PS	
For the Respondent	MR MARTYN WEST
(Representative)
Peninsula Business Services
Riverside
New Bailey Street
Manchester M3 5PB	

SUMMARY

Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal &
Practice & Procedure: Case Management

Unfair dismissal.  EAT rejected a submission that the Employment Tribunal ought to have found the dismissal to be automatically unfair for failure to comply with the statutory disciplinary procedures.  Issue arose as to when, in the course of a disciplinary hearing, new allegations arose so as to trigger the statutory procedures afresh.  

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal from the unanimous judgment of the Employment Tribunal sitting in Reading where it found that the Claimant had not been unfairly dismissed.  The background was as follows.

2.	The employee and Appellant to this appeal, Mr Silman, worked as a security officer from 21 January 2000 until his dismissal on 19 November 2004.  The employers provided targeted security services at a number of sites within the UK and, with particular reference to this case, for Thames Valley University.

3.	The main university campus is at Ealing but there are outlying sites at Slough and Reading.  The main office for the university contract is at Ealing and both the contract manager, Mr Wilden, and his subordinate, Mr Kaeda, were based there.  The employee was assigned to the Slough campus.  He was the security adviser there from November 2003.  As the senior member of staff based at that site, he was also responsible for the provision of security services at Reading and that included responsibility for the other staff at those two sites.  The Tribunal accepted that there was a certain degree of flexibility in relation to the hours when he had to be in attendance at work.  It was, however, an express obligation, as the Tribunal found, that each member of staff, including the employee, should contact Mr Kaeda, and if he were unavailable, Mr Wilden, on or shortly after his arrival on site.  He also had to seek permission if he wished to leave the site early.  

4.	It was also important that he was available to be contacted via his mobile phone during working hours.  The Tribunal noted that there was, surprisingly, no job description setting out the Claimant’s duties and it was not clear precisely what he should have been doing on site.  The Tribunal concluded, in the light of the evidence they heard, that “there was good deal of latitude within which the Claimant could properly operate and carry out his duties.”  

5.	The particular incidents giving rise to the dismissal occurred on 11 and 12 October.  On 12 October the Claimant telephoned the Respondent, speaking to Mr Wilden.  He told him that he would not be coming to work because he had had a disturbed night and, in any event, did not have any money to obtain the required public transport.  On 12 October he did not arrive for work at 9.00am, when he was rostered to do so.  He accepts that he did not contact either Mr Kaeda or Mr Wilden to tell them that he was not coming, and he also accepts that he switched off his mobile phone to prevent their contacting him.  This behaviour, which the Tribunal described as “somewhat bizarre,” was because he said he had been unwell during the night of 11/12 October.  It was originally his intention not to attend work that day and he says he spoke to Mr Khan, the security officer at the Slough campus, to tell him that but there is no confirmation of that from Mr Khan.  In any event, the Claimant said that he had gone to work later that morning after he began to feel better.  He parked in the student car park.  This was not his normal practice but there are no CCTV cameras at that car park as there are with the staff car park.  Accordingly, his arrival and departure times could not be checked.  The Tribunal described his reason for parking there as “somewhat convoluted” and they noted that the company believed that he had chosen to park there to escape supervision and possible detection.  The Claimant says that he stayed in his car between 11.05am until 4.30pm.  He said that he was engaged in paperwork including a plan for a new work roster, and he also filled out the logbook.  It is common ground that he did ask Mr Khan to bring him that book, though Mr Khan says that it was somewhat later than the Claimant had alleged.  The Claimant said that he was still unwell and was worried that if he spoke to Mr Kaeda or Mr Wilden, he would be sent home.  It is not disputed that he represented in the logbook that he left the site at 4.30pm.  He accepts also that he left a gap in the log book above that entry because, he said, other security officers would have to log in events which might have occurred during the course of the day.  He then went to the Reading site, at about 5pm, and went home at around 5.15pm.

6.	The following day Mr Kaeda went to the campus to investigate the Claimant’s movements on the previous day.  The Claimant was told this by Mr Khan on the Slough campus and he decided to go straight to the Ealing campus.  At that point he was suspended.  The suspension letter stated that the reason was “allegations of unauthorised absence and falsification of company records”.  The company were, as the Tribunal found, suspicious about the behaviour.  The Claimant had been out of touch and could not be reached for two days and it appeared that he had left work early without seeking permission.

