Norland Managed Services Ltd v Hastick UKEAT/0005/12/LA

Appeal against a ruling that the claimant had been unfairly dismissed. Appeal allowed and remitted to a fresh Tribunal for a re-hearing.

The claimant was an electrical engineer who was dismissed for gross misconduct following an incident where he touched an allegedly faulty electrical switch with his finger and received an electric shock. The ET found that the dismissal was unfair, three of the main reasons being that; 1) the claimant did not receive the required notice of his disciplinary hearing, nor did have access to the same documents as his manager at the hearing; 2) his line manager was not the appropriate person to deal with the disciplinary matter because he had been involved with the investigation at an earlier stage; 3) dismissal was outside the range of reasonable responses because the respondent had not properly gone into the question of whether the claimant had received an electric shock, which the claimant had denied, and there was evidence that the faulty switch had been left in a dangerous position by another colleague but he had not been disciplined. The respondent appealed.

The EAT upheld the appeal. The Tribunal did not apply the objective test of the reasonable employer - the "range of reasonable responses" test - when considering whether the employer operated a fair procedure.  In particular the Tribunal did not address itself to this test when considering whether the employer should have required someone other than the employee's line manager to chair the disciplinary proceedings against him. The Tribunal did not start from the findings of the employer when considering whether dismissal was a reasonable sanction.  It discounted from the employer's findings even though (1) it had found the employer to have carried out a reasonable investigation and (2) the employer's findings were patently reasonable in the light of the investigation.

__________________

Appeal No. UKEAT/0005/12/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 14 September 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON, MS N SUTCLIFFE, MRS L S TINSLEY

NORLAND MANAGED SERVICES LTD (APPELLANT)

HASTICK (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR RICHARD HIGNETT (of Counsel)

Instructed by:
Sherrards Employment Law Ltd
4 Albourne Court
Henfield Road
Albourne
West Sussex
BN6 9DB

For the Respondent
MR PETER THOMPSON (Solicitor)

EMW
1 Seebeck Place
Knowlhill
Milton Keynes
MK5 8FR

**SUMMARY**

UNFAIR DISMISSAL – Reasonableness of dismissal

The Tribunal did not apply the objective test of the reasonable employer - the "range of reasonable responses" test - when considering whether the employer operated a fair procedure. In particular the Tribunal did not address itself to this test when considering whether the employer should have required someone other than the employee's line manager to chair the disciplinary proceedings against him.

The Tribunal did not start from the findings of the employer when considering whether dismissal was a reasonable sanction. It discounted from the employer's findings even though (1) it had found the employer to have carried out a reasonable investigation and (2) the employer's findings were patently reasonable in the light of the investigation.

