The claimant was a lorry driver who had received a final written warning when he did not turn up to work due to his being under the influence of alcohol. A few months later, while the warning was still on his file, he drove into a bridge causing several thousands of pounds worth of damage. Following a disciplinary hearing he was dismissed with 1 week's pay in lieu of notice. He lost his claim of unfair dismissal at the ET. The ET recognised that the final written warning letter did not expressly state that further misconduct may render the claimant liable to dismissal, but that it would have been quite clear to the claimant that this was the case. The ET also acknowledged that the letter inviting him to the disciplinary hearing should have put him on notice that he might be dismissed; however, the claimant should have known this was a possibility given that he was on a final written warning. In conclusion, despite that fact there were some flaws, the disciplinary procedures were fair and compliant with the ACAS Code of Practice. The claimant appealed.

The EAT dismissed the appeal. It was clear that the Tribunal in this case had the ACAS Code in mind. Looking at the ET's decision and reasoning in the round, the Tribunal was alive to the procedural flaws exhibited in the respondent's disciplinary process.  Nevertheless, taken overall, the dismissal was fair substantively and not rendered unfair by the procedural failures.
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Appeal No. UKEAT/0317/12/KN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 7 February 2013

Before

HIS HONOUR JUDGE PETER CLARK, MR B BEYNON, DR B V FITZGERALD MBE LLD FRSA

BUZOLLI (APPELLANT)

FOOD PARTNERS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR S RAHMAN (of Counsel)

Direct Public Access Scheme

For the Respondent
MR N SMITH (of Counsel)

Instructed by:
Burges Salmon LLP
One Glass Wharf
Bristol
BS2 0ZX

UNFAIR DISMISSAL – Reasonableness of dismissal

Employment Tribunal entitled to conclude that notwithstanding procedural defects the employer's decision to dismiss was reasonable in all the circumstances of the case. Appeal dismissed.

1. This is a conduct unfair dismissal case in which the Claimant is Mr Buzolli and the Respondent Food Partners Ltd. The Claimant commenced his employment with the Respondent as a multi-drop driver on 27 July 2009. On 29 March 2010 he received in writing what is described as a stage 3 warning under the Respondent's disciplinary policy and procedure (DPP) to remain on his personnel file for 12 months. His offence was failing to attend work due to his being under the influence of alcohol on 3 March. He did not appeal that warning.

1. On 24 September 2010 he drove his company vehicle into a bridge causing damage which cost £6,240 to repair. He was required by a letter dated 22 October to attend an investigatory meeting to discuss an allegation of misconduct for a major incident under the preventable collisions policy referred to in the drivers' handbook covering damage in excess of £4,500. That is one of the examples of gross conduct under appendix 2 to the DPP.

1. Following investigation a disciplinary hearing took place on 17 November 2010 before Mr Norton, the Operations Manager. At that hearing the Claimant was represented by Marie Hall, a trade union official. Mr Norton dismissed the Claimant with one weeks' pay in lieu of notice. An appeal to Mr Glover, the Regional Distribution Manager (South) was heard on 13 January 2011. Again the Claimant was represented by Miss Hall. The appeal was dismissed.

1. On 7 February the Claimant presented a complaint of unfair dismissal to the Reading Employment Tribunal. That claim was resisted by the Respondent and came on for hearing before a full Tribunal sitting on 21 July 2011. The Claimant appeared in person and the Respondent was represented by Miss Duncan, their Human Resources Director.

1. By a Judgment with Reasons dated 2 August that Tribunal dismissed his complaint. Against that decision he appealed to this Appeal Tribunal. The appeal was initially rejected on the paper sift under EAT rule 3(7) by Supperstone J. At that stage the Claimant instructed Mr Rahman of counsel who represented him at a rule 3(10) hearing before HHJ David Richardson. The appeal was there permitted to proceed to this full hearing on the basis of amended grounds of appeal settled by Mr Rahman.

1. The basis of the appeal, as formulated by Mr Rahman, depends on the proposition that the Tribunal was wrong to conclude at paragraph 41 of their Reasons that the procedure adopted by the Respondent in dismissing the Claimant was compliant with the relevant ACAS Code 2009 and subsequent guide to discipline and grievance at work. He submits that the procedure adopted by the Respondent offended the code in the following respects; 1) the warning letter of 29 March 2010 did not contain a statement that further misconduct or unsatisfactory performance during the 12-month period of the warning may lead to the Claimant's dismissal; 2) the warning was not referred to at the disciplinary hearing or in the dismissal letter, it was referred to at the internal appeal as forming part of the basis for dismissing the Claimant; 3) the Claimant was not put on notice that the disciplinary hearing may lead to his dismissal in the letter inviting him to a disciplinary hearing of 3 November 2010 and then following a postponement in the Respondent's letter of 10 November.

