ASDA Stores Ltd v Raymond, Court of Appeal - United Kingdom Employment Appeal Tribunal, December 13, 2018, [2018] UKEAT 0268_17_1312

Resolution Date:December 13, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:ASDA Stores Ltd v Raymond
 
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Copyright 2018

Appeal No. UKEAT/0268/17/DA

UKEAT/0269/17/DA

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 27 September 2018

Judgment handed down on 13 December 2018

Before

THE HONOURABLE LADY WISE

MS K BILGAN

MR T STANWORTH

ASDA STORES LIMITED APPELLANT

MR D RAYMOND RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0268/17/DA

UKEAT/0269/17/DA

APPEARANCES

SUMMARY

UNFAIR DISMISSAL: DISABILITY DISCRIMINATION: REMEDY

The Claimant was dismissed for urinating in a loading yard, the Respondent employer alleging that this was a breach of (unspecified) Health and Safety Regulations and serious and wilful neglect of company property. The Tribunal found that the dismissal was unfair and that the dismissal arose from the Claimant's disability. A subsequent Judgment in relation to Remedy ordered re-instatement. The Respondent appealed both Decisions.

Held:

(1) The Tribunal was entitled to conclude that the evidence, including the CCTV evidence, did not establish that the Claimant had urinated on the pallets and so the arguments on perversity and substitution mindset failed.

(2) The Respondent's fall-back position of objective justification for section 15 discrimination had been addressed adequately by the Tribunal in the Remedy Judgment, the matter having been initially overlooked. The decision on this was not perverse.

(3) The Tribunal had not erred in its approach to re-instatement. It had considered the particular circumstances of the Claimant and found that the operative cause of the dismissal was his disability but that he considered trust and confidence could be restored. The Respondent's contention that trust and confidence had broken down was not rationally based.

Appeal dismissed.

THE HONOURABLE LADY WISE

  1. These two appeals relate to (1) a Liability Judgment and (2) a Remedy Judgment of the Employment Tribunal (``the ET'') at Huntingdon (Employment Judge Moore sitting with Members) dated 26 May 2017 and 11 September 2017 respectively. The Respondent employer appeals both Judgments. I will refer to the parties as ``the Claimant'' and ``the Respondent'' as they were in the Tribunal below.

  2. Both before the Tribunal and on appeal the Claimant was represented by Mr G Lee, Solicitor with an assistant. The Respondent was represented by Ms R Barrett of Counsel, both at the Tribunal Hearings and on appeal.

  3. The Claimant worked as a lorry driver for the Respondent, a food retailer, between October 2001 and 18 April 2016 when he was summarily dismissed in connection with an incident on 29 March 2016. On that date, the Respondent received information that the Claimant had been seen urinating in a loading yard used by companies operating in the Harlow shopping centre. The details of the incident, the disciplinary charge made against the Claimant and the procedure that followed are all detailed in the Liability Judgment. The Tribunal concluded that the Claimant was unfairly dismissed and that his dismissal arose from his disability. Reinstatement was granted on the Claimant's application in the Remedy Judgment, which also dealt with was the Respondent's application for reconsideration in relation to the issue of objective justification.

  4. I will summarise the relevant parts of each Judgment separately.

    The Liability Judgment

  5. The Tribunal's Reasons record the dates of the Claimant's employment and the fact that he was 60 years old when he was summarily dismissed. He suffers from diabetes mellitus (Type 2) and is disabled within the meaning of section 6 of the Equality Act 2010. Insofar as material to this appeal, the Tribunal made the following further findings in fact:

    ``2. On the 29th March 2016 the Claimant had driven to the Respondent [']s shop at Harlow and parked his lorry close to the loading bay in the adjacent yard. On leaving his lorry he felt an urgent need to urinate and relieved himself in what he describes as a discreet part of the yard. It appears that a security guard at Harlow had telephoned a Mr Norton (a transport manager at the Respondent's Bedford Depot) to say that Mr Raymond had done this. No statement was taken from this witness and no verbatim record of the telephone call was ever made.