**HIS HONOUR JUDGE DAVID RICHARDSON****Introduction**
  1. This is an appeal by Norland Managed Services Ltd ("Norland") against a judgment of the Employment Tribunal sitting in Watford (Employment Judge Manley presiding) dated 15 September 2011.
  1. The Tribunal upheld a claim of unfair dismissal brought by Mr Hastick subject to a 20% reduction for contributory conduct and a 10% uplift pursuant to section 207A of the Trade Union and Labour Relations Consolidation Act 1992. It declined to reduce the award under the principal Polkey v A.E Dayton Services Ltd [1987] IRLR 503.
  1. The appeal is brought principally on three grounds. It is argued that the Tribunal, (1) erred in law in holding that the dismissal was procedurally unfair, (2) substituted its own view of the facts for that which Norland held and (3) impermissibly found that dismissal was not a reasonable sanction. Consequential arguments are raised concerning contributory conduct, the uplift and Polkey.
**The background facts**
  1. Norland provides maintenance and associated services on a large number of sites including Chiswick Park and the National Institute of Medical Research in Mill Hill. It employs some 2,000 people.
  1. Mr Hastick is an electrical engineer. He started work for Norland at Chiswick Park in November 2009. There was no evidence of any complaints about his work while he was there. On 13 December 2010 he moved to the Mill Hill site where his manager was Mr Nicoletti. It was Mr Nicoletti's evidence that he had concerns almost immediately about Mr Hastick's work. He said there were two incidents in December which caused him to have an informal talk to Mr Hastick telling him to be more careful. He took the view that Mr Hastick's qualifications were "pretty basic" and thought that he would not have offered Mr Hastick a job because he could recruit someone better qualified at the same rate. He had decided that he might ask Mr Hastick to take a competency test but by 7 January he had not mentioned this to Mr Hastick or put it into practice.
  1. On 7 January an incident took place. It was reported to Mr Nicoletti by another employee, Mr Mean, that Mr Hastick had touched an allegedly faulty electrical switch with his finger and had received an electric shock. Mr Nicoletti suspended Mr Hastick pending investigation. A letter was sent confirming the suspension - but the address was not correct and it seems the letter did not arrive. Mr Nicoletti asked another manager, Mr Lewis, to investigate. Mr Lewis interviewed relevant people including Mr Mean and Mr Hastick himself.
  1. Mr Mean's account was as follows. He accompanied Mr Hastick to the job because a security pass was needed. There was a warning notice concerning the switch. Mr Hastick asked how the switch could be live given that the conduit and the switch were plastic. He used an insulating screwdriver to operate the switch and check that the light was working. Then, without isolating the circuit at the nearby circuit board, he touched the light switch to turn the light off and received a shock.
  1. When Mr Hastick was interviewed he agreed, according to Mr Lewis, that there was a handwritten notice saying, "Do not switch on, possible live wire"; agreed that he used an insulated screwdriver to switch the light on; agreed that he used his finger to switch the light off and said that he felt what he called, "A tingling sensation, not a full shock, not enough to send him across the garage".
  1. In his investigation report, Mr Lewis said that Mr Hastick did not take into account that the switch was labelled as potentially live and should have used test equipment to confirm the problem. He recommended that Norland electrical engineers should receive regular theoretical and practical competency training where there was a concern. He did not recommend any form of disciplinary action.
  1. Mr Nicoletti, however, was concerned that Mr Hastick's case might amount to gross misconduct. He sought advice from two colleagues. One colleague thought the matter might amount to gross misconduct, but he does not appear to have had technical expertise. The other was Mr Ames, a technical manager with expertise in electrical engineering. He was critical of Mr Hastick for failing to follow Norland's rules for safe maintenance. He thought the non-compliance was gross misconduct and disciplinary action should be taken, although he said if it was the only incident, it could possibly result in a written warning and retraining. He was also critical of both Mr Hastick and Mr Mean for leaving the situation unsafe: he said Mr Mean should be given a written warning and retraining.
  1. On 17 January at 5.30 pm, Mr Nicoletti called Mr Hastick and asked him if he could attend a disciplinary hearing on 19 January, less than 48 hours in advance. Mr Hastick did not know it at the time but Norland's disciplinary policy stated that 48 hours notice should be given, so the notice was six hours shorter than Norland's disciplinary policy stipulated. Mr Hastick had to pick up the documents for the hearing, which he did at midday on 18 January. These included the report by Mr Lewis but not the emails of the two colleagues. No form of disciplinary proceeding was taken against Mr Mean.
  1. At the disciplinary hearing Mr Hastick accepted that he had used a finger but not that he had received any kind of shock. He said he knew there was a sign but did not read the sign because Mr Mean had moved it. He did not accept that he was touching anything live, he did not believe he was doing "live working".
  1. Mr Nicoletti dismissed him. The letter dated 21 January reads as follows:

"Taking into account all items discussed at the meeting I have decided that the incident constitutes gross misconduct in line with our disciplinary policy and therefore your employment is terminated with Norland Managed Services with immediate effect.

The points raised by you in mitigation were duly considered. However, we arrived at our conclusion for the following reasons:

* You were fully aware of the Norland Managed Services Code of Practice and Rules for Low-Voltage Working and that there is no live working.

* You failed to isolate a live circuit before working on it, even though you were aware that the said circuit had been reported as potentially live.

* You attempted to work on the circuit even though you had no test equipment to prove dead.

* You operated a reported live switch and received an electric shock, endangering yourself.

* You had two previous informal discussions regarding the need to follow due process when working on electrical equipment, with the second time necessitating a hazard report."

