Appeal No. UKEAT/0419/11/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
6 February 2012
Before
HIS
HONOUR JEFFREY BURKE QC
MR B BEYNON
MR S YEBOAH
MRS
C E GROWCOTT APPELLANT
GLAZE
AUTO PARTS LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Costs
The employee was, after investigation dismissed for misconduct.
Her unfair dismissal claim failed, as did her appeal against the Employment
Tribunal’s decision. The employers then sought and obtained an order that the
employee should pay their costs from the date of an email sent to the employee
by the employers’ solicitors warning her of the issues in the unfair dismissal
proceedings, and of the Burchell principles and that if she
persisted they would apply for costs. She went ahead despite the email.
The employee appealed against the costs order; her criticisms of
the ET were largely criticisms of their original rejection of her unfair
dismissal claim. Held: that the ET were entitled to find that the
employee had acted unreasonably in continuing her claim after the email.
HIS HONOUR JEFFREY BURKE
QC
Introduction
1.
In this appeal Mrs Growcott, the Claimant before the Employment
Tribunal, seeks to overturn the costs decision of the Tribunal sitting in Birmingham, presided over by Employment Judge Saunby. The Judgment was sent to the
parties on 5 January 2011. Written reasons were given by the
Employment Tribunal some time later, in circumstances which are now
immaterial. Mrs Growcott has not appeared this morning. There has been
no communication from her, there has been no indication that she was not
intending to attend, and there is no explanation of her absence. The staff
have phoned her number and had no answer. It is necessary to say that this is the
Monday after very substantial snowfall on Saturday throughout the country; but
we have checked the internet, there is no evidence of any substantial delay on
the trains coming from the West Midlands, where Mrs Growcott lives. The
information is that there is a 20‑minute delay between Birmingham and Coventry, but no delays south of that point. This hearing was listed for 10.30am; we did
not start then, because we waited to see if Mrs Growcott would arrive,
until 11.10am. It is now 11.20am, and she still has not arrived. We have
therefore decided to proceed in her absence.
Background
2.
Mrs Growcott was dismissed by her employers, Glaze Auto Parts Ltd,
whom we shall call “Glaze”, for misconduct on 18 December 2009. The
misconduct relied upon was the use of foul and abusive language to the
employees of a major customer of Glaze to whom Mrs Growcott, in her
position as a delivery driver, was delivering automotive parts. There was a
disciplinary hearing, the nature and process of which are set out in detail in
the Employment Tribunal’s Judgment on Mrs Growcott’s unfair dismissal
claim. At its conclusion Mr Leason, Glaze’s Managing Director, dismissed
Mrs Growcott. Her appeal, heard by a director of Glaze who does not work
for Glaze on a day‑to‑day basis, failed.
3.
At the time of the disciplinary hearing and before the Employment
Tribunal Mrs Growcott was critical of the disciplinary process, in
particular because the two men to whom she had alleged used abusive language to
and another employee of the customer, who was said to have witnessed the
incident, were not called to give live evidence at the disciplinary hearing or at
the appeal; and there were no witness statements from them. Mr Leason
proceeded on the basis of what they had said to him about relevant events. The
Tribunal, correctly in law, rejected Mrs Growcott’s criticisms; as they
said at paragraph 77, those witnesses were not employed by Glaze, and
Mr Leason could not compel their attendance. It is commonplace that
internal disciplinary proceedings involve a decision on the basis of such
information as the employer has. If the employer is able to obtain witness
statements from people who are not his own employees or able to secure their
attendance and wishes them to give evidence to a disciplinary hearing, then of
course that gives the opportunity to the employee who is being disciplined to
examine those witness statements and, if permitted to do so, question any
witnesses who are called live, but it is not necessary for an employer to call
such witnesses or to obtain such witness statements. In so far as
Mrs Growcott believed that such proceedings should be in the nature of a
trial, she was in error; the proceedings were internal and were private.
4.
The Employment Tribunal, having rejected those criticisms, were satisfied
that Mr Leason had made reasonable efforts to obtain witness statements which
confirmed what he had been told. They concluded, as no doubt they were
entitled to conclude, that the disciplinary process was a reasonable one. They
went on to apply the well‑known principles in British Home Stores Ltd v Burchell
[1978] IRLR 379 and concluded that Glaze, after a reasonable investigation,
genuinely believed that there had been the misconduct complained of and that
the dismissal fell within the band of reasonable responses; and therefore the
dismissal was not unfair.
5.
