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Appeal against a finding that the claimant had been unfairly dismissed. Appeal allowed and a finding of fair dismissal was substituted.
The claimant, an Advisory Service Manager, was a long standing employee of the respondent. The DWP policy stated that the staff must not use their positions to help friends, family or acquaintances. The claimant was dismissed following an investigation into the help the claimant gave to a friend of her daughter. The Tribunal found that she had been unfairly dismissed because the dismissal fell outside the band of reasonable responses, applying their own subjective judgement that the claimant was simply doing her job, but without addressing the respondent's concern that the claimant was assisting an acquaintance in breach of their well-known policy.
The EAT concluded that the ET had fallen into the trap of substituting their view for that of the employer. The giveaway comment was the ET asking themselves the question 'what did the claimant actually do wrong?'.
Appeal No. UKEAT/0610/10/JOJ
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 3 June 2011
HIS HONOUR JUDGE PETER CLARK, MR D NORMAN, MR D SMITH
JOBCENTRE PLUS DEPARTMENT OF WORK AND PENSIONS (DWP) (APPELLANT)
MRS J M GRAHAM (RESPONDENT)
Transcript of Proceedings
For the Appellant
MS YVETTE BUDÉ (of Counsel)
Messrs Field Fisher Waterhouse LLP
35 Vine Street
For the Respondent
MR ROBERT ASKEY (of Counsel)
Salford Unemployed & Community Resource Centre
84-86 Liverpool Road
UNFAIR DISMISSAL – Reasonableness of dismissal
Conduct unfair dismissal. Clear case of Employment Tribunal substituting their view for that of employer (despite self direction not to do so). Employer appeal against finding of unfair dismissal allowed. Claim dismissed. No remission necessary.
HIS HONOUR JUDGE PETER CLARK
1. This is an appeal by the Respondent (Jobcentre Plus Department of Work and Pensions (DWP)) before the Liverpool Employment Tribunal against the reserved Judgment of a full Tribunal chaired by Employment Judge Robinson upholding the Claimant Mrs Janet Graham's complaint of unfair dismissal. The case was heard on 16 September 2010; counsel then submitted written closing submissions. The matter was considered by the Tribunal members in private on 28 September 2010; their Judgment with Reasons was promulgated on 18 October 2010.
The relevant facts
2. These are set out at paragraphs 3 24 of the Reasons. The Claimant was a long serving employee in the Department and its predecessor, that service having commenced in 1979. At the relevant time she was employed as an Advisory Service Manager (Band D, HEO grade) at the Brunswick House Jobcentre in Birkenhead; she managed some 15 members of staff. The DWP has a clear policy known to the Claimant about standards of behaviour. Staff must not use their positions to help friends, family or acquaintances. 'Acquaintances' are defined in this way: "An acquaintance is someone whose personal circumstances become known to an employee of the Department outside work."
3. On the Claimant's account, contained in her statement prepared for her internal disciplinary hearing, she first learned of the circumstances of a vulnerable job applicant, Sam Moss, on 9 January 2009, when her daughter's friend Jess called the Claimant's daughter asking if the Jobcentre could help her friend (Sam Moss) to find a job. His story was a sad one; aged 19, his mother had died of cancer, his father was an alcoholic and abusive, and he had no family to help him. He could not survive on benefits and needed a job. The Claimant did help him, no doubt out of the goodness of her heart. However, someone in the office took it upon themselves to report the Claimant to the Respondent's management. A total of three anonymous letters were received. The allegations of breach of the Department's Standards of Behaviour Policy were investigated, culminating in disciplinary proceedings before Mr Glover. Pending the disciplinary hearing the Claimant was not suspended, but she was transferred to another office.
4. Following a disciplinary hearing Mr Glover found four disciplinary charges proved. Taken cumulatively he regarded the Claimant's behaviour as amounting to gross misconduct, and summarily dismissed her on 6 March 2009. An internal appeal and subsequent appeal to the Civil Service Appeals Board (CSAB) were both dismissed. Throughout the process she was represented by officials of her trade union.
5. The Tribunal direct themselves as to the law at paragraphs 25 29 of their reasons. It is well established in particular:
(a) It is for the Respondent to establish a potentially fair reason for dismissal. Here, the reason advanced is conduct. The question is, has the Respondent shown a genuine belief in a set of facts amounting to misconduct by the employee?
(b) Did the Employer act reasonably in treating that reason as a sufficient reason for dismissal (Employment Rights Act 1996 section 98(4)(a))? That question is to be, determined in accordance with equity and the substantial merits of the case (section 98(4)(b)). It is not for the Tribunal to substitute its view of the matter for that of the disciplining officer or appeal panels. Thus the focus is on the dismissing officer's reasons and, applying the British Home Stores Ltd v Burchell  ICR 303 test (here, the burden of proof being neutral), whether he had reasonable grounds for his belief following a reasonable investigation.
(c) Procedural fairness is a relevant consideration, applying the range of reasonable responses test (see Sainsbury's Supermarkets Ltd v Hitt  IRLR 23).
(d) Did the sanction of dismissal fall within the range of reasonable responses open to the employer? Dismissal will fall within the range rendering the dismissal fair if one body of reasonable employers would dismiss on the facts properly found, even if another group would impose a sanction short of dismissal.
The Tribunal's conclusions
6. Having reminded themselves not to substitute their view for that of the employer (paragraph 27), and having declared that they had not done so at paragraph 41, that is what, Ms Budé has conclusively demonstrated to us, the Tribunal have done between paragraphs 30 40 of their Reasons. The giveaway is to be found in paragraph 33, where the Tribunal say, "However, the question we ask is what did the claimant actually do wrong." In answering that impermissible, subjective question they fell into error.