  1. An appeal was heard by Ms Tremain on 17 March 2011. It was the first appeal with which she had ever dealt. She did not read any papers in advance. She heard Mr Hastick's case. He said in particular that he did not work live, that he did not receive a shock from the switch, that he had not received the letter of suspension and he did not have enough time to represent himself by reason of short notice of the disciplinary hearing. He supported his argument with a detailed written summary.
  1. After she heard the appeal, Ms Tremain concluded that she had insufficient experience in electrical engineering issues to determine it. She asked for help from colleagues. They explained various policies to her and she asked them questions. This was done without any input from Mr Hastick. She wrote a detailed letter rejecting the appeal.
**The Tribunal's reasons**
  1. After making findings of fact in paragraphs 3.1 to 3.28 of its reasons, upon which we have already drawn, the Tribunal set out the law in paragraphs 4.1 to 4.5 of its reasons. No criticism is made of that statement of the law as such (but Mr Hignett submitted to us, as we shall see, that there was an important omission in it).
  1. In paragraph 5 of its reasons, the Tribunal concluded that the reason for dismissal related to conduct. The Tribunal first considered, "whether the investigation fell within the range of reasonable responses". It accepted that the investigation carried out by Mr Lewis was a fair and reasonable; see paragraph 5.2.
  1. The Tribunal next considered the disciplinary process. It found that the dismissal was, "Unfair on procedural grounds" It gave the following reasons:

"5.3 The things that have concerned us much more are as follows:

5.3.1 We are concerned by the fact that the claimant did not receive written notification of the disciplinary hearing until some 24 hours before it was held. He was told of it slightly earlier, but still not within the 48 hours set out within the respondent's own procedure. While Mr Nicoletti was aware of that procedure, he did not mention it to the claimant or ask for his consent for time to be shortened. What is more, when we consider paragraph 11 of the ACAS we do not consider that this has allowed 'reasonable time to prepare their case'. There was no particular urgency in this matter, the claimant being on suspension. The shortness of time was something that concerned the claimant. Whilst we understand that he said he was ready to proceed, much onus lies on the employer to ensure a fair process for employees coming to what are, in any case, very difficult meetings.

5.3.2 We are also concerned by the fact that the claimant did not have the same documents as Mr Nicoletti had access to at that hearing. In particular, he did not have access to the emails, particularly that from Mr Ames, which set out a range of opinions and a range of options for consideration. It seems clear to us that, if the claimant had seen those at the time, he would have been able to put his point of view and perhaps find some things within what Mr Ames says to support his case. Whilst we do nor believe that failure to hand over those documents falls squarely within the ACAS code so as to render it a breach of the code, we do believe that it is not within the spirit of the ACAS code or, indeed, in accordance with good industrial relations practice.

5.3.3 Thirdly, we have come to the view after serious consideration, that Mr Nicoletti was not an appropriate person to deal with this disciplinary matter. He had clearly had considerable involvement in the investigation at an earlier stage, and then seeking advice in the emails on 17 January. What is more, he had clearly formed a view about the claimant before this hearing. He has told us, in no uncertain terms, that he was considering a competency test and that he had a number of complaints brought to him. He had not mentioned this to the claimant. The claimant was not able to challenge Mr Nicoletti as the decision maker on those grounds, because he was unaware of those particular concerns. In a large organisation such as this, we see no reason why another manager could not have looked at this matter afresh. We understand that it is often the case that those dismissing officers should know and have some involvement, but this is one of those circumstances where, we believe, there was an element of bias on the part of Mr Nicoletti, evidenced by what he told us about his opinion of the claimant and his qualifications and competencies.

5.3.4 Fourthly and lastly with respect to disciplinary process, we have some concerns about the appeal process. In the first place, there was somewhat of a delay before the claimant had the notes from the disciplinary hearing before the appeal. However, apart from that, the method used, on any account, is one which is unusual. It would not necessarily lead to unfairness, in our view, if the claimant had been aware what Ms Tremain was taking into account in her deliberations. The claimant, in essence, had no idea what matters or information Ms Tremain would have in front of her as she did not have them at the appeal hearing. He had no opportunity to comment on the further investigations that she made after she had spoken to him.

5.3.5 Finally, with respect to the appeal, we are concerned that it would appear to be a breach of the respondent's own procedures, insofar as that suggests that a full re-hearing should ideally take place where there are procedural concerns and there is no doubt at all that the claimant himself was raising procedural concerns. Ms Tremain, whose first appeal it was, may not have appreciated the difference. We are asked, by Mr Hignett not to consider the difference between reviews and re-hearings (Taylor v OCS Group Ltd [2006] EWCA Civ 702) but we are not doing it in relation to whether any previous defect has been overcome but in relation to the process taken as a whole.

In our view, the fact that the claimant lacked information both at the disciplinary and the appeal stages, taken together with the shortness of notice for the hearing and the questionable involvement of Mr Nicoletti as the disciplinary officer, all taken together means we have decided the dismissal was unfair on procedural grounds."