Mrs Growcott appealed against that decision. It was decided at the
sift stage of the Employment Appeal Tribunal’s procedures that there were no
reasonable prospects that her appeal would succeed. As she was entitled to do,
she sought an oral hearing pursuant to rule 3(10) of the Employment Appeal
Tribunal Rules; and her appeal was dismissed at that hearing as having no
reasonable prospect of success.
6.
Within time after the original hearing before the Tribunal, Glaze
applied for costs pursuant to rule 38 of the Employment Tribunal Rules on
the grounds that Mrs Growcott had acted unreasonably in conducting the
proceedings or that the proceedings had been misconceived. There was a further
hearing before the same Tribunal panel on 7 December 2010. The
Tribunal found that the claim was not misconceived but that it had been
unreasonably pursued after 14 June 2010, and ordered
Mrs Growcott to pay Ł1,972.50 in costs to Glaze, who had, at the original
hearing, been represented by their solicitor. Mrs Growcott did not attend
the costs hearing, at which Glaze were represented by Mr Leason. There
had been an exchange of written submissions which were before the Tribunal, and
we have seen Mrs Growcott’s written submissions, which she has put into the
bundle before us.
7.
At that hearing Glaze argued that the proceedings had been misconceived
or unreasonably conducted from their outset, but that, if that was not the
case, they had been unreasonably pursued after 14 June 2010, when
Glaze’s solicitors sent to Mrs Growcott an email, which was crucial to the
Employment Tribunal’s decision. It was crucial because the Tribunal, rejecting
Glaze’s argument that the proceedings had been misconceived from the beginning,
accepted their alternative case that, after receipt of the email, she had acted
unreasonably in continuing to pursue her claim. The email is at page 48
of our bundle. It says, so far as the relevant parts are concerned:
“Dear Mrs Growcutt [sic]
We have now had an opportunity to get up to speed with the
papers on this case.
It seems to us that your Claim for Unfair Dismissal is
misconceived.
You appear to be criticising our client for concluding on the
balance of probabilities that you were guilty of the misconduct alleged.
The legal test of a fair dismissal for gross misconduct was laid
down by the Employment Appeal Tribunal in the case of [Burchell]. It
does not require actual proof of your guilt. Our client has to show:-
a) That it genuinely believed in your guilt;
b) That it had in its mind reasonable grounds upon which to
sustain that belief;
c) At the time that belief was formed it had carried out such
investigation as was reasonable in all the circumstances.
The case law goes on to say that the manner of investigation and
the decision to dismiss must come within the range of reasonable responses open
to the employer.
It is entirely clear that our client genuinely believed you were
guilty.
It is also clear that it had reasonable grounds on which to come
to that belief. Mr Leason had been told by 3 people that they had heard
you use foul language. Since there was no obvious reason as to why all 3 of
them should be lying it is self‑evident that a reasonable employer could
decide to believe the allegations.
The procedure followed was fair. When you asked for more time
to prepare you were given this. The ACAS guidelines (which are client has
already indicated to you, correctly, are guidelines and not a rigid code of
law) do not impose an obligation on an employer to obtain statements from third
parties who are not employed by them, still less that they are obliged to
require those witnesses to attend a disciplinary hearing. Our client had no
power to compel those people to provide written statements or to attend. You
were given every opportunity to challenge the evidence or to call whatever
witnesses at the hearing you wished to call. We do not see how the presence of
the people from VW Rescue would have made any difference to the outcome. You
would have repeated your denial, they would have disagreed with you and the
result of the process would have been entirely the same.
We do not see that the fact that you were not suspended is of
any relevance. As soon as the investigation was complete you were invited to a
disciplinary hearing. It was made clear in the letter inviting you to the
meeting that dismissal was a potential outcome. It was not therefore the case
that the fact that you were not suspended could have led you to believe that the
Respondent did not consider the matter to be serious.
As to whether the dismissal was within the range of reasonable
responses, it is clear that it was. Regardless of the exact percentage of its
turnover that VW Rescue represented, our client was clearly entitled to take
the view that swearing twice at a customer was completely unacceptable for
someone in a ‘customer‑facing’ role and therefore that it amounted to
gross misconduct.
As such, your Claim is inviting the Tribunal to deal with the
case as if it were a further tier of appeal and to substitute its view of the
case for that of our client. This is not the Tribunal’s function. […]
We would therefore invite you to withdraw your Claim. If the
Claim is not withdrawn in full now, in the event that the Claim is dismissed we
reserve our client’s right to bring this email letter to the attention of the
Tribunal and we will be inviting the Tribunal to conclude that the Claim was
misconceived and that costs should be awarded against you.