7.	On 13 October Mr Wilden interviewed the four security officers based at Slough.  There was then a disciplinary meeting on 20 October brought forward a day from 21 October.  The letter inviting Mr Silman to attend specified the allegations as “unauthorised absence and falsification of company records.”  He was invited to bring a colleague but said he did not have sufficient time to do that.  The meeting lasted approximately two hours.  The Claimant had been provided with copies of the witness statements from the four officers.  They had been sent with the letter notifying him of the disciplinary hearing.  The Tribunal found that the meeting took the form of an interrogation, and the Tribunal were somewhat critical of the fact that, in effect, the investigative and disciplinary stages were being rolled into one.  At the same time, they were satisfied that the Claimant was given a full opportunity to present his account of relevant matters and to provide explanations for his conduct.  They noted that he had no satisfactory explanation for leaving a gap in the logbook, if he was on site and able to contact his fellow officers.  He simply said it was a matter of individual taste.  He was asked specifically about an allegedly unauthorised absence on the 1 October but he said he had been given no warning of this and it was not pursued.  He did not request any adjournment or state that he felt tired or that he was being unfairly pressurised or anything of that nature.

8.	The Tribunal concluded this at paragraph 2.22:
“Overall, we conclude the disciplinary hearing and its conduct was not unfair and the claimant was not prejudiced by the length of hearing or the manner of questioning, and did not fail to do himself justice in the manner in which he dealt with the questions raised.”

9.	At the disciplinary hearing, matters were adjourned for further consideration.  The disciplinary hearing was then reconvened on 12 November.  The letter notifying Mr Silman of the reconvened meeting said this:
“The purpose of the reconvened hearing is to discuss with you and to afford you the opportunity to clarify matters that have arisen since the previous disciplinary hearing.
…
All other matters remain as stated in the original letter of invitation to the first disciplinary hearing.”  

10.	The second meeting lasted for some 40 minutes.  It focussed in particular on what the Claimant had allegedly been doing whilst sitting in his car in the student car park.  Mr Kaeda, following that meeting, had confirmed that it could not have been on the projected new work rosters because they had already been abandoned.  That particular matter was never put to the Claimant and therefore he did not have the opportunity to respond to it.  He was then dismissed by a letter dated 19 November.  The material parts of the letters said this:
“Having listened to your explanations I consider them to be unsatisfactory because it is company policy that the correct procedures are carried out in completing company records.  Furthermore, you have falsified the daily attendance log by stating you were on site from 11:00 until 18:00 as you were not on the Slough site for the duration specified.  You also left the Reading site approximately 50 minutes prior to 18:00.  We, as a company, require all employees to be able to devote the whole of their time and abilities to company business during working hours to ensure the effective and safe running of our business.  This you failed to do by remaining in your vehicle in the car park, as opposed to entering the accepted place of work.  You also failed to substantiate your claim that you had spent the time in your vehicle dealing with paperwork.  Consequently, your actions have caused the company to lose trust and confidence in your integrity in your management position”.

11.	The Claimant then commenced an appeal but, ultimately, he declined to attend the appeal hearing on the grounds, as he told the Tribunal, that he had set out his position fully in correspondence and that there was nothing he could usefully add.  The appeal therefore continued in his absence and his dismissal was confirmed.  The letter of 23 December in relation to the reason said this:
“By leaving blank space above entries in the logbook or by adding to already present entries, there is sufficient doubt for me to draw the inference that you were attempting to conceal the actual times that you entered/left the site from anyone who subsequently checked the Log-Book”
and certain other reasons are given about his not having informed managers when he did not attend work and also leaving the Reading site early.

12.	The submission before the Employment Tribunal was that the employee had been dismissed unfairly.  It was put in two ways.  First, it was submitted that he had been automatically unfairly dismissed contrary to Section 98A of the Employment Rights Act 1996.  This provides as follows:
“98A Procedural fairness 
(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— 
(a)	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, 
(b)	the procedure has not been completed, and 
(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements”. 

