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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hannigan v. Cable & Wireless Communications Plc [2001] UKEAT 211_00_0507 (5 July 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/211_00_0507.html Cite as: [2001] UKEAT 211_00_0507, [2001] UKEAT 211__507

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APPEARANCES

 

For the Appellant	THE APPELLANT In Person
For the Respondent	EMMA SMITH of Counsel instructed by Charles Russell 8-10 New Fetter Lane London EC4A 1RS


 


MR COMMISSIONER HOWELL QC:

1. For the reasons given below we have concluded that there was no material error of law in the decision of the Employment Tribunal on this claim for unfair dismissal, and both the Appellant's appeal and the Respondents' cross-appeal against it are therefore dismissed.
2. The Appeal is brought by Mr John Hannigan who the Tribunal held to have been unfairly dismissed from his employment as a cable sales adviser with the Respondents, Cable and Wireless Communications Plc, following a disciplinary hearing held in his absence on 11 June 1999. Pursuant to the order made by the Appeal Tribunal on the preliminary hearing of this appeal on 14 November 2000 and for the reasons given by the judgment of his Honour Judge Levy QC on that date, the appeal is against the decision of the Tribunal that he should be awarded no compensation for the unfairness of his dismissal, and is limited to the single question of whether the Tribunal materially misdirected themselves in taking into account his failure to pursue any internal appeal with the Company as a contributory factor in his own dismissal. The Respondent Company, as well as resisting that as a ground of appeal against the decision on compensation, has brought its own cross-appeal against the finding that it had acted unfairly in dismissing the Appellant summarily on the basis of the findings of a disciplinary hearing at which he was not present or able to be heard, there being no clear evidence that he was aware of it taking place.
3. According to the facts found by the Tribunal the Appellant was employed by the Company as a "Cable Sales Adviser" for something over two years from February 1997 until his dismissal in June 1999. His work was that of a door to door salesman, going around trying to persuade people to sign up for cable and telecommunications services. The Company had a Code of Conduct for employees of this type, which made it clear that taking unauthorised absence of three days or more from this work would be treated as gross misconduct and could lead to summary dismissal, and imposed performance targets supported by a disciplinary procedure known as the "Performance Improvement Programme" which had various stages of warnings for failure to achieve the stipulated numbers of customer contacts and successful sales. The Appellant had received warnings under this process in 1997 and 1998, and on 12 January 1999 had been given a final written warning for poor sales performance, followed by a further final written warning on 30 April 1999 for a separate disciplinary offence of being dilatory in banking the deposits he received from customers, followed by yet another final written warning for inadequate performance on 17 May 1999. At the end of May he failed to make contact with the Company and was apparently away from work, and was informed by his line manager on 2 June 1999 by telephone that he had been suspended pending further disciplinary action.
4. The Tribunal's findings as to what then happened, and the issues before us on the appeal and cross-appeal, appear clearly from the following extract from the Tribunal's statement of Extended Reasons, sent to the parties on 24 January 2000 after a hearing that occupied three separate days starting on 6 October 1999:

"4 (g) This leads us to one of the particular difficulties of this case. The applicant had, at an earlier stage in the employment, (during a disciplinary interview) indicated to his employer that whilst he was not actually living at the address (the only address) they had for him, namely, 63 Statham Road, Bidston, Wirral, that address could be used as a correspondence address. Naturally, therefore the respondent sent a letter confirming the suspension to that address. The letter is dated 2 June 1999 and appears at page 116 in the respondents' bundle of documents. The respondent then wrote again to the applicant to the same address on 3 June, inviting the applicant to a disciplinary hearing on 7 June 1999. That was sent by 'Recorded Delivery'. The applicant did not attend the hearing on 7 June which therefore did not proceed. The respondent again wrote to the applicant, this time by a letter dated 8 June, again to the Bidston address and in this letter it was indicated that there would be a re-arranged hearing on the 11 June 1999. In addition to being sent 'Recorded Delivery' this letter was also delivered by Hand' to the address at 64 Statham Road. The applicant did not attend on the 11 June and in those circumstances Mr Williams and Mr Ledwith proceeded to review Mr Hannigan's case in his absence. Notes were taken of that meeting and these appear in the respondents' bundle at pages 120 and 121. They indicate that the matter was not considered lightly. There was a detailed review of both the conduct matter of non-attendance and the capability or performance issue. The outcome was the decision to dismiss the applicant for both these reasons. The dismissal came to the applicant's attention on the same day it was decided upon. This was because the applicant had been intending to represent another dismissed employee of the respondent and was told by that other employee (Mr McKenna who gave evidence) that he in turn had been told that Mr Hannigan could no longer represent him as he was no longer an employee. Mr Hannigan endeavoured to speak to Mr Ledwith on the telephone that day but he was engaged and a message was left together with a mobile telephone number but no other number. Mr Ledwith tried on 2 occasions to telephone this number but it was not answered and there was no answering service. Nothing further was heard from the applicant but on 18 June, Mr Ledwith wrote a letter to the applicant which confirmed-the dismissal and set out a summarr.ofthe,reasons for it. The.applicant had in the meantime commenced these proceedings dating his Originating Application the 15 June, and lodging that with the Employment Tribunal Office, Liverpool on that same day.

