APPEARANCES
| For the Appellant |
Mr P Michell
(of Counsel)
Instructed by:
Messrs Bates Wells & Braithwaite Solicitors
2-6 Cannon St
London
EC4M 6YH |
| For the Respondent |
Mr N Woodhouse
(of Counsel)
Instructed by:
Messrs Bowman Rodkin Litigation Solicitors
3rd Floor 707 High Road
London
N12 0BT |
SUMMARY
Unfair dismissal Reasonableness / Automatically unfair dismissal
Employee dismissed for suspected misconduct Tribunal found dismissal unfair under s.98, because investigation not carried out with an open mind nor properly completed, and s.98A because appeal meeting not held at a reasonable time and not re-fixed when Claimant could not attend Decision upheld Observations on meaning of reg.13(2) of 2004 Regulations.
THE HONOURABLE MR JUSTICE UNDERHILL
INTRODUCTION
- The Claimant in these proceedings was employed by the Respondents (to whom we will refer as "the employers") as a senior sales executive. He was summarily dismissed by letter dated 14 December 2005. He brought proceedings for unfair dismissal. His claim was heard by an Employment Tribunal sitting at Watford over three days in September and October 2006. By a judgment sent to the parties on 8 January 2007 his complaint was upheld. The Tribunal found not only that his dismissal had been unfair by reference to the "ordinary" criteria in s. 98 of the Employment Rights Act 1996 but also that it was "automatically" unfair by virtue of s. 98A (1) because the employers had failed to complete the statutory dismissal and disciplinary procedure.
- The employers appeal against both aspects of the Tribunal's decision. They have been represented before us by Mr Paul Michell of Counsel, who did not appear in the Tribunal, where they were represented by Mr Garnett of Bates Wells & Braithwaite The Claimant has been represented by Mr Nigel Woodhouse of Counsel, who also appeared in the Tribunal.
THE FACTS
- It is not necessary for the purpose of this appeal to set out the facts in exhaustive detail. They can be sufficiently summarised as follows.
- For a considerable period prior to his dismissal the Claimant had been concerned about the calculation of his commission entitlement and the distribution of work. He raised these concerns with the employers on several occasions in late 2004 and the first half of 2005. At the beginning of November 2005 the Claimant's new line manager, Ms Sedley-Burke, wrote to him raising queries about two aspects of his conduct, and in particular about his whereabouts on 26 October 2005, when according to his diary he had been visiting two firms of clients but when they had been unable to contact him there. The Tribunal found it surprising that such a letter should have been written when it was, and in the way that it was; and it took the view that the employers had resented the Claimant's persistence in raising the concerns referred to above.
- Matters then accelerated. On 4 November 2005 the Claimant made it clear that he intended to raise his concerns as a formal grievance. On 9 November he wrote asking for a meeting under the employers' grievance procedure, saying that he wished to bring his solicitor with him to the meeting. He wrote the next day, 10 November, asking for a without prejudice meeting with the employers' senior directors, at which again - he wished his solicitor to attend. Later that same day he was told that he was being suspended with immediate effect due, as it was expressed in a confirmatory letter, to "a number of possible disciplinary issues including improper use of electronic communications". As regards the alleged improper use of electronic communications, the Tribunal found (at para. 14 of its Reasons):
"
before the suspension was effected, Mr Smith had caused an investigation to be undertaken into the Claimant's e-mail activity. He had asked the Respondents' Technical Director to check the e-mail logs of the Claimant for unusual activity. This allegedly arose because the Claimant was seen working late one evening which apparently aroused suspicion. However, we have concluded that the trigger to the investigation into the Claimant's e-mail activity and the suspension which followed was the Claimant formalising complaints he had previously made and which had not been dealt with and his indication, by his request that his lawyer attend, that he was receiving legal advice in respect of them."
What, so the Tribunal found, the employers suspected - wrongly, as it also found - was that the reason why the Claimant had involved his solicitor and was seeking a without prejudice meeting was that he was planning to leave the company and they feared that he was intending to make improper use of commercially sensitive information. The Tribunal found, at para. 15 of the Reasons, that this suspicion "coloured the whole of the investigation and the treatment of the Claimant thereafter".
