The claimant was a bus driver. On the day in question he was the first driver to drive the bus. During the day, 2 other drivers drove the bus, and during the third driver's shift, one of the wheels fell off. An investigation showed that the wheel nuts had worked loose. The engineer who had failed to inspect an apprentice's work on the wheels was dismissed summarily and so was the claimant, as he should have noticed that there were no check links on the bus on that day. The Tribunal found that the claimant had not been unfairly dismissed because the respondent was entitled, as a reasonable employer, to have regard to the potential serious consequences of the claimant's negligence. However, they decided that he had been wrongfully dismissed as his negligence was not sufficiently serious to justify summary dismissal. The claimant's negligence was in a different league to that of the engineer. Summary dismissal was not justified, the onus being on the respondent to prove repudiatory breach of contract, which they had not done. Both claimant and respondent appealed.

The EAT reminded itself of the tests for unfair and wrongful dismissal and decided that the ET had failed to distinguish between them. They were concerned about what the procedure was for fitting check links to the bus. It was said that when the wheels were first torqued, check links were not fitted for 24 hours. It was only when the wheels were re-torqued that check links were fitted. The ET should have made findings as the exact official procedure for drivers to know if the wheels had been correctly torqued and whether check links should have been fitted.

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Appeal No. UKEAT/0204/11/SM

UKEAT/0205/11/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 September 2011

Before

HIS HONOUR JUDGE PUGSLEY, MRS C BAELZ, MR H SINGH

UKEAT/0204/11/SM

LONDON CENTRAL BUS COMPANY LTD (APPELLANT)

MR A NANA-ADDAI (RESPONDENT)

UKEAT/0205/11/SM

MR A NANA-ADDAI (APPELLANT)

LONDON CENTRAL BUS COMPANY LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Mr A Nana-Addai
MS TANYA MURSHED (of Counsel)

Instructed by:
Greenwich Community Law Centre
187 Trafalgar Road
London
SE10 9EQ

For the London Central Bus Company Ltd
MR IRVINE MacCABE (of Counsel)

Instructed by:
Moorhead James LLP
Kildare House
3 Dorset Rise
London
EC4Y 8EN

UNFAIR DISMISSAL

CONTRACT OF EMPLOYMENT – Wrongful dismissal

The Employment Tribunal failed to distinguish between test for unfair dismissal and wrongful dismissal.

1. This is a case in which the Respondent employer and the employee have both appealed and cross-appealed against a finding of the Tribunal that the Claimant was not unfairly dismissed and the Claimant was wrongfully dismissed by the Respondent in breach of his contract of employment.

1. The Claimant was a bus driver and the matter could be summarised in very short order by saying he was the first driver of the day and he went out, I think, on 1 July 2009. Subsequently two other drivers drove the bus, and according to the Tribunal, because the check links were not on the wheels, the nuts worked loose and later in the day during the period when the third driver of the day was driving the bus, the wheel nuts came off and the near-side rear wheel fell off. Mercifully, nobody was hurt.

1. Because of the circumstances of this case, it is not necessary for me to go into any great detail for reasons I shall outline. The Tribunal found that this was not an unfair dismissal. They found, because of the potential seriousness of the consequences (I refer to paragraph 8(4) of the decision), that they could not say the decision to dismiss was not within the band of reasonable responses. They said in terms:

"We remind ourselves we cannot substitute our view of what disciplinary sanction was appropriate for that of the Respondent. The Respondent was entitled, as a reasonable employer, to have regard to the potential serious consequences of the Claimant's negligence; namely death or injury, police prosecution, traffic commissioner intervention and so on. Even if these did not occur through happenstance, nevertheless the Respondent was entitled to look at the potential consequences of the negligence of the Claimant when deciding what the appropriate penalty was."