  1. The Tribunal then turned to consider the question whether dismissal fell within the range of reasonable responses. It concluded that dismissal was, "outside the range of reasonable responses". It gave the following reasons:

"5.4 We then turned our attention as to whether the dismissal fell within the range of reasonable responses. This is always a difficult question. We are well aware, and we are reminded of it by Mr Hignett, that we must not substitute our view. We must not consider this is a harsh decision and overturn it on those grounds. We do not do so. What we have to do is look at what is the alleged misconduct and consider, in the light of the evidence before us and, if necessary, our knowledge of good industrial relations and practice, whether a reasonable employer, in these set of circumstances, could reasonably choose to dismiss this employee. The matters that we take into account as follows.

5.5 We considered the following to be relevant: what other people, who were asked to look at this matter by the respondent, mentioned about any possible sanction; what happened about anybody else involved in the incident; the claimant's evidence about his previous experience at Chiswick Park and the details of the incident. It is, without doubt, a one-off incident. The respondent asked us to find that it was a serious and dangerous incident. However, in our view they did not properly go into the question of whether the claimant received an electric shock or not. They were told that he had. It is disputed whether he said to them, in the early stages, that he had felt a tingle; but certainly, from the outset of the disciplinary hearing, he denied that he had received a shock. They did not appear to go back to Mr Mean for further information on why he believed the claimant had suffered an electric shock. That, therefore, might have impacted on whether they believed the matter was, indeed, as serious as it was at first suggested to be. Clearly, dealing with electrical equipment can be serious and can be dangerous; it is clearly part of the work the claimant was expected to carry out.

5.6 We accept that the claimant should have isolated the switch. He did not do so and that might have had serious consequences, mostly for himself. That amounts to misconduct. However, it was noted by others who looked at the report that Mr Mean may well have left the switch in a dangerous position. Mr Nicoletti chose to take no action at all with respect to Mr Mean. Mr Lewis's recommendation seemed to relate mostly to training and, although we accept that Mr Dite and Mr Ames both said that the matter could fall into the category of gross misconduct, neither of them suggested dismissal as a sanction. Mr Ames did consider possible sanctions and considered them in relation to the claimant to Mr Mean and, in fact, suggested the same sanction for both. Although we understand he might not have had the whole story, he did have information about Mr Mean's actions on the day. When considering whether dismissal fell within the range of reasonable responses, we are entitled to consider what action the respondent took with respect to Mr Mean; what notice they took of what other people said and what further investigations they made when the claimant disputed matters which they believed to be the case, for instance, the question of whether or not he had received an electric shock.

5.7 We believe, having considered the evidence and thought about it with considerable care, that this dismissal does fall outside the range of reasonable responses. The claimant had a clean disciplinary record. The respondent could show no concerns that it had bothered to raise at a formal level at all. We are satisfied that Mr Nicoletti's consideration of a lesser offence was, if he considered it at all, a very cursory consideration. This employee had only been on the site for a short time and had not been told that there were concerns about his competence."

  1. The Tribunal found contributory conduct to the extent of 20% and applied an uplift under section 207A in the amount of 10%.
**Statutory provisions**
  1. There is no challenge on either side for the purposes of this appeal to the Tribunal's conclusion that the reason for the dismissal was misconduct. It will suffice to set out section 98(4) of the Employment Rights Act 1996:

"98(4) Where the employer has fulfilled the requirements of subsection (1), 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) shall be determined in accordance with equity and the substantial merits of the case."