- On 16 November 2005 the Claimant was asked to attend a without prejudice meeting with Mr Smith and Mr Barker, two of the senior directors of the employers. He sent a sick note from a GP indicating that he was unfit for work for two weeks due to "work related stress" and said that he would not be able to attend that meeting. The employers did not believe that the Claimant was genuinely ill. They believed not that he had misled his doctor - which would not be unknown in this kind of case and with a non-specific diagnosis of this kind - but, much more remarkably, that the doctor himself had not believed him to be ill and had signed the certificate because he was a personal friend. This belief was not only held by them in the course of the events leading to the Claimant's dismissal but was positively asserted in the grounds of resistance served with the employers' ET3. As a result, the doctor was called to give evidence. He made clear that he was not a friend of the Claimant and had never met him before the day he gave him the certificate. (It is right to say that the impression given by the Reasons that Mr Garnett challenged that evidence in cross-examination is wrong, as Mr Woodhouse fairly conceded.) The Tribunal plainly accepted on the basis of the doctor's evidence (and no doubt also the Claimant's) that the Claimant was indeed ill. The employers' entirely unfounded belief that the doctor was complicit in supplying a false certificate appears, from what we were told by Mr Woodhouse, to have been a piece of speculation based on the fact that the Claimant had on some unconnected past occasion mentioned that he had a friend who was a doctor. The Tribunal understandably attached considerable significance to the fact that the employers should have harboured this belief as illustrating the extent of their prejudice against the Claimant at this time.
- On 17 November 2005 Ms Sedley-Burke wrote to the Claimant formally notifying him that an investigation had been carried out following his suspension and that there was to be a disciplinary hearing to consider the following allegations:
"(i) that on 26 October you were absent without leave
(ii) that you lied to the company over your whereabouts on that day
(iii) that you have forwarded confidential information belonging to the company to your home e-mail address in breach of your obligation to confidentiality
(iv) that you have sought deliberately to hide your activities(v) that you have introduced data onto the company's system (in breach of company policies) and such data is confidential and should not have been admitted onto the system."
The letter acknowledged that the hearing should not take place during the period of two weeks for which he had been certified sick and accordingly fixed a hearing for 30 November 2005. Ms Sedley-Burke stated, however, that she was not prepared to adjourn matters further. The letter indicated that the hearing would be conducted by Mr Smith rather than, as would otherwise have been appropriate, by Ms Sedley-Burke herself because the Claimant had indicated that in his proposed grievance he would be making complaints against her personally.
- With a view to the proposed hearing on 30 November, Ms Sedley-Burke on 25 November sent the Claimant an "investigation report". This set out the facts relied on in support of the allegation that he had not been working on 26 October and that he had lied to the employers about his whereabouts on that day. It also set out the evidence relied on in support of the allegations about misuse of e-mails. The Tribunal was very critical of this report. It noted that it had been signed by Ms Sedley-Burke notwithstanding that she had apparently accepted that she should not be involved in the process. But, more substantively, it was critical of the employers for (a) not having at any stage asked the Claimant for his side of the story and (b) not having made any enquiries of the actual clients who he claimed to have visited on 26 October (as opposed to the staff on reception). As to the latter point, it appreciated the sensitivity of making enquiries of this kind with clients but it considered that, with a little care, appropriate enquiries could in fact have been made without any real difficulty.
- On 26 November 2005 the Claimant's solicitors wrote to the employers saying that he was still unwell; and on 29 November the Claimant himself sent a further medical certificate covering a further four weeks. As the Tribunal found, the employers took the view that this was simply a delaying tactic. Meanwhile, on 27 November the Claimant's solicitors also wrote to the employers giving details of what he said he had been doing on 26 October and, in particular, identifying two named individuals at the firms in question to whom he had been delivering documents and asking whether those individuals had been contacted. They said that if necessary he would contact them himself. He did not in fact do so; and it is plain that the Tribunal believed that it was reasonable since he had been expressly told at the time of his suspension that he should not make any contact with any of the employers' clients.
- On 30 November 2005 Ms Sedley-Burke wrote to the Claimant saying that she was prepared to adjourn the disciplinary hearing for a further week, to 8 December. The letter also gave notice of a further allegation, namely that the Claimant had absented himself from work on an earlier occasion, on 13 October 2005.
