Doy v Clays Ltd, Court of Appeal - United Kingdom Employment Appeal Tribunal, August 03, 2018,  UKEAT 0034_18_0308
|Resolution Date:||August 03, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Doy v Clays Ltd|
Appeal No. UKEAT/034/18/DA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 12 July 2018
Judgment handed down on 3 August 2018
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
MR P L C PAGLIARI
MR H SINGH
MR M S DOY APPELLANT
CLAYS LTD RESPONDENT
Transcript of Proceedings
UNFAIR DISMISSAL - Reasonableness of dismissal
PRACTICE AND PROCEDURE - Disposal of appeal including remission
An Appellant appealed against the decision of the Employment Tribunal (``the ET'') that his dismissal was not unfair. He was dismissed for two incidents of threatening behaviour. His ground of appeal was that he had argued before the ET that his dismissal was unfair because another employee had been treated more leniently than he had, even though she had, on two different occasions, hit other employees.
The Employment Appeal Tribunal (``the EAT'') allowed the Appellant's appeal. The EAT held that the argument had been raised in the Appellant's ET1, and at the ET hearing. The EAT further held that it was not enough for the ET to summarise, in its Judgment, the Respondent's submissions about the disparity argument. The ET should, in addition, have made factual findings about the Appellant's case on disparity and then explained how, if at all, those findings affected its analysis of the unfair dismissal claim.
The EAT remitted the case to a different ET for a rehearing.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
This is an appeal from two Decisions of the Employment Tribunal (``the ET'') sitting at Bury St Edmunds. The ET consisted of Employment Judge Laidler (``the EJ''). We will refer to the parties as they were below. Paragraph references are to the ET's first Judgment unless we say otherwise.
The Claimant appeals against a Judgment of the ET sent to the parties on 13 February 2016. The ET dismissed the Claimant's claims for unfair dismissal and for holiday pay. The Claimant also appeals against the ET's Decision, sent to the parties on 9 March 2017, to refuse his application for a reconsideration.
The Claimant represented himself. The Respondent was represented by Ms Owen. We are grateful to the Claimant and to Ms Owen for their oral and written submissions.
On the paper sift, HHJ Richardson decided that the Notice of Appeal disclosed no error of law. There was then a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules of Procedure, at which the Claimant had the advantage of being represented by an ELAAS representative, Ms Platt. HHJ Eady QC decided that an amendment, for which she gave leave, did raise an arguable error of law in the ET's Decision. That was that the ET had not dealt with the Claimant's argument that the Respondent had dealt with his case and with that of a woman employee inconsistently. HHJ Eady QC was persuaded that he had raised this issue in his ET1, at the ET hearing, and in his application to the ET for reconsideration, and that the ET had not addressed it in its Reasons. She recorded that there was a dispute about whether he had raised it during the disciplinary procedure. She held that the other grounds of appeal did not raise an arguable point of law.
The facts are set out in the ET's Judgment. The Claimant had been employed since 2004, initially on a casual basis. His contract of employment required him to work 1,695 hours a year. He was paid a consistent salary throughout the year, but could be required in some weeks to work more hours than in other weeks. The contract provided for pay at two different rates. Which rate was payable depended on factors which were set out in more detail in the contract.
Examples of gross misconduct in the Respondent's disciplinary procedure included ``bullying and/or harassment in breach of the company's dignity at work policy''.
The Pay Dispute
In paragraphs 11 to 21 the EJ described the Claimant's dispute with his managers about how wages were paid for the night shift. The Claimant took this issue up with his managers. He was not supported by his union. There were two meetings in February and April 2016. After the second, Mr Smith, the Respondent's manufacturing director, wrote a letter dated 14 April 2016 to the Claimant. Mr Smith supported the approach of the Claimant's line managers.
