Appeal No. EATS/0049/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 18 December 2003
 
Before
THE HONOURABLE LORD JOHNSTON
MISS J A GASKELL
MISS A MARTIN

 

WEATHERFORD UK LTD	APPELLANTS

 

 
JAMES J AITKEN	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr A Kemp, Solicitor
Of-
Messrs Burnside Kemp Fraser
Solicitors
48 Queens Road
ABERDEEN   AB15 4YE

 

 

For the Respondent

 

 

 	 

 

 
Mr R Pilkington, Advocate
Instructed by-
Messrs Russell Jones & Walker
Solicitors
Local Agents for-
Quantum Claims
Solicitors
70 Carden Place
ABERDEEN AB10 1UP

 	

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employer against a decision of the Employment Tribunal sitting in Aberdeen, to the effect that the respondent employee had been unfairly dismissed.  They made a monetary award which reflected a 50% reduction for contribution.
 
2.	The background to the matter is that the respondent was employed by the appellants, who were contractors in the North Sea oilfield, to work on the rigs to their requirements, not least, in respect of obeying instructions to proceed to work on a particular rig at a particular time.  
 
3.	The contract of employment with which those actions are concerned, or at least the relevant parts, are set out in the decision of the Tribunal and are as follows:-
 
“The problems associated with providing services to the oil industry are very demanding.  The company has a requirement to make available personnel, equipment and products whenever the client company requires.  The company must, therefore, plan its activities to meet the requirements of its customers, and has a responsibility to provide a smooth dependable operation.  In view of this, it is necessary that all employees observe the following:
 
…………………………………………….
(c) It is necessary that individuals report to the airport, heliport or other embarkation point at the time notified to them by their supervisor.  Failure to do this will be regarded as a serious disciplinary offence.”
 
Within the disciplinary procedures attached to the contract of employment (at page 51 of the documentation) the following was provided:-
 
“5.4  Summary Dismissal
 
5.2.1  The company reserved the right to summarily dismiss (i.e., without notice or pay in lieu) an employee for gross misconduct.  The following are examples of gross misconduct.  This list is not to be regarded as exhaustive.
 
…………………………….
Failure to report for a check-in time for travel offshore without due notice and an acceptable reason….
 
………………………………
Any act or omission amounting to the repudiation of the contract of employment.”
 
“JA called me back at 1805 to say that he had heard that we needed him to go to another job on Sunday, and said that this was “not going to happen”.  He said that he has done the work he came down here for, and when he started this job he had “promised his wife that he would not go from rig to rig, but would come home after each job”, and so would be going back to Aberdeen after this job.  I asked him to confirm that he was refusing to go on a job when requested, and he said yes he was and would accept the consequences when he returned to Aberdeen.”
 
4.	It appears that the respondent had had domestic problems with regard to protracted periods of work offshore, and, in this particular instance when asked to do a particular job he agreed, provided that he would be able to return home immediately it was over.  In fact, according to the narrative of the Tribunal of the evidence, he was asked to fly out on the same day that he returned from the previous job for a further job lasting two days.  This, the respondent declined to do, giving as an explanation, that he had promised his wife he would not go from rig to rig but would come home after each job.  The long and the short of it is, that this lead to a disciplinary hearing, the circumstances of which are related by the Tribunal as follows:-
 
“The applicant chose not to be accompanied at the subsequent meeting which took place on 29 November and at which Mr Neil Leonard, the respondents’ HR Manager, was present along with Mr Kuchler.  The events as recorded by Mr Pearce in his e-mail were recounted by Mr Kuchler who also referred to the terms and conditions of employment which required the applicant to go offshore as requested and pointed out specifically that not meeting check-in requirements was considered as gross misconduct.  He asked the applicant for his response to the allegations.  As the Minute of the meeting records (page 59) the applicant –
 
“advised that he had been having problems at home, and that he had previously received compassionate leave for this.  He had been offshore for 35 of the last 40 days and had not previously refused going to a check-in.  He was sorry and with hindsight, perhaps he should have explained the situation to Chris Pearce.”
 