- There was further correspondence about the medical evidence that would be required if the employers were to contemplate a further adjournment. The Claimant sought a reference to a consultant for confirmation that he was unable to attend the hearing; but this did not allay the employers' suspicions. On the morning of the day fixed for the disciplinary hearing the Claimant sent written submissions disputing all the allegations against him and providing his explanation. The employers contacted the Claimant's solicitors saying that they were not prepared to postpone the hearing but that they proposed to put it back to 5 p.m. to allow time for him to reply to a series of queries raised by them in response to his earlier letter. As to this the Tribunal found, at para. 29 of the Reasons:
"
we regard the request made by the Respondents as wholly unreasonable. The Claimant was ill; the enquiries were necessary because there had been no proper investigation during the investigation process; the time limit placed on the Respondents was impracticably short and the solicitor was simply not available."
No response was received by 5 p.m., and the hearing went ahead in the Claimant's absence. The decision was made to dismiss him. The decision was confirmed in a letter to the Claimant dated 14 December enclosing detailed "findings" from the disciplinary hearing. The conclusion to the findings read as follows:
"In respect of allegations 1, 2 and 3 [that is, the allegations of absence from work on 13 and 26 October 2005 and the allegation that the Claimant had lied about his absence], I am satisfied that Stefan was neither in the office nor on company business on either of those two days, and that the explanations that he has given are implausible and dishonest."
As regards the allegations relating to the Claimant's use of e-mails, no action was thought to be warranted. The conclusion on this aspect reads as follows:
"As regards allegation 4, I do not believe that there is any disciplinary action warranted nor in relation to allegation 5 although his behaviour has been unprofessional. As to allegation 6, this would have warranted either a verbal warning or a written warning."
The fact is that the employers had found nothing to justify their earlier suspicions about the Claimant seeking to take away confidential information. The letter informed the Claimant of his right to appeal.
- On 19 December 2005 the Claimant notified the employers that he wished to appeal. They replied by post on 20 December stating that the appeal would be heard on 29 December. The employers appreciated that there was a risk that a letter sent on that date might not reach the Claimant in sufficient time because of the Christmas break. They therefore also sent a copy by e-mail on the evening of 21 December. The e-mail reads:
"With the possibility that post may be slower than usual at this time of year, please find attached our letter (read-only) with regard to your appeal hearing that has been sent first class to you, for your records."
The e-mail bounced back, with an indication that the Claimant's e-mail box was full. The following day it was re-sent with a PS in the following terms:
"I have been trying to send you this e-mail for two days: unfortunately your mailbox keeps rejecting the e-mail as it is full. I hope this reaches you, although you should have the original now."
The employers were, therefore, on notice that the Claimant had not received the e-mail. They did not attempt to contact him or his solicitor by telephone. In fact, the Claimant did not receive the letter before the hearing. He went on holiday for a few days directly after Christmas, and only saw the letter on his return. The hearing accordingly went ahead in his absence. Again, no attempt was made, when it appeared that he was not attending, to contact the Claimant or his solicitors. As regards contacting his solicitors, the employers had as was their right made it clear that they were not prepared to allow the Claimant to be accompanied by a solicitor at the hearing; but they knew that the solicitors were actively involved in advising him, and a phone call to them in order to find out whether he had received notice would not have been inconsistent with their position.
THE DECISION OF THE TRIBUNAL
- It is convenient to set out here the entirety of the section of the Tribunal's Reasons in which it stated its conclusions on the issue of unfair dismissal:
"33. We have not made findings on the guilt or innocence of the Claimant in relation to the allegations against him. We did hear evidence in relation to those matters but we consider that at this stage (and the position may be somewhat different in the Remedies hearing), any such consideration is irrelevant to the matters that we have to decide. The parties appear to recognize this in their submissions because they refer to the possibility of further submissions being made at the Remedy stage. We have a limited role at this stage as we have identified in the list of issues described above.
