Andrew Sneddon V. Carr-gomm Scotland Limited
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Kingarth,Lord Eassie |
| Neutral Citation | [2012] CSIH 28 |
| Court | Court of Session |
| Published date | 20 March 2012 |
| Year | 2012 |
| Date | 20 March 2012 |
| Docket Number | XA64/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lady Paton Lord Kingarth | [2012] CSIH 28 XA64/11 OPINION OF THE COURT delivered by LORD EASSIE in Appeal by ANDREW SNEDDON Appellant; against CARR-GOMM SCOTLAND LIMITED Respondents: _______ |
Respondents: Hay; Law at Work Limited
20 March 2012
Introductory
[1] In January 2003 the appellant commenced employment with the respondents as a support worker with the job of providing support to vulnerable adults as part of the respondents' business of providing social care services. On 11 February 2009 the appellant's contract of employment was terminated on grounds of misconduct and an appeal within the respondents' internal organisation was unsuccessful. The appellant thereupon presented a claim to the Employment Tribunal - "the ET" - complaining that he had been unfairly dismissed. Following a hearing extending over three days the ET upheld the complaint of unfair dismissal and awarded the appellant compensation, subject to a deduction to reflect what the ET considered to be the appellant's contribution to the circumstances of his dismissal. The employer, the present respondents, then appealed to the Employment Appeal Tribunal - "the EAT" - against inter alia the finding of unfair dismissal. In its decision of 3 March 2011 the EAT allowed the respondents' appeal and substituted a finding that the dismissal was fair. The appellant now seeks to appeal to this Court against that decision of the EAT. Parties were agreed that the Court should also consider the merits of the appeal, if persuaded that leave (which had been refused by the EAT on 4 May 2011) should be granted.
The salient facts
[2] The evidence tendered to the ET and the facts found by it are set out by the ET at length in its judgment of 27 April 2010. Much of that is rehearsed by the EAT in its judgment. However, for the purposes of this appeal, the salient facts are, in our view, as follows.
[3] The event precipitating the dismissal of the appellant was a communication to one of the appellant's fellow support workers by her friend, Ms Struthers. That friend lived in a flat in the same building as a vulnerable adult - JS - to whom care services were provided by the respondents. JS required 24 hour provision of care, which entailed among other things that a support worker sleep overnight in the flat occupied by JS. The support worker of whom Ms Struthers was a friend relayed in turn the information supplied by Ms Struthers to her operations manager, Mr Kirkbride, who then instructed a subordinate, a Mr Fullerton, to see Ms Struthers. Mr Fullerton spoke with Ms Struthers and made some brief notes of that conversation.
[4] What was recounted by the neighbour, Ms Struthers, related to events said to have occurred overnight between 22 and 23 November 2008 and consisted essentially in an allegation that she had heard some shouting coming from the flat occupied by JS. The material respecting that allegation which was before the employer when deciding to dismiss the appellant consisted of the short notes made by Mr Fullerton. The terms of those notes are recorded by the ET at paragraphs 35 and 36 of its decision. Mr Fullerton noted the words said to have been shouted as "Sit down, lie down, don't move" and he noted further "shouting, bullying, aggressive - just not nice". The notes further recorded that Ms Struthers "heard this before - similar voice" and "knows when he sounds aggressive when speaking to J"; and " tends to shout bullying". It was further noted "time before was concerned and should have said something - noughted stomach (sic)". From the respondents' records it was apparent that the appellant had provided the overnight support on the night of 22/23 November 2008. The appellant has throughout denied having shouted at JS or spoken inappropriately to him while providing that overnight support. Thereafter, by way of further investigation regard was had in the first place to the contemporary documentary evidence in the form of handover reports and the like. Details of these are set out by the ET in its judgment at paragraphs 49 and 50. Put shortly, nothing whatever in those contemporaneous records gave any support for the notion that anything untoward might have occurred in the night of 22/23 November 2008. In general, the support client, JS, was recorded on and after 23 November as having been in good form and relaxed; he offered nothing suggestive of any complaint.
[5] In the second place, Mr Fullerton also obtained from five other members of the appellant's care team statements in answer to four questions, namely whether they had any concerns about their colleagues' practice; whether they felt any colleague intimidated JS; whether JS had raised any issues about colleagues; and whether they were aware of any complaints regarding JS support from neighbours or others (ET judgment, paragraph 40).
[6] Despite the apparent generality of those questions, it is evident from the terms of the responses, which the ET sets out paragraphs 41ff, that those to whom the questions were addressed were aware that the subject of the inquiry was the appellant. Three of the care team provided responses indicating that they had no concerns and that no concerns had been indicated to them by anyone else. A fourth member suggested that the appellant had appeared to be "too authoritative as though they (sic) think JS is a wean" but also stated "there has been nothing out of the ordinary. JS has not spoken to me about anything which has concerned me". The fifth member of the care team, Linda Mauchline, referred to a conversation between her, JS and the appellant which had apparently taken place on 17 November 2008 when the three of them had been walking to a bus stop. Ms Mauchline's report of the conversation is set out by the ET at paragraph 44 of its judgment. The appellant's version of that conversation is set out at paragraph 52. The criticism made against the appellant respecting this conversation is essentially that in its course he used, as an adjective, the word "fucking". The appellant accepted that he had done so but explained, inter alia, that the same adjective had been deployed by both Linda Mauchline and JS in the course of the conversation. It was nowhere suggested that the conversation in question involved any shouting at or intimidation of JS. The appellant explained to Mr Fullerton that he had been "mood-matching".
[7] It was not in dispute that the appellant's inappropriate and unacceptable choice of language in the conversation of 17 November 2008 would not in itself justify dismissal. The allegation stemming from Ms Struthers of possible misconduct on the night of 22/23 November 2008 was therefore essential to any justification of the dismissal of the appellant.
The ET decision
[8] In reaching its decision the ET carefully and fully set out the test which it required to apply. While it was, in the event, not disputed by counsel for the respondents that the ET had instructed itself correctly as to the appropriate test it is convenient to repeat the ET's own exposition:
"129. The Tribunal throughout was mindful of the fact that it must not substitute its own decision for that of the employer. Rather it must decide whether the employer's response fell within the range or band of reasonable responses open to a reasonable employer in the circumstances of the case (Iceland Frozen Foods Ltd v Jones (1982) 1RLR 439). The Tribunal bore in mind throughout what this test means in practice. In a given set of circumstances one employer may decide that dismissal is the appropriate response while another employer may decide in the same circumstances that a lesser penalty is appropriate. Both of these decisions may be responses which fall within the band of reasonable responses in the circumstances of the case.
130. The Court of Appeal has also established that the 'range of reasonable responses' test applies both to the decision to dismiss and to the procedure by which that decision is reached - Sainsbury Supermarkets Ltd v Hitt (2003) 1RLR 23.
131. In this case the respondents dismissed for misconduct which is a potentially fair reason for dismissal under Section 98(2)(b) of ERA.
132. The Tribunal therefore bore in mind the test set down by the EAT in British Home Stores Ltd v Burchell (1978) 1RLR 379 with regard to the approach to be taken in considering the terms of what is now Section 98(4) ERA:
'What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, but not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and thirdly, we think, that the employer at the stage at...
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