13.	The relevant procedure which it is alleged was not followed is set out in Schedule 2 of the Employment Act 2002.  Part 1 of that Schedule deals with dismissal and disciplinary procedures and the standard procedure, which it is common ground was applicable here, sets out as the first step the following:
“Step 1: statement of grounds for action and invitation to meeting 
1.	(1)	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 action against the employee.  
(2)	The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter”.

Step 2 then requires that a meeting should take place and that the employer must inform the employee of the basis for the ground or grounds given in the statement.  

14.	A second argument advanced before the Tribunal was that even if there is no automatically unfair dismissal contrary to Section 98A, the dismissal was unfair in the normal way under Section 98.  The Tribunal first considered whether there had been a breach of Section 98A.  It concluded that there had not and it sets out its reasons as follows:
“4.4.	We do not accept that the respondents are in breach of section 28A of the Employment Rights Act 1996, in that they failed to follow a standard dismissal and disciplinary procedure. We are satisfied that the letter suspending the claimant (page 158) and the letters inviting him to attend the disciplinary hearing (pages 173/174) adequately identify the alleged conduct and areas of concern giving rise to the disciplinary hearing and the possibility of dismissal.  Additionally, and as was not disputed, the claimant was provided with copies of the full witness statements from his four fellow security officers at Slough, which appear at pages 162 -171 of the bundle R3. These identify in considerable detail the conduct allegations that were to be raised against the claimant. Whilst it is correct to say that both the letter of suspension and those calling him to the disciplinary hearing only refer in summary terms to “unauthorised absence and falsification of company records”, the claimant was plainly able to deal with all the allegations that arose in relation to events of 11-13 October during a lengthy disciplinary hearing, save insofar as reference was made to his alleged absence from work on 1 October, which matter was ultimately not pursued or relied upon by the respondents. In our judgment, the claimant was not taken by surprise, nor unable to deal with the substantive matters raised in the disciplinary hearing on 20 October. Nor did he request either a postponement, or adjournment, or a further opportunity to find a work colleague to accompany him at such hearing. Whilst it is correct to say that the form that the disciplinary healing took was interrogatory, and occasionally challenging, this course inevitably flowed, at least in part, from the explanations and answers provided by the claimant; and we do not consider that the respondents can properly be criticised for following up those matters at the healing. We are also satisfied that the claimant had and took the opportunity to present his own account of the matters in issue. Following the reconvened disciplinary hearing, the employee was informed of the decision to dismiss him and notified of his right to appeal against the decision, which right he exercised. There was no substantive criticism of the respondents' appeal procedure (not least, no doubt, because the claimant chose not to attend the appeal hearing); and we find no fault with it.
4.5.	Overall, therefore, we are satisfied that the requirements of section 98A have been met and that the claimant’s dismissal was not unfair as being in breach of that section”.

15.	The Tribunal then went on to consider whether the dismissal was unfair in any event, applying the well established principles of British Home Stores v Birchall.  As to that, they found that the dismissal did fall within the range of reasonable responses, but they concluded that there been certain procedural defects which they identified in the decision in the following way (4.10).
“Finally, we must consider the disciplinary procedure adopted by the respondents.  It will have become clear from this Judgment that we have significant reservations about the manner in which the disciplinary process took place.  First of all, the claimant was never asked for an explanation or an account of his actions before being suspended, and the suspicions that understandably existed in the minds of Mr Wilden and Mr Kaeda were not put to him. He was therefore denied the opportunity to comment or to explain his actions before being formally suspended and/or invited to attend a disciplinary healing, by which time, it can be said, the battle lines had been drawn.  Secondly, the absence of any such opportunity/explanation gave rise to an extended disciplinary hearing, where the claimant's answers and explanations to matters being raised and put for the first time had to be both digested and responded to as they arose; rather than a more ordered and less taxing process. Thirdly, this resulted in the need for a reconvened hearing approximately three weeks later at which the claimant's account would be yet further explored. Fourthly, the claimant was not given the chance to comment on or rebut Mr Kaeda's account concerning the relevant work rosters to Ms Kelly Brown. Fifthly, the respondents cannot prove, by reference to any contractual disciplinary procedure, that what they found the claimant to have done amounts to gross misconduct, thereby enabling them to dismiss him summarily. For respondents was not merely lacking in rigour, but was unreasonable and unfair”.