(h) We might add that the applicant explained to us that he regarded his suspension on pay as holiday and was therefore not particularly bothered how long that suspension lasted. He said this in response to questions from both the Tribunal and the respondents' Counsel as to why he had not taken more proactive steps to ensure that there was a line of communication between the respondent and himself at a time when vital correspondence on disciplinary matters were awaited. This is relevant because it transpires that the applicant (as was probably known to the respondent,) was not living at the Statham Road address but was, in fact, only visiting that address at most on a weekly basis and sometimes only on a fortnightly basis. As a result of this any ordinary post or indeed anything placed through the letterbox at that address was not guaranteed to come to the applicant's knowledge for some time after it's actual delivery as this would depend upon when the applicant chose to come to the address from his actual address some 30 miles away to collect The fact that the respondent sent 2 letters regarding the disciplinary interviews by 'Recorded Delivery' perhaps innocently aggravated the position as such letters would not simply be placed through the letterbox if there was no one to sign for them. However, it would appear that the Post Office would follow their normal practice of putting a postcard through the door to alert the occupier that there was a letter or package to collect. The applicant denied ever receiving such a postcard and he also says that he did not receive the letter which the respondents believed had been hand delivered by one of their other employees.

(i) On balance it appears to the Tribunal that there must be some doubt as to whether the applicant did know that his fate and ultimately his dismissal was to be dealt with at the 2 meetings in June, the 11th June being effective. Although the problems were almost totally of the applicant's own making the situation was that the dismissal on 11 June was done without the applicant being afforded the opportunity to put forward his explanation. At the time, of course, the respondent was acting entirely in good faith. It was entitled to assume that the applicant was aware of the meetings but had chosen not to attend them and this, they are likely to have thought, was in line with what they believed to be his non-attendance at work in the proceeding week. Despite their lack of knowledge that the first letter had not been received the respondent did not act precipitously but instead set up a second meeting and it was only when the applicant failed to attend on that occasion that they took the decision in his absence to dismiss him. We are of the view that the applicant was negligent in the approach he took to the mechanics of communication between the respondents and himself. He was undeniably aware on 2 June that he had been suspended and that he would be expecting to hear from the respondent with details of the disciplinary procedure to which he was not, in any event, a stranger. However, with this in mind he did not increase the frequency of his visits to his correspondence address, he did not make any telephone contact with the respondent to learn what was happening and when he was likely to hear anything, nor did he do. what would have been the easiest and most sensible course of action which was to simply to ask for correspondence to be sent to the address at. which he was living. This. is perhaps explained by reason of the fact that the applicant has told us that he regarded his suspension as a form of paid holiday and was not too worried how long it went on for.

(j) Despite our finding that the fault, communication problems lay almost entirely with the applicant, we are nevertheless, mindful of the paramount importance of the correct procedure and observance of natural justice in industrial relations practice especially when the sanction of dismissal is being considered. In hindsight, the hearing on the 11 June 1999 which led to the dismissal was held in breach of natural justice in that the applicant was not heard. Accordingly, and mindful of the comments of the House of Lords in the decision of Polkey v A E Dayton the decision of the Tribunal is that this was a procedurally unfair dismissal.