Mr Kuchler pointed out the problems which had been caused with the respondents’ customer and reminded the applicant that he would only have been asked out to the rig if it was necessary.  He again asked the applicant if he had anything further which he wished to say or ask.  The applicant did not add anything.  Following an adjournment Mr Kuchler intimated that by virtue of the contractual terms and conditions he viewed the matter as one of gross misconduct and decided upon dismissal with immediate effect.
 
The applicant had not made any mention of his family/domestic problems to Mr Pearce.
 
The applicant had not spelled out exactly what his “problems at home” actually were to Mr Kuchler at the disciplinary hearing which resulted in dismissal, and Mr Kuchler did not inquire.  Mr Kuchler indeed had not wished to ask particular questions on personal details.  He took into account the fact that the applicant had not given Mr Pearce any particular reason for it being essential that he be home by a particular date.  The applicant had simply told Mr Pearce that he had told his wife that he was not going to do another job.  In general Mr Kuchler would recognise serious domestic problems as “an acceptable reason” in terms of the discipline procedures for failing to check-in.  Mr Kuchler had the impression that the applicant did not wish to elaborate on the problems.
 
The applicant was aware that he had committed a serious disciplinary offence and had expected to receive a final written warning.  He did not anticipate dismissal.
 
Indeed, as he told us in evidence, the applicant and his wife had resolved their problems around the time of the compassionate leave which had been granted.  However he had been concerned that his problems might start up again if he did not get home on the day when the job was finished, although had not intimated that concern to the respondents.
 
It was a most unusual circumstance for the respondents to find that any employee refused to carry out such an instruction.  It had not occurred with them for at least the previous twelve months.”
 
5.	He was accordingly dismissed and had an unsuccessful appeal.
 
6.	Against that background the determination of the Tribunal, which was a majority decision, is as follows against the background that the Tribunal agreed that the instruction given by the employers was legitimate and reasonable, having regard to the terms of the applicant’s contract of employment and the scope and the nature of his normal duties.
 
“The Tribunal then proceeded to consider the reasonableness of the applicant’s refusal to comply with the instruction and the employer’s response to that, and it was at this point that unanimity was lost.
 
For the majority, whilst accepting the evidence and the e-mail from Mr Pearce as accurately narrating the events, and accepting the Minutes of the disciplinary and the appeal hearings as also being accurate, the reasonable employer would not have dealt with the situation by means of the sanction of dismissal.  Whilst recognising that they were not to substitute their own view for that of the respondents, the majority found that the reasonable employer would have enquired further of the applicant at the disciplinary hearing in order to find out more of the circumstances of his marital difficulties.  The reasonable employer would have encouraged the applicant to provide further information and would have realised, as Mr Kuchler did not, that there was more to the matter than the applicant had stated.  Upon the reasonable employer exploring further, he would have learned that previously the applicant’s wife had threatened to leave him and that had been the reason for the earlier periods of compassionate leave, and further, that in making his decision to refuse to carry out the extra days of duty and return home, the applicant had felt that he had his family life at stake.  Having then learned of these circumstances the reasonable employer would have regarded these circumstances as amounting to “an acceptable reason” (in terms of the discipline procedures) for refusing to take the additional helicopter trip to the rig “Britiannia.”
 
The majority further noted that Mr Kuchler had not enquired into the circumstances in which the compassionate leave had previously been granted, as a reasonable employer would have done.  Furthermore, at the appeal hearing, despite being given the names of the logistics managers who had given the applicant compassionate leave, Mr McCartney made little or no effort to establish what the applicant’s domestic difficulties were.  Had that been done the reasonable employer would not have dismissed, but would have chosen a lesser sanction.  For these reasons therefore the decision to dismiss did not fall within the range of reasonable responses available to a reasonable employer thus rendering the dismissal unfair.
 