34. As to our conclusions, we find that the dismissal of the Claimant was unfair within the meaning of Section 98(4) for a number of reasons. We find that the process was triggered by the formalizing by the Claimant of his complaints about the Respondents. Whilst the disciplinary process might have been capable of being fair thereafter, that was not the position in this case. The whole of the disciplinary investigation was premised on the assumption that the Claimant was suspicious and his presence in the organization should be brought to an end. Hence the pre-emptory suspension and investigation and dismissal thereafter. The investigation process was utterly flawed so that not even the Claimant was spoken to, to give an account of the events which were purportedly investigated. The investigation was undertaken by a person who denied involvement and in respect of whom the Claimant had had concerns about partiality such that she had withdrawn from the grievance process. The persons to whom the Claimant allegedly made contact on 26 October 2005 were not even spoken to in circumstances where, as we have found, that would have been entirely possible and wholly appropriate given the very serious sanction that the Claimant was facing. At the same time the Claimant was barred himself from speaking to customers or other potential witnesses. When the Claimant finally gave an account of his own volition, the Respondents recognized that questions arose from it but sent a letter setting an absurdly short time for the Claimant to give a response. The Respondents proceeded thereafter to a Disciplinary Hearing in the knowledge, as they recognized, that they had not completed the investigation process, and thus was fundamentally unfair. However, this reflects, we find, the Respondents' desire to ensure that the Claimant's employment was brought to an end. The Respondents' suspicions about the Claimant coloured the investigation and such was the extent of their suspicion that it rippled throughout the investigation and disciplinary process and even touched upon those extraneous to it, in particular the doctor and any potential consultant whom the Respondents assumed would demonstrate a lack of integrity without any evidence suggesting the same.
35. We unanimously find that the Respondents did not have a genuine belief in the misconduct alleged. Although it is not necessary for us to make this finding given our findings in relation to the investigation, we expressly conclude that the Respondents did not genuinely believe that the Claimant was guilty as alleged. Enquiries since may be relevant to the question of remedies but we are focusing at this stage on the date upon which they dismissed the Claimant. We find that the Respondents wanted to get rid of the Claimant because of their concerns about the formalizing of his complaints, the involvement of lawyers and the commercial sensitivities around a senior sales person and that led them to contrive a situation resulting in his dismissal. We bear in mind that a summary dismissal for absences of this sort would be outside the range of reasonable responses and the explanations provided by the Claimant which the Respondents say caused them to believe he was lying were not investigated by them. We have found and we expressly find that the investigation was completely flawed and that, by itself, rendered the dismissal unfair. In the circumstances, the Respondents could not say they had reasonable grounds for believing, even if they did indeed believe, in the misconduct of the Claimant in circumstances where they failed properly to investigate the events which they say founded the misconduct.
36. The appeal procedure was farcical and certainly did not remedy any of the errors in the disciplinary process. It was conducted during the Christmas period, without proper notice to the Claimants in circumstances where the Respondents were alerted to the possibility that he may not have received notice of it. They did not seek to inform the Claimant's solicitor, notwithstanding the extent of contact they had had with him and the time of the year which made the delivery of mail particularly precarious. The Hearing was held in the absence of the Claimant in circumstances where it was obvious that there would be some risk at least of notice not having been received. We have had regard to the statutory disciplinary procedures described above and we consider that in the circumstances it was incumbent upon the Respondents to have arranged a second meeting, at least. Their failure so to do rendered the dismissal automatically unfair. In addition, the person conducting the appeal was Mr Barker who was the person who was the person who had undertaken parts of the investigation into the original disciplinary allegations, which was unfair in the circumstances."
- These were certainly strong findings. It is clear that the Tribunal took a very dim view of how the employers had conducted themselves. Although the employers in their grounds of appeal confine themselves to certain specific criticisms of the Reasons, and Mr Michell in his intelligent and measured submissions avoided any wholesale attack on the Tribunal's fairness, we detect a strong feeling on the part of the employers that on every point the Tribunal took the harshest possible view of the facts against them. The trenchant way in which the Reasons are expressed no doubt contributes to that impression. It is only fair to the employers to record that this was not a case of a "quick-and-dirty" dismissal. They plainly took legal advice and followed a careful procedure, culminating in detailed and reasoned findings against the Claimant. But it is also important not to lose sight of the fundamental finding made by the Tribunal that the employers had from the start formed a strong prejudice against the Claimant, on quite inadequate grounds, and that this infected each stage of the process against him. The Tribunal, which heard the witnesses, was fully entitled to make that finding, and the episode of the allegation against the doctor gives it powerful support. Against that background, it was indeed entitled to take a sceptical view about decisions taken in the course of the process such as the failure to make any enquiries of the Claimant at the investigation stage which in other circumstances might be thought venial. An ostensibly thorough process will not be a sufficient guard against a claim for unfair dismissal when the persons conducting it do not do so with open minds.