1. Then they say, at paragraph 8(5):

"(5) However, we also have to consider whether the decision to dismiss the Claimant summarily was in breach of his contract of employment. This is quite a different question and is a common law or contractual issue. Was the Claimant in repudiatory breach of his contract of employment? Was his negligence so serious as to justify the Respondent regarding the contract as discharged? We conclude that negligence was not sufficiently serious to justify summary dismissal. It was certainly negligent not to check thoroughly, although in most cases it would be no problem in fact. It was only because of the prior failure of the engineer that the wheels had not been properly torqued and that the wheel fell off. One can see the engineer's negligence was so gross as to justify summary dismissal. It was directly related to the cause of the wheel coming off the bus. The Claimant's negligence was of a different and lesser order, and was not in the same league as one can envisage serious bus driver negligence, such as dangerous driving and crashing the bus. What is a fair dismissal under the statute is not necessarily also justified at common law. Here, summary dismissal, we conclude, was not justified, the onus being on the Respondent to prove a repudiatory breach of contract, which they have not done."

1. Therefore, they decided the Claimant was entitled to pay in lieu of notice, the sum for 11 weeks.

1. At the very heart of this decision, as we read it, it was simply this: an apprentice had not torqued the wheels and they had been passed by his supervisor, an engineer, and it was that engineer, rather than the apprentice, who was dismissed. At paragraph 2 of the decision, the Tribunal say this:

"At the start of the hearing, the Claimant's counsel made an application for an adjournment so that an expert witness could be called. That expert evidence would be on the so-called check links issue, to support the Claimant's contention that there were check links on the bus on the morning of the day in question. The Respondent resisted the application. The Tribunal refused the Claimant's application, taking the view that whether or not there were check links on the bus was not the real issue. The issue was whether the Respondent at the time had sufficient evidence to come to the conclusion that on the balance of probabilities there were no check links on the bus on that particular morning. An expert is not likely to be able assist with that."

1. With great respect to the Tribunal, we think that is something of a misdirection. Employment Tribunals or, as they were formerly called, Industrial Tribunals, had to battle with the creation by statute of a new right, a right not to be unfairly dismissed. Cases such as British Home Stores Ltd v Burchell [1978] IRLR 379 made it clear that in an unfair dismissal case, it was for a Tribunal to identify what was the reason for the dismissal, and to decide whether or not the employer's decision to dismiss was based on a reasonable conclusion after making such enquiries and investigation as was appropriate, and then to ask if the dismissal fell within the band of reasonable response in their training and in the case law. The culture was, and the law was, that Tribunals were not there as some sort of quasi-Magistrates court, deciding whether a Claimant was, or was not, guilty of some form of misconduct, but to focus attention on the employer and to ask what was the real reason for the dismissal, and was the belief in an employee's misconduct sustained after making appropriate enquiries, and was the dismissal within the range of reasonable responses? It was not - and I do not need to cite the plethora of cases - for a Tribunal to decide if the employee had forged the timesheet, stolen the car parts or sexually harassed a fellow employee.

1. But what is vital is to understand, that when, in 1995, contractual issues, subject to certain limitations were under the jurisdiction of employment tribunals as well as the courts. That the task in wrongful dismissal is totally different. In a case of wrongful dismissal, it is for the court to decide what happens. It is for the court to judge the credibility of the witness. It is about what happened, not the employer's perception of what happened, that matters. Moreover, Boston Deep Sea Fishing & Ice Co v Ansell [1888] 39 ChD 339, a dismissal could be justified retrospectively if a breach of contract not known at the time of the dismissal was, after the dismissal, found to exist.

1. And so, whereas in an unfair dismissal a Tribunal has to concentrate on the belief of the employer and the reasonableness of that belief after fair and thorough enquiries, in a wrongful dismissal the employer's view or the employee's view matters nothing. It is for the Tribunal to decide whether there was a fundamental breach, so radical in its nature that it justified sacking a witness forthwith, without any compensation.

1. The Tribunal dealt with this at paragraph 8(5). In brief they said, as I have already indicated, that their view was the negligence of the Claimant was of a lesser order than that of the supervising engineer and was not in the same league as serious bus driver negligence, such as dangerous driving and crashing the bus. The employee says, "Look, I was unfairly dismissed". The employer says, "We didn't wrongfully dismiss him. We were entitled and justified to dismiss him because of the seriousness of not checking and the appalling consequences that could follow".