The minority (Chairman) reminded himself that whilst it was natural to entertain sympathy for the applicant in respect of his personal difficulties, the primary focus required to be on the actions of the respondents, and their state of knowledge at the time of taking the decision to dismiss.  It was observed that at the disciplinary hearing Mr Kuchler, having set out the events as reported by Mr Pearce, specifically invited the applicant if he had anything he wished to say or ask; and, having listened to him and pointed out the consequences of his actions, asked the applicant for a second time if he wished to say anything more – before adjourning the meeting to consider the facts.  In the view of the minority the basic obligation upon an employer, in such a disciplinary process, and after setting out the allegations, is to allow the employee a sufficient opportunity to respond and raise any issues or matters of mitigation which he may wish – and generally to afford a reasonable opportunity to state his case.  That was done.  If an employee then chooses not raise pints [sic], or to supply less information than he could, then generally speaking that is a matter for him.  The reasonable employer may then proceed on the basis of what he has.
 
It was noted that although the applicant had been given an opportunity to be accompanied, he chose not to do so.  Accordingly, he had simply to put forward his own case as best he could.  There was no suggestion that he had any diminished understanding or lack of ability to articulate his own position.  The minority further noted the particularly sensitive subject matter which had apparently lain behind the applicant’s decision.  Whilst that might assist in explaining why he did not provide a full exposition, it also explained why Mr Kuchler, according to his evidence to the Tribunal, had felt a degree of reticence in probing into such matters.
 
In the minority’s view, the test to be applied to the actions of the respondents is that of reasonableness, and not any higher test.  It is quite sufficient to satisfy that test for the respondents to have afforded the applicant an opportunity to state his case.  To expect an employer to probe further and attempt to eke out of the employee some additional mitigatory material which the employee, perhaps for reasons of his own, has not mentioned, is applying too high a standard.
 
It further seemed to the minority that the existence of the contractual conditions – particularly the inclusion of a failure to check-in for a helicopter trip to go to other duties as being an example of gross misconduct – was of particular relevance on the issue of whether dismissal was open to the reasonable employer in the circumstances of this case.  Indeed in his evidence the applicant had acknowledged that he was aware that by refusing the instruction he was (in his own words) “committing a serious disciplinary offence”.  Furthermore, it seemed that even if all the facts and circumstances which the applicant could have put before Mr Kuchler had in fact been expressed, in the end of the day they could not have amounted to much more than what he had actually said.  He told the Tribunal that he had in fact improved his relations at home during the period when he had been granted compassionate leave only shortly before, and that he simply had a concern that if he arrived home later than he had originally told her the problems might be renewed.  There was no evidence to explain how two or three extra days before arriving home would have made any difference.  He did not indicate that there was any additional or renewed problem in his marital relationship.  Accordingly the minority did not consider that there was sufficient in the whole circumstances which in any event would have led to the reasonable employer excluding dismissal from the range of reasonable options – particularly given the clear disobedience in the fact of the clear contractual condition.”
 
7.	Mr Kemp, appearing for the appellants, argued, firstly, that the majority had misdirected themselves when it came to the band of reasonable responses open to the employer in the context of what happened, substituting their own view for that of the employer, but, secondly, and more importantly, had applied too high a standard with regard to the extent to which the employer should further have investigated the reasons why the respondent had declined to take the necessary trip.  It was important, he submitted, to bear in mind that although the Tribunal had evidence before it to indicate the extent that the respondent’s domestic problems and his fears thereanent, and, that equally, the employer was aware prior to the relevant time that there had been some problems leading to compassionate leave, no attempt was made by the respondent at the disciplinary hearing to raise the issue in some detail so as to substantiate the personal problems he had which led to his decision.  It was not disputed, it was submitted, that he was given every reasonable opportunity to do so.
 
8.	With regard to the general law, Mr Kemp referred us to Whitbread plc v Hall [2001] IRLR 275 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.  But the most important authority upon which he relied was that of Dick & Anor v Glasgow University [1993] IRLR 581.
 
9.	Mr Kemp also had subsidiary points in relation to the issue of contribution, which he said on the Tribunal’s conclusion, did not reflect the fact that the conduct of the employee amounted to serious misconduct.  Finally, he pointed to the fact that although he had put in issue the question of deduction in terms of the well-known case of Polkey v A E Dayton [1987] IRLR 503 the Tribunal appeared not to have dealt with that matter.
 