THE ISSUES
- The employers advance four grounds of appeal, which we will consider in turn.
Ground 1
- This ground focuses on the Tribunal's observation in the middle of para. 35 of the Reasons, to the effect that:
"We bear in mind that a summary dismissal for absences of this sort would be outside the range of reasonable responses and the explanations provided by the Claimant which the Respondents say caused them to believe that he was lying were not investigated by them."
What the employers say is that it must be within the range of reasonable responses for an employer to dismiss an employee who has taken unauthorised leave of absence and has lied about it; and that any conclusion by the Tribunal to the contrary must therefore be perverse. We agree with the general proposition, but we do not believe that that was what the Tribunal was saying in the passage in question. The point which it was making can, we believe, be paraphrased as follows: "it would be outside the range of reasonable responses to dismiss the Claimant merely for the unauthorised absences, i.e. without the additional element of dishonesty; and the employers failed to carry out any sufficient investigation of the crucial issue of dishonesty". If, as we believe, that is all that the Tribunal was saying it seems to us entirely unexceptionable.
Ground 2
- This ground challenges the finding of the Tribunal in para. 35 of the Reasons that the employers did not have a genuine belief that the Claimant was guilty of the misconduct alleged. The employers say that that finding was perverse. It is one thing for the Tribunal to find that they reached an unreasonable conclusion after inadequate investigation but another and much more serious - thing to find that they did not even believe in the truth of the allegations which they made. Mr Michell made essentially two points. First, he pointed out that, whatever may have been the deficiencies in the employers' investigation, the detailed findings attached to the letter of dismissal demonstrate that there was a good deal of material which could have led them to a genuine belief in the Claimant's guilt. For example, and without in any way attempting to be exhaustive, there was no record at any of the premises which he claimed to have attended to show that he had booked in with security or at the client's reception; his mobile was switched off on one of the days and did not reveal any work traffic on the other day; and there was no e-mail traffic on either day. Secondly, the Tribunal itself, albeit for another purpose, repeatedly emphasised the degree of suspicion which the employer entertained of the Claimant. He submitted that it was hardly consistent for the Tribunal to find that the employers entertained the suspicion in question and yet had no belief in the Claimant's guilt at the conclusion of the investigation.
- The short answer to this submission is that, as the Tribunal itself pointed out, the finding in question is not necessary to the finding of the unfair dismissal: the Tribunal's finding as to the inadequacy of the investigation, and the background of prejudice against which it was conducted, would be amply sufficient for the purpose. Mr Michell candidly accepted this but he told us - and we can appreciate - that this finding was particularly hurtful to his clients because it portrayed them as not only unreasonable but cynical; and, no doubt, he hoped that if we found that the Tribunal had reached an unfair conclusion on this point that might cause us to consider with particular care whether its conclusions as regards the other grounds of appeal were indeed sustainable.
- Since the issue is not one that falls for determination, we are not prepared to make a definitive finding on it. However, we understand the employers' concern and, in deference to that and to Mr Michell's persuasive submissions, we are prepared to say this much for their comfort. At one extreme, it was open to the Tribunal to find that the employers had set out from the start to manufacture a false case against the Claimant - that is, that in order to get him out of the company they deliberately alleged that he was not working the two dates in question, and had not visited the clients whom he said he visited, while in fact positively believing those allegations to be false. At the opposite extreme, the Tribunal could have found that the employers genuinely believed that the Claimant was guilty but that they reached that belief not on an objective assessment of the available evidence but because they were prejudiced against him from the start and for that reason were prepared to allow themselves to be persuaded by the results of a half-baked investigation. Intermediate positions would also be possible. The first half of para. 35 of the Reasons reads as if the Tribunal did indeed intend the former conclusion: see in particular the fourth sentence. But it never quite says so in terms, and we are in fact far from sure this is what really what it meant. In the first place, such a finding would involve such serious wickedness that one would expect a Tribunal to be persuaded of it only if the evidence were overwhelming. If such a case was indeed to be found, justice required that it be supported by a full and thorough analysis of the evidence, explaining both the reasons for believing that the relevant witnesses lied in their oral evidence (as would necessarily be the case) and also dealing with the apparently full and circumstantial grounds given by the employers for their findings to which we have briefly referred above. There is nothing of this kind in the Reasons as drafted. Secondly, if the Tribunal really meant to make a finding against the employers of this kind, the second half of para. 35 would be redundant. Read by itself, i.e. without reference to the first half of the paragraph, that appears to say though, again, it does not quite go this far - that, whatever the employers genuinely believed, it was not open to them to assert that they believed in his guilt when they had carried out such a flawed and prejudiced investigation. We are certainly left in real doubt as to what the Tribunal intended to find. If the appeal turned on this point we might well have felt obliged to allow it or at least to remit the matter to the Tribunal for further reasons; but for the reasons given above that is not the case. For what it is worth, our - necessarily limited - reading of the material before us is more consonant with the employers having come to their conclusions, and acted procedurally unfairly, as a result of prejudice rather than with their having made up a deliberate and cynical plot.