  6. In due course Mr Godliman was assigned to investigate the matter. He was provided with a copy of the CCTV footage taken on the day in question. He approached the Claimant on the 4th April 2016 without prior warning and commenced an investigation meeting. On learning that the Claimant wished to have a representative present he adjourned the meeting to the 8th. The minutes of that meeting are at pages 112-115 of the bundle. Mr Godliman has, as is entirely proper and conventional in cases of this nature been cross examination [sic] on the question of how he approached his task. His answers to those questions have led us to conclude that he did not conduct a fair and impartial investigation of the kind prescribed in Sovereign Business Integration Ltd v Trybus EAT0107/07. He did not consider himself to be under any duty to carry out any investigations from the Claimant's perspective. He admits that he did not consider it necessary to look into the reasons why the Claimant had urinated and he didn't consider it necessary to obtain any medical evidence despite the relevance of the Claimant's diabetes being urged upon him by the Claimant's representative Mr Hall. He did not visit the scene of the incident and carried out no investigation into the question of the distance between the yard and the nearest available toilet. We can conclude this point by quoting his answers to two questions put to him in cross examination; `All I did was get the CD with the E-Mail and interview Raymond. I did no further investigation. He admitted urinating that is gross misconduct.' Although the notes purport that the e-mail was from the security guard it appears to have been the one from Mr Norton at Page 110.

  7. The Claimant gave his account in terms that he has maintained throughout. He said he had urinated in the yard. He was desperate he had to he said he was really sorry and had just got caught short and desperate.

  8. On the 13th April 2016 the Respondent wrote to the Claimant requiring him to attend a disciplinary hearing on the 13th April 2016, the date having been brought forward by 1 day to accommodate the Claimant's representative. The letter is at page 123 of the bundle. It frames the charge in these terms: -

    `At the hearing you will be asked to respond to the allegation that on the 29th March you were witnessed urinating in the Harlow shopping centre's yard outside the Asda loading area. This is a serious breach of trust and confidence resulting in a breakdown in working relationship. A deliberate and serious breach of H&S (Health and Safety Regulations) that could endanger self or others or bring the Company's name into disrepute. A serious or willful neglect to Company property. These are all deemed to be a gross misconduct offence and if proven may result in your summary dismissal.'

    The letter goes on to explain that the purpose of the hearing was to: -

    (1) Explain the allegation and present all the available evidence.

    (2) Allow the Claimant to respond to the allegation and provide any mitigating circumstances.

    (3) Allow the claimant to put forward any suggested questions for Mr Carter (the author of the letter who was to conduct the disciplinary hearing) to explore with the relevant witnesses.

    (4) Decide what disciplinary action might be appropriate in accordance with the company disciplinary procedure.

  9. The notes of the hearing are at pages 125-131. Those notes do not indicate compliance with the terms of the letter. On page 125 we can see that Mr Carter announced the purpose of the meeting as being `To go through the main points of your investigation listen to your responses and make points if any[']. We are in no doubt as to what he meant by his reference to investigation since he explains that it was Mr Godliman's efforts on the 4th April 2016. It is also clear that there was no explanation of the multifaceted charge. The notes and his evidence show that Mr Carter simply read or quoted them as written in the letter. His evidence at paragraph 10 of his witness statement that he discussed the terms of the ASDA health and safety policy with the Claimant is not true. He made no mention of the policy's terms other than to ask the Claimant if he had breached it. To that question he received the reply that the Claimant did not know what the policy was on urinating. He did not produce a copy of any policy and has not referred to the terms of any such policy either then or before us. In terms of a review of the evidence Mr Carter confirmed in cross examination that the only evidence he had was the Claimant's and Mr Halls (The Claimant's representative who did not give evidence but did advance arguments on the Claimant's behalf). The notes indicate that in fact the substance of the hearing was Mr Carter questioning the Claimant. The Claimant's version was consistent with his earlier account that upon stepping out of his lorry he was overcome with a desperate urge to urinate. He admits that the question of the Claimant's diabetes was raised with him but that he neither had nor sought evidence to inform the question of whether the Claimant's diabetes was relevant. He accepted that if the diabetes had had an effect it would have been mitigation.

  10. At pages 132 and 133 we have a typed note of Mr Carter's decision. In the second paragraph he recognises the Claimant[']s point that it was only when he stepped out of his cab that he felt the sudden urge to urinate and yet one of the grounds he finds against the Claimant was that he had waited in his cab for 20 minutes before deciding not to go to the store[']s toilet. This we find to be inconsistent with the evidence before him. He was exercised by the belief that...

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