Peter Sabourin v BT Group Plc

In a reserved decision arising from a hearing at East London Hearing Centre, Employment Judge Comfort dismissed the claimant’s complaint of unfair dismissal, holding that he had been fairly dismissed by reason of capability. The claimant appeals from that decision. Ms Halsall of counsel has appeared for the claimant, as she did before the tribunal. Mr Proffitt of counsel now appears for the respondent, which was represented before the tribunal by a solicitor, Ms Hanmer.

The background facts as found by the tribunal can be summarised as follows. The claimant’s employment with the respondent began in 2009. In around November 2021 he took up a position as project manager within the data compliance and assurance (DCA) team. Ian Chown joined the team in December 2021. He was Senior Manager of Data Projects. The claimant reported to him. Mr Chown reported to Matthew Dalby, BT Director for the DCA team.

From early 2022 Mr Chown had concerns about the claimant’s performance which he initially decided to address through “coaching and positive affirmation”. However, Mr Chown subsequently initiated a formal performance review process in August 2022. He had a face-to-face meeting with the claimant at which slides were used and clear expectations were set out. These were not new to the claimant as they had in substance been set out in an earlier performance review.

On 18 October 2022 an informal performance improvement plan (PIP), was agreed, which set out nine areas for improvement. The claimant agreed those goals. Despite the goals being reviewed with him on a weekly basis, Mr Chown concluded that there was no improvement. As a result, on 23 November 2022 a first formal performance meeting was held between the claimant and Mr Chown at which the PIP was formalised, with the number of goals reduced from nine to seven. At the conclusion of the meeting Mr Chown decided to issue the claimant with a first written warning. That was confirmed in a letter of 25 November 2022. The claimant was given the opportunity to appeal that warning but did not do so.

The PIP was reviewed at a further formal meeting with Mr Chown on 5 January 2023 at which the claimant was represented. The meeting lasted over an hour. Mr Chown went systematically through each of the goals in the PIP, identified areas of concern and discussed them with the claimant. At paragraph 60 the tribunal said:

“60.

Mr Chown decided that the progress the claimant had made was not enough to conclude the PIP and issued the claimant with a final written warning.”

As to the warning letter itself, the tribunal said the following:

“61.

The claimant was issued with a final warning in a letter dated 9 January 2023 and given the opportunity to appeal this within 7 days. I was provided with a copy of that letter. The letter was signed by Mr Dalby. Mr Chown said that this was due to an issue with the HR system. He said that he informed the claimant that this was a mistake and that the letter was meant to be sent from him.

62.

It was suggested in submissions that this matter reflects on Mr Dalby’s credibility and implies an unfair process. I have given this careful consideration. I accept Mr Dalby’s explanation that he was acting on the advice of his HR department. I am satisfied that Mr Chown conducted the second formal interview and that is supported by the transcript. I am also satisfied that Mr Chown made the decision to issue a final warning to the claimant. I have no reason to doubt the evidence given by either Mr Chown or Mr Dalby in relation to this matter.”

The claimant put in an appeal to Mr Dalby, but he refused it because it was out of time. Under the heading “decision meeting” the tribunal said this:

“64.

A final decision meeting was held on 20 January 2023. I was provided with a copy of the letter inviting the claimant to the meeting and a transcript of the meeting. The claimant was represented. The meeting lasted for around one hour. It was chaired by Mr Dalby.

65.

The claimant was informed of the decision to dismiss him in a letter dated 26 January 2023.”

I interpose that, as the tribunal later referenced, the claimant was in fact given notice and placed on garden leave. There was, and is, no dispute that his employment ended on 1 May 2023. Under the heading: “Timing of the decision meeting” the tribunal found as follows:

“66.

I was provided with and have considered the respondent’s Improving Performance Policy and Improving Performance Procedure. These documents set out clearly the process to be followed to address underperformance; it starts with an informal stage and moves progressively to a first formal, then second formal then decision meeting with usual monitoring periods of four weeks.

67.

The final warning letter was issued on 9 January 2023 and advised that a decision meeting was to be held on 20 January 2023. This gave the claimant 10 working days to provide evidence of his improved performance.

68.

I have reviewed the policy which states “usual monitoring is 4 weeks, may differ depending on role/circumstance.”

69.

I have considered the timing of the decision meeting in the context of the overall performance improvement process. I am satisfied that the respondent’s policy and procedures were followed throughout.

70.

I agree with Ms Goel that the final part of the process was ‘speedy’. However, I also accept her evidence and that of Mr Dalby that the claimant was an experienced project manager who had been in the role for over 12 months. He was in a high risk area where failure had the potential to have an adverse impact on the respondent’s business. He had been subject to the PIP for a number of weeks and slightly more than provided for in the policy. He had not shown signs of improvement and from the evidence did not believe that the PIP was required. In all of the circumstances, I consider that the PIP process was fair.

71.

From the evidence, I am also satisfied that Mr Dalby considered alternatives to dismissal. Demotion was not an option as the team was too small. Both he and Mr Chown looked for alternatives within the respondent’s organisation and gave the claimant time, whilst on garden leave, to apply for any in-house vacancies.”

The claimant appealed against dismissal and also raised a grievance in relation to it. Both of these were considered by a BT HR Business Partner, Manasi Goel, at a meeting at which the claimant was represented. Ms Goel came from a different part of the business to Mr Chown and Mr Dalby. The claimant also raised a further grievance and had a further appeal hearing before Paul McDermott, a manager from a different part of the business to Mr Chown, Mr Dalby and Ms Goel. These internal challenges were all unsuccessful.

Under the section headed: “Conclusion” the tribunal found that the principal reason for the dismissal was capability. There was an honest belief that the claimant lacked the capability to do the job and there were reasonable grounds for that belief. The tribunal stated at [84] that it was satisfied that there was adequate evidence of the claimant’s lack of capability at each stage of the PIP process, including at the decision meeting when the claimant was dismissed.

The tribunal continued at [85] to [87] that the respondent had carried out a thorough and reasonable investigation before coming to that conclusion, and the PIP process was fair and in accordance with its procedure, including the informal process. It provided the claimant with over four months to improve. Realistic and achievable goals were agreed and reviewed weekly. The claimant was provided with regular support and coaching. The tribunal accepted the respondent’s position that, in light of his experience and qualifications, he should have been capable of undertaking the role without additional training. The tribunal concluded as follows:

“88.

I am satisfied that the respondent considered alternatives to dismissal and provided the claimant with opportunities to apply for alternative employment within its business. I consider that in all of the circumstances dismissal was within the band of reasonable responses that an employer may be reasonably expected to take.

89.

Finally, I am satisfied that the respondent provided opportunities for the claimant to appeal decisions and register any grievances. The appeal meetings were conducted fairly by individuals with no prior knowledge of the circumstances and no involvement in the claimant’s area of work.

90.

In conclusion I find that the claimant was dismissed for capability and that the respondent acted reasonably in treating it as a sufficient reason for dismissing the claimant.”

I turn to the grounds of appeal. Ground 1 refers to the final written warning issued on 9 January 2023. It contends that the tribunal made contradictory factual findings and erred by not considering whether Mr Dalby was an impartial dismissal officer. The contradiction is said to be between: the findings at [61], that Mr Chown said that the letter giving the final written warning was signed by Mr Dalby due to an issue with the HR system and that he, Mr Chown, had told the claimant that this was a mistake and a letter was meant to be sent from him; and the tribunal’s acceptance at [62], of the evidence from Mr Dalby that he was acting on the advice of HR. The ground asserts that the tribunal did not consider whether Mr Dalby was impartial “given that he had signed theletter and had spoken to Mr Chown in depth about the capability issues”.

In argument today, Ms Halsall indicated that she did not rely upon that last proposition (that Mr Dalby had spoken to Mr Chown), as she accepted that there was no specific finding by the tribunal to that effect. Nor did she contend that there would be a contradiction between the findings to which this ground related, if they addressed nothing more than the question of why the letter had been signed by Mr Dalby rather than Mr Chown.

However, she referred to the fact that it had been part of her case, as set out in her written closing submission to the tribunal, that Mr Dalby had, in the course of oral evidence, conceded not merely that he had signed the warning letter on HR advice, but that he had himself written it. She submitted that at [62] the tribunal had accepted that evidence from him as fact. That finding of fact contradicted its acceptance from Mr Chown about there merely having been a mistake in relation to a letter that was meant to be sent by him. Had the tribunal properly considered the implications of its acceptance that Mr Dalby had drafted the letter, it would have needed to consider whether that pointed to the conclusion that he had himself substantively taken, or been involved in, the decision to issue the warning. If so, it would then have needed to consider the implications of such a conclusion for whether he was an impartial decision-maker at the dismissal stage.

This ground, and Ms Halsall’s skeleton, cited Whitbread Plc v Hall [2001] EWCA Civ 268; [2001] ICR 699 in support. That was a case of dismissal for misconduct, in which the tribunal had found that the decision-maker, who was the claimant’s line manager, had, when she raised the disciplinary charges, already made up her mind that he should be dismissed for his admitted conduct, and had not considered any other option. That rendered that dismissal unfair, even though dismissal would have been a potential reasonable response to the admitted conduct of the claimant in that case. The tribunal’s decision was upheld by the EAT and the Court of Appeal.

In the course of oral argument, Ms Halsall confirmed that she was not contending, by reference to Whitbread v Hall or otherwise, that as a matter of law, had Mr Dalby taken the decision to issue the final written warning, then the tribunal would have been bound to conclude that it was unfair for him also to be the decision-maker at the dismissal stage. But she argued that, had the tribunal so found, that would have been a potentially relevant consideration when deciding whether the dismissal was overall fair; and that, because the tribunal had made contradictory findings of fact, it had failed to go on to consider that possibility.

My conclusions on this ground are as follows. Firstly, as there was no agreed note before me, nor any definitive record from the tribunal itself, of the precise evidence that Mr Dalby had given it on this point, this ground must stand or fall on whether the tribunal did make contradictory findings of fact on a material issue. As to that, as I have set out, the tribunal found at [57] onwards that the meeting which led to the final warning was with Mr Chown. It also found at [60] that Mr Chown decided that the progress made was not enough and “issued the claimant with a final written warning”. It also found in terms at [62] that it was satisfied that the decision to issue a final written warning was made by Mr Chown.

As to the letter itself, the point specifically identified at the start of [61] was that that letter was signed by Mr Dalby rather than Mr Chown. What the tribunal went on to say related to what Mr Chown said about that;and what it said at [62] related to Mr Dalby’s explanation for that, that is to say, that the letter was signed by him, rather than by Mr Chown. What the tribunal in substance found that they both agreed about, was that that happened at the instigation of HR. Mr Dalby said he was acting on HR advice, Mr Chown that this arose from an issue with the HR system and a mistake. There was no inherent contradiction in those accounts of how it came about that it was Mr Dalby, rather than Mr Chown, who signed the letter, as such.

I do not agree with Ms Halsall that it can or should be inferred from the finding at [62] – that Mr Dalby was acting on the advice of his HR department – that he had not only signed, but himself drafted, the letter, still less that it can be inferred that the tribunal found that he had signed (or drafted) it because he was, in fact, the one who had taken the decision. In the absence of any contradiction in the tribunal’s factual findings, the first link in Ms Halsall’s chain of reasoning is not forged, and so the whole chain falls away. For these reasons, I do not uphold ground 1.

Ground 2 is described at [17] of the grounds of appeal as being that the tribunal made contradictory factual findings or, in any event, erred in law “by not considering Mr Dalby’s evidence that they did not consider the claimant’s performance between the final written warning and the decision to dismiss”. At [24] of the grounds it is asserted that Mr Dalby had stated in oral evidence “that he had not considered any evidence between the final written warning and the decision to dismiss and he had relied on the information collated by Mr Chown.” The criticism of the tribunal then advanced in this ground, is that it failed to consider this aspect in the reasons at all, and that this omission was critical in respect of the issue of fairness. So, the criticism advanced by this ground is not that the tribunal made two different factual findings that were contradictory, but, rather, that it omitted to make findings, and reach a conclusion, about a distinct issue which was advanced by the claimant as going to the fairness of the dismissal, which it needed to address.

The tribunal did consider whether enough time was allowed between the final written warning and the next review meeting, to give the claimant a fair opportunity to improve his performance before it was reviewed again. The meeting which led to the final warning was on 5 January, the warning letter was issued on 9 January, and that letter set a further meeting for 20 January 2023.At [70] the tribunal considered that to be “speedy”, but not unfair. It took that view having regard to the overall amount of time that the claimant had been in the new role, and the overall number of weeks through which the PIP process had been running from start to finish, which it reckoned was “slightly more” than the overall total of the indicative number of weeks for each stage of the PIP process indicated in the respondent’s policy.

However, this ground raises a distinct issue. It contends that the tribunal failed to address a distinct argument advanced on behalf of the claimant, that the dismissal was also, or in any event, unfair, because Mr Dalby had not considered at all what had occurred after the final warning was issued, but had simply based his decision on the evidence gathered by Mr Chown up until then.

Ms Halsall’s case was that Mr Dalby had given oral evidence to that effect. Mr Proffitt made it clear that that account of Mr Dalby’s evidence to the tribunal was not agreed. He noted that there was before me no agreed record, nor any definitive record from the tribunal itself, of what evidence Mr Dalby had or had not given on that precise point.However, the nub of the ground is that the contention had been advanced on behalf of the claimant that, in effect, Mr Dalby’s decision to dismiss was taken on the basis of the same evidence as Mr Chown’s decision to issue a final written warning. In substance, the contention was that it was unfair to proceed from a final written warning to a decision to dismiss two weeks later, without considering what had happened since.

The criticism advanced by the ground is that this was a fairness issue that the tribunal needed to address, but did not. Ms Halsall referred me to the assertion within [31] of her written closing argument to the tribunal, that “MD did nothing in terms of looking at improvement in that period and simply used ten days to make the decision to dismiss C”. She submitted, in short, that, by failing to address this material contention, the tribunal’s decision was at least not Meek-compliant; or it erred by failing to address a distinct material plank of her case on unfairness.

Mr Proffitt relied on the well-established principles in the authorities to the effect that it is not necessary for a tribunal to make findings of fact about every aspect that is raised in evidence, nor to address specifically every last detail of the submissions made by the parties. He also said that it was apparent that the main thrust of the claimant’s criticism of the final stage following the written warning, was that the respondent had simply not allowed the claimant sufficient time to improve his performance, before the decision on whether to dismiss him was taken just two weeks later. What Ms Halsall was relying upon was a couple of lines embedded within a longer paragraph of her closing written argument, within a section the general thrust of which went to the point about whether sufficient time had been allowed for the claimant to improve.

My conclusions on this ground are these. Both counsel have invoked established lines of authority, which co-exist. One line establishes that a tribunal is not obliged to address in its decision every last detail of a party’s case or argument, and it is not to be assumed that arguments that it has not expressly addressed have therefore not been considered. Another holds that the tribunal will err if it fails sufficiently to explain its decision to the losing party and/or fails to address a significant and material argument that is relied upon by a party in support of its case.

In the present case, there was a specific argument raised in Ms Halsall’s closing submissions, which was distinct from the proposition that the claimant had not been given sufficient time to improve. She asserted in terms that Mr Dalby had simply failed to consider whether there had been any improvement since the written warning was given. It is not unusual, particularly in unfair dismissal claims, that a new line of argument may be raised at the close of evidence, in light of something that has been said, or emerged, in evidence in the course of the hearing.

In this case, the point advanced by Ms Halsall was a distinct and material challenge to the fairness of the decision to dismiss the claimant. It was advanced also in a context where, as was a matter of record, and the tribunal found, a final written warning letter issued on a Monday, had set a further meeting to take place on the Friday of the following week. The tribunal also, I note, evidently had before it, as it refers to it in [64], a transcript of that meeting before Mr Dalby, and it heard from him and Mr Chown. It should therefore have been in a position to make a finding from the evidence available to it, as to whether Mr Dalby had given any active consideration to the claimant’s performance in the two weeks since the final written warning or not. But this is not addressed in the tribunal’s brief findings about that meeting at [64].

It is true that the tribunal states at [84] that it is satisfied that there was adequate evidence of the claimant’s lack of capability at each stage of the process, including at the meeting when the claimant was dismissed. But the perspective of the passage of which [84] forms part, appears, as with [70], to be on the tribunal’s big-picture assessment of the overall process from start to finish, and whether it was within the band of reasonable responses to dismiss in view of the evidence of progress over the whole period of that process.

Mr Proffitt submits in so many words that that approach was sound, because, in line with Taylor v OCS Group Ltd [2006] EWCA Civ 702; [2006] ICR 1602, the tribunal’s task under section 98(4) Employment Rights Act 1996 was to consider the fairness of the “end-to-end process”. However, I do not think that Taylor assists. It seems to me that, had the tribunal found that the claimant had, in effect, been dismissed based on the same performance record for which he had previously two weeks earlier been given a final written warning, it would at the very least have been arguable that this rendered the dismissal unfair, even if there might otherwise have been a basis for the tribunal to conclude that, had it been otherwise, dismissal at that point, in light of the overall record, would have been within the band of reasonable responses.

I conclude ultimately that this was a specific distinct, and material, argument of unfairness, that the tribunal needed to address expressly in its decision. It failed to do so. To that extent, I uphold ground 2; but I will hear further submissions from counsel as to what the implications are for the overall outcome of the appeal, and next steps consequent upon that conclusion.

I turn to ground 3. This contends in initial headline that the tribunal made contradictory factual findings or, in any event, erred in law, by finding at [71] that Mr Dalby and Mr Chown looked for alternative roles within the respondent’s organisation. But in the detailed ground that finding is said to be contrary, not to another finding of fact made by the tribunal, but to the oral evidence of both Mr Dalby and Mr Chown, which is said to have been that they did not themselves look for alternative vacancies outside the legal department of which the DCA formed a part.

Mr Proffitt confirmed that on this matter there is no dispute that the evidence of Messrs Dalby and Chown was indeed to that effect. But he submitted that the tribunal had also properly found that the claimant himself had the opportunity, whilst on garden leave, to apply for any in-house vacancies throughout the respondent’s organisation. The tribunal was fully entitled to conclude that it was a fair approach for Mr Dalby and Mr Chown to consider whether there were any suitable vacancies within the legal department of which the DCA formed a part, while the claimant also had the opportunity himself to look at what vacancies were available within the wider organisation, during the course of his garden leave, and apply for any that interested him.

Ms Halsall confirmed that it was not her case that the tribunal would have been bound to find that that approach to the matter of alternative employment was inherently unfair. Rather, it was her case that the tribunal had made a finding of fact at [71], that Messrs Chown and Dalby had proactively looked for any vacancies throughout the respondent’s entire organisation, and not merely within the legal department; but that finding of fact was contrary to the evidence of them both. So, the tribunal had failed to consider whether the approach actually taken to the question of alternative employment was fair or not fair in this case, on the correct factual basis.

Whether this ground of appeal is made out depends on what is the fair reading of the findings of fact that the tribunal, in fact, made. Ms Halsall submits that when the tribunal said at [71] that Messrs Chown and Dalby had looked “within the respondent’s organisation”, it meant throughout the wider company. However, I do not read it that way. It also found at [71] that they had given the claimant time whilst on garden leave to apply for any in-house vacancies; and at [88] it said that the respondent “considered alternatives to dismissal and provided the claimant with opportunities to apply for alternative employment within its business”. Those findings are consistent with the evidence which it was agreed the tribunal was given, and the submissions that the tribunal received from both representatives (copies of which were in my bundle).

I therefore do not uphold ground 3.

I have now heard helpful further argument from both counsel as to the appropriate next step to take in light of my substantive decision on ground 2. In summary, Mr Proffitt’s preferred course would be for me to make a reference back using the Burns/Barke procedure, essentially asking the judge whether he did consider the particular argument advanced by the claimant to the effect that the dismissal was unfair because Mr Dalby did not consider what the performance record was subsequent to the final written warning; and, if so, what the judge’s conclusion on that question was.Mr Proffitt submitted that, depending on the judge’s answer, that could potentially lead to a speedy final resolution of the appeal by the EAT, on the basis of further written submissions.

Ms Halsall’s position was that the matter is not suitable for the Burns/Barke procedure, and that I should uphold the appeal on this ground, quash the tribunal’s decision that the dismissal was fair and remit the matter for fresh consideration. She submitted that that should be by a different tribunal judge, although she accepted that findings made by this tribunal on other issues, such as the reason for dismissal and other issues of fairness, would stand.

I have taken into account the guidance given by the Court of Appeal in Korashi v Abertawe Bro Morgannwg University Local Health Board[2011] EWCA Civ 187. I also note that the common fallback position of both counsel before me, though the preferred position of neither, was that I should remit the matter to the same judge on the basis that there would be an opportunity to make further submissions, but not for further evidence to be required or permitted. I have come to the conclusion that an approach along the lines of that middle course best conforms to the overriding objective in this case.

I see some force in Mr Proffitt’s submission that this is a sufficiently narrow issue that it might be suitable for the Burns/Barke procedure, on the basis that I cannot be entirely certain that the judge simply did not give any consideration to this point at all. Further, he makes the point that in principle all of the evidence given last time will be, one way or another, a matter of record. Mr Proffitt said that therefore I need not be concerned about the risk of the judge having what in the context of remission issues is referred to as a second bite of the cherry.

There was some uncertainty before me about whether there will now be available to the judge an audio recording of the evidence given last time. But it should, in any event, be capable of being reconstructed from the judge’s own notes, with assistance if necessary from counsel’s own notes, and the documents in the bundle, including the transcript of the claimant’s meeting with Mr Dalby. Given all of that, the matter can safely and fairly be remitted back to the same judge to make further findings of fact about whether Mr Dalby did or did not consider what had happened since the date of the final written warning, when reaching his decision to dismiss, and, having made those further findings of fact, and against the backcloth of all the other findings and conclusions already reached, then to come to a fresh conclusion as to whether this was a fair or unfair dismissal. If it was unfair, the tribunal will then need to consider submissions and arguments about Polkey and any other matters said to go to remedy, which can only be made to it, not the EAT.

I am not sufficiently confident that instead following the Burns/Barke procedure will lead to a speedier or more definitive conclusion in the EAT. I cannot rule out that a further EAT hearing would be needed following the tribunal’s reply (Ms Halsall did not preclude seeking one). Even if the matter was dealt with on paper, there would be further delay, and a real risk that, one way or another, the matter might have to go back to the tribunal for further consideration in any event.

Overall, therefore, I have decided to not make a Burns/Barke reference, but to uphold the appeal on ground 2, to quash the decision that the dismissal was fair, and to remit the matter to the same judge, if available, specifically to decide whether, in fact, Mr Dalby did or did not consider what had happened since the date of the final written warning, and then, taking account also of the findings already made, whether the dismissal was fair or unfair. Remission is on the basis that no new evidence should be admitted before deciding that question, unless, in light of the state of the evidential records from the last hearing now available, the judge decides that the interests of justice require it. Both parties agree that the parties should be allowed to make further submissions on this issue; and it will be for the tribunal to decide whether it can be dealt with on paper or at a hearing.