16.	They finally went on to consider what would have occurred if the procedural unfairness had not taken place and whether a fair dismissal would have resulted in any event.  As far as this is concerned, they concluded as follows:
“…There are ample grounds, in our view, whereby a fair dismissal could and would have resulted, had a proper and timely procedure been adopted.  Doing the best we can, we consider that the chances of such a dismissal amount to 80%”.  

17.	However, having reached that conclusion, they then applied Section 98A(2) of the Employment Rights Act 1996.  This provides as follows:
“(2)	Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”. 

18.	In the light of the finding that there was an 80% chance that the Claimant would have been dismissed, the Tribunal concluded that the result of applying that subsection was that they had to conclude that the dismissal was not unfair.  So to summarise the approach of the Tribunal, it was as follows.  It was first held that there was no automatic dismissal.  There would, nonetheless, under the old Polkey principle have been an unfair dismissal with 80% contributory fault.  However, they accepted that Section 98A(2) reverses Polkey where there is no breach to the statutory procedures.  It has the effect that if the employer is able to satisfy the Tribunal, then it was more likely than not that the employee would have been dismissed, even if the contractual procedures had been properly complied with, then there was no unfair dismissal. Both parties accepted before the Employment Tribunal that this was the proper construction of Section 98A(2).  On a provisional reading of the subsection, that seems to be right, but we should emphasise that we have heard no argument about the matter.  

19.	Three grounds of appeal were pursued before us.  The first two are inter-related and are directed to the finding that there was no automatic unfair dismissal for failing to comply with the statutory procedures.  First, it is said that the employers failed to comply with Part 1 of Schedule 2 of the Employment Act 2002 because they ought to have set out in writing the conduct of the employee which led to the employer determining to dismiss.  It is, of course, accepted that there was a letter identifying the conduct which led to the disciplinary hearing, but it is said that, in the event, Mr Silman was dismissed for a different reason, at least in part, than that which had been originally identified in the document setting out the original case against him.  The original letter identified falsification of company records and unauthorised use of time as the relevant complaints; but one of the grounds for dismissal, as specified in the letter of dismissal, was misuse of company time.  In the circumstances, it was said that this was a fresh concern or a new allegation of misconduct and that there should have been separate disciplinary proceedings with respect to it.  The employer ought to have sent out a letter identifying this conduct as a potential ground for dismissal so as to concentrate the employee’s mind on it.  Without any such letter he was acting contrary to the statutory procedure to conduct the hearing on this matter, culminating in the decision to dismiss.  Indeed, not only was no letter sent alerting the employee to this problem, but the letter sent to the Appellant for the reconvened hearing was positively misleading because it stated in terms “all other matters remain the same as stated in original letter of invitation to the first disciplinary hearing.”  

20.	Mr West, for the company, submits that this is much too formalistic.  It would encourage lengthy and unhelpful disciplinary statements if the Courts were to focus on the identified issues in such a narrow way.  On any view, he submits, the employee knew the essential case he had to meet; he was given the relevant witness statements, and it was obvious that he had to explain his conduct on the two days.  The reformulation of the complaint in one of the grounds of dismissal was, in truth, of no materiality at all.  

21.	The second ground of appeal which, as we say, is interrelated with the first, places reliance on a decision of the Court of Appeal in Strouthos v London Underground [2004] IRLR 402 to support the proposition that a failure to identify the alleged misconduct with specificity is an important failure.  In that case, an employee faced disciplinary charges which alleged that he had, without proper authority, taken a van abroad without being properly insured and had used it to bring cigarettes and tobacco back into the country.  This had attracted the attention of the Customs and Excise and led to unwanted adverse publicity.  The Employment Tribunal found that dismissal in the circumstances for a long serving employee was unfair.  The Employment Appeal Tribunal considered that that conclusion was perverse and that the case involved dishonesty.  The Court of Appeal held that the Employment Tribunal had been entitled to decide as they had.  The basic charge did not allege dishonesty in taking the vehicle itself and it was wrong to treat it as having done so.  Pill LJ said this:
“It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the Defendant facing a dismissal should be precisely framed.”  
The contention here, as with the first ground of appeal, is that to focus on misuse of company time was quite distinct from the allegation that there had been unauthorised absence.  This was not just a minor procedural glitch which could be dealt with under section 98(2)A; rather, as Strouthos shows, it was a major error which involved a breach of the statutory procedures themselves.  