10.	Mr Pilkington, for the respondent, submitted against the background of section 98(4) of the Employment Rights Act 1996, that the test of reasonable responses still remained the appropriate way for the Tribunal to address the matter of the employer’s conduct in dismissing and this is precisely what they had done against the standard of what a reasonable employer should or should not have done.  He also referred us to Whitbread supra and Post Office v Foley & Anor [2000] IRLR 827.
 
11.	He further submitted in respect of the issue of investigation that the employer was rightly criticised by the Tribunal for not taking the matter further as the majority of the Tribunal suggested.  In this respect he referred us to McLaren v National Coal Board [1988] ICR 370, The Union of Construction and Allied Trades and Technicians v Brain [1981] IRLR 224, Vokes Ltd v D C Bear [1973] IRLR 363 and W Devis & Sons Ltd v R A Atkins [1977] IRLR 314.  On any view of the matter, he submitted, the Tribunal had properly applied the law and had properly reached a conclusion to which they were entitled to achieve as an industrial jury.
 
12.	As regards to the subsidiary points, Mr Pilkington submitted that in fact the extent of the misconduct by the employee which was admitted had been taken into account by the Tribunal in assessing contribution, and he finally submitted against the decision of Fisher v California Cake & Cookie Ltd [1997] IRLR 212, it was clear that the Tribunal had reached a view that a proper investigation that they demanded would have avoided dismissal and therefore they made no deduction. 
 
13.	The members of this Tribunal were divided in the result.
 
14.	The majority, including the Chairman, accepted the submission by Mr Kemp against the background of the case of Dick, that, where, as here, the employee was advancing in defence of a decision of his own which was admittedly serious misconduct, no substantial reason to support it at the time of the disciplinary hearing when given every opportunity to do so, did not impose a further burden upon the employer acting reasonably to ask questions further into that matter.  The findings of the Tribunal make it perfectly clear that every opportunity was given to the employee to go down what could be described as, the personal circumstances line, but at that time he declined to do so.  The rubric of Dick supra states inter alia:-
 
“In determining whether an employer had carried out reasonable investigations in the circumstances, an Industrial Tribunal should consider the nature of the material which was before the employer when the decision to dismiss was taken.  A Tribunal is not entitled to conclude that a reasonable investigation had not been carried out because, during the disciplinary procedure, the employer had failed to have regard to material, when that material was never placed before him and emerged for the first time as evidence during the Tribunal hearing.”
 
15.	The facts of that case were obviously different but the substance of them in the mind of the majority of this Tribunal cannot be distinguished.  On the face of it, the refusal of the employee to go offshore at the material time, was in breach of his contract and serious misconduct.  The demand made of him was legitimate.  The failure at the disciplinary hearing to properly advance reasons justifying it, to our mind, does not require the employer to go further than to hear what is actually said to him or not.  Applying therefore the test of the band of reasonable responses against the context of admitted misconduct we consider, having regard to what took place at the disciplinary hearing, that the reasonable employer need go no further and certainly dismissal was within the band of reasonable responses, open to the employer.
 
16.	The view of the minority (Miss Martin) was that in terms of the contract that was narrated, refusal to go offshore warranted summary dismissal but this is not in fact what the employer had done.  They accordingly were under a duty, she maintains, to investigate further into the reasons why the employee made such a declinature, and, thus, she takes the view that the majority of the Tribunal assessed the conduct of the employer as an industrial jury and reached a legitimate conclusion that their conduct was not such as would be reasonably demanded of an employer.  She therefore supported the majority view of the Tribunal.
 
17.	As has been seen, the majority of this Tribunal agree with the minority Chairman as submitted by Mr Kemp for the reasons given both there and before us, and, accordingly, we will hold that the decision to dismiss was a reasonable one within the circumstances, particularly within the context of the discipline procedure, and, that, furthermore, was the conclusion and only conclusion that should have been achieved by the Employment Tribunal.
 
18.	This renders otiose the issues relating to contribution and Polkey supra.  We will simply record that had the matters been live we would have accepted the submissions made by Mr Pilkington.
 
19.	In these circumstances, given the majority view of this Tribunal, the decision of the Employment Tribunal will be quashed and this Tribunal will make a finding that the dismissal was, in the circumstances, fair.
 
20.	The appeal is therefore allowed.