{k) However, we consider that the substantive fairness of the dismissal is undeniable. A reasonable employer was entitled to regard both the matter of the unauthorised absence to be proven and to be within the terms of the Code of Conduct a reason for summary dismissal. The same applies in respect of the capability reason. Having heard in considerable detail what the applicant would have said at the hearing on 11 June had he been able to attend it, we are of the view that it would not have convinced a reasonable employer to do anything other than dismiss. Accordingly, in these circumstances it is our finding that even if there had been procedural fairness, namely, the opportunity to be heard on 11 Junde 1999, the decision would inexorably have been the same, namely, to dismiss. Over an above this we consider that the applicant contributed to his dismissal to the extent of 100 per cent. The contribution relates firstly to the communication difficulties to which we have referred. It also covers the substantive grounds on which he was dismissed where obviously there is a fault element even as regards the capability aspect. Finally, there is the question of the applicant failing to take up the matter of his dismissal as an internal appeal. We are quite convinced that had he written to or spoken with the respondent when he learned of his dismissal he would have been granted the opportunity of being heard, albeit, with the inevitable result which we have found. Whilst his evidence to us was that he would like to have been afforded a hearing from Mr Williams, he nevertheless made his application to this Tribunal with what could be described as undue haste and following only a cursory attempt to contact the respondent to discuss the matter outside the context of proceedings.

(1) Accordingly it is the unanimous decision of this Tribunal that whilst there was a procedurally unfair dismissal it would not in the circumstances be just and equitable to award the applicant any remedy be that reinstatement which he sought in his Originating Application or any other remedy."

5. Against that decision Mr Hannigan sought to appeal on a number of grounds set out in the original notice of appeal on his behalf dated 17 February 2000, including a contention that it was perverse to have awarded him no compensation at all for the procedural unfairness of his dismissal; but it is not necessary for us to deal any further with those, since in effect all the grounds of the original appeal have been dismissed by the Appeal Tribunal at the earlier preliminary hearing, with the exception of the reformulated ground set out in the amended Notice of Appeal at page 2.11, that the Tribunal should not have taken into account the Appellant's failure to appeal against his dismissal as "contributory conduct". The basis of that contention is that to count a failure to appeal against dismissal as contributing to the dismissal itself is contrary to the authority of Hoover Ltd v Forde [1980] ICR 239, and the only provision entitling the Tribunal to make a deduction from compensation on that account is that in section 127A Employment Rights Act 1996 which limits any such reduction to a maximum of two weeks' pay.
6. On that, we agree with the view of our colleagues as recorded in the judgment of His Honour Judge Levy QC that there may have been some confusion in the minds of the Tribunal as to the relevance of the Applicant's failure to use any internal appeal procedure to the unfair dismissal issues they were considering, or at the very least that the way this is dealt with in paragraph 4(k) of their statement of extended reasons is less clearly expressed than it might be. However, we have been persuaded by the arguments of Miss Smith on behalf of the Respondents that in the particular circumstances of this case that has not in fact given rise to any material error of law in the result of the Tribunal's decision, since the primary ground stated by the Tribunal for their decision to award no compensation was separate and independent from this point, and is not open to challenge before us in this appeal. She referred us in particular to the observation of Lord Bridge in Polkey v A E Dayton Services Ltd [1988] ICR 142, 163D that:

"If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation…"

7. In our judgment she was right in submitting that the Tribunal's primary finding and conclusion on the question of compensation was contained in the two sentences in paragraph 4(k) of their extended reasons that:

"Having heard in considerable detail what the applicant would have said at the hearing on 11 June had he been able to attend it, we are of the view that it would not have convinced a reasonable employer to do anything other than dismiss. Accordingly, in these circumstances it is our finding that even if there had been procedural fairness, namely, the opportunity to be heard on 11 June 1999, the decision would inexorably have been the same, namely, to dismiss."

In other words the Tribunal were there finding as a matter of certainty that on the particular facts of this case the Appellant's inability to say what he wanted in his own defence at the disciplinary hearing on 11 June had on the facts found by the Tribunal caused him no loss whatever; since any reasonable employer would have been bound to dismiss him on that date even after hearing everything he had wanted to say.