**Submissions**
  1. On the question of procedural fairness, Mr Hignett, appearing for Norland submits that the Tribunal has not referred to and does not appear to have addressed its mind to the principle in Sainsbury's Supermarket v Hitt [2003] IRLR 23; namely that for the purposes section 98(4) the range of reasonable responses test applies as much to matters of investigation and procedure as to other aspects of a decision to dismiss. He further submits that the tribunal, insofar as it identified procedural failings, failed to ask itself what, if any, practical impact those procedural failings had. This was an essential element of its task when considering procedural fairness: Fuller v Lloyds Bank Plc [1991] IRLR 336. Mr Hignett took us through each element of the Tribunal's reasoning from paragraph 5.3, submitting that it did not apply these tests.
  1. In dealing with the Tribunal's reasoning in paragraph 5.3.3 concerning bias on the part of Mr Nicoletti, Mr Hignett submits that the conclusion about Mr Nicoletti's bias was insupportable. It was his task as line manager to hear the disciplinary hearing; and the fact that a line manager may have formed some adverse views about an employee is no reason why a line manager should recuse himself as if he were a judicial officer. Mr Hignett also makes a submission of a rather different kind. He says that it was no part of Mr Hastick's case that Mr Nicoletti was biased. Norland was not on notice that the Tribunal was considering this point and had no opportunity to lead evidence or make submissions on it. This, he submitted, was procedurally irregular, a breach of the rules of natural justice.
  1. Mr Hignett attacks the Tribunal's finding on the question whether dismissal was a reasonable sanction in two ways. Firstly he argues that the Tribunal has substituted its own view of the facts for that which Norland held when considering the question of sanction. Norland proceeded on the basis that Mr Hastick received an electric shock. The Tribunal discounted this when deciding whether it was reasonable for Norland to dismiss. There is, he submits no indication that the Tribunal took into account the full range of Norland's reasoning when reviewing the question of sanction. Secondly, he argues that the Tribunal has placed impermissible weight on the fact that Mr Mean was not disciplined at all. He says that in applying section 98(4) the Tribunal should only have regard to truly comparable cases; and he says Mr Mean's case was not truly comparable.
  1. In answer to these submissions, Mr Thompson, appearing for Mr Hastick, submits that the Tribunal stated and applied the law correctly. As regards procedural fairness, he submits that each of the Tribunal's conclusions was properly open to it and that, having stated its criticisms individually it then reached a judgment in the round which applied the correct test. On the question of bias, he submits that the Tribunal was entitled to conclude that Mr Nicoletti had, "formed a view" about Mr Hastick prior to the disciplinary hearing and should have arranged for another manager to deal with the matter. He submits that the Tribunal acted fairly even if Mr Hastick did not raise the point of Mr Nicoletti's bias specifically, the Tribunal was right to make allowance for the fact that he was a lay person representing himself.
  1. As regards sanction, he argues that the Tribunal applied the correct legal test. He submits that the Tribunal's discounting (in paragraph 5.5 of its reasons) of Norland's view that there was an electric shock did not vitiate its reasoning taken as a whole.
**Appellate approach**
  1. There is an appeal to the Employment Appeal Tribunal only on a question of law. The role of an appellate court, where this is the question, is therefore limited. In the context of appeals concerning section 98(4) of the Employment Rights Act 1996 the Appeal Tribunal must itself be cautious of substituting its own opinion for that of the Tribunal. This matter has recently been discussed by Mummery LJ in [Fuller v London Borough of Brent]() [2011] IRLR 414 at paragraphs 27 to 30, a passage which we keep carefully in mind.

27. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.

28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.

29. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.

30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."

  1. We begin with the Tribunal's approach to the question of procedure. It is well established that section 98(4) requires the objective test of the reasonable employer to be applied to every aspect of the decision to dismiss including procedural aspects. Thus in Whitbread v Hall [2001] IRLR 275 Hale LJ said that there were:

"Procedural and substantive elements to the decision to both of which the band of reasonable responses test should be applied."

And in Sainsbury's Supermarket v Hitt Mummery LJ confirmed that it was:

"Necessary to apply the objective standards of the reasonable employer to all aspects of the question whether the employee had been dismissed."

  1. In its reasons, the Tribunal expressly applied a "range of reasonable responses" test to the question whether the investigation was reasonable and to the question whether dismissal was a reasonable sanction. It did not expressly apply that test to the procedural questions. Rather, it said:

"We have decided that the dismissal was unfair on procedural grounds."