If you have not already sought independent legal advice about
this matter we would encourage you to do so as soon as possible.
Yours sincerely
Richard Ennis
Rees Page Solicitors”
8.
That email is couched in accurate, straightforward and simple terms. It
was wholly suitable to convey to any litigant the way in which the Employment
Tribunal was bound to approach the forthcoming hearing. Plainly the writer had
taken great care with it, although that is in truth immaterial; it is the
substance, not his intention, which is important, and it is not our view of it
but the Employment Tribunal’s view of it that is important. The Employment
Tribunal, plainly from their costs Judgment, directed themselves properly as to
the applicable law. No criticism of their approach to the law is or can be
made. They regarded that email as being a fair and sensible warning to
Mrs Growcott of the way in which the Tribunal would approach her unfair
dismissal claim and that, if she continued to proceed with her claim, she would
be running a risk as to an award of costs.
The appeal
9.
A decision as to whether, in relation to proceedings before them, a
litigant has acted unreasonably so as to fall within the powers of the Tribunal
to make a costs order is one for the Tribunal to make on the facts based on
their consideration of the evidence and of the submissions made to them.
Anyone who seeks to challenge such a decision has a difficult task.
Mrs Growcott has reminded us, however, by referring to the decision of the
Employment Appeal Tribunal in Lake v Arco Grating (UK) Ltd
0511/04/RN, decided on 3 November 2004, that, if the Tribunal in
reaching a cost decision can be seen to have done so on the basis of defective
or inadequate reasoning, then the Employment Appeal Tribunal must be ready to
step in. It is perhaps unfortunate that in her written submissions to the
Employment Tribunal for the costs hearing Mrs Growcott did not, to any
substantial extent, address the discretionary exercise that the Tribunal were
going to have to carry out. Her submissions were, for the most part, a highly
articulate and trenchant critique of the Employment Tribunal’s original
decision. Perhaps because she did not see the importance or potential
importance of it, she did not refer to the email at all, albeit that that email
was going to be or at least could be fundamental to the Tribunal’s consideration
of costs issues.
10.
What she was seeking to do in her submissions was to persuade the
Tribunal that an order for costs should not be made against her because she had
not acted unreasonably, and she had not acted unreasonably because the Tribunal
had been wrong to conclude against her on her unfair dismissal claim. What she
perhaps understandably failed to appreciate was that the Tribunal could not
have approached the costs issues on the basis that they had been, or even might
have been, wrong. They had made their decision; and, subject to any successful
appeal against that decision, that decision was their point of departure when
considering the costs issues. They could not depart in any sense from what
they had already decided. They had to base their approach to the question of
costs on the basis of their conclusions and their original decision; and, in so
far as the written submissions that Mrs Growcott has put forward in support
of this appeal again go to attack the original Tribunal decision they have no
and can have no weight in our considerations today.
11.
We need to say what those documents are. Mrs Growcott put forward
a Notice of Appeal, which is dated 30 May 2011, in which the grounds
are in very general terms. She supported that with another document, and has
further supported her appeal with a skeleton argument dated
30 November 2011. That skeleton argument to a very large extent
repeats what she said in the letter of 30 May, and it is the skeleton argument
from which we have approached the arguments she wishes us to consider on this
appeal.
12.
Her first submission is that, in paragraph 12 of the Tribunal’s
costs Judgment, they said this:
“It was perhaps significant that at nowhere in those documents
did the Claimant say that she did not do the act for which she was dismissed.
She argued, as she did at the original hearing, that the evidence was not
sufficient to prove that she did anything wrong. Neither in those documents
nor in the ET1 did the Claimant say that she did not use the foul and offensive
language which led to her dismissal.”
13.
Mrs Growcott argues that the Tribunal have there made errors of
fact. She says that she had denied that she had used foul and offensive
language in her ET1, and that she had made denials under oath at the original
hearing before the Tribunal and in her witness statement, and also to the
disciplinary hearing. She is right about the ET1. Paragraph 5.2 of the
ET1 reads as follows in the first four lines:
“16/11/09 After a discussion with two mechanics at a customers
workshop I was accused of using foul and abusive language to them. I deny
using any abusive language to anyone.”
14.
Although she does not deny using foul language, foul language, if used,
is obviously abusive, and it would be wholly wrong to take some technical point
on the precise words used by a lay person. We should treat that as a denial.