8. That finding of fact is not challenged or open to challenge before us on this appeal, and it concludes against the Appellant any question of his being entitled to compensation: on the principle explained by Lord Bridge, by itself and without any question of contributory conduct or mitigation of loss arising for consideration at all. We think that much is implied by the words "Over and above this" with which the Tribunal begin their next sentence, referring to his own contribution to his dismissal which they assessed at 100%. The passage beginning "Finally" and referring to the applicant failing to take up the matter of his dismissal at an internal appeal may we think have been intended not as an additional point on contribution but as a separate third point in its own right, to emphasise why the manner of his dismissal did not entitle him to any compensation; but whatever its intended relevance it does not in any way detract from the force of the primary ground, and indeed reinforces it by the further express finding that although the Applicant would have been granted an appeal hearing had he asked for one the result, namely the confirmation of his actual dismissal on 11 June, would have still been inevitable. For those reasons we dismiss Mr Hannigan's appeal.
9. That leaves the Respondent's cross-appeal, against the finding that Mr Hannigan's dismissal was in fact unfair on procedural grounds; and although the practical effect of that finding remains slight in the absence of any compensation or other remedy as a result of it, we express our conclusions on that briefly as it was fully argued by Miss Smith before us. She put the submission in two ways: that the Tribunal had misdirected themselves or alternatively had reached a perverse result in holding that there had been a breach of natural justice, and consequently an unfair dismissal procedure, from the mere fact that in the Tribunal's words, "the Applicant was not heard" at the hearing of 11 June 1999 which led to the dismissal. That, she said, embodied an absurd and far too stringent a test for an employer to meet since it could lead to the conclusion that an employer could do everything reasonably to be expected of him and more by way of setting up disciplinary hearings and process, but still be open to attack for having acted unreasonably and unfairly if an employee failed to use them, for whatever reason.
10. In her submission the material question was the different one of whether the employee had been afforded an opportunity to be heard, as part of a reasonable procedure within the general bounds of what it would be reasonable for an employer to have done in all the circumstances before imposing the sanction of dismissal. The Tribunal had either misdirected themselves by failing to remember that the test to be applied was the "band of reasonableness" for the employer under Section 98(4) Employment Rights Act 1996 and not some abstract notion of perfect procedural justice; or alternatively if they had been applying the correct test of the band of reasonableness they could not have reached the conclusion they did given their own findings that the Respondent was acting entirely in good faith and entitled to assume that the Applicant was aware of the disciplinary meeting but had chosen not to attend it, and that the responsibility for any lack of awareness on his part lay almost entirely with him.
11. Despite these well argued submissions we have not been persuaded that the Tribunal's conclusion that there had been some procedural unfairness in this case embodied any misdirection or was otherwise erroneous in law, though another Tribunal might quite well have reached a different answer on the same factual findings. As was made clear by the House of Lords in Polkey v A E Dayton supra (with which this Tribunal will of course have been familiar and to which they expressly directed themselves in the immediate context of their finding that this was a procedurally unfair dismissal) the question of whether a dismissal has been carried out in a fair manner, as well as on reasonable grounds, is an issue of fact and degree for the Tribunal dealing with the facts of the case to determine, applying the test of the band of reasonable responses and conduct of a reasonable employer in all the circumstances. Thus as pointed out in the passage from the judgment of Browne-Wilkinson J (as he then was) cited with approval by Lord Mackay at page 156C, an industrial tribunal is not bound to hold that any procedural failure by the employer renders the dismissal unfair: it is one of the factors to be weighed by the industrial tribunal in deciding whether or not the dismissal was reasonable, and the weight to be attached to such procedural failure should depend on the circumstances known to the employer at the time of dismissal. But conversely, as it was put by Lord Bridge in the passage at page 162G-H, an employer having prima facie grounds to dismiss for a proper reason will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as "procedural", which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do the job; in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.
12. Both of those passages, and the repeated use of "normally" in the latter one, appear to us to emphasise that the application of these principles in a particular case is all a matter of degree for the Tribunal dealing with the facts to determine, and one where the Appeal Tribunal should be slow to interfere with the decision of an Employment Tribunal one way or the other, unless it is clear there has been a misdirection or that there was no evidence to warrant the conclusion to which the Tribunal came.
13. We have not been persuaded that on a fair reading of what this Tribunal said in paragraphs 4(i) and 4(j) of their statement of reasons and their reference to a "breach of natural justice in that the applicant was not heard", they were doing other than addressing the correct questions of degree and reasonableness in accordance with the guidance of the House of Lords in Polkey to which they expressly referred; nor do we think that their conclusion can itself be characterised as unreasonable and perverse even taking into account their exoneration of the Respondents from any real blame for what happened. They did have evidence, as recorded in paragraph 4(h), that the Applicant was only using the address to which documents were sent as a forwarding address which he visited relatively infrequently, and that this was probably known to the Respondent; and it also appears that although there had been no difficulty in contacting the Appellant on his mobile telephone to advise him of his suspension, there was no attempt to contact him by this means when he failed to turn up for the disciplinary hearings on 7 or 11 June to confirm whether his absence was accidental or deliberate.
14. Although as we say a different Tribunal might well have reached a different view, we cannot in those circumstances conclude that a decision of procedural unfairness in the light of the circumstances known to the employer was misdirected or perverse. For those reasons we also dismiss the Respondent's cross-appeal, and the decision of the Employment Tribunal stands in both of its aspects.