Ground 3
- This ground challenges the reasoning of the Tribunal at para. 34 of the Reasons. What, in essence, Mr Michell says is that the Tribunal in that paragraph sets out a number of what it says were fundamental defects in the employers' investigation but fails to take into account, or give the employers credit for, the various steps which they had in fact taken. He points out that the employers had carried out a number of enquiries, albeit not all those which the Tribunal felt should have been carried out; that those enquiries had elicited a considerable amount of material suggestive of guilt on the part of the Claimant; and that, while they may not have sough the Claimant's views at the investigatory stage, they had put to him for the purpose of the disciplinary hearing all the material they had discovered and had given careful consideration to his written reply. In all those circumstances, said Mr Michell, it was wrong of the Tribunal to describe the investigation as "fundamentally unfair".
- We do not accept this submission. Although it might have been kinder to the employers' amour propre to acknowledge the steps which they had taken, the fact remains that it was the steps that they had failed to take which were central to the issue of unfair dismissal. The essence of the Tribunal's reasoning was that at the time that the employers reached their decision their investigation was, as they knew or should have known, incomplete in two crucial respects - firstly because they had not contacted the individual witnesses on whom the Claimant relied and, secondly and more importantly, because they had only obtained his account of events in the unsatisfactory form of a letter, which, as they recognised by their last-minute approach to the solicitors, raised further questions which required answers which they did not wait to receive. It was in our view open to the Tribunal to find that those features rendered the investigation inadequate, and the resulting dismissal unfair - all the more so in the light of its finding that the employers were prejudiced against the Claimant from the start.
Ground 4
- This ground, unlike the others, is concerned not with the finding of "ordinary" unfair dismissal but with the finding of "automatic" unfair dismissal under s. 98A (1) of the 1996 Act. The Tribunal's reasoning on this aspect is to be found at para. 36 of the Reasons. It is clear that the finding was based on the way in which the employers handled the appeal process, but it is fair to say that the Tribunal was not as explicit as it might have been about the precise legal analysis: in particular, there is no reference in para. 36 to the relevant statutory provisions. However, those provisions had been set out at para. 5 of the Reasons, where the Tribunal noted that the parties accepted that the standard dismissal and disciplinary procedure specified in Part 1 of Schedule 2 to the Employment Act 2002 applied in the present case. The Tribunal referred to the obligation on an employer, if the employee informed him of his wish to appeal against a decision to dismiss, to "invite him to attend a meeting": see para. 8(2) of Schedule 2. It then went on to set out the two provisions applicable to the timing of the appeal meeting. Typically of this unwieldy legislation, these are to be found in two quite distinct places (and unluckily both are numbered "13"). Specifically:
• Para 13. Part 3 of Schedule 2 to the 2002 Act sets out "general requirements" which apply to each of the procedures set out earlier in the schedule, including therefore the obligations in relation to the appeal (see para. 11). Para 13 (1) provides that:
Timing and location of meetings must be reasonable.
• Reg 13. Reg 13 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides as follows:
(1) Without prejudice to Regulation 11(2) and 3(c), if it is not reasonably practicable for -
(a) the employee
; or
(b) the employer,
to attend a meeting organised in accordance with the applicable statutes to a procedure for a reason which was not foreseeable when the meeting was arranged, the employee, or, as the case may be, employer shall not be treated as having failed to comply with that requirement of the procedure.