22.	We reject these submissions.  The purpose of these procedures is to ensure that there is a proper and fair opportunity for the parties to seek to address any disciplinary issues and other matters which may lead to dismissal prior to the matter ending up in litigation before the Employment Tribunal.  It is not to create unnecessary technical hurdles for either employer or employee.  It will frequently happen in the course of a disciplinary hearing that the evidence emerging will identify potentially disciplinary conduct which, although closely related to the original alleged misconduct, is a variation of it.  That, it seems to us, is precisely the position here.  There is very little difference between the original complaint, which was unauthorised absence, and misuse of company time which stemmed from the Appellant sitting in his car and not effectively carrying out work for the benefit of the company. In both cases, the essence of the complaint is that no work is being done for the company.  Whether that is because the employee is at home or sitting in his car is of no real materiality, so it seems to us.  Shifts in the focus of the case will not lead to an obligation for the employer to write fresh missives on each occasion.  Of course, there will be cases where the employer wishes to deal with a quite distinct act of misconduct which has emerged at some stage as a result of the disciplinary or investigative process for earlier alleged acts of misconduct.  In those circumstances, it would be necessary to comply with the procedures, so that the employee knows in advance precisely what case he has to meet, to send a fresh statement in writing.  

23.	Mr O’Dair suggests that in this case the employee was not able to consider in advance how he should respond to the case of misuse of company time.  We think that is, with respect, fanciful.  He had the witness statements and he knew that what was under consideration was his behaviour during the course of the two days, 10 and 11 October.  When he indicated, in respect of another matter that was raised with respect to his conduct on 1 October, that he had not had a proper opportunity to deal with that, the employers did not pursue it further.
. 
24.	In our judgment Strouthos is dealing with a very different set of circumstances.  That was not a case of a minor reformulation of what was essentially the same charge.  The Court of Appeal was there concerned with a case where dishonesty of a certain kind was being relied upon without having been properly alleged.  We respectfully agree that an employer cannot dismiss for a reason to which the employee was never fairly alerted, but that is not, in our view, this case.  Accordingly, we reject these grounds.  

25.	The final ground of appeal goes to the whole of the Tribunal’s decision and not just its finding with respect to section 98A.  It is submitted that the Tribunal failed properly to identify whether the reason for the dismissal was simply failure to comply with procedures in filling out the log or whether it was falsification of company records.  Mr O’Dair points out, perfectly correctly, that the sanction which any reasonable employer might consider appropriate may well vary depending upon how the misconduct is perceived.  But in this case we think that, as Mr West submits, there can be no doubt that the company were alleging not simply that the records had not been kept in accordance with company procedure, but also that there had been falsification i.e. a deliberate attempt to mislead the company by the entering on the log of false information.  The letter of dismissal itself stated that “you have falsified the daily attendance log by stating you were on site from 11:00 to 18:00 as you were not on the Slough site for the duration specified”.  The point was made again in the notification of appeal of 23 December 2004.  In the circumstances there was never any doubt as to what the employer’s case was.  

26.	Furthermore, we think that the Tribunal made it clear that they were accepting that there was a reasonable basis for the employers to adopt that position.  In paragraph 4.7, they noted that the irregular and unusual entries on the logbook “inevitably gave rise to understandable suspicions that those entries were false”.  They then noted certain divergences between the Claimant’s account of his movements and the evidence of certain security officers and the Tribunal concluded “it cannot be said to be unreasonable for the Respondents to prefer their accounts”.  They added that they also found the Claimant’s account to be unconvincing.  

27.	We think that, read fairly, the Tribunal is making a finding on a matter which was in dispute before them, namely that the employer reasonably took the view that there had been a falsification of the log and not simply a failure to make a record in accordance with the company’s procedures.  Again, therefore, we reject this ground also.  

28.	It follows that the appeal fails and the conclusion of the Tribunal that there was no unfair dismissal in the circumstances of this case is left undisturbed.