1. We do not want to make any comment on those rival contentions, save to say that we have all of us had experience, whether at the bar and on the bench, or in the practical experience of the two members, with health and safety issues and, quite simply, we have been concerned that this decision raises issues which require us to allow both appeals and to remit both matters back to the same Tribunal.

1. The Tribunal at various stages in their Judgment have, in effect, said that the crucial issue was whether or not there were check links on the bus on that morning. That is set out at paragraph 2 of the decision and also at various other stages (paragraph 4(4)). Halfway through the hearing we were told by counsel for the Claimant that that is not an accurate statement of position. What we were told is that actually the process was more complicated than that. The wheel nuts would be torqued and for 24 hours the bus could be driven and should be driven without the check links being on. Then the bus should be re-torqued and thereafter check links should be fitted to the rear wheels to hold the wheel nuts in place.

1. We are told that there was an issue before the Tribunal as to whether or not the wheel nuts had been torqued or whether the wheel nuts had not been torqued. If torqued, it is contended it was inadequately done. That issue does not surface in the decision nor, as I have indicated, is there any reference in the decision to this 24 hour check links-free wheels in the process of torquing the wheels.

1. We all of us would like to pay tribute to the professionalism in which this case has been conducted both by the Claimant and by the Respondent. There is no greater test of professionalism than to know when to go quietly and leave the field of battle. The reality is both counsel accept that we are getting to the point where we are being asked to make findings of fact that we are not equipped to find.

1. We consider that the Employment Tribunal must deal with the following matters:

(1) What was the actual procedure, as opposed to the official procedure, for drivers to know whether the bus had been correctly torqued?

(2) If the worksheet showed, as at page 84, that the wheels had been torqued, what would the whiteboard have shown, if anything, about the need for check links?

(3) What findings do the Employment Tribunal make about the suggestion that for a 24 hour period between torquing and re-torquing the check links were not to be put on the bus?

(4) What finding do the Employment Tribunal make about the system in place to enable the driver to know unambiguously if there should be check links or whether the check links should not be on the wheels because it was during the said 24 hour period?

1. The reality, if we may say, is this: it would be inappropriate to rehearse all the arguments we have heard and it will certainly be inappropriate for us to guess what our findings or conclusions might be. But on the issue of wrongful dismissal, at paragraph 8(5), what the Tribunal was effectively saying was that, whilst we do not think the Claimant was unfairly dismissed, we do not think that in the chain of liability he should have been summarily dismissed.

1. The engineer's negligence in not checking what the apprentice did, or in this case, did not do, was so gross in their view as to justify summary dismissal. It was directly related to the cause of the wheel coming off the bus. The Claimant's negligence was of a different and lesser order, and was not in the same league as one can envisage serious bus driver negligence, such as dangerous driving and crashing the bus.

1. What we are concerned about - and our view is shared by counsel is that, unless there are clear findings made as to what the procedure was, and whether what it was, was what it should be, that there is no fair way in which this Tribunal can evaluate the decision of the Employment Tribunal. We do not wish to stray into ambits of law that we have not had fully argued, but it is a statement of the obvious that an employer is entitled to take into account the potential consequences of a particular course of action.

1. But equally, we have reservations, for the view that a potential consequence can itself fashion and condition the exact amount of culpability of an employee. We cannot see how a Tribunal can fairly adjudicate upon these issues without having made findings of fact on the matters as we have outlined. None of us reading this decision could foresee that the real issue in this case was whether or not the buses needed to have check links and what the procedure was for a driver to know whether that was the case or not; not, as defined in the Tribunal decision, as to whether there were check links when it was the underlying premise there should have been, whereas now that is very much in issue.

1. So we remit this case with the consent of counsel, allowing both appeals to go back to the same Tribunal to answer the questions that we have posed, to hear such necessary evidence as they consider appropriate - including fresh evidence - and we ask that counsel in the case formulate a schedule of issues, of which we have a draft, to be determined by the Tribunal within 21 days of this date.

1. As to whether or not a Directions hearing is necessary, we will leave to experienced counsel and solicitors to make their own decision.