![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sainsburys Supermarkets Ltd. v Hitt [2002] EWCA Civ 1588 (18 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1588.html Cite as: [2002] EWCA Civ 1588, [2002] Emp LR 1273, [2003] ICR 111, [2003] IRLR 23 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand London WC2 |
||
B e f o r e :
LORD JUSTICE MUMMERY and
LORD JUSTICE JONATHAN PARKER
____________________
SAINSBURYS SUPERMARKETS LIMITED | Appellant | |
-v- | ||
MR P J HITT | Respondent |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
____________________
Crown Copyright ©
LORD JUSTICE WARD: I will ask Lord Justice Mummery to give the first judgment.
LORD JUSTICE MUMMERY:
The Appeal
The Facts
The Law
"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -
(a)what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
(b)that it is ... a reason falling within subsection (2) ...
(2) A reason falls within this subsection if it -
(a)...
(b)relates to the conduct of the employee,
(c)...
(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 ... 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."
"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further."
"That is to say it is to be applied to the reason for the dismissal shown by the employer under section 98(1) and (2) and not the reasonableness of the dismissal under section 98(4). Thus Mr Justice Lindsay states in Madden that `It [the Burchell test] does not require the Tribunal unquestioningly to accept the employer's alleged reason; on the contrary, each of the three parts of the test requires an evaluation of the relevant evidence by the Tribunal and in each case that is an evaluation which can, on proper evidence, conclude contrary to the employer's assertions.'"
Analysis
"In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to `reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact that done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."
"In the circumstances did the bank act reasonably or unreasonably in treating that reason [ie a conduct reason] as a sufficient reason for dismissing Mr Madden?
In holding that the dismissal of Mr Madden for that reason was unreasonable the employment tribunal erred in law. It did not correctly apply the law as laid down in the authorities already discussed in the Post Office case. It impermissibly substituted itself as employer in place of the bank in assessing the quality and weight of the evidence before Mr Fielder, principally in the form of the investigating officer's report. Instead, it should have asked whether, by the standards of the reasonable employer, the bank had established reasonable grounds for its belief that Mr Madden was guilty of misconduct and whether the bank's investigation into the matter was reasonable in the circumstances."
"In my judgment no reasonable tribunal, properly applying the approach in British Home Stores Ltd v Burchell ... and Iceland Frozen Foods Ltd v Jones ... to the facts, could have concluded either (a) that the bank had failed to conduct such investigation into the matter as was reasonable in all the circumstances or (b) that dismissal for that reason was outside the range of reasonable responses. Instead of determining whether the bank had made reasonable investigations into the matter and whether it had acted within the range of responses of a reasonable employer, the tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him. The tribunal focused on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the bank's investigation into his alleged misconduct was a reasonable investigation.
This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."
"The issue is whether, in a case where misconduct is admitted by the employee, the requirement of reasonableness in section 98(4) of the Employment Rights Act 1996 relates only to the outcome in terms of the penalty imposed by the employer, or whether it relates also to the process by which the employer arrived at that decision. Put another way, should the employment tribunal simply ask whether the outcome fell within the `band of reasonable responses' test, laid down in Iceland Frozen Foods Ltd v Jones ... and recently reaffirmed by this court in Foley v Post Office; HSBC Bank plc v Madden ..., or should it also apply that test to the procedure used in reaching that decision?"
"For my part, I find it impossible to read into these cases the proposition that the employer is free from any requirement to act in a reasonable fashion once the alleged misconduct is admitted. Section 98(4) of the 1996 Act requires the tribunal to determine whether the employer `acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee' and further to determine this in accordance with `equity and the substantial merits of the case'. This suggests that there are both substantive and procedural elements to the decision to both of which the `band of reasonable responses' test should be applied."
Decision of Appeal Tribunal
"... the Employment Tribunal's decision was flawed in the way it approached the law because it was constrained to follow the Madden heresy. The majority therefore wrongly took the view that the finding of an inadequate investigation meant that it had failed to show a reason for the dismissal which satisfied the Burchell test as restated by the EAT in Madden and so acted unreasonably in dismissing the applicant because its belief in his guilt was flawed. The question that then arises is whether the error of law might have made a difference to the outcome of the hearing in the Employment Tribunal."
"In the present case the Tribunal did not seek to weigh the evidence available to the employer. The issue before it was not whether the decision made by the employer was within the band of reasonableness on the material before the employer but whether the decision was vitiated by the failure of the employer to make reasonable investigations."
They continued, in paragraph 11:
"What the Tribunal was concerned with in this case was the first of the two elements with which Mummery LJ was concerned in para 78 of his judgment in the Madden case. The `range of reasonable responses' test is relevant to the second of those elements, not the first. In dealing with the first the Employment Tribunal is concerned with the adequacy of the investigation process: ie `that the employer, ... at the final stage at which he formed that belief [of guilt] on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.' The Tribunal is required to form a view on this issue by the words of section 98(4)(b)."
They then quoted the relevant parts of that subsection.
"12.It may well be that at any rate some members of this panel of the EAT would have come to a different decision from that of the majority of the Employment Tribunal on the adequacy of the investigation in this case, but it is not for us to substitute our view of the facts for that of the Employment Tribunal and we do not think we can properly say that the decision of the majority on the adequacy of the investigation was perverse.
13.The position in this case is that the Employment Tribunal came to a conclusion by a wrong route to which the majority would have come if the right route had been followed. The equity and substantial merits of the case demanded that there be such investigation of the allegation as was in all the circumstances reasonable before the dismissal. On the finding of fact by the majority, there was not such an investigation. The error of law merely led the Tribunal to address the correct issue of law at the wrong stage. It did not affect the outcome. In those circumstances the appeal will be dismissed."
Conclusion
LORD JUSTICE JONATHAN PARKER:
LORD JUSTICE WARD: