(Selected paragraphs have been copied from EAT Judgment – linked references are my own interventions/commentary)

Introduction

1.                  This is an appeal by Dr John Frederick Allen (“the Claimant”) against part of a Judgment of the Employment Tribunal sitting in East London (Employment Judge Burgher, Mrs Taylor and Mr Watson) dated 3 June 2015.  By its Judgment the Employment Tribunal found that the Claimant was unfairly dismissed, but it found that he caused or contributed to his dismissal by 100 per cent and awarded him no compensation.  He appeals against that finding.

The Background Facts

2.                  The Claimant was employed by Queen Mary University of London (“the Respondent”) as a Professor of Biochemistry working within its School of Biological and Chemical Sciences.  His employment commenced on 1 January 2005.  In 2011 Professor Matthew Evans became Head of the School and the Claimant’s line manager.

3.                  Following his appointment Professor Evans began to consult about a restructuring of the School.  The Claimant was opposed to this restructuring and the criteria that were used to implement it.  The relationship between Professor Evans and the Claimant progressively worsened.

4.                  In May 2012 the Claimant and a colleague wrote a letter which was published in the Lancet journal.  It accused Professor Evans of double standards – in particular that he did not himself meet a “metric” that he sought to impose on his colleagues.  The Employment Tribunal found that this letter was misleading.  If the Claimant had fully stated the metric, Professor Evans would have been found to comply with it.  The Claimant gave an explanation for his failure to state the metric fully which the Employment Tribunal rejected as not credible.  As the Employment Tribunal found, the publishing of this misleading letter was a matter of concern not only to Professor Evans, whose reputation it affected, but also to other senior academics within the Respondent’s organisation.

5.                  Between 1 September 2012 and 31 August 2013 the Claimant was on sabbatical leave.  He expected to return to broadly the same duties after his sabbatical.  The Employment Tribunal found that this would be the norm and that it was very rare, if not unique, for an academic who goes on sabbatical to find all their pre-sabbatical teaching removed on their return.  This, however, is what happened in the Claimant’s case.  The Employment Tribunal was critical of the Respondent in this respect.  It did not accept the Respondent’s explanation for removing all the Claimant’s pre-sabbatical duties.  It was “unimpressed” with the absence of consultation with the Claimant concerning the removal of those duties.  It found that it was unreasonable to remove the duties and not in accordance with good and proper industrial practice.  The Claimant himself started a grievance against Professor Evans.  The grievance was at first ignored and when it was addressed it was rejected.

6.                  Although the Claimant was not given any of his previous teaching, he was asked to teach two courses.

7.                  Firstly, he was asked to teach a course entitled SBC100.  The Employment Tribunal found, although the Claimant disputed it, that he indicated that he was not prepared to do so.  Following a disciplinary process, he was issued with a written warning on 6 January 2014.  The subsequent appeal was dismissed on 19 March 2014.

8.                  Secondly, in December he was asked to teach a course entitled SEF032.  He declined to do so.  After further emails in January 2014, to which he did not respond, on 4 February 2014 he was expressly instructed to teach the course.  He replied to the email that his decision had not changed.  He was told that if he did not undertake the teaching and respond by an agreed deadline it would constitute a failure to follow a reasonable management instruction.  Following an investigation and a disciplinary procedure he was dismissed summarily by letter dated 23 May 2014.

The Employment Tribunal’s Reasons

10.              In its conclusions the Employment Tribunal rejected the Claimant’s argument that the Lancet letter amounted to a protected disclosure and turned to the question of unfair dismissal.  It is important to quote certain sections of the Employment Tribunal’s Reasons.

11.              As regards the existing teaching allocation, it said the following (paragraph 73.1):

“73.1. It was unreasonable for Professor Evans to remove the Claimant’s existing teaching allocation in March 2013 whilst he was on sabbatical leave.  It was inappropriate and not in accordance with good industry practice.  There was no consultation with the Claimant in relation to removing this work.  Further we consider that the reallocation of his pre sabbatical teaching was inextricably linked to the position the Claimant adopted to the subsequent instructions he was given resulting in disciplinary action in respect of courses SBC100 and SEF032.  Specifically we conclude that the approach to the Claimant’s grievance was confused and unreasonably delayed and it was unreasonable for the Respondent to fail to deal with the Claimant’s grievance in this regard timelessly [sic], and in any event, in the context of the disciplinary action.”

12.              As regards the instruction to do the SEF032 course, it said the following (paragraph 73.4):

“73.4. … the instruction to do the SEF032 course was reasonable, both in respect of content and timing.  This was the basis for dismissal of the Claimant, not an alleged failure to read management emails.  We conclude that the Claimant’s reaction to Dr Michael’s instruction was unreasonable and constituted a failure to follow a reasonable management instruction, albeit in the context of the perception that his pre-sabbatical work teaching had been unfairly and unreasonably taken from him.”

13.              The Employment Tribunal found that dismissal was within the band of reasonable responses open to the Respondent in view of the “clear disregard of the reasonable management instruction”; that the Respondent had undertaken an appropriate investigation; that the disciplinary procedure was fair; and that the dismissal was genuinely for disregard of the instruction.

14.              Why, then, did the Employment Tribunal find that the dismissal was unfair?  It set out its reasons in paragraph 75:

“75. Having said that, we conclude that the failure to consider the removal of the pre-sabbatical work as part and parcel of the investigatory process for the dismissal in respect of SEF032 rendered the dismissal unfair.  In particular the investigation carried out into whether the Claimant had committed an act of gross misconduct was considered in an unreasonably narrow context, given the allegations being made by the Claimant as part of the process.  The Claimant appealed against his dismissal and the appeal was considered fairly against the grounds of appeal presented.”

15.              Having found the dismissal to be unfair, the Employment Tribunal gave the following reasons for saying that the Claimant’s contribution to his dismissal was 100 per cent (paragraph 77):

“77. We then considered whether the Claimant caused or contributed to his dismissal and, if so, to what extent.  We conclude that the Claimant’s relationship with Professor Evans, even on the evidence of the Claimant, had broken down.  On the face of it, the Claimant could have chosen to leave and claim constructive dismissal as a result of the removal of his pre-sabbatical work and the failure to deal with it with this grievance [sic] within a reasonable time.  However, the Claimant did not opt for this route, choosing instead to disregard what we consider to be reasonable management instructions in relation to teaching requirements.  The Claimant was not entitled to do this and this especially in the context of the Respondent’s disciplinary procedures and his previous history of failing to comply with reasonable management instructions.  He clearly demonstrated that he was not prepared to be managed.  He had previously challenged management instructions; he did so on this occasion and faced the ultimate consequence of doing so.  In these circumstances we conclude that the Claimant contributed to his dismissal by 100%.”

Discussion and Conclusions

22.              The Employment Appeal Tribunal is limited by Parliament to consideration of questions of law (see section 21(1) of the Employment Tribunals Act 1996 (“ETA”)).  Its task is to ensure that the Employment Tribunal has applied the law correctly, given sufficient reasons for its conclusions and reached findings of fact that were permissible on the evidence; that is to say, not perverse.  If the Employment Tribunal has met these standards, the Employment Appeal Tribunal has no power to intervene.  In particular, it has no power to intervene merely because it would itself have reached a different conclusion.

28.              The first six lines of paragraph 77, far from supporting a 100 per cent deduction for contribution, would appear to point quite strongly against a 100 per cent deduction for contribution.  The Employment Tribunal found that the Respondent’s conduct in removing the whole of the Claimant’s pre-sabbatical work was such a serious breach of contract that, taken together with its failure to deal with his grievance in a reasonable time, it would have justified him in resigning and claiming constructive dismissal.  It had already found the dismissal to be unfair because the Respondent had failed to consider the removal of his pre-sabbatical work as part and parcel of the investigatory process for the dismissal.