1. In response, Mr Smith accepts that the Respondent did not comply with the letter of the ACAS Code and invites us to conclude that such mischaracterisation of the position by the Tribunal at paragraph 41 of their Reasons does not vitiate their decision. Looked at overall the Tribunal's reasons are sufficient to justify their conclusion that dismissal fell within the range of reasonable responses open to the Respondent applying section 98(4) of the Employment Rights Act 1996. We agree with Mr Smith. Our reasons for doing so are as follows; the Tribunal had well in mind the procedural flaws in the Respondent's approach. Thus at paragraph 11 they said:

"The final written warning letter does not expressly state that further misconduct may render the Claimant liable to dismissal. However we consider that it was clear from the disciplinary policies and clear, as a matter of common sense, from the fact that this was a final written warning, that further misconduct might result in dismissal."

1. And at paragraph 40 they said this:

"We consider that it would have been preferable had the letter to the Claimant inviting him to a disciplinary hearing put him on notice that the preventable collision was misconduct which might result in his dismissal. However, we considered that the Claimant should have known that this was a possibility given that he was on a final written warning. It was also regrettable that the dismissal letter wrongly described the Claimant as summarily dismissed for gross misconduct; however, we noted that this matter was corrected on appeal."

1. Leading to their conclusion at paragraph 41:

"On the basis of the facts that we have found, we have concluded that, although there were, as described above, some flaws in relation to the way in which the disciplinary processes were operated, even despite those flaws, the disciplinary procedures were fair and compliant with the ACAS Code of Practice."

1. The Tribunal correctly directed themselves as to the law, paragraphs 33 to 37, in particular consistent with the Court of Appeal's approach in Sainsburys v Hitt [2003] IRLR 23 they said at paragraph 37:

"The question is whether the procedural approach adopted and the sanction decided upon by the employer, were such as were open to a reasonable employer in the circumstances."

1. Mr Rahman describes the procedural flaws identified by the Tribunal as resulting in the Claimant being ambushed then hijacked and finally derailed. Allowing for the hyperbole of counsel, we cannot accept that analysis. First it was plain, as the Tribunal found, that the Claimant's final warning was precisely that. The DPP provides, paragraph 16.4.3:

"The employee will be advised[…]that if there is[…]further breaches of conduct within the next 12 months that they will be dismissed with due notice."

1. Further neither the Claimant nor his representative, Miss Hall, raised any procedural objections either at the disciplinary or appeal hearings. Indeed in his appeal letter, paragraph 5, the Claimant said:

"I feel that the reason that I was dismissed was because I had a live final written warning on my file."

1. He was aware of the significance of the final warning and the contribution of the final warning to his dismissal was acknowledged by Mr Glover in his appeal outcome letter of 19 January 2011. It was open to the Tribunal to take into account what happened on appeal in determining the fairness or otherwise of the dismissal decision; see West Midlands Cooperative Society Ltd v Tipton [1986] IRLR 112 (HL) and Taylor v OCS Group Ltd [2006] ICR 1602 (CA).

1. Section 207 of the Trade Union and Labour Relations Consolidation Act 1992 provides that if any of the provisions of the ACAS Code are relevant to a question in proceedings before an Employment Tribunal, they should be taken into account by the Tribunal. The Code is a guide to good sound industrial relations as Morison J (President) observed in Lock v Cardiff Railway Co. Ltd [1998] IRLR 358.

1. It is clear that the Tribunal in this case had the ACAS Code in mind; see their Reasons at paragraph 37. However, we are not persuaded by Mr Rahman that focusing on the Tribunal's words at paragraph 41 that despite the flaws identified, the Respondent's procedures were compliant with the ACAS Code identifies an error of law by the Tribunal which should cause us to interfere. We bear in mind the valuable guidance to this Appeal Tribunal to be found in the Judgment of Mummery LJ in [Brent London Borough Council v Fuller]() [2011] ICR 806 at paragraph 30 where he said this:

"The tribunal 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 employment tribunal 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 must, and do, look at this Tribunal's decision and reasoning in the round. We must also be wary of substituting our view for that of the Tribunal; see [Bowater v North West London Hospitals NHS Trust]() [2011] IRLR 331 para. 19 per Longmore LJ. In our collective judgment this Tribunal was alive to the procedural flaws exhibited in the Respondent's disciplinary process. Nevertheless, taken overall the dismissal was fair substantively and not rendered unfair by the procedural failures.

1. That was a conclusion which this Tribunal was entitled to reach, consequently the appeal fails and is dismissed.