  1. We have looked carefully to see whether the Tribunal applied a range of reasonable responses test to the question of procedural fairness. The finding which to our mind plainly demonstrates the application of an incorrect test is the finding paragraph 5.3.3 that Mr Nicoletti was, "not an appropriate person to deal with this disciplinary matter" because, "we believe there was an element of bias on the part of Mr Nicoletti, evidenced by what he told us about his opinion of the Claimant and his qualification and competencies".
  1. It is, in our collective judgement and experience, entirely normal for a line manager to deal with a disciplinary matter of the kind in question in this case. It must frequently be the position that a line manager will have formed views about the qualifications and competencies of an employee. This, however, is not a reason why the line manager should not deal with a disciplinary matter where the employer's normal disciplinary procedure provides for this to be the case. Even if the Tribunal members thought that they would have recused themselves from hearing the disciplinary matter, they should have recognised that many employers in these circumstances would reasonably have taken a different view.
  1. The safeguard which the law provides for the employee in these circumstances is built into section 98 of the Employment Rights Act 1996. The manager's conclusions must be honestly formed and must be judged by the objective standard of the reasonable employer; namely they must be reached on reasonable grounds after reasonable investigation; and any sanction imposed must be reasonable. The mere fact that a line manager might have formed a view about an employee's qualifications and competence is no basis for concluding that he ought to have recused himself from hearing a disciplinary matter. This would be to apply a high forensic standard in place of the standard set by section 98(4).
  1. Of course a Tribunal will keep carefully in mind any opinions which a manager had formed about an employee when it assesses the honesty of the manager's opinion about the alleged misconduct and the reasonableness of his conclusions and sanction.
  1. The Tribunal also said that Mr Nicoletti had "clearly had considerable involvement in the investigation at an earlier stage". We see no basis for this conclusion in the Tribunal's findings of fact. Mr Nicoletti had suspended Mr Hastick and commissioned an investigation by Mr Lewis. The ACAS code (paragraph 6) provides that in misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. In our judgment, Norland complied with that paragraph. The Tribunal had no basis for criticising his earlier involvement.
  1. The Tribunal's conclusion concerning Mr Nicoletti is an integral part of its conclusion on the overall question of procedural fairness. It follows that this part of its reasoning is vitiated by an error of law.
  1. We turn to the Tribunal's reasoning on the question of sanction. When considering the question of sanction, the starting point for the Tribunal was the findings made by Norland. It was not entitled to discount from those findings unless, of course, those findings were made without reasonable grounds and without reasonable investigation. In our judgment, the Tribunal fell into error in paragraph 5.5 of its reasons. It discounted the finding of Norland that Mr Hastick had received an electric shock. We cannot see any proper basis for the Tribunal to do so. Upon investigation, Mr Mean had confirmed that Mr Hastick received an electric shock and Mr Hastick himself had said that he felt a tingling. Norland's conclusion that Mr Hastick had received an electric shock was plainly a reasonable conclusion to draw from an investigation which the Tribunal had itself said was reasonable. For the Tribunal, in paragraph 5.5 of its reasons, to discount Norland's finding was to approach the question of sanction from the wrong starting point - effectively from its own view of the facts, not the view reasonably held by Norland.
  1. Once it is established, as in our judgment it established in this case, that there are material errors in the reasoning of the Tribunal, the matter must be remitted for consideration by a Tribunal unless the Appeal Tribunal can say, looking at the Tribunal's findings, that only one result was possible. This follows from the Appeal Tribunal's limited remit: by virtue of section 21(1) of the Employment Tribunals Act 1996 it is concerned only with questions of law.
  1. In our judgment it is not open to us to say in this case that only one result could have been reached by the Tribunal. There are powerful points to be made on both sides. On the one hand Norland is entitled to point out that it found Mr Hastick to have committed a serious breach of a safety requirement basic to the work of an electrician. On the other hand there are procedural criticisms made on behalf of Mr Hastick which the Tribunal will have to weigh. The argument that Mr Ames' email should have been disclosed is one which the Tribunal will have to weigh. Mr Hignett submitted to us that it was no more than effectively the opinion of an HR department which an employer would not be bound to disclose, but an alternative view is that it is really an opinion based on technical expertise which Mr Norland did not have and that if Mr Norland intended to take a different view, as it appears he did, for example, about the use of the screwdriver, he should have disclosed the view of Mr Ames as a matter of fairness. This, however, is not a question of law. It is a question for the Tribunal to assess as are the other procedural defects alleged by Mr Hastick. When taking account of questions of procedural fairness, the Tribunal will wish to keep in mind the principals in Fuller v Lloyds Bank. There is also a significant question as to whether dismissal was a reasonable sanction, having regard to what Mr Ames said, and having regard to the way Mr Mean was dealt with. The question whether Mr Mean's case was truly comparable so as to make dismissal and unreasonable sanction in the case of Mr Hastick is again a question for the Tribunal applying section 98(4).
  1. We consider that in the circumstances of this case the best course is to remit the matter to a freshly constituted Tribunal.
  1. There are two final points which we should mention.
  1. Firstly, although Mr Hignett's argument raised an issue of procedural fairness on the part of the Tribunal, we make it clear that our judgment does not involve any finding of procedural fairness against the Tribunal. If we had been minded to make any such finding, we would first have invited the Tribunal's comments in accordance with the Appeal Tribunal's usual practice.
  1. Secondly, we make it clear that the Tribunal's consequential findings, which are bound up with its principal finding under section 98(4) will fall with the principal finding. Accordingly ancillary questions relating to relating to contributory conduct, Polkey and uplift will be for fresh consideration by the Tribunal.

Published: 26/10/2012 16:33

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