(2) In the circumstances set out in paragraph (1), the employer shall continue to be under the duty in the applicable statutory procedure to invite the employee to attend a meeting ... .
(3) The duty to invite the employee to attend a meeting referred to in paragraph (2) shall cease if the employer has inviter the employee to attend two meetings and paragraph (1) applied in relation to each of them.
(4) .... .
- The first question is whether, as Mr Woodhouse contends, the Tribunal intended to find a breach both of the requirement under para. 13 - that is, the requirement that the timing of the meeting should be reasonable - and of the duty imposed on the employers by reg. 13 (2) - that is, to invite the employee to a further appeal meeting because it had not been reasonably practicable for him to attend the first meeting; or whether, as Mr Michell contends, it intended to find only a breach of the latter duty. In our view the Tribunal intended to find a breach of both para. 13 and of reg. 13. We have seen the written submissions made by Mr Woodhouse below, which expressly invited it to find a breach in both respects. We attach significance to the fact that the Tribunal had, as we have said, carefully set out in full the terms of both obligations in the earlier part of its Reasons. Against that background, it seems to us that the wording of para. 36 is intended to establish a breach in both respects. Accordingly, we must consider whether both such findings are justified.
- Para 13. In our view it was plainly open to the Tribunal to find that the timing of the appeal meeting on 29 December was not reasonable. The employers themselves recognised in the e-mails to which we have referred above that there was a risk that a letter sent to the Claimant by post would not reach him in time because of the Christmas break. The letter was not in fact delivered before Christmas. Since the Claimant went away for a few days immediately after Christmas we cannot know on what date it was delivered. But even if it could have been confidently expected to arrive at his address on 28 December, being the first working day after Christmas, and even if (which arguably the employers were not entitled to take for granted, given the season) the Claimant had in fact been at home to receive it, he would have been left barely 24 hours to prepare for the appeal meeting and to take any necessary advice. The Tribunal was also entitled to take into account the fact that no attempt was made, when the problem with the Claimant's e-mail was appreciated, to contact him by telephone or via his solicitors.
- Reg 13. This is more difficult. The language of reg. 13 (1) appears to be primarily aimed at the type of case where the date for a meeting is set (the terminology of "organised" and "arranged" tends to suggest mutual agreement, but in practice many employers will simply fix dates unilaterally), but where some supervening event, e.g. an accident or a transport strike, makes it impracticable for the employee to attend. The language fits less well with a case like the present, where the employee has simply not received notice. Nevertheless, we think it must be intended to cover such a case: although clumsy, it is not impossible to describe it as "impracticable" for an employee to attend a meeting of which he is unaware. However, that is not the end of the difficulties. In the case where an employer has given reasonable notice of the meeting but the letter has failed to reach the employee for some unexpected reason it makes perfectly good sense to say that the reason giving rise to the "impracticability" was "not foreseeable when the meeting was arranged". But that is much harder to say where - as here - the employer has given unreasonably short notice or has employed some evidently unreliable means of communicating the date or time of the meeting to the employee: in such a case, it is all too foreseeable that the employee may not receive notice. It might seem odd that an employer who has acted unreasonably in these circumstances should not fall within the terms of para. (1) and so should not come under the continuing duty imposed by para. (2): why should he, having behaved badly, be in a better position than an employer who has behaved well? But the answer would appear to be that in such a case the employer would be in breach of his duties under para. 13 and thus would be liable to the consequences prescribed under s. 31 of the 2002 Act, albeit by another route. We therefore think that the present case is not caught by reg. 13 (2). This conclusion also avoids a further difficulty which would have arisen on the facts of the present case, namely that the Claimant did not until the commencement of proceedings inform the employers that he had not received the invitation to the appeal meeting of December 29 until after that date had passed. It would have been unsatisfactory to have to treat the employers as under a duty to call a second meeting in circumstances where they were unaware of the reason why the Claimant had failed to attend the first.
- It follows that insofar as the Tribunal based its findings of "automatic" unfair dismissal on a breach of the employer's duty under reg. 13 (2) it was in error. But since its conclusion based on para. 13 is unimpeachable, that error does not undermine the finding made.
CONCLUSION
- For these reasons, the employers' appeal must be dismissed.