The Tribunal in paragraph 12 say, “Neither in those documents nor in the
ET1 …”. “Those documents” are her submissions on costs on 29 September
and 9 November, which do not, as far as we can see, at least on perusal
with a certain amount of attention, contain denials; but she did deny it in the
ET1; and the Tribunal have, in that respect, made an error. However, in our
view that is not an error that begins to vitiate their costs decision. The
forthcoming ET hearing to adjudicate upon Mrs Growcott’s claim as it was
at the date of the email was not going to involve a relevant study as to
whether Mrs Growcott had denied the allegations against her or not. The
Tribunal had to look not at whether Mrs Growcott’s account of what had
happened at the customer’s premises was true or false, but whether the
employers had carried out a reasonable process in coming to the decision that
they did. The Tribunal had to decide not only whether there had been a
reasonable investigation but whether Mr Leason genuinely believed
Mrs Growcott to have acted as was alleged against her, and whether Glaze’s
response was within the range of reasonable responses, but they did not have to
decide whether Mrs Growcott had used the language to which objection was taken.
15.
That being so, Mrs Growcott’s denial or non‑denial was not of
significant relevance to the original Tribunal; and it was not of any
significant relevance, in our judgment, to the question of whether she had
acted reasonably after receipt of the email. The Tribunal say in their costs
decision that the absence of a denial was perhaps significant; but that significance
could only, in our judgment, relate to the question as to whether the
proceedings had been misconceived from the beginning. That issue they decided
in Mrs Growcott’s favour. What they say in paragraph 12, in our
judgment, does not establish any ground for criticism of the Tribunal’s
decision on the alternative limb of Glaze’s argument at the costs hearing,
namely whether or not she had acted reasonably after she had received the
email. The Tribunal dealt with that question in paragraphs 24‑31 of
their costs Judgment. What they said at paragraphs 25 and 26
accurately set out the content and effect of the email, and they came to the
conclusion, which was a matter for them on the material before them, that
Mrs Growcott had, in continuing with her proceedings despite the email,
acted unreasonably.
16.
Mrs Growcott next focuses on paragraph 13 of the Employment
Tribunal’s Judgment, where the Tribunal said:
“Neither of course had the claimant attempted to obtain
statements from the customer’s employees to whom Mr Leason said he had
spoken. It had always been open to the claimant to obtain that evidence
herself and produce it at the disciplinary hearing or indeed at the tribunal
hearing.”
17.
Mrs Growcott says that that was incorrect because she had asked
Mr Leason on more than one occasion to obtain witness statements from
those witnesses and, in the absence of witness statements, to obtain the
presence of the three witnesses from the customer’s staff at the disciplinary
hearing. Mrs Growcott has, however, in our judgment misunderstood what
the Tribunal were saying in paragraph 13. They were not saying that
Mrs Growcott had not sought to persuade Mr Leason to obtain witness
statements and produce the witnesses; she obviously had. What they were saying
was that she had not herself taken steps to get witness statements from those
witnesses or to produce them to the Tribunal; and that appears to be true;
certainly, she does not suggest anything to the contrary. What the Tribunal
said was a finding of fact relevant to the costs issue which the Tribunal was
entitled to make. A criticism of it could only succeed if it were to be shown
that there was an overwhelming case that that conclusion was perverse; there is
no such overwhelming case. Indeed, in our judgment, there is no case at all
that anything that the Tribunal said in paragraph 13 was wrong.
18.
From that point Mrs Growcott, in the documents that we have read
and considered with some care, attacks the email; but she does so on the basis
that there had been no proper investigation, that there was no evidence other
than in the hearsay evidence of the three witnesses, and arguments of that
type, which were the arguments she developed at the original Tribunal hearing
and no doubt sought to put forward again as part of her appeal against the
Judgment in Glaze’s favour at the original hearing.
Conclusion
19.
Unhappily, all, save the points about paragraph 12 and 13
of the costs decision, Mrs Growcott’s various documents amount to is a
series of criticisms of the original decision, which no doubt she feels very
deeply to have been wholly flawed; but that is not a question upon which we can
begin to embark; nor is the fact that she lost, when she believes she should
have won, relevant. The Tribunal found, on the material available to them, not
that she had lost but that she had received the email, and that once she had
done so, it was unreasonable for her to go on with the claim. That was a
question of fact and discretion for them; there is nothing that shows that
their findings of fact or their exercise of discretion was perverse or in error
of law. For those reasons this appeal is dismissed.