29.              I cannot see how the Employment Tribunal has reconciled this serious criticism of the Respondent with its finding of 100 per cent contributory conduct, which depends at the least on a finding that the Claimant was wholly responsible for his own dismissal.  Presumably, the Employment Tribunal thought that if the Claimant’s complaints about the removal of pre-sabbatical work had been considered in the investigation process, the conclusion should have been that the Respondent was in serious breach of contract.  The Respondent would then have had to face up to this reality in the disciplinary and appeal hearing before deciding to dismiss the Claimant.  It is one thing to dismiss an employee for being obdurate about taking on fresh work when he is in the wrong, arguably another to do so when he has been the subject of a serious wrong that has not been corrected.

30.              The Employment Tribunal said in the last part of paragraph 77 that the Claimant was not entitled to disregard reasonable management instructions in relation to teaching requirements.  This would plainly justify a reduction in the award.  However, given the Employment Tribunal’s serious findings against the Respondent, I am not confident that the Employment Tribunal identified that in order to reduce the award by 100 per cent it had to be satisfied that the Claimant’s conduct alone was reasonable for his dismissal, and even then it had to ask whether it was just and equitable for the award to be extinguished.  This is why 100 per cent reductions in awards are rare and exceptional.  I see no indication in the Employment Tribunal’s Reasons that it has had these questions in mind and applied the law in this area.  For these reasons, I uphold the grounds of appeal that relate to the Employment Tribunal’s assessment of 100 per cent contribution.

Disposal

39.              In accordance with Rao, I first approach the Polkey question.  If the Respondent had, as it should have done, considered the removal of pre-sabbatical work as part and parcel of the investigatory process, was there nevertheless still a chance that the Claimant would have been dismissed, and if so, how great was that chance?  I must approach this question on the basis that the Respondent would have acted fairly.  Given this assumption and given the Employment Tribunal’s strong findings and criticism relating to the Respondent’s conduct in removing pre-sabbatical work, I consider that it would have been incumbent on the Respondent, acting fairly, to have recognised that the Claimant had a legitimate sense of grievance about the removal of pre-sabbatical work.  That was the context for his intransigence in March, a time by which his grievance should have been determined.

40.              There was, put simply, fault on both sides.  There must, in those circumstances, have been a substantial chance that the Respondent would have dealt with the matter in a way short of dismissal.  Recognising the delay in the grievance procedure and recognising that there was fault on both sides, it is easy to see that the matter might have been addressed by a final written warning or even by some form of mediation.

41.              I must, however, recognise a chance that the Claimant could have been dismissed in any event.  Albeit in the context of an outstanding justified grievance, he had disobeyed a clear instruction at a time when he was subject to a written warning.  He had been told that teaching the new course was entirely without prejudice to the grievance concerning his pre-sabbatical work.  Once the justice of his grievance had been recognised, as it should have been, I think immediate dismissal would probably have been regarded as too severe a sanction, but I recognise a significant chance that the Claimant might have been dismissed in any event.  I must make a broad assessment of that chance.  I put it at 25 per cent.

43.              I have no doubt that the Claimant was guilty of blameworthy conduct and that his blameworthy conduct contributed to his dismissal.  The blameworthy conduct is set out in the Employment Tribunal’s Decision, especially at paragraphs 45, 51, 59 to 62, 73.4 and 73.5.  These are the passages to which Mr Adkin asks me to have regard, and I have done so.  It is plain that this conduct contributed to the dismissal, the Employment Tribunal so found, and the dismissal letter also makes it plain.  Just as the Respondent could have avoided the dismissal by addressing the Claimant’s grievance in good time or at the very least as part of the disciplinary process, so the Claimant could have avoided the dismissal by obeying the instruction to teach the course under protest, especially since he had been told that it would not prejudice his grievance.  I have carefully borne in mind that I have already made a Polkey reduction and the severe strictures of the Employment Tribunal about the Respondent’s conduct.  I consider that it is just and equitable to reduce the Claimant’s compensation by a further one third for his blameworthy conduct.