The Incident on 14 April
Mr Bullen was the general manager. On 14 April the Claimant was on the night shift. After he got the letter from Mr Smith, he started to make comments about Mr Smith and Mr Bullen to his colleagues. These were reported to Mr Bullen. The Claimant was suspended so that there could be an investigation. There was a dispute about exactly what the Claimant had said. The ET did not make any precise findings about what the Claimant said. Its conclusions (see paragraph 79) were that Mr Dyke, who made the decision to dismiss the Claimant, had reasonable grounds for believing that ``the Claimant had stated that he `hoped they died', that he might have to kill them and hoped that Paul Bullen and Ian Smith's children got cancer and died''.
The Claimant was signed off sick, with stress, on 19 April.
On 28 April 2016 Mr Dyke saw each of the employees who was thought to have been on the night shift on 14 April. Mr Dyke interviewed each in the presence of Nathan Hollis, a union representative and the Deputy Father of the Chapel. Mr Caxton, another manager, sat in and took notes. Four further employees were identified as having been on the night shift. Mr Dyke also interviewed them. The Claimant was suspended on full pay by a letter of 29 April 2016 ``pending an investigation into an incident of Threatening Behaviour''. The letter is at page 69 of the bundle the Claimant produced for the hearing of his appeal at the Employment Appeal Tribunal (``the Claimant's bundle''). The letter said that he would be contacted shortly to arrange an investigation meeting.
The Investigation Meeting
The Claimant was asked to an investigation meeting. The meeting was on 9 May 2016. He had two union representatives with him, Mr Hollis and Mr Mimms. Notes were taken (pages 70 to 73 of the Claimant's bundle). The notes do not purport to be a verbatim record of the meeting (see the italicised passage at the top of the notes). It is not clear whether the Claimant was asked to agree them as an accurate record. Before the meeting the Claimant had written to Mr Bullen apologising for his behaviour. He gave a copy of that letter to Mr Dyke. He maintained his apology at the meeting. He said that he had been picked on for years. Examples given in paragraph 37 of the ET's Decision. The trade union representatives supported the Claimant. Their view was that he had just ``lost it''. They said that some nasty people had reported the incident and it should not have come to this. They considered that the Claimant had been picked on.
Mr Dyke decided that there was a disciplinary issue which needed to be addressed with the Claimant. He was going to invite the Claimant to a disciplinary meeting on 16 May 2016.
The Incident on 13 May
Before he did so, Mrs Nobbs, the administrator who had taken notes at the 9 May meeting, told Mr Dyke that on 13 May the Claimant had come in to hand in a sick certificate. She had been on reception. He said he was surprised not to have heard from Mr Dyke. He asked her if he had done anything yet. He said he did not care what happened now as ``I will expose this company to the media and on social media. I will show them how corrupt this company is. All the flexis agree this company is taking money from them, how would you like it? ... I am going to find out where Bullen lives and I will go and tell his Mrs what kind of a bloke he really is'' (see paragraph 39). The ET appears to be quoting from a document in this passage, in all likelihood, a statement from Mrs Nobbs (see paragraph 46). We did not see this statement. There was a document in the Claimant's bundle which reported what Mrs Nobbs is said to have said, but it is not her statement. It appears to be a diary note, perhaps compiled by Mr Smith (Claimant's bundle, page 114). The Claimant told us that it was a document which was produced at the first ET hearing in Huntingdon.
Mrs Nobbs did not feel threatened by the Claimant but said that she could see that he was keyed up and trembling with anger. Mr Dyke was concerned for Mr Bullen's safety. He told Mr Smith who spoke to Mr Bullen and reported the incident to the police.
The Letter of 17 May
The Claimant was invited, by a letter dated 17 May 2016, to a disciplinary hearing on 20 May 2016 ``regarding allegations of Threatening Behaviour'' (Claimant's bundle, page 74). As the ET recorded, the letter said that the Claimant might be subjected to further disciplinary sanctions if the Respondent considered that ``the allegations are founded''. The letter did not say what those sanctions might be, or give details of the allegations.
The Hearing on 20 May and the Dismissal
The hearing was conducted by Mr Dyke. Mr Earl, the Web Room Line Manager, was also there. The Claimant was accompanied by two union representatives, Mr Riseborough, the Father of Chapel, and Mr Mimms. Ms...
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