The Employment Judge's notes of evidence
7. Before setting out our reasons for concluding that the Tribunal fell into error, we should record that accompanying the Notice of Appeal was a properly drafted request for the Employment Judge's Notes of Evidence in accordance with paragraph 7 of the EAT Practice Direction. On the paper sift allowing this appeal to proceed straight to a full hearing, HHJ McMullen QC gave the usual direction for the parties to try and agree a relevant note of evidence; no agreement was reached. The Respondent's solicitors applied for the whole of the Judge's notes. I refused that application, but requested the Judge's note in accordance with the original application. The Judge responded by providing his comments on 11 March 2011 (EJC1). Certain aspects of that account were then challenged by the Respondent, and a further application was made for the whole of the notes. Again, I refused that application, but, following the practice in the Dexine Rubber Co Ltd v Alker  ICR 434 case, I asked the Judge to comment on the Respondent's version. He did so on 5 May 2011 (EJC2).
The reason for dismissal
8. The Tribunal do not in terms find what was Mr Glover's reason for dismissal. In their findings of fact the Tribunal find:
(a) That Mr Glover told them that he decided that the Claimant became acquainted with Mr Moss on 25 January 2008 (Reasons paragraph 12). That finding was challenged by the Respondent and in EJC2 the Judge said that the Tribunal accepted that Mr Glover did not agree with the Claimant's case that she first became acquainted with Mr Moss on 25 January 2008; he (Mr Glover) thought the relationship changed on the 9/10 January 2008. The Respondent's definition of acquaintance (EAT bundle page 501) is as we have earlier set it out. Plainly the information received by the Claimant about Mr Moss via her daughter's friend placed Mr Moss in that category as at that date (9 January 2008).
(b) Looking at the four charges against the Claimant set out at paragraph 10 of the Reasons (namely: (i) that the Claimant accessed Sam Moss' records during this acquaintance; (ii) the Claimant dealt with job search interviews on his behalf; (iii) she breached the security of official premises by taking Mr Moss into staff areas; (iv) she left her smart card unattended whilst allowing Mr Moss the use of a DWP computer), the Tribunal found that Mr Glover had found all four charges proved. Looked at collectively, in his view they amounted to gross misconduct. That was his reason for dismissing her; there is no suggestion that he did not form an honest belief as to her guilt.
9. The Tribunal found (paragraph 31) that the investigation was full. We infer that it was therefore at least a reasonable investigation.
Reasonable grounds for belief
10. This question is not expressly addressed by the Tribunal.
11. There is no suggestion in the Tribunal's reasons that a fair procedure was not followed.
Reasonableness of dismissal
12. The Tribunal concluded that dismissal fell outside the band of reasonable responses (paragraph 41). How they arrived at that conclusion is considered below.
Substitution of the Tribunal's view
13. Having asked themselves the wrong question at paragraph 33, the Tribunal went on to answer it, applying their own subjective judgement. For example:
(a) At paragraph 34 they say:
"The Claimant was simply trying to help a friend of her daughter's. Not a very close friend on the evidence that we heard. She accepted, and everybody giving evidence accepted, that Mr Moss was a vulnerable adult who needed help. In many ways the Claimant was simply doing her job and trying to obtain work for Mr Moss."
Those observations represent the Tribunal's assessment of the position. However, they do not address Mr Glover's concern that in doing her job the Claimant was assisting an acquaintance in breach of the Respondent's well known policy.
(b) The Tribunal say at paragraph 35 that after Mr Moss became an acquaintance of the Claimant (which, they incorrectly found looking at EJC2, it was accepted by Mr Glover was on 25 January 2008), she simply helped him fill in job applications, which he could do at home or in the library. But he did not do it in those places; he did it at the Jobcentre with the Claimant's assistance.
(c) At paragraph 36 they proffer their view that taking Mr Moss into the canteen to have a sandwich was "something and nothing" and certainly not by itself deserving of dismissal. But that was not the sole ground for dismissal, and the Claimant accepted in evidence before the Tribunal that she was wrong to take him into the canteen (see the question and answer to which we were referred at page 689 of the EAT bundle, accepted as accurate by Mr Askey, and the Tribunal's finding of fact to that effect at paragraph 17 of their Reasons). Further, the Tribunal described the Respondent as disingenuous in including in the trial bundle a new disciplinary policy which post dated this dismissal. In fact it was Mr Askey who required that document to be placed in the Tribunal's bundle, not the Respondent, as the Judge finally acknowledged in EJC2.
(d) The Respondent's policy (again, well known to the Claimant) was that staff must not leave their smart card in their computer when unattended. Mr Glover looked at CCTV footage which, on his observation, showed the Claimant leave her computer with Mr Moss typing on it.
(e) The Tribunal make the point (paragraph 39) that the Claimant was not suspended, but she was transferred to another office pending her disciplinary hearing. We cannot see how that bears on the fairness of the subsequent dismissal.
14. For the reasons we have given we are entirely satisfied that this Tribunal fell into the trap of substituting their view for that of the employer. The decision cannot stand and must be set aside. The appeal is allowed. Ms Budé asks us to reverse the Tribunal decision and declare that this dismissal was fair. Mr Askey asks us to remit it to the Tribunal for re-hearing. We agree with Ms Budé.
15. On the relevant findings of fact by the Tribunal, corrected by the Judge's Notes of Evidence where appropriate, this was a sad case in which a very experienced manager knowingly breached the rules to help a vulnerable young man try to find a job. The principle of perceived equal treatment of customers is self evidently justified. On the facts and in the circumstances of this case, dismissal in our judgment plainly and unarguably fell within the range of reasonable responses. Accordingly, this claim fails and is dismissed.